Larsen v. Astrue

Filing 21

MEMORANDUM & ORDER: Plaintiff's 14 Motion to Remand for a new hearing is granted, and Defendant's 12 Motion for Judgment on the Pleadings is denied. Ordered by Chief Judge Carol Bagley Amon on 7/12/2013. (fwd'd for jgm) (Lee, Tiffeny)

FILED
IN CLERK'S OFFICE
US DISTR!CTCOURTE.0.N.~

* JUL 15 2013 *

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

------------------------------------------------------------------x
CAREY MARIE LARSEN,
Plaintiff,

BROOKLYN OFFICE
NOT FOR PUBLICATION
MEMORANDUM & ORDER
12-CV-00414 (CBA)

- against MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant.

--------------------------------------------------------------------x
AMON, Chief United States District Judge.
Plaintiff Carey Larsen has petitioned for review of the Commissioner's denial of
disability insurance benefits. The parties have cross-moved for judgment on the pleadings.
Having reviewed the Administrative Law Judge's ruling, the record, and the parties'
submissions, the Court finds that the ALJ committed reversible error in this case by (1) failing to
properly apply the treating physician rule with respect to treating physician, Dr. Scott Gray;
(2) improperly discounting the plaintiff's credibility; and (3) failing to support her residual
functional assessment with substantial evidence. In light of these errors and because the record
contains conflicting evidence with regards to the plaintiff's disability and functional capacity to
work, the Court remands this case for further administrative proceedings pursuant to 42 U.S.C.
§ 405(g).
DISCUSSION

Under§ 205(g) of the Social Security Act, a district court "shall have power to enter,
upon the pleadings and transcript of the record, a judgment affirming, modifying, orreversing
the decision of the Commissioner of Social Security, with or without remanding the cause for a
rehearing." In reviewing a final decision of the Social Security Administration ("SSA"), the

1

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." Talavera v. Astrue, 697 F.3d
145, 151 (2d Cir. 2012) (quoting Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 507 (2d Cir.
2009)); accord Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999) ("In reviewing the
Commissioner's denial of benefits, the courts are to uphold the decision unless it is not supported
by substantial evidence or is based on an error oflaw."). 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."' Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). "In determining whether the agency's findings were
supported by substantial evidence, the reviewing court is required to examine the entire record,
including contradictory evidence and evidence from which conflicting inferences can be drawn."
Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (internal quotation marks omitted). However,
the Court keeps in mind "that it is up to the agency, and not this court, to weigh the conflicting
evidence in the record." Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).

I. The Treating Physician Rule
It is well settled that the opinion of a treating physician on "the nature or severity" of a
claimant's impairments is 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 [plaintiffs] case record." 20 C.F.R. § 404.1527(c)(2); see also Selian
v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013). Although a consultative physician's opinion can be
substantial evidence, as the Second Circuit has recently cautioned, "ALJ's should not rely
heavily on the findings of consultative physicians after a single examination." Selian, 708 F.3d
at 419. In addition, to "override" the opinion of the treating physician, "the ALJ must explicitly

2

consider, inter alia: (1) the frequency, length, nature, and extent of treatment; (2) the amount of
medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining
medical evidence; and (4) whether the physician is a specialist. Id. at 418 (citing Burgess v.
Astrue, 537 F.3d 117, 129 (2d Cir. 2008)). Using these factors, the ALJ must "comprehensively
set forth reasons for the weight assigned to a treating physician's opinions." Halloran v.
Barnhart, 362 F.3d 28, 33 (2d Cir. 2004). Failure to articulate such "good reasons" for the
weight accorded to a treating physician's opinion constitutes proper grounds for remand. See id.
Here, the ALJ determined that the opinions of consultative examiner, Dr. Navindra
Ramdeen, were entitled to "great weight," while the opinions of treating orthopedist Dr. Gray
were entitled to "less weight." (Tr. 21.) Dr. Gray's opinions, the ALJ found, were not
"supported by the medical evidence ofrecord" and "actually contradicted by claimant's daily
activities and capabilities." (Tr. 20.)
In making this determination, the ALJ committed legal error in failing to give "good
reasons" for her determination that Dr. Gray's opinions were entitled to "less weight." Indeed,
other than a brief discussion of some of Dr. Gray's findings and conclusory statements that his
opinions were "unsupported by the medical evidence of record," the ALJ spent almost no time
explaining why, despite the existence of corroborating evidence in the record, Dr. Gray's
opinions were nevertheless entitled only to "less weight." Instead, the ALJ appeared to direct
her analysis to supporting Dr. Ramdeen's ultimate conclusions regarding the plaintiff's
functional limitations. This discussion, however, does not discharge the ALJ's obligation to
"comprehensively set forth reasons" for the weight accorded to a treating physician's opinion.
The ALJ' s cursory discussion also failed to consider all of the factors that are required
when not affording controlling weight to a treating physician's opinion. See Schaal v. Apfel,

3

134 F.3d 496, 504 (2d Cir. 1998). For one, the ALJ did not offer any discussion of the
"frequency, length, nature, and extent of treatment" provided by Dr. Gray. "Generally, the
longer a treating source has treated [the plaintiff] and the more times [the plaintiff] has been seen
by a treating source, the more weight [the Commissioner] will give to the source's medical
opinion." 20 C.F.R. § 404.1527(c)(2)(i). Nevertheless, the ALJ appeared to give no weight to
the fact that Dr. Gray saw the plaintiff at least thirteen times over the course of almost two and
half years (Tr. 265-90; 445-48), while Dr. Ramdeen saw her only once (Tr. 311-15.). In
addition, the ALJ did not appear to give any weight to the fact that Dr. Gray is a specialist.
Moreover, although the ALJ did mention evidence in the record that corroborated aspects of Dr.
Gray's findings and ultimate conclusions, including the plaintiff's 2009 MRI and the findings of
pain specialist Dr. Mathew Lefkowitz (Tr. 20-21), the ALJ did not elaborate on how this
evidence affected the weight accorded to Dr. Gray's opinions.

II. The Plaintiff's Credibility
As an initial matter, the Court notes that to the extent that the ALJ, on remand, reevaluates the evidence in addressing the treating physician rule, the ALJ should also consider
whether that re-evaluation alters the assessment of the plaintiff's credibility in light of the
evidence as a whole. See Balodis v. Leavitt, 704 F. Supp. 2d 255, 268 n.14 (E.D.N.Y. 2010). In
addition, the Court finds that the ALJ's decision fails to point to substantial evidence supporting
her determination that the plaintiff's "statements concerning the intensity, persistence and
limiting effects of' her alleged symptoms of pain were not credible because they were.
inconsistent with reported daily activities and capabilities (Tr. 20-21 ).
Where, as here, the medical record contained a number of references to the plaintiff's
subjective symptoms of pain, "it was particularly important that the ALJ explore[] these

4

symptoms with plaintiff so that the ALJ could effectively exercise [her] discretion to evaluate the
credibility [of the claimant to] arrive at an independent judgment ... regarding the true extent of
the pain alleged." Hilsdorfv. Comm'r of Soc. Sec., 724 F. Supp. 2d 330, 352 (E.D.N.Y. 2010)
(quoting Hankerson v. Harris, 636 F.2d 895-96 (2d Cir. 1980)). That the plaintiff practices yoga
and "can cook daily, perform routine household chores once a week, go shopping once a week,
shower and dress herself, watch television, listen to the radio, read, socialize with friends and do
needlepoint stitch" (Tr. 21) does not, without more, necessarily contradict her claim that she
experiences pain when walking or sitting for more than 30 minutes or that her pain causes fatigue
and distractibility. An individual can perform each of these daily activities and still experience
debilitating pain at the intensity and persistence and with the limiting effects she claims. See
Dambrowski v. Astrue, 590 F. Supp. 2d 579, 584 (S.D.N.Y. 2008); Hilsdorf, 724 F. Supp. 2d at
352. Evidence that the plaintiff occasionally travelled by plane is also not by itself inconsistent,
especially in light of evidence, seemingly not considered by the ALJ, indicating that her
symptoms worsened after her trips (see Tr. 414). Whether these activities undermine the
plaintiffs allegations concerning her pain is thus an inquiry that can be resolved only with
further clarification as to the nature of these activities. The ALJ could have obtained this
clarification by additional questioning of the plaintiff at the hearing but did not, neglecting the
ALJ's "obligation to pursue opportunities to evaluate further plaintiffs subjective complaints."
Id.
On remand, therefore, in addition to reconsidering the plaintiffs credibility in light of
any re-evaluations of the evidence, the ALJ should inquire into the particular nature of the
plaintiffs daily activities and how her allegations of pain limit these activities before
determining her credibility. The ALJ should also carefully weigh each of the factors set forth in

5

20 C.F.R. § 416.929(c)(3), including the "type, dosage, effectiveness, and side effects" of any
medication she has taken, a factor which does not appear to have been adequately addressed. If
the ALJ still concludes that the plaintiffs pain contentions are not supported by the objective
evidence, she should explicitly set forth all evidence considered in assessing the plaintiffs
credibility, including, for example, the plaintiffs testimony and indicate exactly how the
plaintiffs subjective experience of pain factors into her ultimate RFC determination.
III. The ALJ's Residual Functional Capacity Assessment

Finally, turning to the ALJ's RFC assessment, the Court notes that the opinion of Dr.
Ramdeen, to which the ALJ afforded "strong weight," does not provide substantial evidence to
support the ALJ' s finding that the plaintiff has the capacity perform work that allows for the
ability to only occasionally alternate positions between sitting and standing. As an initial matter,
Dr. Ramdeen's opinion as to her functional limitations is vague. What he means by "mild" or
"moderate" limitations "is left to the ALJ's sheer speculation." Selian, 708 F.3d at 421. In
addition, the plaintiff states that she has difficulty sitting for long periods of time without
experiencing pain. Dr. Ramdeen, however, makes no mention of what, if any, limitations she
has with respect to sitting. (Tr. 314.) Without more, therefore, Dr. Ramdeen's opinion does not
provide the information necessary to make the inference that the plaintiff has the capacity to
perform the light work described. See Curry v. Apfel, 209 F.3d 117, 123-24 (2d Cir. 2000),
superseded by statute on other grounds. "At a minimum, the ALJ like should have contacted
[Dr. Ramdeen] and sought clarification of his report." Selian, 708 F.3d at 421.
CONCLUSION

Because it is for the Social Security Administration, not this Court, to weigh conflicting
evidence in the first instance and to fully develop the administrative record, the Court remands

6

this case for further administrative proceedings pursuant to the fourth sentence of 42 U.S.C.
§ 405(g).

Accordingly, the plaintiff's motion to remand for a new hearing is granted, and

defendant's motion for judgment on the pleadings is denied. On remand, the ALJ is directed to
consider all of the factors that are required when determining the weight to afford a treating
physician's opinion and to set forth a comprehensive statement of the reasons for the weight
given consistent with the principles stated.

The ALJ is further directed to inquire into the

particular nature of the plaintiff's daily activities and the extent to which her pain limits those
activities and to re-evaluate the credibility of the plaintiff's allegations of her symptoms of pain
accordingly. Finally, should the ALJ decide to continue to rely heavily on the opinion of Dr.
Ramdeen, she should seek clarification of his report and obtain the particulars necessary to
support her RFC assessment. The Clerk of Court is directed to terminate all pending motions
and to close the case.
SO ORDERED.
Dated: Brooklyn, New York
July
[ 1- , 2013

s/Carol Bagley Amon
Carol Bagley 1\rno
Chief United States

7