Vevo v. Berryhill
Filing
18
ORDER: For the reasons set forth in the attached Memorandum and Order, the Court grants Plaintiff's 11 motion for judgment on the pleadings and denies the Commissioner's 15 cross-motion. The Commissioner's decision is remanded for further consideration consistent with this Order. The Clerk of Court is respectfully requested to enter judgment and close this case accordingly. Ordered by Judge Pamela K. Chen on 8/17/2018. (Cuevas Ingram, Joanna)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------X
KIMBERLEIGH D. VEVO,
Plaintiff,
MEMORANDUM & ORDER
against
17-CV-2370 (PKC)
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
------------------------------------------------------------X
PAMELA K. CHEN, United States District Judge:
Plaintiff Kimberleigh D. Vevo (“Plaintiff”) brings this action under 42 U.S.C.§ 405(g),
seeking judicial review of the Social Security Administration’s (“SSA”) denial of her claim for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). The parties
have cross-moved for judgment on the pleadings. (Dkts. 11, 15.) For the reasons set forth below,
the Court grants Plaintiff’s motion for judgment on the pleadings and denies the Commissioner’s
motion. The case is remanded for further proceedings consistent with this Order.
BACKGROUND
On November 4, 2011, Plaintiff filed an application for DIB and SSI, claiming that she had
been disabled since April 7, 2011. (Tr. 326-32, 353.)1 The claim was initially denied on March
28, 2012. (Tr. 139-44.) After her claim was denied, Plaintiff requested a hearing on May 22, 2012
and appeared for a hearing before an Administrative Law Judge (“ALJ”) on June 18, 2013. (Tr.
41-93, 147-48.) By a decision dated July 31, 2013, ALJ David Z. Nisnewitz found that Plaintiff
was not disabled within the meaning of the Social Security Act (the “Act”), from the alleged onset
1
All references to “Tr.” refer to the consecutively paginated Administrative Transcript.
1
of her disability on April 7, 2011 through the date of the ALJ’s decision. (Tr. 119.) On August 19,
2013, Plaintiff requested a review of the decision by ALJ Nisnewitz (Tr. 186-88) and the Appeals
Council vacated and remanded the case on May 19, 2014. (Tr. 134-38.) On remand, Plaintiff
appeared for a hearing before ALJ Vincent M. Cascio on July 23, 2015. (Tr. 94-113.) In a decision
dated August 14, 2015, ALJ Cascio found that Plaintiff was not disabled under the Act from the
alleged onset of her disability on April 7, 2011 through the date of ALJ Cascio’s decision. (Tr. 8-23.)
On August 31, 2015, Plaintiff requested a review of this decision by ALJ Cascio. (Tr. 39.) In a
notice dated February 17, 2017, the Appeals Council denied Plaintiff’s request for review. (Tr. 17.) Based upon this denial, Plaintiff timely filed this action seeking reversal or remand of ALJ
Cascio’s August 14, 2015 decision.
DISCUSSION
A district court reviewing a final decision of the Commissioner must determine “whether
the correct legal standards were applied and whether substantial evidence supports the decision.”
Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004) as amended on reh’g in part, 416 F.3d 101
(2d Cir. 2005). If there is substantial evidence in the record to support the Commissioner’s factual
findings, they are conclusive and must be upheld. 42 U.S.C. § 405(g). “Substantial evidence” is
“more than a mere scintilla” and “means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal
citation omitted).
Plaintiff challenges ALJ Cascio’s decision on four grounds. First, Plaintiff argues that the
ALJ failed to properly weigh the medical opinion evidence. (Dkt. 12, at ECF 15.)2 Second,
Citations to “ECF” refer to the pagination generated by the Court’s CM/ECF docketing
system and not the document’s internal pagination.
2
2
Plaintiff contends that the ALJ did not correctly determine Plaintiff’s residual functional capacity
(“RFC”). (Id.) Third, Plaintiff maintains that the ALJ erred in its evaluation of Plaintiff’s
credibility. (Id. at ECF 22.) Fourth, Plaintiff asserts that the Appeals Council did not properly
consider new medical evidence. (Id. at ECF 25.) For the reasons stated below, the Court finds
that the ALJ failed to properly weigh the medical opinion evidence and develop the record to
properly determine Plaintiff’s RFC. Therefore, the Commissioner’s decision is remanded.3
First, ALJ Cascio failed to properly evaluate the objective medical evidence when
determining that Plaintiff’s depression, which ALJ Cascio found to be “severe,” did not meet or
medically equal any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the
“Listings”). (Tr. 14.) In this case, ALJ Cascio gave “less weight” to the opinion of Dr. Lober
Cervantes, Plaintiff’s treating physician, because it was “inconsistent with the medical record as a
whole” and because ALJ Cascio found that it contained inconsistencies. (Tr. 20.) Specifically,
the ALJ found that Dr. Cervantes’s opinion about Plaintiff’s significant work limitations due to
her depression, including that she would have “marked limitations . . . [that have] left her unable
to concentrate, follow instructions, handle stress or interact with others; rending her disabled and
unable to engage in any occupation” (id.; see also Tr. 857-60) were inconsistent with the opinion
of the consultative examiner, Dr. Sharon Grand, who, based solely only a review of Plaintiff’s
3
Because this Court reverses and remands on these grounds, the Court need not address
Plaintiff’s other arguments. However, on remand, the assigned ALJ should give appropriate
consideration to the new medical evidence Plaintiff submitted to the Appeals Council, which
includes a psychiatric evaluation done by Dr. Azariah Eshkenazi dated January 7, 2016, and which
purports to “confirm the opinions and findings provided by the treating and examining sources.”
(Tr. 1092-99.) See Tirado v. Bowen, 842 F.2d 595, 596 (2d Cir. 1988) (discussing how a court
may “recognize . . . [the possibility of] no finality to administrative and judicial determinations”
yet finding that “room must be allowed in the process for the fact that a claimant’s medical
condition may not be fully diagnosed or comprehended at the time of her hearing.”).
3
medical records, opined that Plaintiff had “no major problems . . . from 2/13, 3/13, and onward.”
(Tr. 80.) Additionally, the ALJ noted that Dr. Cervantes’s opinion was inconsistent because other
“mental status exams in the record” were not displaying the same consistent abnormalities as
shown in Dr. Cervantes’s medical opinions, and, therefore, Dr. Cervantes’ opinion deserved “little
weight”. (Tr. 20.)
On these issues, the ALJ misconstrued the record and erred in his application of the treating
physician rule, which “requires deference to the medical opinion of a claimant’s treating
physician[,]” Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004); 20 C.F.R. § 404.1527(d)(2),
where it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques
. . . [that] [are] not inconsistent with the other substantial evidence” in the record, 20 C.F.R. §
404.1527(c)(2); SSR 96-2p. Indeed, ALJ Cascio acknowledges this standard when evaluating
consultative examiner Dr. Sharon Grand’s opinion, stating that “[g]enerally, the opinion of a nonexamining source is entitled to less weight than the opinion of a treating or examining source.
Such an opinion can never be given controlling weight”. (Tr. 20.)
Further, to the extent that Dr. Grand’s and Dr. Cervantes’s opinions were inconsistent with
each other, the ALJ had an affirmative duty to develop the record. See, e.g., Green–Younger v.
Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). An ALJ “cannot reject a treating physician’s diagnosis
without first attempting to fill any clear gaps in the administrative record.” Rosa v. Callahan, 168
F.3d 72, 79 (2d Cir. 1999). It is incumbent upon the ALJ that “if a physician’s report is believed
to be insufficiently explained, lacking in support, or inconsistent with the physician’s other reports,
the ALJ must seek clarification and additional information from the physician, as needed, to fill
4
any clear gaps before rejecting the doctor’s opinion.” Correale–Englehart v. Astrue, 687 F. Supp.
2d 396, 428 (S.D.N.Y. 2010).
Instead, here, the ALJ placed “great weight” on consultative expert Dr. Grand4 because she
had “an awareness of all the evidence in the record” (Tr. 20), and dismissed Dr. Cervantes’s reports
as being inconsistent with Dr. Grand’s findings without further probing into why Dr. Cervantes’s
medical opinions were ostensibly inconsistent. Butts, 388 F.3d at 386; Rosa, 168 F.3d at 83; Suide
v. Astrue, 371 F. App’x 684, 689–90 (7th Cir. 2010) (holding that “it is not the ALJ’s evaluation
of [the treating physician’s] reports that requires a remand in this case[;] . . . it is the evidentiary
deficit left by the ALJ’s rejection of his reports—not the decision itself—that is troubling.”). For
example, “[i]f [the ALJ] asked . . . [Dr. Cervantes, he] might have been able to provide a medical
explanation for why . . . [Plaintiff’s] condition deteriorated [or changed] over time.” Clark v.
Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).
Further, the ALJ’s conclusions that Plaintiff has exams showing a “normal mental status .
. . throughout the record” (Tr. 20) and that Plaintiff “show[s] depression and sleep disturbance
‘only’ when she skips her medication” (Tr. 17 (emphasis added)) are not substantially supported
by the record. Indeed, though Plaintiff did “show[] problems with [taking] her psychotropic meds”
(Tr. 705), the record demonstrates Plaintiff’s mental health was impaired both when she was on
and off of her medication. (Tr. 862, 458, 704-05, 859-60, 1097-99.)
Second, the ALJ was not entitled to draw his own medical conclusions about Plaintiff’s
RFC by “substitut[ing] his own expertise or view of the medical proof for the treating physician’s
opinion.” Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015). ALJ Cascio appears to insert his
4
It should be noted that Dr. Grand stated in her testimony at the hearing before ALJ
Cascio: “I can’t say that I was able to read every single note in this record.” (Tr. 82.)
5
own lay opinion for that of the medical opinions of treating physician Dr. Cervantes, where he
writes that “in consideration of the treating records of Ms. Cruz [and] Dr. Cervantes, which indicate
that the [Plaintiff] experiences depressive symptomology, I have limited [Plaintiff] to
understanding, remembering and carrying out simple routine repetitive work tasks in [] low stress
jobs with only occasional decision making”. (Tr. 17.) ALJ Cascio’s opinion appears to contradict
the majority of medical providers’ functional assessments in the record, including that of Dr.
Cervantes, which found that Plaintiff had marked limitations . . . [that have] left her unable to
concentrate, follow instructions, handle stress or interact with others; rendering her “disabled and
unable to engage in any occupation.” (Tr. 20, 857-60 (emphasis added).)5 In assessing Plaintiff’s
RFC, ALJ Cascio therefore improperly substituted his own opinion for that of her treating
The ALJ’s conclusion also appears to contradict the findings and functional assessment
of Dr. “N.” Shilselberg, M.D., a consultative psychiatrist, finding Plaintiff to have moderate
limitations “in the ability to maintain a regular schedule and complete a workweek without
interference from psychologically based symptoms, accepting instructions and responding
appropriately to criticism from supervisors and making simple work related decisions” (Tr. 19,
482-83), as well as the functional assessment of Margarita E. Cruz, LCSW-R, finding Plaintiff to
have moderate limitations “in understanding and remembering one-to-two step instructions and
work procedures, performing activities within a schedule and consistently being punctual, getting
along with co-workers . . . and performing at a consistent pace without unreasonable periods of
rest”, and “moderate-to-marked limitation in completing a workday without interruptions for
psychological symptoms.” (Tr. 19, 743.) Supplemental record materials submitted by Dr.
Eshkenazi, Plaintiff’s more recent examining psychiatrist, also include a functional assessment
completed on January 7, 2016, which found Plaintiff to have “marked” limitations in the ability to
understand, remember, and carry out detailed instructions; maintain attention and concentration
for extended periods; and to make plans independently, and “moderate-to-marked” limitations in
the ability to understand and remember one-to-two step instructions; make simple work-related
decisions, and complete a workday without interruptions from psychological symptoms, among
other limitations. (Tr. 1095-96.)
5
6
physician, Dr. Cervantes, as well as those of the majority of her mental health providers. Greek,
802 F.3d at 370.
Finally, even if the ALJ applied the correct legal standard in according less weight to
Plaintiff’s treating physician, Dr. Cervantes, “the ALJ . . . failed to follow SSA guidelines requiring
the consideration of several specific factors6 in determining how much weight those reports should
receive.” Brown v. Comm’r of Soc. Sec., No. 06-CV-3174 (ENV) (MDG), 2011 WL 1004696, at
*5 (E.D.N.Y. Mar. 18, 2011). Pursuant to SSA regulations, after consideration of the factors, the
Commissioner is required to “always give good reasons in . . . [the] notice of determination or
decision for the weight . . . give[n to] [Plaintiff’s] treating source’s opinion. 20 C.F.R. §§
404.1527(d)(2), 416.927(d)(2).
Here, such analysis in the ALJ’s determination, essentially
writing-off Dr. Cervantes’s opinions, is fleeting at best. (Tr. 20.) See Snell v. Apfel, 177 F.3d
128, 133 (2d Cir. 1999) (finding that a failure to provide “good reasons for not crediting the opinion
of a claimant’s treating physician is a ground for remand.”); see also Halloran, 362 F.3d at 33
(finding that courts “will continue remanding when we encounter opinions from ALJ[s] that do
not comprehensively set forth reasons for the weight assigned to a treating physician’s opinion.”).
Accordingly, this case should be remanded for further development of the record and
further proceedings consistent with this order.
6
These factors include: (i) the frequency of examination and the length, nature, and extent
of the treatment relationship; (ii) the evidence in support of the opinion; (iii) the opinion’s
consistency with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other
relevant factors. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).
7
CONCLUSION
For the reasons set forth above, the Court grants Plaintiff’s motion for judgment on the
pleadings and denies the Commissioner’s cross-motion.
The Commissioner’s decision is
remanded for further consideration consistent with this Order. The Clerk of Court is respectfully
requested to enter judgment and close this case.
SO ORDERED.
/s/ Pamela K. Chen
PAMELA K. CHEN
United States District Judge
Dated: August 17, 2018
Brooklyn, New York
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?