Brent v. Commissioner of Social Security

Filing 13

MEMORANDUM DECISION AND ORDER. The plaintiff's 9 motion for judgment on the pleadings is granted, the Commissioner's 11 cross-motion is denied, and the case is remanded for further proceedings consistent with this opinion. The Clerk of the Court is respectfully directed to close this case. Ordered by Judge Ann M. Donnelly on 2/22/2019. (Greene, Donna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

ANGELA BRENT,

Plaintiff,

MEMORANDUM
DECISION AND ORDER

-against-

17-CV-7289(AMD)

NANCY A. BERRYfflLL ACTING

COMMISIONER OF SOCIAL SECURITY,
Defendant.
X

ANN M.DONNELLY,United States District Judge:

The plaintiff seeks review ofthe Commissioner of Social Security's decision denying her
application for disability insurance benefits under Title II ofthe Social Security Act. The
plaintiff was in a car accident that caused back and neck injuries in the summer of2013,and on
June 27,2014,applied for disability benefits.(Tr. 24.) After the plaintiffs application was

denied. Administrative Law Judge("ALJ")Laureen Perm conducted a hearing, and on January
11,2017, decided that while the plaintiff had severe impairments—cervical and lumbar disc

hemiation, displacement, and radiculopathy, fibromytosis, obesity, and depression—she was not
disabled.(Tr. 26-34.)The ALJ determined that the plaintiffs impairments did not meet or
medically equal one ofthe impairments listed in the Social Security regulations, and that she had
the residual functioning capacity("RFC")to perform work as long as she did not stand or walk
for more than two hours, sit for more than six hours, or stoop, crouch, kneel, or crawl more than

occasionally. (Tr. 29.) The plaintiff was also limited to "simple, routine, and repetitive work,"
and could not "perform tasks involving teamwork or direct customer service." {Id.) Although, the

plaintiff could not return to herjob as a residential aide or security guard, she could perform
other jobs in the national economy.(Tr. 33.)

1

The plaintiff sought review ofthe hearing decision from the Appeals Council, which

denied the appeal on November 16,2017. (Tr. 1-6.) The plaintiffcommenced this action(EOF
No. 1), and both parties moved forjudgment on the pleadings. (EOF Nos. 9,11.) For the

following reasons, the plaintiffs motion forjudgment on the pleadings is granted, the
Commissioner's cross-motion is denied, and the case is remanded for further proceedings.
DISCUSSION

A district court reviewing a final decision ofthe 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)(citation omitted). If there is substantial

evidence 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)(citation omitted). When the Commissioner's

determination is supported by substantial evidence,the decision must be upheld,"even ifthere
also is substantial evidence for the [pjlaintiffs position." Cerqueira v. Calvin, No. 14-CV1134,2015 WL 4656626, at *11 (E.D.N.Y. Aug. 5,2015)(citations omitted).

On appeal, the plaintiff argues that the ALJ erred when she accorded the opinion ofthe
plaintiffs treating physician. Dr. Jacqueline Storey, some weight rather than controlling weight.
(ECF No.9-1.) Dr. Storey was ofthe view that the treatment the plaintiff received following her
surgery resulted in "minimal improvement," and that she would have difficulty sitting or
standing for more than thirty minutes and that she could lift ten pounds only occasionally.(Tr.
300-01.)The ALJ decided that Dr. Storey's conclusions were entitled only to some weight,
because in the ALJ's view,the doctor did not provide "much rationale," and because she did not

generate regular treatment notes.(Tr. 32.) For the following reasons, I remand the case so that
the ALJ may reconsider Dr. Storey's opinion.
Under the "treating physician rule," an ALJ determining whether a claimant is disabled

must give "more weight" to the opinion of a claimant's treating physician. See 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2). Specifically, an ALJ must give controlling weight to a treating

physician's medical opinion about the nature and severity ofa claimant's impairments if the

opinion "is well-supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in [the claimant's] case record." Id.
When the ALJ does not give a treating physician's opinion controlling weight, she must
"comprehensively set forth [her] reasons for the weight assigned to a treating physician's
opinion." Burgess v. Astrue,537 F.3d 117,129(2d Cir. 2008)(internal citations omitted). In
determining whether a treating source's opinion warrants controlling weight,the ALJ must
consider:"(1)the frequency,length, nature, and extent oftreatment;(2)the amount of medical

evidence supporting the opinion;(3)the consistency ofthe opinion with the remaining medical
evidence; and(4)whether the physician is a specialist." Selian v. Astrue, 708 F.3d 409,418(2d

Cir. 2013). The failure to give "good reasons" for the weight assigned to a treating physician's
opinion constitutes a ground for remand. See 20 C.F.R. § 404.1527(c)(2); Halloran v. Barnhart,
362 F.3d 28, 33(2d Cir. 2004)
("We do not hesitate to remand when the Commissioner has not

provided 'good reasons' for the weight given to a treating physicians opinion.").

Dr. Storey first examined the plaintiff in August 2013, shortly after the car accident, and

has examined her more than ten times since then.'(Tr. 311.) At the plaintiffs initial visit. Dr.
Storey diagnosed the plaintiff with lower back and neck sprains and radiculitis, and prescribed

'Dr. Storey examined the plaintiff, and was supervised by other physicians in Dr. Storey's medical group.
{See, e.g., Tr. 324,332.)

physical therapy four times a week.(Tr. 310-13.) After an examination on October 25, 2013, Dr.

Storey reported that the plaintiff suffered from moderate lower back and neck pain, which was
"aggravated by physical activity" and radiated to her right leg and right arm.(Tr. 314.) She also
cited the plaintiffs neck and back MRI results, which showed "cervical c4-5 and c5-6 disc

bulge[s]" and a"lumbar c4-5 disc hemiation."(Tr. 330.)In December of2013 and January of
2014, Dr. Storey reported that the plaintiffs condition had improved, but that she had "100%
temporary impairment," and could not return to work.(Tr. 333-36.) Dr. Storey concluded after

subsequent examinations that the plaintiff could not work.(See Tr. 340, 342,344,346, 348.)
In March of2015,the plaintiff asked Dr. Storey for a medical source statement in

connection with her application for social security benefits. Dr. Storey reported that the plaintiff
pursued different treatments for her lower back radiculopathy, including physical ther^y,
epidurals, and pain medication, but that there was only "minimal improvement"in her condition.
(Tr,298.)The plaintiff had difficulty sitting and standing for more than a half hour,and could

stand or walk for less than 2 hours and sit for less than 6 hours each workday.(Tr. 300-01.)The
pleiintiffs lower back pain made it hard for her to bend forward, and she could lift 10 pounds
only occasionally.(Id.)

The ALJ did not think that Dr. Storey "provide[d] much rationale" for her views,(Tr.
32), but the record does not support that conclusion.(See ECF No. 9-1 at 13.) Dr. Storey
examined the plaintiff more than ten times, and monitored the progress of her neck and lower

back injuries from 2013 through 2015. Dr. Storey's reports detail her observations; she measured

the plaintiffs pain level, and administered range of motion tests.(See, e.g., Tr. 314,337-38,
357.)In addition. Dr. Storey's medical source statement cited MRI results that showed a cervical

disc bulge and lumbar disc hemiation, which was the source of the plaintiffs neck and lower

back pain.(Tr. 299, 330, 332.) Dr. Storey's diagnoses were based on her examinations ofthe

plaintiff, and the results ofobjective medical tests.

The ALJ also discounted Dr. Storey's opinions because she "did not provide her regular
treatment notes."(Tr. 32.) According to the record. Dr. Storey submitted detailed treatment notes

from the following examinations: August 20,2013(Tr. 310), September 26,2013 (Tr. 315),
October 25,2013 (Tr. 328-30), December 5, 2013(Tr. 331-34), and January 29,2014(Tr. 33638). Dr. Storey also submitted progress reports that described her observations from March 19,

2014(Tr. 339-40), April 22,2014(Tr. 341-42), July 8,2014(Tr. 343^4), August 26,2014(Tr.
345-46), October 17,2014(Tr. 347-48), and November 14,2014(Tr. 325-27)visits. The ALJ
did not specify what additional materials the doctor should have provided. Under these
circumstances,the case should be remanded so that the ALJ can reevaluate her decision,see

Hcdloran,362 F.3d at 33,or additional records, if notes are indeed missing,see SPicrw v. Chater,
221 F.3d 126,131 (2d Cir. 2000)
(The ALJ should "develop the record in light ofthe non-

adversarial nature ofthe benefits proceedings, regardless of whether the claimant is represented
by counsel."(internal citations omitted)). See Craig v. Comm 'r ofSoc. Sec., 218 F. Supp. 3d 249,
267-68(S.D.N.Y. 2016)("a remand is appropriate here so that the ALJ may resolve any gaps in
the administrative record").

The plaintiff also challenges the ALJ's finding that the plaintiff could maintain a regular
work schedule; the plaintiff maintains that she has significant "psychiatric and cognitive

problems." (ECF No. 9-1.) The ALJ gave Dr. Johanina McCormick's psychiatric opinion—^that
the plaintiff would have problems focusing and maintaining a regular work schedule—only some
weight,the ALJ concluded that the plaintiffs mental impairments were not severe because she
could do household chores.(Tr. 30-31.) On remand,the ALJ should reconsider her assessment

of Dr. McCormick's opinion and whether the plaintiff psychiatric ailments weigh in the favor of
a disability finding.
CONCLUSION

For the reasons set forth above, the plaintiffs motion for judgment on the pleadings is
granted, the Commissioner's cross-motion is denied, and the case is remanded for further

proceedings consistent with this opinion. The Clerk of the Court is respectfully directed to close
this case.

SO ORDERED.

s/Ann M. Donnelly
Ann M. Donnelly
United States District Judge

Dated: Brooklyn, New York
February 22,2019