Albizu v. Berryhill
Filing
19
ORDER denying 9 Motion for Judgment on the Pleadings; denying 14 Motion for Judgment on the Pleadings. For the reasons set forth herein, plaintiff's motion for judgment on the pleadings is denied. The Commissioner's cross-motion for judgment on the pleadings is also denied. The case is remanded to the ALJ for further proceedings consistent with this Memorandum and Order. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/28/2018. (Baum, Sabrina)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 17-CV-4279 (JFB)
_____________________
MADELINE ALBIZU,
Plaintiff,
VERSUS
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.
___________
MEMORANDUM AND ORDER
September 28, 2018
____________
JOSEPH F. BIANCO, District Judge:
Plaintiff Madeline Albizu (“plaintiff”)
commenced this action pursuant to 42 U.S.C.
§ 405(g) of the Social Security Act on July
19, 2017, challenging the final decision of the
Acting Commissioner of Social Security (the
“Commissioner”)
denying
plaintiff’s
application for Social Security disability
benefits on May 22, 2017.
An
Administrative
Law
Judge
(“ALJ”)
determined that plaintiff had the residual
functional capacity to perform sedentary
work as defined in 20 C.F.R. §§ 404.1567(a)
and 416.967(a), with certain limitations. The
ALJ found that plaintiff was capable of
performing past relevant work, which did not
require her to perform work-related activities
that were precluded by her residual
functional capacity, and, therefore, that
plaintiff was not disabled. The Appeals
Council denied plaintiff’s request for review,
making the ALJ’s decision the final decision
of the Commissioner.
Plaintiff now moves for judgment on the
pleadings pursuant to Federal Rule of Civil
Procedure 12(c). The Commissioner opposes
the motion and cross-moves for judgment on
the pleadings. For the reasons set forth
below, the Court denies plaintiff’s motion for
judgment on the pleadings, denies the
Commissioner’s cross-motion for judgment
on the pleadings, and remands the case to the
Administrative Law Judge (“ALJ”) for
further proceedings consistent with this
Memorandum and Order.
B. Relevant Medical History
I. FACTUAL BACKGROUND
1. Relevant Physical Medical Evidence
The following summary of the relevant
facts is based upon the administrative record
(“AR”) developed by the ALJ. (ECF No. 8.)
A more exhaustive recitation is contained in
the parties’ submissions to the Court and is
not repeated herein.
On October 2, 2013, plaintiff visited her
primary care physician, Vincent Leddy,
M.D., complaining of back pain and breast
problems, and seeking a referral. (AR at
329.) Dr. Leddy noted that plaintiff was
negative for anxiety and depression (although
he also noted that she was taking Prozac and
Xanax). (AR at 329, 330.) He noted that
plaintiff’s neck had full range of motion (AR
at 330), and his other physical and mental
status examination findings were normal (AR
at 330-31). Dr. Leddy noted that plaintiff had
neck pain “due to large breasts and bra,” and
noted morbid obesity. (AR at 331.) On
October 18, 2013, plaintiff returned to Dr.
Leddy, complaining of congestion and
headaches. (AR at 325.) Dr. Leddy again
noted normal findings from his physical and
mental status examination of plaintiff. (AR
at 326-27.)
A. Personal and Work History
Plaintiff was born on May 1, 1977, and is
currently 41 years old. (AR at 29.) She
graduated from high school, and worked as a
packager of small parts for an electronic
components company, as a home caregiver,
in customer service at a bakery, and—as her
last job prior to stopping work—as a book
packager in a warehouse. (AR at 31-33, 144.)
In plaintiff’s job packaging small electronic
parts, she worked standing and sitting, and
never had to lift more than ten pounds. (AR
at 31.) In her job as a home caregiver she did
what she described as “heavy lifting” (AR at
32), and in her last job, as a book packager,
she did a lot of heavy lifting—even lifting as
much as fifty pounds (AR at 33).
On December 4, 2013, plaintiff visited
Dr. Leddy, complaining of heartburn, neck
and back pain, and paresthesia in her upper
and lower extremities. (AR at 319.) Dr.
Leddy examined plaintiff and found that she
had full range of motion, including in her
neck, and recorded normal mental status
examination findings. (AR at 321.) He noted
abnormal electrocardiogram (“EKG”) study.
(AR at 323.) Dr. Leddy refilled plaintiff’s
Prozac prescription and ordered a nerve
conduction velocity (“NCV”) study. (AR at
322-23.) An electromyography (“EMG”)
study from that day of plaintiff’s upper
extremities revealed left C6-C7-C8 cervical
radiculopathy. (AR at 219-20.)
Plaintiff testified before the ALJ in this
case that she lived with her fiancé and three
children who were (at the time) 5, 10, and 17
years old. (AR at 30.) She testified that her
husband supported the family until he was
diagnosed with cancer. (Id.) Plaintiff
stopped working on October 1, 2013 because
of a herniated disc in her back, neck pain, and
psychological problems (which she said were
aggravated by her inability to work due to her
back pain). (AR at 34, 43, 143.) Plaintiff
indicated in a disability appeal form dated
September 9, 2014 that there had been no
changes in her daily activities since she last
completed a disability report. (AR at 159,
163.)
On December 13, 2013, plaintiff saw Dr.
Leddy for a follow-up visit, at which he again
noted that his examination findings were
normal. (AR at 315-17.) Dr. Leddy ordered
a magnetic resonance imaging (“MRI”) study
of plaintiff’s cervical spine. (AR at 317.) On
2
and trigger points in the cervical region, and
muscle spasms with tenderness to palpation
and bilateral sciatic notches in the lumbar
region. (Id.) Neurological findings were
normal: Dr. Szerlip noted grossly intact
cranial nerves, present and equal upper
extremity and patellar reflexes, negative
bilateral straight leg raise tests, and the ability
to heel-toe ambulate with no difficulty. (Id.)
Plaintiff had stronger right hand grip strength
(which was consistent with her right hand
dominance), and she had adequate bilateral
shoulder strength to active and passive
resistance. (Id.) Dr. Szerlip also reviewed
plaintiff’s December 19, 2013 cervical spine
MRI and, after reviewing her records and
examining her, diagnosed plaintiff with
cervical
disc
displacement,
cervical
radiculopathy (pending the results of an
EMG/NCV study), and lower back pain. (AR
at 226, 228.) Dr. Szerlip informed plaintiff
that “she [wa]s definitely a candidate for a
series of cervical epidural steroid injections”
and he was “making a formal request to
Fidelis to embark upon them as soon as
possible.” (AR at 227.)
December 19, 2013, plaintiff had the MRI,
which revealed cervical spine disc
herniations at C4-C5 and C5-C6 and disc
bulges at C6-C7 and C7-T1. (AR at 209.)
The report from the MRI states that,
otherwise, there were no significant
protrusions or abnormalities. (Id.) Plaintiff
had another follow-up visit with Dr. Leddy
on December 23, 2013, at which she
requested a letter for her insurance company
to get a breast reduction. (AR at 312.) Dr.
Leddy again recorded normal findings, but
noted plaintiff’s current problems (including
morbid obesity and cervical radiculopathy).
(AR at 312-14.)
On December 27, 2013, Dr. Leddy
diagnosed plaintiff with a herniated cervical
disc and morbid obesity, and referred her to a
pain specialist. (AR at 311.) Plaintiff’s
examination results were normal, including
that plaintiff had a normal gait and full and
painless range of motion of all major muscle
groups, and no joint tenderness. (Id.) Dr.
Leddy also recorded normal mental status
examination findings. (Id.) Dr. Leddy
referred plaintiff to a chronic pain specialist.
(Id.)
On January 16, 2014, Dr. Szerlip saw
plaintiff for a follow-up visit and noted that a
lower extremity EMG/NCV study done that
day “revealed no evidence of lumbar
radiculopathy at this time.” (AR at 225.)
However, he also reviewed the December 4,
2013 EMG/NCV study, and noted that the
results demonstrated C6 through C8
radiculopathy, which “definitely corresponds
to her chronic neck pain.” (Id.; see AR at
219-21.) Dr. Szerlip made a formal request
for authorization for a series of three cervical
epidural steroid injections, and prescribed
plaintiff Tramadol and physical therapy for
her cervical spine. (AR at 225.)
On January 6, 2014, plaintiff visited pain
management doctor Gregg M. Szerlip, D.O.
(AR at 214-15, 226-28.)
Plaintiff
complained of neck, shoulder, and lower
back pain. (AR at 214.) Plaintiff reported
that she took Prozac and Xanax for
depression and an anxiety disorder, and
Advil. (AR at 214, 226.) Dr. Szerlip noted
that plaintiff was morbidly obese and had a
one-year history of worsening neck pain
radiating to the upper extremities, numbness,
and lower back pain. (AR at 226.) Dr.
Szerlip examined plaintiff and noted that she
did not exhibit signs of acute distress, and
that she had no difficulty getting onto the
examination table. (AR at 228.) He noted
that plaintiff had bilateral cervical paraspinal
muscle spasms with tenderness to palpation
On January 30, 2014, Dr. Szerlip
recorded that plaintiff presented for her first
cervical epidural steroid injection. (AR at
264.) He noted that plaintiff was told to
3
(Id.) He prescribed Augmentin, Motrin, and
Omeprazole, and referred plaintiff to a
neurologist. (Id.)
return for a follow-up in two weeks, and
possibly the next injection. (Id.)
On February 11, 2014, plaintiff visited
Dr. Leddy complaining of an earache, sore
throat, and palpitations. (AR at 305.) Dr.
Leddy’s examination findings were normal.
(AR at 307.) Plaintiff had another follow-up
the next day, and her examination findings
were again normal. (AR at 303.)
On May 5, 2014, plaintiff saw Dr. Szerlip
and reported 5% relief after her last cervical
epidural steroid injection. (AR at 212.) Dr.
Szerlip noted that she had breast reduction
surgery in the Dominican Republic three
months earlier, and was now experiencing
severe lower back pain (rated nine out of ten)
with weakness radiating into her lower
extremities. (AR at 222.) Dr. Szerlip
prescribed Tramadol, and noted that plaintiff
would return for a follow-up after having an
MRI done. (Id.)
On February 14, 2014, plaintiff returned
to Dr. Szerlip for her second cervical epidural
steroid injection. (AR at 224.) Plaintiff
reported the first injection provided 30%
improvement, but she continued to
experience pain, and the night before had
been “especially ‘rough.’” (Id.) On February
27, 2013, plaintiff returned for her third
cervical epidural steroid injection, and
reported an overall 30% improvement in pain
after the first two injections. (AR at 223.)
Dr. Szerlip diagnosed plaintiff with cervical
disc displacement, cervical radiculopathy,
and cervical paraspinal muscle spasms, and
told her to return in two weeks. (Id.)
On May 6, 2014, Dr. Leddy noted that
plaintiff visited and complained of lower
back pain, and requested a lumbar spine MRI.
(AR at 291.) Plaintiff was also experiencing
pain in her arms, legs, and neck, and
paresthesia in her extremities. (Id.) On
examination, she had full, painless range of
motion. (AR at 293.) Dr. Leddy noted
normal physical and mental status
examinations findings. (Id.) He also noted
body mass index of 33.0-33.9, lower back
pain, lumbar and cervical radiculopathy,
disturbance of skin sensation, and morbid
obesity. (Id.) He ordered a lower extremity
NCV. (Id.)
On March 3, 2014, plaintiff had a visit
with Dr. Leddy, at which he noted that she
had chronic back and neck pain. (AR at 298.)
Dr. Leddy recorded normal findings from his
physical and mental status examinations of
plaintiff. (AR at 300.) On April 21, 2014,
plaintiff visited Dr. Leddy and requested a
referral for a neurologist. (AR at 295.) She
reported having had breast reduction surgery
on March 14, 2014 (id.), and was
experiencing breast pain (AR at 297).
Plaintiff also requested a “note for work
explaining her restrictions.” (AR at 295.) Dr.
Leddy examined plaintiff and noted that her
neck and musculoskeletal system were
normal, and that she had full, painless range
of motion in all major muscle groups. (AR at
296-97.) Plaintiff’s mental status was also
normal. (AR at 297.) Dr. Leddy noted that
plaintiff had lumbar radiculopathy, body
mass index of 33.0-33.9, and breast pain.
On May 19, 2014, Dr. Leddy reviewed
the NCV study results and found lumbar
radiculopathy. (AR at 287.) He noted that
plaintiff had back pain and paresthesia in her
lower extremities. (Id.) The results of her
physical and mental status examinations were
normal. (AR at 289.)
On May 27, 2014, plaintiff had a lumbar
spine MRI done, which revealed disc
herniation at L2-L3 impressing the thecal sac,
disc bulge at L5-S1, thecal sac indentation,
and no stenosis, fracture, anterolisthesis,
spondylosis, or facet arthrosis. (AR at 211.)
4
and playing with her children. (Id.) Dr.
Qadeer reviewed plaintiff’s MRI of the
cervical and lumbar spine, and noted
herniated nucleus pulposus (“HNP”) for
both. (AR at 230.) Plaintiff’s physical
examination was marked as positive for
reflexes and no deficit for sensation. (Id.)
Plaintiff had painful or restricted ranges of
motion of the thoracic and cervical spines.
(Id.) Plaintiff’s straight leg raise tests were
painful but not limited. (Id.) Plaintiff had
paraspinal muscle tenderness and paraspinal
spasm on both sides. (AR at 231.) Dr.
Qadeer diagnosed plaintiff with lower back
and neck pain, lumbar disc displacement,
lumbosacral neuritis not otherwise specified
(“NOS”), cervical disc displacement, and
brachial neuritis NOS. (Id.) He told plaintiff
to discontinue Tramadol, and prescribed her
Relafen, Robaxin, and physical therapy. (Id.)
On May 30, 2014, Dr. Leddy saw
plaintiff and noted that she had lumbar
radiculopathy and lower back pain. (AR at
283.) Dr. Leddy noted that his examination
findings were normal. (AR at 285.) He again
referred plaintiff to a chronic pain specialist.
(Id.)
On June 9, 2014, Dr. Szerlip saw plaintiff
and noted that she was continuing with
physical therapy for her cervical spine. (AR
at 263.) He reviewed her May 27, 2014
lumbar spine MRI and noted that it revealed
lumbar disc displacement, lumbar paraspinal
muscle spasms, cervical disc displacement,
cervical radiculopathy, and cervical
paraspinal muscle spasms. (Id.) Dr. Szerlip
prescribed Diclofenac, Tramadol, and
physical therapy for the lumbar spine. (Id.)
On June 10, 2014, plaintiff visited Dr.
Leddy to have her disability paperwork
completed. (AR at 279.) Dr. Leddy noted
that plaintiff’s physical and mental status
examinations were normal, and she had full
range of motion in her neck. (AR at 281.) Dr.
Leddy noted a body mass index of 34.0-34.9,
herniated cervical disc, lower back pain,
hypercholesterolemia, and mild depression.
(Id.) He referred plaintiff to a pain specialist
and neurosurgeon. (Id.)
On July 21, 2014, Dr. Qadeer noted that
plaintiff reported lower back and neck pain,
and that her pain was significant. (AR at
358.) She described it as shooting, throbbing,
and tingling. (Id.) Plaintiff told Dr. Qadeer
that she had been in bed the week before due
to pain, and that she was not working. (Id.)
She reported that sitting or standing
aggravated the pain, and resting relieved it.
(Id.) Plaintiff said that her neck pain was
associated with headaches and anxiety. (Id.)
Dr. Qadeer examined plaintiff and found that
she had painful or restricted ranges of motion
in her thoracic and cervical spine, as well as
paraspinal tenderness and spasm. (AR at
358-59.)
Dr. Qadeer again diagnosed
plaintiff with lumbar disc displacement,
lumbosacral neuritis NOS, cervical disc
displacement, and brachial neuritis NOS.
(AR at 359.) He noted that a lumbar spine
trigger point injection (“TPI”) was
administered, and referred plaintiff for a
psychiatric evaluation. (Id.)
On June 20, 2014, plaintiff saw Masoom
Qadeer, M.D., for pain management
treatment. (AR at 229-31.) Dr. Qadeer noted
that plaintiff had lower back pain precipitated
by activities and standing, and relieved by
resting. (AR at 229.) Plaintiff reported
having occasional weakness when getting up
from a seated position. (Id.) She also had
progressive neck pain, with numbness and a
feeling of pins and needles. (Id.) She told Dr.
Qadeer that the two cervical epidural
injections she had gotten “did not help at all.”
(Id.) She said that her lower back pain was
now worse than her neck pain. (Id.) Plaintiff
told Dr. Qadeer that she lived with her
husband and children, and enjoyed cooking
On July 24, 2014, plaintiff told Dr. Leddy
that Prozac was “not working well for her”
5
deep tendon reflexes. (Id.) She had full
strength in the extremities, intact hand and
finger dexterity, and full (5/5) grip strength.
(Id.) Plaintiff’s cervical spine X-ray showed
degenerative changes. (Id.) Dr. Pollack
diagnosed plaintiff with neck and lower back
pain with radiation, panic disorder, and
claustrophobia. (Id.) She noted that plaintiff
had “marked restriction” with squatting,
bending, lifting, and carrying, and had “mild
to moderate restriction” with pushing,
pulling, walking, standing, sitting, climbing
stairs, and kneeling. (AR at 240-41.) Dr.
Pollack also “suggest[ed] comparison with
medical records due to very limited mobility
on examination.” (AR at 241.)
and she felt weak. (AR at 275.) She reported
“having panic episodes.” (Id.) Dr. Leddy’s
notes indicate that plaintiff’s physical and
mental status examinations were normal.
(AR at 277.) Dr. Leddy noted agoraphobia
with panic disorder, obesity, and
hypercholesterolemia. (Id.) He prescribed
Seroquel in addition to plaintiff’s
prescriptions for Prozac and Xanax. (AR at
277-78.)
On July 31, 2014, Dr. Qadeer
administered a lumbar spine steroid injection
for lumbar radiculopathy. (AR at 334.)
On August 1, 2014, Andrea Pollack,
D.O., performed an internal medicine
examination on referral by the Division of
Disability Determination. (AR at 238-42.)
Dr. Pollack noted that plaintiff reported neck
and lower back pain since October 2013, and
that she had had physical therapy and cervical
epidural steroid injections without relief.
(AR at 238.) Plaintiff stated that her pain
radiated into her arms and left leg. (Id.) She
had had neck surgery, which caused
numbness in her arms. (Id.) She also
reported a history of claustrophobia and
panic disorder, for which she did not seek
treatment but took medication. (Id.) Plaintiff
reported that her activities included cooking
three times a week, showering and dressing
daily, and watching television. (Id.)
On August 14, 2014, Dr. Qadeer
administered a lumbar spine steroid injection
for lumbar radiculopathy. (AR at 333.)
On August 22, 2014, Dr. Leddy saw
plaintiff and recorded that his physical and
mental status examination findings were
normal. (AR at 272.) Dr. Leddy prescribed
plaintiff Lipitor and refilled her Seroquel
prescription. (AR at 273.)
On September 15, 2014, Dr. Qadeer
noted that plaintiff reported her lumbar back
pain was “much better” (but still rated at a
seven out of ten). (AR at 356.) Plaintiff
reported that her neck pain had not changed
significantly, and that associated symptoms
were headaches and anxiety. (Id.) She said
that medication helped with the neck pain.
(Id.) She was not going to physical therapy.
(Id.) Dr. Qadeer’s examination findings and
diagnoses were the same as at plaintiff’s
previous visit. (AR at 356-57.) Dr. Qadeer
prescribed Robaxin, Percocet, and Relafen,
and noted TPI administered. (AR at 357.) He
advised plaintiff to make lifestyle changes,
including to improve her diet, work on
weight and stress management, and increase
physical activity. (Id.) On September 25,
2014, Dr. Qadeer administered another
Dr. Pollack examined plaintiff and noted
that she had normal gait and stance, could
walk on her heels and toes without difficulty,
and could squat a quarter of the way down.
(AR at 239.) Plaintiff did not need assistance
changing for the examination, did not have
difficulty sitting on the examination table,
and could rise from a chair without difficulty,
but could not lie back for the examination.
(AR at 239.) Plaintiff had reduced range of
motion of the cervical and lumbar spine, hips,
and knees. (AR at 240.) Her straight leg raise
tests were negative. (Id.) Plaintiff had
normal neurological function, with equal
6
On November 10, 2014, Dr. Qadeer noted
that plaintiff visited and had continued
complaints of lower back and neck pain. (AR
at 349.) She reported that she had headaches
and anxiety that accompanied her neck pain.
(Id.)
Plaintiff said that the pain was
intermittent, and that physical therapy was
not helping; in fact, it even aggravated the
pain at times. (Id.) Dr. Qadeer’s examination
findings and diagnoses were the same as at
prior visits. (AR at 349-50.) Dr. Qadeer
administered a lumbar spine TPI, prescribed
Neurontin, Relafen, and Percocet, and
instructed plaintiff to return in one month.
(AR at 350.)
lumbar epidural steroid injection. (AR at
332.)
On October 2, 2014, Dr. Leddy noted that
plaintiff visited for a refill of her medications,
and presented with right shoulder pain. (AR
at 265.) She reported neck and back pain,
myalgia, paresthesia in her hands, and
anxiety. (Id.) Dr. Leddy recorded normal
examination findings, except for left
trapezius swelling. (AR at 267.) Plaintiff had
normal range of motion of the neck,
appropriate affect and demeanor, intact
recent and remote memory, and good insight
and judgment. (Id.) Dr. Leddy noted that
plaintiff had anxiety, herniated cervical disc,
lumbar radiculopathy, shoulder pain, and
high cholesterol. (AR at 268.) He refilled
plaintiff’s Lipitor, Prozac, Abilify, and
Seroquel prescriptions. (AR at 269.)
On December 4, 2014, Dr. Leddy noted
that plaintiff returned for a medication refill.
(AR at 424.) Plaintiff reported ongoing neck
and back pain, and anxiety. (Id.) Plaintiff
told Dr. Qadeer that she had an increasing
incidence of panic attacks and that she was
feeling anxious and stressed. (Id.)
On October 13, 2014, Dr. Qadeer noted
that plaintiff’s back pain was better after the
epidural steroid injection, but her neck pain
had not changed significantly. (AR at 353.)
She described her neck pain as numbness,
pins and needles, and pain radiating to her
upper back and arms, and reported that she
had headaches and anxiety associated with
this pain. (Id.) Plaintiff reported that
physical activities, such as mopping,
sweeping, and household chores, aggravated
the pain. (Id.) Dr. Qadeer examined plaintiff
and found that she had painful or restricted
ranges of motion in her thoracic and cervical
spine. (AR at 353-54.) Her straight leg raise
tests were painful, but not limited. (AR at
353.) Plaintiff had paraspinal tenderness and
spasm, and trigger points were palpated over
her lumbar and cervical paravertebral
muscles. (AR at 354.) Dr. Qadeer prescribed
Percocet, Relafen, and Neurontin, and
administered a TPI to the trapezius muscles.
(Id.) He instructed plaintiff to see a spine
surgeon and continue with physical therapy.
(Id.)
On December 8, 2014, Dr. Qadeer wrote
that plaintiff said she was doing “fairly well.”
(AR at 344.) She said that she had good and
bad days and “t[ook] it easy on some days.”
(Id.) She reported that any movement or
activity increased her pain, and that the pain
had radiating symptoms. (Id.) Plaintiff
stated that she felt tingling and numbness on
her neck that radiated to her arm. (Id.) She
also experienced occasional headaches with
increased pain. (Id.) Plaintiff told Dr.
Qadeer that she enjoyed cooking and playing
with children. (Id.) Dr. Qadeer noted that
plaintiff denied panic disorder, depression,
and anxiety. (Id.) He examined plaintiff and
noted that her cervical and lumbar ranges of
motion were restricted or painful, and that
she had trigger points with palpation over the
lumbar paravertebral muscles. (AR at 34445.) Plaintiff had tenderness in her neck.
(AR at 345.) Plaintiff’s straight leg raise tests
were painful, but not limited. (Id.) Dr.
Qadeer diagnosed plaintiff again with lumbar
7
On March 18, 2015, plaintiff visited Dr.
Leddy for a medication refill and reported
that she was having panic attacks, anxiety,
and depression. (AR at 413.) The results
from Dr. Leddy’s physical and mental status
examinations were normal. (AR at 414-15.)
Dr. Leddy refilled plaintiff’s Prozac and
Seroquel prescriptions. (AR at 415.)
disc displacement, cervical radiculopathy,
lumbosacral neuritis radiculopathy, lumbar
facet syndrome, and myalgia and myositis
unspecified. (Id.) He administered a lumbar
spine TPI, prescribed Neurontin and Relafen,
and noted that plaintiff was to return in one
month for reassessment. (Id.)
On February 5, 2015, Dr. Leddy noted
that plaintiff complained of left breast pain.
(AR at 420.) Dr. Leddy recorded normal
examination findings. (AR at 422.) Dr.
Leddy noted that plaintiff had breast pain and
anxiety. (Id.)
On March 30, 2015, plaintiff visited Dr.
Qadeer complaining that her lower back pain
had worsened recently, in particular with the
cold weather. (AR at 341.) She reported
intermittent pain that was aggravated by any
activities, including household activities.
(Id.) Plaintiff was not going to physical
therapy and did not work. (Id.) She did not
have any new complaints, and the
examination
results,
diagnoses,
and
medications were the same as at her prior
visit.
(AR at 341-43.)
Dr. Qadeer
administered another TPI into plaintiff’s
lumbar spine, prescribed Nabumetone,
Neurontin, and Pamelor, and advised plaintiff
to return in a month for a follow-up visit.
(AR at 342.)
On February 23, 2015, plaintiff saw Dr.
Qadeer for a follow-up visit, at which she
reported that she felt “fairly well,” although
she still reported pain of five to seven out of
ten. (AR at 346.) Plaintiff reported that she
was sleeping poorly, was not working, and
was not going to physical therapy “as it hurts
more.” (Id.) She reported that movement and
activities increased her pain. (Id.) Dr.
Qadeer examined plaintiff and found that she
had tenderness in her neck and lower back,
limited range of motion in her lumbar spine
and pelvis, and moderate muscle spasm along
with palpable trigger points over the lumbar
paravertebral muscles.
(AR at 347.)
Plaintiff’s gait was normal. (Id.) Dr. Qadeer
noted again that plaintiff had lumbar disc
displacement,
cervical
radiculopathy,
lumbosacral neuritis radiculopathy, and
myalgia and myositis unspecified. (Id.) He
administered a lumbar spine TPI, prescribed
Nabumetone, Neurontin, Pamelor, and
Relafen, and instructed plaintiff to return in a
month. (Id.)
On May 25, 2015, plaintiff visited Dr.
Leddy requesting a Xanax refill and reporting
that she had anxiety. (AR at 409.) Dr. Leddy
recorded normal examination findings. (AR
at 410-11.)
On June 15, 2015, plaintiff saw Dr.
Qadeer for a follow-up visit and reported that
she was doing well. (AR at 338.) Plaintiff
reported that her medication and the TPI were
helping her pain. (Id.) She continued to have
lower back pain, which was aggravated by
activities, movement, and rain. (Id.) Dr.
Qadeer noted that plaintiff’s examination
showed she had tenderness, moderate muscle
spasm, and limited range of motion in her
cervical and lumbar spines. (AR at 339.) Dr.
Qadeer’s neurological tests showed that
plaintiff had no gait disturbance and no
tremors. (Id.) Dr. Qadeer diagnosed plaintiff
with cervical and lumbar facet syndrome, and
On March 17, 2015, Dr. Leddy noted that
plaintiff visited complaining of left wrist pain
and throat discomfort. (AR at 416.) Dr.
Leddy wrote that plaintiff had acid reflux
symptoms, heartburn, and limb pain. (Id.)
Plaintiff’s other physical and mental status
examinations were normal. (AR at 417-18.)
8
On August 26, 2015, plaintiff visited Dr.
Leddy and reported that she was
experiencing acid reflux and heartburn. (AR
at 385.) Dr. Leddy noted that plaintiff had
gastroesophageal reflux disease (GERD) and
mild depression, but the examination
findings were otherwise normal. (AR at 38688.)
Dr. Leddy prescribed plaintiff
Omeprazole, Prozac, and Seroquel. (AR at
387.) Plaintiff returned for a refill of Xanax
on September 1, 2015. (AR at 381.) Dr.
Leddy noted again that plaintiff had anxiety,
and his examination findings were otherwise
normal. (AR at 381-83.)
myalgia and myositis unspecified. (Id.) He
administered a TPI, prescribed plaintiff
Neurontin and Pamelor, and instructed
plaintiff to return in a month. (Id.)
On June 30, 2015, plaintiff saw Dr.
Leddy for an annual examination. (AR at
396-99.) Dr. Leddy noted a systolic murmur;
plaintiff’s
examination
results
were
otherwise normal. (AR at 396.)
On July 16, 2015, plaintiff visited Dr.
Qadeer and reported that her pain was still
manageable, and that she had no new
complaints. (AR at 335.) She reported that
her medication and the TPIs “ke[pt] her
going.” (Id.) Plaintiff told Dr. Qadeer that
she was not experiencing neck pain, panic
disorder, depression, or anxiety.
(Id.)
Plaintiff was not going to physical therapy.
(Id.) Dr. Qadeer noted that his examination
results showed painful flexion and extension
of the thoracic spine and restricted range of
lateral flexion and rotation of the thoracic
spine. (AR at 336.) Plaintiff had a slightly
antalgic gait; her straight leg raise tests were
painful but not limited; and she had diffuse
tenderness in her lower back with limited
lumbar range of motion, and moderate
muscle spasms and palpable trigger points
over her lumbar paravertebral muscles. (Id.)
Dr. Qadeer again administered a TPI,
prescribed Neurontin and Pamelor for
myalgia and myositis unspecified, and
instructed plaintiff to return in a month. (Id.)
On September 11, 2015, plaintiff got a
prescription from Dr. Qadeer for a walking
cane, which Dr. Qadeer noted was for
balance. (AR at 380.)
On October 6, 2015, plaintiff visited Dr.
Leddy for a refill of her Xanax prescription.
(AR at 377.) As at the previous visits, Dr.
Leddy noted that plaintiff had anxiety, and
his examination findings were otherwise
normal. (AR at 377-79.)
On October 14, 2015, plaintiff visited Dr.
Leddy, complaining of back pain, and
reporting blood in her stool. (AR at 374.)
Plaintiff’s other examination results were
normal. (AR at 375-76.) Dr. Leddy referred
plaintiff for an MRI for her lumbar and
cervical spines, and for a gastroenterologist
to perform a colonoscopy. (AR at 376.)
On October 23, 2015, plaintiff had the
MRI scan taken. (AR at 363.) The cervical
spine scan showed: C4-C5 disc herniation
with cord impingement and foraminal
extension impinging existing C5 nerve root;
C5-C6 disc herniation effacing the ventral
cervical spinal fluid space, without foraminal
impingement; C6-C7 disc herniation partially
effacing ventral cervical spinal fluid space;
and straightening of the cervical lordosis.
(AR at 363-64.) The lumbar spine MRI
showed: L5-S1 disc herniation with thecal
On July 28, 2015, plaintiff visited Dr.
Leddy requesting a refill of Xanax. (AR at
391.) Dr. Leddy noted that plaintiff had
anxiety, but her physical and mental status
examination results were normal. (AR at
392-93.) Plaintiff visited Dr. Leddy again the
next day to review bloodwork results. (AR at
388.) Dr. Leddy noted that plaintiff had high
cholesterol and prescribed plaintiff Lipitor.
(AR at 390.)
9
regions, panniculitis affecting regions of her
neck and back, and myalgia. (Id.) Dr.
Qadeer administered a TPI into plaintiff’s
trapezius muscles, prescribed plaintiff
Nabumetone and Pamelor, encouraged a
healthy lifestyle and physical therapy, and
instructed plaintiff to return in about a month.
(AR at 434-35.)
sac deformity; L2-L3 disc bulge; and an
ovarian cystic mass. (AR at 365.)
On November 4, 2015, Dr. Leddy
reviewed plaintiff’s MRI findings and noted
that plaintiff had paresthesia in her upper
extremities, but that plaintiff’s other physical
and mental status examinations results
remained unremarkable. (AR at 371-73.) Dr.
Leddy referred plaintiff to a chronic pain
specialist. (AR at 373.)
On May 23, 2016, plaintiff visited Dr.
Qadeer for her follow-up, at which she was
accompanied by her husband, and reported
that the week before she had “excruciating”
pain and “could hardly move.” (AR at 430.)
Plaintiff reported that medication did not help
much, but that the injections and TPIs helped
“take the edge off.” (Id.) She reported that
her neck pain did not bother her much. (Id.)
Dr. Qadeer noted that plaintiff did not show
signs of serious depression. (AR at 431.) Dr.
Qadeer examined plaintiff and found that she
had moderately painful cervical flexion and
extension,
significantly
painful
thoracolumbar flexion and extension, and
slightly restricted cervical and thoracolumbar
lateral flexion and rotation. (Id.) Dr. Qadeer
examined plaintiff’s neck and found slight
tenderness, fair range of motion, some pain at
“extremes of motion,” moderate muscle
spasm, and palpable trigger points. (Id.)
Plaintiff had paraspinal spasm and tenderness
in her lower back, moderate muscle spasm
with palpable trigger points, slightly
restricted range of motion of lumbar spine
and pelvis, particularly with flexion. (Id.)
Plaintiff had no gait disturbance. (Id.) Dr.
Qadeer
diagnosed
plaintiff
with
radiculopathy in the lumbar and cervical
regions, panniculitis affecting regions of
neck and back, and myalgia. (Id.) Dr.
Qadeer administered a TPI in the lumbar
muscles, prescribed plaintiff Nabumetone,
Norco, and Pamelor, and encouraged a
healthy lifestyle and physical therapy. (AR
at 431-32.)
On November 5, 2015, plaintiff returned
to Dr. Leddy for a refill of her Xanax
prescription. (AR at 367.) Dr. Leddy noted
that plaintiff had anxiety, and her physical
and mental status examinations results were
normal. (AR at 367-69.) Dr. Leddy noted
that plaintiff’s neck was supple with full
range of motion, that her musculoskeletal
examination revealed grossly normal muscle
tone and strength, full and painless range of
motion of all major muscle groups and joints.
(AR at 369.) He noted that plaintiff was alert
and oriented, and had appropriate affect,
intact memory, and good judgment. (Id.)
On March 28, 2016, plaintiff visited Dr.
Qadeer and reported she passed out the day
before when her pastor touched her head in
church. (AR at 433.) She did not go to the
emergency room, but said that she was
anxious but stable, and had driven herself to
the appointment that day. (Id.) Plaintiff
reported that she had her usual neck and back
pain, occasional headaches, numbness, and
tingling. (Id.) Plaintiff’s examination results
showed that her cervical range of motion was
moderately painful at “extremes of motion”
and slightly restricted, with slight tenderness
of her paraspinal muscles, moderate muscle
spasm, and trigger points. (AR at 434.)
Plaintiff also had paraspinal spasm,
tenderness, muscle spasm, and trigger points
in the lumbar region. (Id.) Plaintiff’s
neurological examination results were
normal. (Id.) Dr. Qadeer diagnosed plaintiff
with radiculopathy in the cervical and lumbar
10
second language. (Id.) He wrote that
plaintiff’s affect was “somewhat bland,” her
mood was neutral, her sensorium was clear,
and she was fully oriented. (Id.) Plaintiff
exhibited
below
average
attention,
concentration, and memory skills. (AR at
234.) With regard to plaintiff’s cognitive
functioning, Dr. Herman wrote that her
“[g]eneral fund of information [was]
appropriate to experience,” and she displayed
“[f]air to good” insight and judgment. (Id.)
Dr. Herman diagnosed plaintiff with panic
disorder and claustrophobia. (AR at 235.)
Dr. Herman found that plaintiff’s mental
impairments did not appear to significantly
limit her abilities to follow, understand, and
perform simple directions, instructions, and
tasks; maintain attention and concentration;
maintain a regular schedule; learn new tasks;
make appropriate, simple work-related
decisions; and relate adequately with others.
(AR at 234.) He found that plaintiff had
“moderate to marked limitation[s]” with
respect to her abilities to perform complex
tasks and appropriately deal with stress. (Id.)
Dr. Herman found that the results of the
examination
were
“consistent
with
psychiatric problems, but in and of
themselves, they did not appear to be
significant enough to interfere with
[plaintiff’s] ability to function on a daily
basis to the extent that vocational functioning
would be precluded.” (Id.) Dr. Herman
recommended vocational training, individual
psychological therapy, continuation of
psychiatric medications, and assistance
managing funds. (AR at 235.)
2. Relevant Mental Health Medical
Evidence
On July 2, 2014, plaintiff visited Paul
Herman, Ph.D., for a psychiatric evaluation.
(AR at 232-35.) Dr. Herman noted that, at
that time, plaintiff lived with her boyfriend
and three children. (AR at 232.) Plaintiff
informed Dr. Herman that she left her last job
as a warehouse worker in 2013 due to
medical difficulties. (Id.) Dr. Herman noted
that plaintiff reported that she did not like
being in small and enclosed spaces, and that
she did not sleep well due to pain, medical
issues, and a sense of claustrophobia and
panic when she awoke in the middle of the
night. (Id.) Dr. Herman also noted that
plaintiff had a normal appetite. (Id.) Plaintiff
reported that she would wake up “feeling
closed in . . . almost as if someone [wa]s
following her.” (Id.) When plaintiff felt
“panicky,” she had trouble breathing, felt
shaky, and said that she felt as if she was
“about to die.” (AR at 232-33.) She had been
experiencing these symptoms for several
years, but had been able to maintain
employment, and first sought treatment only
about a year earlier. (AR at 233.) Plaintiff
denied having significant difficulties with
activities of daily living due to psychiatric or
psychological issues (although she said that
her medical issues interfered with these
activities). (AR at 234.) Plaintiff said that
she did not have many friends, but she had
good relationships with her family. (Id.) She
said that she spent most of her time watching
television and taking care of her children.
(Id.)
On July 14, 2014, state agency
psychological consultant Dr. E. Selesner
reviewed the record, including Dr. Herman’s
report. (AR at 61-63, 236-37.) Dr. Selesner
concluded that plaintiff was not significantly
limited in her abilities to remember locations
and work-like procedures; understand,
remember, and carry out very short and
simple instructions; perform activities within
Dr. Herman performed a mental status
examination and found that plaintiff was
cooperative with adequate social skills, and
that she had normal posture, motor behavior,
eye contact, and thought processes. (AR at
233.) Dr. Herman wrote that plaintiff’s
speech was “adequate for purposes of the
evaluation,” but noted that English was her
11
and was easily distracted to the point that she
had trouble concentrating or staying on track.
(AR at 250.) Plaintiff indicated that these
issues were a “minor problem” for her. (Id.)
Plaintiff completed a “Beck Anxiety
Inventory” form, for which she received an
overall score of 39, indicating a “potential
cause for concern.” (AR at 251.) In a patient
health questionnaire, plaintiff indicated that
the following were applicable for her: having
little interest or pleasure in doing things;
feeling down, depressed, or hopeless; having
trouble sleeping; feeling tired or having little
energy; having a poor appetite or overeating;
feeling bad about herself; having trouble
concentrating; and moving or speaking
slowly or being more fidgety or restless than
usual. (AR at 252.) She reported that, in the
four weeks before completing this form, she
had an anxiety attack. (Id..) She also
indicated that these problems did not cause
any difficulty at all with regard to working,
taking care of things at home, or getting along
with others. (AR at 253.) Plaintiff had been
treated by Dr. Leddy for panic and depression
and had not been hospitalized. (AR at 254.)
O’Brien noted that plaintiff’s appearance was
appropriate and she made good eye contact.
(AR at 255.) She described plaintiff’s mood
as “happy.” (Id.) O’Brien indicated that
plaintiff was cooperative, and had normal
motor activity. (Id.) She also noted that
plaintiff became agitated when speaking
about “a man behind her,” which O’Brien
noted was evidence of visual hallucinations
and paranoid delusions. (Id.) Plaintiff had
soft, slow, and clear speech. (Id.) Her affect
was blunted. (Id.) O’Brien noted that
plaintiff had adequate impulse control, was
fully oriented, and had intact memory. (Id.)
Plaintiff exhibited limited insight and poor
judgment. (Id.) O’Brien diagnosed plaintiff
with panic disorder, noted rule out
schizophrenia, and prescribed Seroquel. (AR
at 256, 261.)
a schedule; maintain regular attendance; be
punctual; sustain an ordinary routine without
special supervision; make simple workrelated decisions; ask simple questions or
request assistance; accept instructions and
respond appropriately to supervisors’
criticism; get along with coworkers or peers
without distracting them or exhibiting
behavioral extremes; maintain socially
appropriate behavior and adhere to basic
standards of neatness and cleanliness;
respond appropriately to changes in the work
setting; be aware of normal hazards and take
appropriate precautions; travel in unfamiliar
places; use public transportation; set realistic
goals; and make plans independently. (AR at
61-62.) Dr. Selesner concluded that plaintiff
was moderately limited in her abilities to
understand, remember, and carry out detailed
instructions;
maintain
attention
and
concentration for extended periods; work in
coordination with or in proximity to others
without being distracted by them; complete a
normal workday and workweek without
interruptions from psychologically-based
symptoms and perform at a consistent pace
without an unreasonable number and length
of rest periods; and interact appropriately
with the general public. (Id.)
On September 15, 2015, plaintiff
completed a medication assessment tool and
indicated that she took Xanax, Seroquel, and
Prozac. (AR at 259.)
On October 19, 2015, plaintiff saw nurse
practitioner (“N.P.”) Christine O’Brien for an
initial psychiatric evaluation. (AR at 254.)
O’Brien noted that plaintiff had experienced
depression and had anxiety and panic attacks
since childhood. (Id.) In connection with her
appointment with O’Brien, plaintiff
completed a mood disorder questionnaire, in
which she indicated that there had been a
period of time when she was not her usual
self and was much more talkative or spoke
much faster than usual; had racing thoughts;
12
independently. (Id.) O’Brien explained that
plaintiff had trouble concentrating, secondary
to anxiety, panic, and claustrophobia. (Id.)
She noted that plaintiff was often irritable,
was easily distracted, and had racing
thoughts. (Id.) O’Brien also noted that
plaintiff had poor insight and judgment, and
concluded that working would be very
difficult for her. (Id.) O’Brien indicated that
plaintiff had moderate limitations in her
abilities to understand, remember, and carry
out simple job instructions. (AR at 245.) She
indicated that plaintiff had marked
limitations in her abilities to understand,
remember, and carry out both incomplete and
complex job instructions. (Id.) O’Brien
noted that plaintiff was paranoid and unable
to keep up with activities of daily living. (Id.)
At times, plaintiff was unable to function
and/or leave the house. (Id.) Plaintiff had
moderate limitations in maintaining her
personal appearance. (Id.) She had marked
limitations in her abilities to behave in an
emotionally stable manner; relate predictably
in social situations; demonstrate reliability;
and maintain a schedule in a daily routine.
(Id.)
On November 2, 2015, plaintiff visited
O’Brien again, and O’Brien noted that she
was alert, her appearance was neat and clean,
and she exhibited full orientation, appropriate
behavior, cooperative attitude, and normal
psychomotor activity and thought processes.
(AR at 258.) Plaintiff had an anxious and
fearful mood, with congruent and blunted
affect. (Id.) She had continued visual
hallucinations, and poor insight and
judgment, but good impulse control. (Id.)
O’Brien prescribed Klonopin and an
increased dosage of Seroquel. (AR at 258,
262, 370.)
On November 30, 2015, O’Brien
evaluated plaintiff again and noted—as at the
last visit—that plaintiff was alert, her
appearance was neat and clean, and she
exhibited full orientation, appropriate
behavior, and cooperative attitude. (AR at
257.) At this visit, however, O’Brien noted
that plaintiff exhibited fidgety psychomotor
activity and intense affect, and that her mood
was “sad at times—up [and] down.” (Id.)
Plaintiff’s speech was rapid but clear,
coherent, and spontaneous, and her thought
content was normal. (Id.) Plaintiff reported
decreased delusions and paranoia that a man
was following her. (Id.) Her insight and
judgment were poor and impulse control
good. (Id.) Plaintiff reported decreased
panic and that her sleep was “okay.” (Id.)
O’Brien increased plaintiff’s Seroquel dose
and prescribed Klonopin and Prozac. (AR at
257, 260.)
O’Brien noted that plaintiff’s symptoms
of depression included loss of interest in
almost all activities; weight change; sleep
disturbance; psychomotor agitation or
retardation; decreased energy; feelings of
guilt
or
worthlessness;
difficulty
concentrating or thinking; hallucinations,
delusions, or paranoid thinking; hyperactivity
at times; pressured speech; flight of ideas;
easy distractibility; involvement in activities
with a high probability of painful
consequences which are not recognized; and
bipolar syndrome with a history of episodic
periods manifested by full symptomatic
picture of both manic and depressive
syndromes.
(AR at 246-47.) O’Brien
indicated that, as a result of these symptoms,
plaintiff had marked restrictions in
completing activities of daily living; marked
On December 17, 2015, O’Brien
completed a medical source statement of
ability to do work-related mental activities
form. (AR at 243-49.) She noted that
plaintiff had moderate ability to follow work
rules; relate to co-workers; interact with
supervisors; and maintain attention and
concentration. (AR at 244.) She had poor to
no ability to deal with the public; use
judgment; deal with work stress; and function
13
there was a man behind her. (Id.) She denied
suicidal or homicidal ideation and her
impulse control was good. (Id.) Plaintiff had
poor insight and judgment. (Id.)
difficulties in maintaining social functioning;
marked difficulties maintaining attention and
concentration; and repeated episodes of
decompensation, each of extended duration.
(AR at 247.) O’Brien noted that plaintiff
decompensated often and could not manage
her activities of daily living, secondary to
bipolar disorder, with symptoms of past
psychosis, fear, anxiety, and panic. (AR at
247-48.) She determined that plaintiff could
not manage benefits in her own interest. (AR
at 248.)
On February 23, 2016, O’Brien noted
again that plaintiff was alert, neat, clean, and
fully oriented. (AR at 427.) Her behavior
was appropriate, her attitude cooperative, and
her thought processes and content normal.
(Id.) Her mood was “up [and] down,” but her
speech was clear, coherent, and spontaneous.
(Id.) She had decreased hallucinations of that
a man was behind her. (Id.) She denied
suicidal or homicidal ideation (as at the other
visits). (Id.) Her thought processes and
content were normal. (Id.) She had good
impulse control, but poor insight and
judgment. (Id.) Plaintiff reported that she
felt an overall improvement and slept well.
(Id.)
O’Brien continued plaintiff’s
medications without adjustment. (Id.)
On December 28, 2015, O’Brien
evaluated plaintiff and again noted that she
and was alert, neat, clean, and fully oriented.
(AR at 429.) Plaintiff’s behavior was
appropriate, and she had a cooperative
attitude and congruent affect, and normal
psychomotor activity. (Id.) Her speech was
clear and coherent, her thought processes
were normal, and her impulse control good.
(Id.) O’Brien again found that plaintiff’s
insight and judgment were poor, and her
mood was depressed and anxious. (Id.)
Plaintiff again had decreased feelings that a
man following her, and decreased anxiety,
but she was sad at times. (Id.) Overall,
however, she reported that she felt an
improvement. (Id.)
On March 22, 2016, O’Brien noted again
that plaintiff was alert, neat, clean, and fully
oriented. (AR at 426.) Again, plaintiff’s
behavior was appropriate, her attitude was
cooperative, she had normal psychomotor
activity, and she denied suicidal or homicidal
ideation. (Id.) Plaintiff’s speech was clear,
coherent, and spontaneous. (Id.) O’Brien
noted that plaintiff was sad and weeping, and
explained that this was because she felt a man
was following her. (Id.) She had called an
ambulance because of this hallucination, but
did not go to the hospital. (Id.) O’Brien
noted that plaintiff had visual hallucinations,
but her thought processes and content were
otherwise normal. (Id.) Her impulse control
was good, but her insight and judgment were
poor. (Id.) O’Brien increased plaintiff’s
Seroquel dosage. (Id.)
On January 26, 2016, plaintiff saw
O’Brien and reported feeling frustrated and
aggravated because her daughter told her she
was “too loud.” (AR at 428.) Otherwise,
O’Brien noted that plaintiff felt an
improvement, and was sleeping better. (Id.)
She was going to church and helping her
sister at day care. (Id.) O’Brien found that
plaintiff was alert, neat, clean, and fully
oriented. (Id.) Her behavior was appropriate
and she had a cooperative attitude. (Id.) Her
mood was “very good,” and her affect was
congruent to her mood. (Id.) Plaintiff had
clear, coherent, and spontaneous speech.
(Id.) Her thought processes and content were
normal. (Id.) She had decreased feelings that
On April 19, 2016, O’Brien again found
that plaintiff was alert, neat, clean, and fully
oriented. (AR at 425.) Her behavior was
appropriate and attitude cooperative. (Id.)
She displayed normal psychomotor activity,
14
With regard to activities plaintiff was
capable of performing in a typical day,
plaintiff testified that she did little things
around the house, and that her oldest
daughter “d[id] everything.” (AR at 39.)
Plaintiff testified that she napped every day,
often for about three hours. (AR at 45.) She
was able to help care for her younger children
a little; she would feed and carry her youngest
child, but that that was “pretty much it.” (AR
at 40.) She could not bend to bathe him, so
her daughter or husband bathed him. (Id.)
Plaintiff attended church. (Id.) She testified
that she could not do any cleaning around the
house, such as sweeping or mopping, and that
this was “very, very disturbing” to her. (AR
at 41.) She explained that her extreme pain
and inability to do such tasks was aggravating
her mental problems. (Id.) She said that the
epidural steroid injections would help her
with easy household activities, such as
preparing mashed potatoes, for a few days,
but not with anything more significant like
cooking or cleaning. (Id.) Plaintiff denied
having any hobbies. (AR at 42.) She
described herself as “very friendly” and
testified that she did not have difficulty
socializing with others or interacting with the
public. (AR at 46-47.)
a “happy” mood, and a congruent affect. (Id.)
Plaintiff denied hallucinations or delusions.
(Id.) Her speech and thought processes and
content were normal. (Id.) She had poor
insight and judgment, but good impulse
control.
(Id.)
Plaintiff denied having
hallucinations, and reported she felt an
improvement and was sleeping better. (Id.)
O’Brien continued plaintiff’s medications,
and instructed plaintiff to return in one month
or as needed. (Id.)
C. Relevant Testimonial Evidence
The administrative hearing was held on
June 15, 2016 in Central Islip, New York,
before ALJ April M. Wexler. (AR at 26.)
Plaintiff testified that she had a driver’s
license and could drive. (AR at 30.) She
testified that she could not work due to back
pain—which she said was so severe it
prevented her from getting out of bed
sometimes—psychological problems, and
panic attacks. (AR at 33-34.) Plaintiff
testified that her pain averaged seven out of
ten, but could be as severe as ten out of ten.
(AR at 47.) She took medication and
received monthly anesthesia injections for
her back and neck pain. (AR at 34-36, 39.)
She had very weak legs, so her pain
management doctor prescribed her a cane.
(AR at 36.) Plaintiff testified that she could
stand with her cane for support, for about 30
minutes, and could walk about a block. (AR
at 48.) She had difficulty sitting for more
than 20 or 30 minutes. (Id.) She was unable
to bend because she would “need . . . two
people to bring [her] up.” (AR at 40.)
Plaintiff visited a psychiatric nurse
practitioner every month for medication
management, and the nurse would provide
counseling for about five minutes. (AR at 3637.) Plaintiff testified that she had difficulty
making decisions, remembering, and
concentrating. (AR at 48-49.) Plaintiff’s
daughter even had to pick out her clothes for
her. (AR at 49.)
Rocco J. Meola, a vocational expert
(“VE”), also testified at the hearing. (AR at
49-51, 170-73 (curriculum vitae).) Mr.
Meola classified plaintiff’s past jobs as the
following:
a computer parts packager
(Dictionary of Occupational Titles (“DOT”)
Code No. 739.687-182), which was a
sedentary position with a Specific Vocational
Preparation (“SVP”) level of 2 and involved
lifting no more than 10 pounds; and a
packaging job (DOT Code No. 922.687-058)
for Barrons, which was a medium-exertional
position with an SVP of 2 and involved lifting
approximately 50 pounds. (AR at 50.) The
ALJ asked Mr. Meola to assume a
hypothetical individual with the same age,
educational background, and work history as
15
B. The Instant Case
plaintiff, who was limited to sedentary work;
could occasionally lift 10 pounds; could sit
for approximately six hours; could stand or
walk for approximately two hours in an eighthour day with normal breaks; could
occasionally climb ramps or stairs; could
never climb ladders, ropes, or scaffolds;
could occasionally balance, stoop, kneel,
crouch, or crawl; had unlimited ability to
push and pull; could never squat; was limited
to simple, routine, repetitive tasks; was
limited to low-stress jobs, meaning no work
at a fixed-production rate pace; and needed to
use a cane to walk. (AR at 51.) Mr. Meola
testified that such an individual could
perform plaintiff’s past work as a computer
parts packager, but not her other past work.
(Id.) Mr. Meola testified that a hypothetical
individual who had these limitations and
could not bend at the waist would still be able
to perform plaintiff’s past work.
Plaintiff commenced this lawsuit on July
19, 2017. (ECF No. 1.) On January 25, 2018,
plaintiff moved for judgment on the
pleadings. (ECF No. 9.) The Commissioner
submitted a cross-motion for judgment on the
pleadings on March 28, 2018. (ECF Nos. 1415.) On April 17, 2018, plaintiff responded
to the Commissioner’s cross-motion for
judgment on the pleadings. (ECF No. 17.)
The Court has fully considered the parties’
submissions.
III. STANDARD OF REVIEW
A district court may set aside a
determination by the Commissioner “only if
it is based upon legal error or if the factual
findings are not supported by substantial
evidence in the record as a whole.” Greek v.
Colvin, 802 F.3d 370, 374-75 (2d Cir. 2015)
(citing Burgess v. Astrue, 537 F.3d 117, 127
(2d Cir. 2008); 42 U.S.C. § 405(g)). The
Supreme Court has defined “substantial
evidence” in Social Security cases to mean
“more than a mere scintilla” and that which
“a reasonable mind might accept as adequate
to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (citation
omitted); Selian v. Astrue, 708 F.3d 409, 417
(2d Cir. 2013). Furthermore, “it is up to the
agency, and not [the] court, to weigh the
conflicting evidence in the record.” Clark v.
Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d
Cir. 1998). If the court finds that there is
substantial evidence to support the
Commissioner’s determination, the decision
must be upheld, “even if [the court] might
justifiably have reached a different result
upon a de novo review.” Jones v. Sullivan,
949 F.2d 57, 59 (2d Cir. 1991) (citation
omitted); see also Yancey v. Apfel, 145 F.3d
106, 111 (2d Cir. 1998) (“Where an
administrative decision rests on adequate
findings sustained by evidence having
rational probative force, the court should not
II. PROCEDURAL BACKGROUND
A. Administrative History
Plaintiff filed a Title II application for
Social Security Disability Insurance Benefits
on May 21, 2014, and filed a Title XVI
application for supplemental security income
on June 11, 2014, alleging in both
applications disability as of October 1, 2013.
(AR at 9.) Plaintiff’s applications for
benefits were denied on August 8, 2014, and
upon reconsideration, and plaintiff requested
a hearing before an ALJ. (Id.) Plaintiff
appeared with counsel and testified at a
hearing before ALJ April M. Wexler on June
15, 2016, in Central Islip, New York. (Id.;
AR at 26.) Vocational expert Rocco J. Meola
also testified at this hearing. (AR at 9.) On
July 14, 2016, ALJ Wexler denied plaintiff’s
disability insurance benefits claim. (AR at 619.) On May 22, 2017, the Appeals Council
denied plaintiff’s request for review, making
the ALJ’s decision the final decision of the
Commissioner. (AR at 1.)
16
substitute its judgment for that of the
Commissioner.”).
has such an impairment, the
[Commissioner] will find the
claimant disabled. However, if the
claimant does not have a listed
impairment, the [Commissioner]
must determine, under the fourth step,
whether the claimant possesses the
residual function capacity to perform
her past relevant work. Finally, if the
claimant is unable to perform her past
relevant work, the [Commissioner]
determines whether the claimant is
capable of performing any other
work.
IV. DISCUSSION
A. The Disability Determination
A claimant is entitled to disability
benefits if the claimant is unable “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 not
less than twelve months.”
42 U.S.C.
§ 1382c(a)(3)(A). An individual’s physical
or mental impairment is not disabling under
the Social Security Act unless it is “of such
severity that he is not only unable to do his
previous work but cannot, considering his
age, education, and work experience, engage
in any other kind of substantial gainful work
which exists in the national economy.” Id.
§ 1382c(a)(3)(B).
Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.
1999) (quoting Perez v. Chater, 77 F.3d 41,
46 (2d Cir. 1996)). The claimant bears the
burden of proof with respect to the first four
steps; the Commissioner bears the burden of
proving the last step. Id.
The Commissioner must consider the
following in determining a claimant’s
entitlement to benefits: “(1) the objective
medical facts; (2) diagnosis or medical
opinions based on such facts; (3) subjective
evidence of pain or disability testified to by
the claimant or others; (4) the claimant’s
educational background, age, and work
experience.”
Id. (quoting Mongeur v.
Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983)
(per curiam)).
The Commissioner has promulgated
regulations establishing a five-step procedure
for evaluating disability claims. 1 See 20
C.F.R. §§ 404.1520, 416.920. The Second
Circuit has summarized this procedure as
follows:
The first step of this process requires
the [Commissioner] to determine
whether the claimant is presently
employed. If the claimant is not
employed, the [Commissioner] then
determines whether the claimant has
a “severe impairment” that limits her
capacity to work. If the claimant has
such
an
impairment,
the
[Commissioner]
next
considers
whether the claimant has an
impairment listed in Appendix 1 of
the regulations. When the claimant
B. The ALJ’s Ruling
In the instant case, the ALJ first noted that
plaintiff met the insured status requirements
of the Social Security Act through December
31, 2016. (AR at 11.) Next, at the first step
in the five-step sequential process described
supra, the ALJ determined that plaintiff had
not engaged in substantial gainful activity
since October 1, 2013, the date of the alleged
onset of her disability. (AR at 12.) At step
1
The ALJ performs this five-step procedure in the first
instance; the Appeals Council then reviews the ALJ’s
decision and determines if it stands as the
Commissioner’s final decision. See, e.g., Greek, 802
F.3d at 374.
17
two in the five-step process, the ALJ
determined that plaintiff had the following
severe impairments: back impairment and
panic disorder. (Id.) At step three, the ALJ
concluded that plaintiff did not have an
impairment or combination of impairments
that met or medically equaled the severity of
one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (20 C.F.R.
§§ 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925, and 416.926). (Id.)
plaintiff’s pain or other symptoms has been
shown, the ALJ is required to evaluate the
intensity, persistence, and limiting effects of
plaintiff’s symptoms to determine the extent
to which they limit plaintiff’s functioning.
(Id.) When statements about the intensity,
persistence, or functionally limiting effects of
pain or other symptoms are not substantiated
by objective medical evidence, the ALJ must
make a finding on the credibility of the
statements based on the ALJ’s consideration
of the entire case record. (Id.)
At step four, the ALJ wrote that, after
careful consideration of the entire record, she
found that plaintiff had the residual
functional capacity to perform sedentary
work2 as defined in 20 C.F.R. §§ 404.1567(a)
and 416.967(a), in that plaintiff could
occasionally lift ten pounds, sit for
approximately six hours, and stand or walk
for approximately two hours in an eight-hour
day with normal breaks; could occasionally
climb ramps or stairs, but could never climb
ladders, ropes, or scaffolds; could
occasionally balance, stoop, kneel, crouch, or
crawl; could perform unlimited pushing and
pulling; could never squat or bend; was
limited to simple, routine, repetitive tasks;
was limited to low-stress jobs, meaning no
work at a fixed-production rate pace; and
needed to use a cane to walk. (AR at 12-13.)
The ALJ began her residual functional
capacity analysis by stating that, after
carefully considering all of the evidence, she
found that plaintiff’s medically determinable
impairments “could reasonably be expected
to produce the alleged symptoms,” but
plaintiff’s statements about the intensity,
persistence, and limiting effects of these
symptoms were “not entirely consistent with
the medical evidence and other evidence in
the record for the reasons explained in this
decision.” (Id.)
Rather than separating her residual
functional capacity analysis into two distinct
sections (corresponding with the two-step
process), the ALJ provided a single summary
of plaintiff’s testimony and medical
evidence. (AR at 13-19.) She first discussed
select statements from plaintiff’s hearing
testimony, noting that plaintiff “testified that
she is unable to work due to back pain, which
gives her weak legs and her mental disorder.”
(AR at 13.) The ALJ also noted that plaintiff
took medication for her impairments, had had
epidural injections, and saw a nurse
practitioner for mental health medication.
In reaching this conclusion, the ALJ
stated that she followed a two-step process,
in which an ALJ first determines whether
there
is
an
underlying
medically
determinable physical or mental impairment.
(AR at 13.) Second, after finding that an
underlying physical or mental impairment
that could be reasonably expected to produce
2
Sedentary work is defined as follows:
often necessary in carrying out job duties.
Jobs are sedentary if walking and standing
are required occasionally and other sedentary
criteria are met.
Sedentary work involves lifting no more than
10 pounds at a time and occasionally lifting
or carrying articles like docket files, ledgers,
and small tools. Although a sedentary job is
defined as one which involves sitting, a
certain amount of walking and standing is
20 C.F.R. § 404.1567(a).
18
back pain, and physical therapy and
injections had provided no relief. (Id.)
(Id.) She wrote that plaintiff had daily panic
attacks that would last for five to six minutes.
(Id.) On the other hand, the ALJ noted that
plaintiff “does not get any formal therapy”
other than speaking with the nurse
practitioner for about five minutes a month,
described herself as a social person who had
no difficulty getting along with others, and
was able to drive, pick her child up from
school, and walk with a cane. (Id.)
On the other hand, the ALJ stated that she
gave “little weight” to N.P. O’Brien’s
opinion, explaining that it was inconsistent
with other record evidence, plaintiff’s own
testimony, and plaintiff’s work history; it was
“based on very limited treatment records and
only a two-month treatment relationship”;
and “O’Brien is not an acceptable medical
source.” (AR at 16.) The ALJ noted that
O’Brien’s opinion discussed, among other
issues, plaintiff’s agitation, difficulty
concentrating, hallucinations, paranoid
thinking, hyperactivity, distractibility, lack of
ability to deal with the public, and limitations
with respect to “following work rules,
relating with coworkers, interacting with
supervisors, maintaining attention . . . [and]
carrying out simple job instructions,” among
others. (AR at 15-16.) She also noted that
O’Brien discussed plaintiff’s restricted
activities of daily living, and that plaintiff has
lived with many of these issues since
childhood, and found this evidence to be
inconsistent with other evidence and merit
little weight. (AR at 16.)
Next, the ALJ discussed plaintiff’s
medical records and the opinions of six of
plaintiff’s treating physicians and medical
examiners. (AR at 13-19.) The ALJ stated
that she gave “great weight” to the opinions
of Drs. Herman and Pollack, and provided as
her reason that both opinions were “based on
a complete examination.” (AR at 15.) The
ALJ accorded this weight to Dr. Herman’s
records from his July 2, 2014 psychiatric
evaluation of plaintiff, and Dr. Pollack’s
records from her August 1, 2014 internal
medicine examination of plaintiff, in each of
which the doctors noted that “[n]o doctorpatient relationship exists or is implied by
this examination.” (AR at 232-35, 238-41.)
The ALJ concluded her synopsis of Dr.
Herman’s opinion by summarizing that he
assessed that plaintiff’s psychiatric problems
“did not appear to be significant enough to
interfere with [her] ability to function on a
daily basis to the extent that vocational
functioning would be precluded.” (AR at
15.) Similarly, the ALJ noted a number of
Dr. Pollack’s findings—including that
plaintiff could walk normally, used no
assistive devices, and received a stable
prognosis—that supported the doctor’s
assessment that plaintiff had “a mild to
moderate restriction” with respect to certain
activities, and a marked restriction with
respect to others (e.g., squatting and lifting).
The ALJ noted specific findings that were the
basis for these limitations, such as that
plaintiff had limited range of motion in her
spine, hips, and knees, had severe neck and
The ALJ did not explicitly state the
weight she assigned to the other medical
opinions—Dr. Szerlip’s in particular—but it
is apparent from her conclusion of this
analysis that she considered certain (but not
others) of Dr. Qadeer and Dr. Leddy’s notes
in arriving at her conclusion that plaintiff
“retain[ed] the capacity to function
adequately” to perform sedentary work, with
the limitations noted above. (AR at 17-18.)
The ALJ also pointed to specific medical
records in support of her conclusion, such as
records reflecting improvement in plaintiff’s
back condition after epidural steroid
injections, with medication, and over time
(AR at 17), and progress notes from the
Sunrise Counseling Center indicating that
19
plaintiff “slept better,” “had a happy mood,”
and was “overall improved” (AR at 18).
motion. As plaintiff argues, the ALJ failed to
provide good reasons for not crediting
plaintiff’s treating physicians’ opinions and
for assigning controlling weight to two of the
medical examiners’ opinions. Second, the
Court concludes that the ALJ improperly
considered the vocational expert’s evidence
by relying on testimony that plaintiff would
be able to perform a job that, as described in
the DOT, did not fit her past work (which
would actually be classified as medium
work). Additionally, both the job the expert
identified and plaintiff’s past work would
require plaintiff to work at a fixed-production
rate pace, which the ALJ’s own residual
functional capacity determination specified
plaintiff was unable to do.
Based on this evidence, the ALJ states
that “[t]he residual functional capacity
accounts for the vocational limitations that
would be placed upon [plaintiff] based on her
medically
determinable
impairments,”
including her back condition and panic
disorder. (Id.) For example, the ALJ
explained, the limitations that plaintiff would
lift no more than ten pounds, and only
occasionally, and would only occasionally be
required to perform activities such as
balancing, stooping, and kneeling, accounted
for her back impairment. (Id.) Plaintiff’s
need to walk with a cane was also
accommodated. (AR at 19.) The limitation
that plaintiff could only perform simple, lowstress jobs accommodated her issues with
concentration and stress. (Id.)
Thus, remand is warranted, and the Court
need not, and does not, address plaintiff’s
argument that the ALJ failed to properly
evaluate the medical evidence in making her
determination as to plaintiff’s residual
functional capacity. Additionally, based on
its review of the ALJ’s decision, the Court
concludes that the ALJ did not err in her
determination with regard to the severity of
plaintiff’s cervical impairment (but directs
the ALJ clarify this portion of her decision on
remand).
Concluding her residual functional
capacity analysis, the ALJ determined that,
taking plaintiff’s limitations into account,
plaintiff was capable of performing her past
relevant work as a packager of small parts.3
(Id.) The ALJ found that plaintiff was,
therefore, not disabled from the onset of her
disability on October 1, 2013, through the
date of the ALJ’s decision. (Id.)
1. Failure to Properly Evaluate the
Medical Evidence
C. Analysis
Plaintiff challenges the ALJ’s decision,
finding that plaintiff has not been disabled
since October 1, 2013, and denying her
disability insurance benefits. Specifically,
plaintiff asserts that the ALJ (1) failed to
properly evaluate the medical evidence, and
(2) improperly assessed the vocational
expert’s evidence. As set forth below, first,
the Court agrees that the ALJ failed to
properly evaluate the medical evidence for
one of the reasons plaintiff asserts in her
a. Step Two Assessment of Severity
of Impairments
Plaintiff argues that the ALJ erred in
failing to find that her cervical impairment
was a “severe impairment.” Based on the
Court’s review of the ALJ’s decision,
however, the Court agrees with the
Commissioner that the ALJ intended her
finding that plaintiff’s “back impairment”
was a severe impairment (AR at 12) to
3
In light of the ALJ’s determination that plaintiff was
capable of performing her past relevant work, she did
not need to move to the final step of the five-step
process to determine whether plaintiff was capable of
performing any other work.
20
U.S.C.
§
423(d)(2)(B)
(requiring
consideration of “the combined effect of all
of the individual’s impairments”)). Thus, the
ALJ’s omission was harmless given that she
considered plaintiff’s cervical impairment in
the remainder of her analysis. However, in
light of the Court’s determination that this
case shall be remanded for the reasons
discussed infra, the Court directs the ALJ to
clarify in her next ruling whether she intends
to include plaintiff’s cervical impairment as
one of her severe impairments.
include both plaintiff’s lumbar and cervical
spine impairments. ALJs will often note
where they find that only certain alleged
impairments qualify as severe. See, e.g.,
Ridge v. Berryhill, 294 F. Supp. 3d 33, 53
(E.D.N.Y. 2018) (noting that the record
showed a history of plaintiff’s other alleged
impairments, and explaining why they did
not qualify as severe); Miracolo v. Berryhill,
286 F. Supp. 3d 476, 492 (E.D.N.Y. 2018)
(same). Here, the ALJ did not specify that
she found plaintiff had a severe impairment
in only part of plaintiff’s back, or that her
finding did not extend to plaintiff’s alleged
cervical impairment.
Further, the ALJ
discussed plaintiff’s cervical impairment in
her discussion of plaintiff’s residual
functional capacity, for instance referring to
plaintiff’s cervical spine MRIs and Dr.
Szerlip’s diagnoses of cervical disc
displacement, cervical radiculopathy, and
cervical muscle spasms. (See AR at 13-14,
16.) In the ALJ’s summary of the residual
functional capacity analysis, where she
discusses improvements in plaintiff’s
conditions and her determination that
plaintiff suffered from severe impairments
but retained the capacity to perform many
basic work activities, the ALJ specifically
notes Dr. Leddy’s report that plaintiff had full
range of motion of the neck. (AR at 17.)
Thus, although the ALJ did not specify at step
two that plaintiff’s back impairment included
her cervical impairment, the Court concludes
that this impairment was one that the ALJ
deemed at that stage to be severe.
b. Treating Physician Rule
Plaintiff argues that the ALJ erred in
applying the treating physician rule, and
thereby improperly weighed the medical
evidence. Based on the weight the ALJ stated
and appears to have assigned to the different
medical opinions in the record, the Court
agrees.
The Commissioner must give special
evidentiary weight to the opinion of the
treating physician. See Clark, 143 F.3d at
118. The “treating physician rule,” as it is
known, “mandates that the medical opinion
of a claimant’s treating physician [be] given
controlling weight if it is well supported by
medical findings and not inconsistent with
other substantial record evidence.” Shaw v.
Chater, 221 F.3d 126, 134 (2d Cir. 2000); see
also, e.g., Rosa v. Callahan, 168 F.3d 72, 79
(2d Cir. 1999); Clark, 143 F.3d at 118. The
rule, as set forth in the regulations, provides:
Generally, we give more weight to
medical opinions from your treating
sources, since these sources are likely
to be the medical professionals most
able to provide a detailed,
longitudinal picture of your 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
Regardless, even if the Court were to
accept plaintiff’s argument that the ALJ did
not make this specific finding, that alleged
error would not be grounds for remand.
Where an ALJ fails to note a particular
impairment at step two, if the ALJ finds other
severe impairments and considers the omitted
impairment in the subsequent steps, “any
error was harmless.” O’Connell v. Colvin,
558 F. App’x 63, 65 (2d Cir. 2014) (citing 42
21
§§ 404.1527(d)(2), 416.927(d)(2)); see also
Perez v. Astrue, No. 07-cv-958 (DLI), 2009
WL 2496585, at *8 (E.D.N.Y. Aug. 14,
2009) (“Even if [the treating physician’s]
opinions do not merit controlling weight, the
ALJ must explain what weight she gave those
opinions and must articulate good reasons for
not crediting the opinions of a claimant’s
treating physician.”); Santiago v. Barnhart,
441 F. Supp. 2d 620, 627 (S.D.N.Y. 2006)
(“Even if the treating physician’s opinion is
contradicted by substantial evidence and is
thus not controlling, it is still entitled to
significant weight because the treating source
is inherently more familiar with a claimant’s
medical condition than are other sources.”
(citation omitted)). A failure by the ALJ to
provide “good reasons” for not crediting the
opinion of a treating physician is a ground for
remand. See Snell, 177 F.3d at 133; 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
physician[’]s opinion and we 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.”).
examinations, such as consultative
examinations
or
brief
hospitalizations. If we find that a
treating source’s opinion on the
issue(s) of the nature and severity of
your impairments(s) is wellsupported by medically acceptable
clinical and laboratory diagnostic
techniques and is not inconsistent
with the other substantial evidence in
your case record, we will give it
controlling weight.
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
Although treating physicians may share their
opinions concerning a patient’s inability to
work and the severity of the disability, the
ultimate decision of whether an individual is
disabled is “reserved to the Commissioner.”
Id. § 404.1527(d)(1); see also Snell v. Apfel,
177 F.3d 128, 133 (2d Cir. 1999) (“[T]he
Social Security Administration considers the
data that physicians provide but draws its
own conclusions as to whether those data
indicate disability.”).
If the opinion of the treating physician as
to the nature and severity of the impairment
is not given controlling weight, the ALJ must
apply various factors to decide how much
weight to give the opinion. See Shaw, 221
F.3d at 134; Clark, 143 F.3d at 118. 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); see
also Clark, 143 F.3d at 118. When the ALJ
chooses not to give the treating physician’s
opinion controlling weight, he must “give
good reasons in [his] notice of determination
or decision for the weight [he] gives [the
claimant’s] treating source’s opinion.”
Clark, 143 F.3d at 118 (quoting C.F.R.
Here, remand is appropriate because the
ALJ failed to give “good reasons” for
according less than controlling weight to the
opinions of plaintiff’s treating physicians,
and for according greater weight to two of the
medical examiners’ opinions.
First, the Court finds that the ALJ failed
to provide sufficient reasons for appearing to
give less than controlling weight to treating
physicians Drs. Leddy, Szerlip, and Qadeer,
and giving “little weight” to the opinion of
N.P. O’Brien. With respect to Dr. Leddy,
plaintiff’s primary care physician, the ALJ
does not state the weight she assigns to his
testimony and discusses the records from
only two of his many visits with plaintiff.
22
them more extensively in her decision and
references them in her conclusion as support
for finding that plaintiff’s condition was
improved. She discusses the following of Dr.
Qadeer’s records: records from June 2014,
noting that plaintiff was experiencing neck
and back pain, and had limited range of
motion of the cervical and thoracolumbar
spine, among other conditions (id.); records
from October 2014, noting that plaintiff’s
“[l]umbar back pain [wa]s much better after
epidural steroid injections” (AR at 16); and
records from February through July 2015,
noting complaints of pain at some visits,
while at others plaintiff had no new
complaints, or even reported that she was
doing well and the medication was helping
(id.). In concluding her residual functional
capacity analysis, the ALJ noted that in Dr.
Qadeer’s records from March through May
2016, plaintiff reported that medications and
injections were helping her with the pain, she
experienced functional improvement, and she
had “no new complaints during that time and
stated that [her] neck pain does not bother her
too much.” (AR at 17.) The ALJ does not,
however, address that in visits including one
as late as the end of May 2016, plaintiff’s
complaints indicated much greater pain and
limitations. At that May 23, 2016 visit, for
instance, plaintiff reported that the week
before she had “excruciating” pain and
“could hardly move.” (AR at 430.) Although
the ALJ noted that plaintiff reported at that
visit that the injections helped “take the edge
off” her pain, the ALJ does not note that
plaintiff made that statement after reporting
that the medication did not help much. (Id.)
The ALJ discusses plaintiff’s pain and other
symptoms as Dr. Leddy noted at the October
2, 2014 visit (AR at 15), then discusses
portions of Dr. Leddy’s reports from the
November 5, 2015 visit showing significant
improvement (AR at 17 (noting findings
including that plaintiff had full range of
motion in her neck, grossly normal muscle
tone and strength, and full and painless range
of motion of all major muscle groups)). The
ALJ references the latter report again in
concluding that plaintiff’s conditions had
improved, and her impairments would not
preclude her from working. In referring to
only select notes from these two visits, the
ALJ failed to discuss the records from
plaintiff’s numerous other visits with Dr.
Leddy from 2013 through 2015 that indicated
serious ongoing medical issues. For instance,
the ALJ failed to discuss Dr. Leddy’s records
from November 4, 2015—just a day before
the visit at which the ALJ depicted plaintiff
as in relatively good condition—in which Dr.
Leddy reported that plaintiff had paresthesia
in her upper extremities and referred plaintiff
to a chronic pain specialist. (AR at 373.)
Similarly, the ALJ does not state the
weight assigned to pain management doctor
Szerlip’s records, and—based on the ALJ’s
conclusion of her analysis in this section—
appears to accord them little weight. The
ALJ only briefly notes that plaintiff saw Dr.
Szerlip from January through May 2014, and
that Dr. Szerlip indicated that plaintiff
suffered from neck and back pain (among
other physical ailments), had experienced a
30% improvement from an epidural
injection, and was diagnosed with cervical
disc displacement, cervical radiculopathy,
and cervical paraspinal muscle spasms. (AR
at 14.) There is notably no discussion of
these records in the ALJ’s conclusion.
The ALJ provided her reasons for giving
less than controlling weight to the nurse
practitioner’s opinion, but did not “articulate
good reasons” for according less than
controlling weight to the opinions of the
treating physicians that indicated that
plaintiff’s conditions were more severe than
the ALJ ultimately concluded. Perez, 2009
The ALJ also failed to state the weight
she accorded to pain management doctor
Qadeer’s records, although she discusses
23
WL 2496585, at *8. The ALJ noted, in her
conclusion, that there were inconsistencies
within the record evidence, such as the fact
that plaintiff stated at certain visits that the
injections did not help her, but also reported
that she was able to cook three times per
week and shower and dress daily. (AR at 18.)
This explanation for the ALJ’s determination
as to which evidence to credit does not
provide the requisite “good reasons” for
discounting the evidence that these treating
physicians provided, as opposed to other
record evidence.
portions of what she found to be
contradictory record evidence to credit.
O’Brien’s records—which the ALJ found to
be inconsistent with the evidence she
credited—are consistent with much of the
evidence from the treating physicians that the
ALJ chose to discredit without adequate
explanation. Thus, given the lack of good
reasons for not crediting the treating
physicians’ opinions (and that of the nurse
practitioner), the Court concludes that the
ALJ’s determination failed to satisfy the
treating physician rule.
Finally, looking to the ALJ’s treatment of
the nurse practitioner’s opinion, the Court
recognizes that the ALJ was not required to
give her opinion controlling weight, but notes
that the ALJ nonetheless should have
considered it as among the “other sources”
whose opinions may be considered in this
analysis. See Genier v. Astrue, 298 F. App’x
105, 108 (2d Cir. 2008) (“[N]urse
practitioners and physicians’ assistants are
defined as ‘other sources’ whose opinions
may be considered with respect to the
severity of the claimant’s impairment and
ability to work, but need not be assigned
controlling weight.” (citing 20 C.F.R.
§ 416.913(d)(1))). The ALJ explained that
she gave little weight to N.P. O’Brien’s
opinion because—in addition to the fact that
she did not consider O’Brien to be an
acceptable medical source—(1) she found
O’Brien’s opinion to be inconsistent with
other record evidence, and (2) it was based on
limited treatment records and only a twomonth treatment relationship. (AR at 16.)
First, the Court notes that the length of this
treating relationship was far longer than the
amount of time the medical examiners spent
with plaintiff before forming their opinions
(to which the ALJ assigned great weight).
Second, for the reasons previously discussed
in reference to the other treating physician
opinions, the Court does not find that the ALJ
articulated good reasons in selecting which
The Court also finds that the ALJ
improperly accorded controlling weight to
medical experts Drs. Herman and Pollack’s
opinions. The Second Circuit has indicated
that, by extension of the treating physician
rule, ALJs should not rely heavily on findings
by examiners based on a single examination.
Selian, 708 F.3d at 419. In Selian, the ALJ
rejected the treating physician’s diagnosis
based in part on the opinion of another
physician who “performed only one
consultative examination.” 708 F.3d at 419.
The Court held that, in doing so, the ALJ
“fail[ed] to provide ‘good reasons’ for not
crediting
[the
treating
physician’s]
diagnosis,” and that failure “by itself
warrant[ed] remand.” Id. In Cruz v. Sullivan,
the Second Circuit explained that “a
consulting physician’s opinions or report
should be given 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.’” 912 F.2d 8, 13 (2d Cir. 1990)
(citation omitted).
Although amended
regulations guiding ALJs in evaluating
medical opinions now permit non-examining
sources’ opinions to override treating
sources’ opinions, that is still with the
limitation that the overriding opinions must
be “supported by evidence in the record.”
Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir.
24
1993) (citing 20 C.F.R. §§ 404.1527(f),
416.927(f)). The Second Circuit explained
that the amended regulations “continue to
give deference to the opinions of treating
physicians based on the view that opinions
based on a patient-physician relationship are
more reliable than opinions based, say, solely
on an examination for purposes of the
disability proceedings themselves.” Id.
restriction as to certain physical activities
(such as squatting and bending, as discussed
supra). (Id.) Although the ALJ pointed to
evidence based on the doctors’ examinations
of plaintiff, she still failed to explain why the
portions of these opinions that she chose to
credit would override the treating physicians’
evidence. It is, therefore, unclear why the
ALJ determined that plaintiff could work
despite portions of the record—such as
descriptions of her “excruciating” pain,
which impacted plaintiff so intensely that she
“could hardly move” (AR at 430)—that
suggest otherwise.
As stated supra, Drs. Herman and Pollack
noted in the records from their one-time
evaluations that “[n]o doctor-patient
relationship exists or is implied by this
examination.” (AR at 232-35, 238-41.) The
ALJ noted mixed findings from Dr.
Herman’s reports, discussing plaintiff’s
psychiatric
condition,
including
claustrophobia and panic, but also that her
thought processes were coherent and that she
was oriented. (AR at 14.) The ALJ finished
discussing Dr. Herman’s opinion by
summarizing that he assessed that plaintiff’s
psychiatric problems “did not appear to be
significant enough to interfere with [her]
ability to function on a daily basis to the
extent that vocational functioning would be
precluded.” (AR at 15.) The ALJ also noted
mixed findings with respect to plaintiff’s
condition in Dr. Pollack’s records. She
discussed Dr. Pollack’s examination results,
including that “[p]hysical examination
revealed limited range of motion,” and the
doctor diagnosed neck and lower back pain,
panic disorder, claustrophobia, and found
that plaintiff had a mild and marked
In sum, the ALJ failed to provide “good
reasons” for declining to accord controlling
weight to the treating physicians’ opinions.
Snell, 177 F.3d at 133. That failure “by itself
warrants remand.”4 Selian, 708 F.3d at 419.
2. Failure to Properly Assess the
Vocational Expert’s Evidence
Given that the Court is remanding this
case for further proceedings, the Court only
briefly discusses the ALJ’s allegedly
improper reliance on the vocational expert’s
testimony. First, plaintiff argues that the
description of the job the vocational expert
identified in the DOT as matching plaintiff’s
past relevant work packaging small
electronic parts—a packager of small parts,
table worker (DOT Code No. 739.687182)—does not, in fact, match the work
plaintiff performed at her electronic parts
packaging job. With respect to her actual
4
Plaintiff argues that the ALJ failed to properly weigh
the medical evidence not only by assigning greater
weight to the medical examiners’ opinions than to
those of her treating physicians, but also by incorrectly
evaluating her residual functional capacity. In support
of this second argument, plaintiff states again that the
ALJ relied primarily on the opinions of the medical
examiners (Drs. Herman and Pollack), and that their
opinions were vague and the ALJ, therefore, had a
duty to further develop the record. The Court finds
this argument to be largely duplicative. Regardless, in
light of the Court’s ruling that the ALJ erred in failing
to give “good reasons” for according less than
controlling weight to the treating physicians’ opinions,
the Court need not address plaintiff’s other arguments
with respect to the ALJ’s failure to properly weigh the
medical evidence at this time. The Court, thus,
declines to do so, but directs the ALJ on remand to
reconsider plaintiff’s residual functional capacity. See
McAllister v. Colvin, 205 F. Supp. 3d 314, 330 n.3
(E.D.N.Y. 2016); Morris v. Colvin, No. 15-CV-5600
(JFB), 2016 WL 7235710, at *10 (E.D.N.Y. Dec. 14,
2016).
25
the ALJ deemed to be outside of plaintiff’s
residual functional capacity. See Jasinski v.
Barnhart, 341 F.3d 182, 185 (2d Cir. 2003)
(“[I]n the fourth stage of the SSI inquiry, the
claimant has the burden to show an inability
to return to her previous specific job and an
inability to perform her past relevant work
generally.” (citations omitted)).
work activities in that job, plaintiff explains
that she worked sitting and standing and was
never required to lift more than ten pounds.
The vocational expert classified her past job
as a packager of small parts or a table worker,
a sedentary position with an SVP of 2.
Plaintiff explains that the DOT job
description—examining squares or tiles
passed along on a conveyor and replacing
missing or substandard pieces—“has
virtually no resemblance” to the work she
actually performed.
Plaintiff identified
another DOT job description that she claims
better fit her past work packaging electronic
parts—that of a hand packager (DOT Code
No. 920.587-018), which involves manually
packaging materials and performing any
combination of duties including cleaning
containers, lining crates, assembling cartons,
sorting products, regulating conveyor speed,
and labeling and packing, among other
activities—and notes that this is classified as
medium work, although plaintiff performed it
at the sedentary level.
Thus, the Court directs the ALJ, on
remand, to reexamine the DOT job
description that fits plaintiff’s past relevant
work. After reconsidering plaintiff’s residual
functional capacity (as discussed supra), the
ALJ should determine whether plaintiff
would, in fact, be capable of performing her
past relevant work (or, if not, the ALJ should
proceed to determine at step five whether
plaintiff is capable of performing any other
work).
Second, plaintiff argues that, based on the
ALJ’s own assessment that plaintiff’s
residual functional capacity does not allow
for her to perform fixed-production rate
tasks, plaintiff is not capable of performing
either her past job or the DOT job the
vocational expert identified.
The ALJ
specifically determined that plaintiff was
capable of “perform[ing] low-stress jobs,
meaning no work at a fixed production rate
pace.” (AR at 13.) Both the vocational
expert’s proposed job and what plaintiff
claims was her actual past relevant work
would require her to work at a fixedproduction rate pace: the expert’s proposed
job involves examining and replacing tiles on
a conveyor belt; and plaintiff described her
actual past work as a conveyor belt or
assembly-line occupation. The Court agrees
that both of these jobs would appear to
require plaintiff to work at a fixed-production
rate pace and, as such, to perform work that
26
V.
CONCLUSION
For the reasons set forth above, plaintiff's
motion for judgment on the pleadings is
denied. The Commissioner's cross-motion
for judgment on the pleadings is also denied.
The case is remanded to the ALJ for further
proceedings
consistent
with
this
Memorandum and Order.
SO ORDERED.
Dated: September 28, 2018
Central Islip, New York
***
Plaintiff is represented John W. DeHaan of
the DeHaan Law Firm P.C., 300 Rabro Drive
East, Suite 101, Hauppauge, New York
11788. The Commissioner is represented by
Assistant United States Attorney Rukhsanah
L. Singh of the U.S. Attorney's Office, 271
Cadman Plaza East, Brooklyn, New York
11201.
27
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