Wilson v. Colvin
MEMORANDUM-DECISION AND ORDER: It is ORDERED that the Commissioner's motion for judgment on the pleadings (Dkt. No. 8) is DENIED. It is further ORDERED that plaintiff's motion for judgment on the pleadings (Dkt. No. 7) is GRANTED. It is further ORDERED that the Commissioner's decision is reversed and this matter is remanded. It is further ORDERED that the Clerk of the Court is directed to enter judgment for plaintiff. Signed by Senior Judge Norman A. Mordue on 3/30/2017. (mc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
COMMISSIONER OF SOCIAL SECURITY,
Lewis B. Insler, Esq.
Law Offices of Lewis B. Insler
17 Newcomb Place
White Plains, NY 10606
Attorney for Plaintiff
Graham Morrison, Esq.
Social Security Administration
Office of General Counsel
26 Federal Plaza, Room 3904
New York, New York 10278
Attorney for Defendant
Hon. Norman A. Mordue, Senior District Judge:
MEMORANDUM-DECISION AND ORDER
On January 31, 2013, plaintiff protectively filed an application for disability insurance
benefits, alleging an onset date of June 18, 2012. The application was initially denied on June 28,
2013. Thereafter, plaintiff filed a request for a hearing, and a hearing was held on April 15, 2014.
Administrative Law Judge Vincent M. Cascio issued an unfavorable determination on the claim.
The Appeals Council denied plaintiff’s request for review. Plaintiff brought an action pursuant to
42 U.S.C. § 405(g) of the Social Security Act, asking the court to reverse the Commissioner’s
decision to deny her application for disability benefits.
Presently before the court are the parties’ cross-motions for judgment on the pleadings.
(Dkt. Nos. 8, 11). For the reasons set forth below, the court concludes that the matter should be
The Social Security Act authorizes payment of disability insurance benefits or SSI
benefits to individuals with “disabilities.” To be considered disabled, a plaintiff must establish
that he or she 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 of not less than twelve months . . . .”
42 U.S.C. § 1832c(a)(3)(A). The Commissioner uses a five-step process to evaluate disability
insurance and SSI disability claims:
[I]f the Commissioner determines (1) that the claimant is not
working, (2) that he has a “severe impairment,” (3) that the
impairment is not one [listed in Appendix 1 of the regulations] that
conclusively requires a determination of disability, and (4) that the
claimant is not capable of continuing in his prior type of work, the
Commissioner must find him disabled if (5) there is not another
type of work the claimant can do.
Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (quoting Draegert v. Barnhart, 311
F.3d 468, 472 (2d Cir. 2002)); Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000).
A Commissioner’s determination that a claimant is not disabled will be set aside when the
factual findings are not supported by “substantial evidence.” 42 U.S.C. § 405(g); see also Shaw,
221 F.3d at 131. Substantial evidence has been interpreted to mean “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id. The Court may also set
aside the Commissioner’s decision when it is based upon legal error. Rosa v. Callahan, 168 F.3d
72, 77 (2d Cir. 1999).
First, the ALJ found that plaintiff had not engaged in substantial gainful activity since the
alleged onset date. (Tr. 15). The ALJ then concluded that plaintiff’s post-traumatic stress
disorder, alcohol dependence, right shoulder tendinopathy and degenerative joint disease; mild
right biceps tendinopathy; multilevel degenerative changes in the cervical spine with foraminal
stenosis especially at C5-6; status-post anterior cervical discectomy and fusion at the C5-C7 level
of the cervical spine with screws and plating; and carpal tunnel syndrome of the right wrist were
severe impairments. With respect to plaintiff’s physical impairments, the ALJ discussed listings
1.02 and 1.04 and determined that plaintiff’s impairments did not meet or medically equal the
listings. (Tr. 15-16). The ALJ then considered whether plaintiff’s mental impairment met or
medically equaled the criteria of listing 12.04, 12.06, or 12.09, concluding that they did not. (Tr.
Next, the ALJ discussed the evidence and determined that plaintiff has the residual
functional capacity to
perform light work . . . except [he] is never able to climb ropes,
ladders or scaffolds; he is limited to no more than occasional
climbing of ramps or stairs; he is limited to no more than occasional
stooping or kneeling; he is limited to no more than occasional
reaching, including overhead reaching, with the right dominant
upper extremity: he is limited to frequent handling and fingering
with the right dominant wrist and hand; he should do no more than
frequent rotation, flexion, or extension of the neck; he cannot
tolerate exposure to unprotected heights or hazardous machinery: he
can only remember and carry out simple, unskilled work related
tasks with only occasional interaction with the public, coworkers
and supervisors; however, [he] is able to make independent
judgments on simple work related decisions.
The ALJ explained that plaintiff alleged that he has difficulty lifting objects, walking,
standing, sitting, climbing stairs, kneeling, squatting, reaching, and using his hands, and had to
stop working due to his conditions. (Tr. 18). The ALJ further stated that plaintiff claimed that he
rarely socializes and tends not to trust others, that he has difficulty paying attention and cannot
follow written instructions. The ALJ noted, however, that plaintiff was able to drive himself to
the hearing, and recently drove to Utah, and that he testified to socializing more than previously
alleged. (Tr. 18).
The ALJ concluded that the medical evidence did not fully support plaintiff’s allegations.
In this regard, the ALJ referenced a June 19, 2012 visit to the emergency room where plaintiff
complained of pain in his neck radiating into his right arm, explaining that he injured himself in
2009 but was able to return to work following physical therapy and conservative treatment. He
was diagnosed with exacerbation of a chronic cervical strain with radiculopathy. (Tr. 18). The
ALJ also referenced a June 25, 2012 orthopedic examination with Dr. Stephen Maurer where
plaintiff explained that he was jackhammering in April and started feeling pain in his neck and
right shoulder. Dr. Mauer found no lack of strength in plaintiff’s upper extremities. The ALJ
also pointed to a July 2012 MRI of plaintiff’s cervical spine that showed degenerative changes
and stenosis, but no disc herniations or nerve root involvement. An October 19, 2012 MRI of
plaintiff’s right shoulder showed only mild abnormalities and revealed no evidence of a rotator
cuff tear. According to the ALJ, this evidence shows that while plaintiff has orthopedic
impairments, the objective and clinical evidence does not support his allegations that they
preclude him from working full-time.
The ALJ then outlined plaintiff’s additional treatment history for his physical
impairments. The ALJ discussed a November 2012 visit to Dr. Samant Virk where plaintiff’s
pain persisted and physical therapy had not helped. Dr. Virk administered an injection into
plaintiff’s neck, but on December 3, 2012, plaintiff continued to complain of neck and arm pain.
On February 19, 2013 plaintiff elected to undergo anterior cervical discectomy and fusion at the
C5-6 level. (Tr. 18-19). In March 2013, plaintiff complained of neck pain radiating into his right
arm at the emergency room, but imaging showed “no abnormalities other than the fusion.” (Tr.
19). In May 2013, Dr. Perkins, who performed the surgery, recommended that plaintiff continue
to attend physical therapy and otherwise treated his condition conservatively. (Tr. 19). The ALJ
noted that a July 2013 MRI of plaintiff’s cervical spine showed a solid fusion and mild
degenerative disc disease, and on August 21, 2013, Dr. Perkins recommended that plaintiff stop
taking prescription pain medication and continue attending physical therapy. (Tr. 19). The ALJ
also discussed a consultative orthopedic examination performed by Dr. Corvalan, who opined that
plaintiff had moderate to marked limitations in moving his neck backward, forward, or laterally.
The ALJ assigned this opinion limited weight because the opinion was made only two months
after the fusion surgery, and therefore was too close in time to be probative. (Tr. 19). The ALJ
gave the opinions of 100% disability for plaintiff’s worker’s compensation claim limited weight
as they were on an issue reserved to the commissioner, substantial medical evidence showed that
plaintiff was not 100% disabled, and claims for worker’s compensation use different standards
and rules than the Social Security Administration. (Tr. 19-20).
The ALJ also outlined plaintiff’s treatment history with respect to his mental impairments.
The ALJ explained that plaintiff has a long history of treatment for PTSD, but that after treatment
he was able to work. (Tr. 19). Plaintiff attended a consultative psychological examination with
Dr. Claude Schicuderer on May 20, 2013, where plaintiff reported that therapy had helped him
immensely. At a June 18, 2013 treatment visit, medical professionals found no deficits in
plaintiff’s motor or neurological functioning. The ALJ referenced a June 2013 psychotherapy
session with Dr. Dale Vangaasbeek where plaintiff stated that his orthopedic doctor told him he
could not return to work for three weeks and expressed worry that he might lose his job. The ALJ
determined that this shows that “despite his conditions, [he] is capable of working in some
capacity; and he has expressed this to his mental health providers who had no concerns about him
returning to work.” (Tr. 19). The ALJ further explained that at a November 2013 visit plaintiff
reported that he was doing well on his medication regimen, and that while there was an increase
in plaintiff’s symptoms in March 2014, it was situational, and that between November 2013 and
March 2014 he reported doing well. Dr. Vangaasbeek completed a form regarding plaintiff’s
mental residual functional capacity on September 13, 2013. He opined that plaintiff had marked
limitations in his ability to understand, remember, and carry out complex tasks, that plaintiff has
marked limitations in his ability to make complex work-related judgments, and marked to
extreme limitations in social functioning. The ALJ assigned this opinion very little weight,
concluding that it was inconsistent with his own treatment notes and the medical evidence of
record documenting previous successful treatment that allowed plaintiff to return to work. (Tr.
Next, the ALJ found that plaintiff was unable to perform his past relevant work, but, after
consulting a vocational expert, concluded that, considering his age, education, work experience,
and residual functional capacity, he was capable of making a successful adjustment to other work
that exists in significant numbers in the national economy. Therefore, the ALJ determined that a
finding of “not disabled” was appropriate. (Tr. 21).
Issues In Contention
Plaintiff argues that: 1) the ALJ erred in evaluating the evidence and in improperly
determining plaintiff’s residual functional capacity; 2) the Appeals Council failed to properly
consider the additional evidence; and 3) the ALJ failed to properly evaluate plaintiff’s credibility.
A plaintiff’s RFC is the most he can do despite his limitations. 20 C.F.R. §§
404.1545(a)(1), 416.945(a)(1). RFC is the individual’s maximum remaining ability to do
sustained work activities in an ordinary setting on a regular and continuing basis, and the RFC
assessment must include a discussion of the individual’s abilities on that basis. “A regular and
continuing basis means eight hours a day, for five days a week, or an equivalent work schedule.”
Pardee v. Astrue, 631 F. Supp. 2d 200, 210 (N.D.N.Y. 2009) (citation omitted). In determining
RFC, the ALJ can consider a variety of factors, including a treating physician’s or examining
physician’s observations of limitations, the claimant’s subjective allegations of pain, physical and
mental abilities, as well as the limiting effects of all impairments. 20 C.F.R. § 404.1545(a).
"Although the treating physician rule generally requires deference to the medical opinion
of a claimant's treating physician, . . . the opinion of the treating physician is not afforded
controlling weight where . . . the treating physician issued opinions that are not consistent with
other substantial evidence in the record . . . ." Halloran v. Barnhart, 362 F.3d 28, 32 (2004);
Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002); see also Kennedy v. Astrue, 343 F. App'x
719, 721 (2d Cir. 2009) (declining to afford great weight to the treating physician's "check-off
form regarding residual functional capacity" explaining that a treating physician's opinion need
not be given great weight when it is not consistent with other substantial evidence of record,
including the opinions of other medical experts) (citing Halloran). When controlling weight is
not given, the ALJ should consider the following factors to determine the proper weight assigned
to a treating physician's opinion: (1) frequency of the examination and the length, nature, and
extent of the treatment relationship; (2) the evidence in support of the opinion; (3) the opinion's
consistency with the record as a whole; and (4) whether the opinion is from a specialist. See 20
C.F.R. § 404.1527(c); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000). The ALJ must properly
analyze the reasons that the report of the treating physician is rejected. Halloran, 362 F.3d at
As discussed above, here, the ALJ found that plaintiff was able to perform “light work”
with certain additional limitations. Light work requires the ability to lift “no more than 20 pounds
at a time with frequent lifting or carrying of objects weighing up to 10 pounds. . . . [A] job is in
this category when it requires a good deal of walking or standing, or when it involves sitting most
of the time with some pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the ability to do substantially all of
these activities.” 20 C.F.R. § 404.1567(b).
Here, the Court concludes that the ALJ's decision failed to provide an adequate analysis of
how the evidence in the record supported the determination that Plaintiff could perform light
work. It is true that the ALJ’s conclusion need not “perfectly correspond with any of the medical
sources cited” and he is “entitled to weigh all of the evidence available to make an RFC finding
that was consistent with the record as a whole.” Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir.
2013). Likewise, “it is not per se error for an ALJ to make the RFC determination absent a
medical opinion” where “the record contains sufficient evidence from which an ALJ can assess
the petitioner’s residual functional capacity.” Lewis v. Colvin, No. 13-CV-1072S, 2014 WL
6609637, at *6 (W.D.N.Y. Nov. 20, 2014) (citation omitted). However, although the ALJ
outlines the medical evidence in the record, it is unclear how the medical evidence he discusses
supports an ability to perform the functions required for performance of light work. Additionally,
with respect to the opinion evidence, the ALJ gave the opinion of Dr. Corvalan, the orthopedic
consultative examiner, limited weight, and also gave limited weight to the worker’s compensation
sources that opined plaintiff was 100% disabled. Therefore, it is clear that the ALJ did not rely
on these opinions in determining that plaintiff could perform light work. What is not clear is what
evidence the ALJ did rely on in making this determination. Although in defendant’s brief, the
Commissioner attempts to find support in the record for the ALJ’s determination, this Court may
not “create post-hoc rationalizations to explain the Commissioner’s treatment of evidence when
that treatment is not apparent from the Commissioner’s decision itself.” Martinbeault v. Astrue,
2009 WL 5030789, *5 (N.D.N.Y. Dec. 14, 2009). On remand, the ALJ should evaluate the
evidence and clarify how the evidence of record supports the RFC determination.
With respect to the ALJ’s determination as to plaintiff’s mental RFC, the Court similarly
determines that the ALJ should revisit this finding on remand. The Court agrees with plaintiff
that the ALJ’s rationale for affording Dr. Vangaasbeek’s opinion “very little weight” should be
clarified. Although the ALJ concludes that the opinion is inconsistent with Dr. Vangaasbeek’s
own treatment notes, the only note he points to is a statement that plaintiff “does well on
medication.” The notes are very brief, and largely repetitive, indeed most follow the general
form: “I met for 30 minutes with this Veteran with post-traumatic stress disorder. Mental status
was stable. Suicide risk assessment was reviewed and the Vet remains at a minimal level of risk”
with an additional sentence or two at the end noting briefly what they discussed, for example
“[w]e discussed issues regarding the Vet’s struggles to recover from spinal surgery.” (See, e.g.,
Tr. 345). It is unclear to the Court how the ALJ’s review of these treatment notes led to the
conclusion that they are inconsistent with Dr. Vangaasbeek’s opinion regarding plaintiff’s mental
residual functional capacity. Indeed, in one note, Dr. Vangaasbeek states, regarding plaintiff’s
“struggles to acquire social security disability,” “he should prevail given his spinal injury, chronic
pain, and the duration and intensity of his posttraumatic stress disorder.” (Tr. 488). Certainly the
ALJ was not requited to adopt this ultimate conclusion on the issue of disability, but it does
demonstrate in a treatment note that Dr. Vangaasbeek feels plaintiff is not doing as well on
medication as the ALJ concluded based on Dr. Vangaasbeek’s treatment notes. To be clear, the
Court is not suggesting that the ALJ is required to assign greater weight to Dr. Vangaasbeek’s
opinion on remand, so long as it is clear why the opinion is given the weight it is given, and that
the decision is supported by substantial evidence.
“While evidence submitted to the Appeals Council becomes part of the administrative
record, Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996), the Appeals Council . . . will consider new
evidence only if (1) the evidence is material, (2) the evidence relates to the period on or before the
ALJ's hearing decision, and (3) the Appeals Council finds that the ALJ's decision is contrary to
the weight of the evidence, including the new evidence.” Rutkowski v. Astrue, 368 F. App’x 226,
229 (2d Cir. 2010); 20 C.F.R. §§ 404.970(b), 404.976(b), 416.1470(b), 416.1476(b); see also
Baladi v. Barnhart, 33 F. App’x 562, 564 (2d Cir. 2002) (new evidence forms part of the
administrative record under review “only to the extent that it relates to the time frame
encompassed in the ALJ's decision”). Evidence is “material” if there is “a reasonable possibility
that the new evidence would have influenced the Secretary to decide claimant's application
differently.” Lisa v. Sec'y of Dep't of Health and Human Servs., 940 F.2d 40, 43 (2d Cir. 1991).
The role of the district court is to determine if the Appeals Council erred when it determined that
the new evidence was insufficient to trigger review of the ALJ's decision. Sears v. Colvin, No.
8:12–CV–570 (MAD/ATB), 2013 WL 6506496, at *5 (N.D.N.Y. Dec. 12, 2013) (citing
Woodford v. Apfel, 93 F. Supp. 2d 521, 528 (S.D.N.Y.2000)). If the Appeals Council fails to
consider new, material evidence, “the proper course for the reviewing court is to remand the case
for reconsideration in light of the new evidence.” Shrack v. Astrue, 608 F. Supp. 2d 297, 302 (D.
Conn. 2009) (citation omitted); Sears v. Colvin, 2013 WL 6506496, at *5, 7 (a sentence four
remand is warranted when the Appeal Counsel failed to adequately address additional evidence
that could potentially fill “significant gaps in the record ... [and could] plainly help to assure the
proper disposition of a claim”) (citation omitted).
An ALJ must properly analyze the reasons that a report of a treating physician is rejected.
Halloran v. Barnhart, 362 F.3d 28, 32-33 (2d Cir. 2004). The Appeals Council is bound by the
same rule. Beck v. Colvin, 2013 WL 5533571, at *8 (W.D.N.Y. 2013) (citing 20 C.F.R. § 416.927
(e)(3)). Here, plaintiff argues that treating physician Dr. Dentico’s opinion that the Appeals
Council reviewed contradicts the ALJ’s RFC “in important respects.” Dr. Dentico opined that
plaintiff could lift no more than 10 pounds frequently or 15 occasionally, nor could he sit or stand
for greater than 10 minutes. Dr. Dentico also opined that plaintiff could do no stooping. The
Appeals Council also had an opinion from Dr. Roffman, the adverse examiner for the worker’s
compensation claim who limited plaintiff to lifting or carrying 10 pounds occasionally, and a
negligible amount of force frequently, and requiring that plaintiff sit “most of the time.”
Though the Appeals Council found that the information “does not provide a basis for
changing the Administrative Law Judge’s decision,” the Court concludes that there is a
reasonable possibility that the ALJ would have reached a different result if the original
administrative record had included these opinions. Davidson v. Colvin, No. 1:12-CV-316
(MAD/VEB), 2013 WL 5278670 at *5, *9 (N.D.N.Y. Sept. 18, 2013) (citing Jones v. Sullivan,
949 F.2d 57, 60 (2d. Cir. 1991)). This is particularly true in light of the Court’s determinations in
the preceding section. In finding that the Appeals Council erred in failing to consider these
opinions, this court reaches no conclusion whether, on remand, they must be given controlling
“An [ALJ] may properly reject [subjective complaints] after weighing the objective
medical evidence in the record, the claimant's demeanor, and other indicia of credibility, but must
set forth his or her reasons ‘with sufficient specificity to enable us to decide whether the
determination is supported by substantial evidence.’” Lewis v. Apfel, 62 F. Supp. 2d 648, 651
(N.D.N.Y. 1999) (quoting Gallardo v. Apfel, No. 96 CIV 9435, 1999 WL 185253, at *5
(S.D.N.Y. March 25, 1999)). To satisfy the substantial evidence rule, the ALJ's credibility
assessment must be based on a two-step analysis of pertinent evidence in the record. See 20
C.F.R. § 416.929; see also Foster v. Callahan, No. 96-CV-1858, 1998 WL 106231, at *5
(N.D.N.Y. Mar. 3, 1998).
First, the ALJ must determine, based upon the claimant's objective medical evidence,
whether the medical impairments “could reasonably be expected to produce the pain or other
symptoms alleged . . . .” 20 C.F.R. § 416.929(a). Second, if the medical evidence alone
establishes the existence of such impairments, then the ALJ need only evaluate the intensity,
persistence, and limiting effects of a claimant's symptoms to determine the extent to which it
limits the claimant's capacity to function. 20 C.F.R. § 416.929(c). When the objective evidence
alone does not substantiate the intensity, persistence, or limiting effects of the claimant's
symptoms, the ALJ must assess the credibility of the claimant's subjective complaints by
considering the record in light of the following symptom-related factors: (1) claimant's daily
activities; (2) location, duration, frequency, and intensity of claimant's symptoms; (3)
precipitating and aggravating factors; (4) type, dosage, effectiveness, and side effects of any
medication taken to relieve symptoms; (5) other treatment received to relieve symptoms; (6) any
measures taken by the claimant to relieve symptoms; and (7) any other factors concerning
claimant's functional limitations and restrictions due to symptoms. 20 C.F.R. § 416.929(c)(3).
The Court concludes that the ALJ’s credibility determination should also be revisited on
remand. As plaintiff points out, the ALJ supports his statement that the record does not support
plaintiff’s allegations with a June 19, 2012 visit to the emergency room where plaintiff
complained of pain in his neck radiating into his right arm and where he was diagnosed with
exacerbation of a chronic cervical strain with radiculopathy, and a June 25, 212 orthopedic
examination where plaintiff explained he was jackhammering in April and started feeling pain in
his neck and right shoulder. It is unclear to the Court how these visits support the ALJ’s
conclusion regarding plaintiff’s credibility. Moreover, although the Court agrees that a car trip to
Utah does, in some respects undermine plaintiff’s claims regarding his inability to sit, the Court
notes that plaintiff took this trip, not for vacation, but to visit his daughter who was placed in a
rehabilitation facility in Utah as there was no availability in closer facilities. Additionally, despite
the ALJ’s statement that plaintiff’s mental health providers “had no concerns about him returning
to work,” the Court notes that the treatment note referenced by the ALJ simply states: “We
continued to discuss issues regarding the Vet’s recovery from spinal surgery. His doctor has said
that he cannot return to work for another 3 months, and he is concerned that he may lose his job,”
rather than expressing an opinion about whether Dr. Vangaasbeek has concerns about him
returning to work. (Tr. 344). Indeed, this visit was on June 24, 2013, and in later visits, Dr.
Vangaasbeek continued to mention plaintiff being out of work without commenting that he
thought plaintiff could or should return to work, (See, e.g., Tr. 463 (“We discussed issues
regarding the Vet being fired from his job because he has been out of work with a spinal problem
for over a year.”)), and even stated that “he should prevail [at his social security hearing] given
his spinal injury, chronic pain, and the duration and intensity of his posttraumatic stress disorder.”
(Tr. 488). On remand, the ALJ should re-assess plaintiff’s credibility considering the factors
Step Five Determination
Because remand is recommended for the reasons discussed above, remand is also
recommended for a new analysis at step five.
For these reasons, it is therefore
ORDERED that the Commissioner’s motion for judgment on the pleadings (Dkt. No. 8) is
DENIED; and it is further
ORDERED that plaintiff’s motion for judgment on the pleadings (Dkt. No. 7) is
GRANTED; and it is further
ORDERED that the Commissioner’s decision is reversed and this matter is remanded; and
it is further
ORDERED that the Clerk of the Court is directed to enter judgment for plaintiff.
IT IS SO ORDERED.
Date: March 30, 2017
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