VanGorden v. Astrue

Filing 21

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for proceedings consistent with the Order. Signed by Chief Judge Gary L. Sharpe on 2/1/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
JESSICA VANGORDEN,
Plaintiff,

3:11-cv-1044
(GLS)

v.
MICHAEL ASTRUE,
Commissioner of Social Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Lachman, Gorton Law Firm
P.O. Box 89
1500 East Main Street
Endicott, NY 13761-0089
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261

PETER A. GORTON, ESQ.

SERGEI ADEN
Special Assistant U.S. Attorney

Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER

I. Introduction
Plaintiff Jessica VanGorden challenges the Commissioner of Social
Security’s denial of Disability Insurance Benefits (DIB) and Supplemental
Security Income (“SSI”), seeking judicial review under 42 U.S.C. §§ 405(g)
and 1383(c)(3). (See Compl., Dkt. No. 1.) After reviewing the
administrative record and carefully considering VanGorden’s arguments,
the Commissioner’s decision is reversed and remanded for further
administrative proceedings.
II. Background
In September and October 2009, VanGorden filed applications for
Child’s Insurance Benefits (CIB) and SSI under the Social Security Act
(“the Act”), alleging disability since October 1, 2008 and September 1,
2009, respectively. (See Tr.1 at 49-50, 147-49, 154-57.) After her
applications were denied, (see id. at 52-59 ), VanGorden requested a
hearing before an Administrative Law Judge (ALJ), which was held on
November 29, 2010, (see id. at 30-48, 62). On January 11, 2011, the ALJ
issued an unfavorable decision denying the requested benefits, which
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Page references preceded by “Tr.” are to the Administrative
Transcript. (See Dkt. No. 9.)
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became the Commissioner’s final determination upon the Social Security
Administration Appeals Council’s denial of review. (See id. at 1-6, 13-29.)
VanGorden commenced the present action by filing her Complaint on
September 1, 2011 wherein she sought review of the Commissioner’s
determination. (See generally Compl.) The Commissioner filed an answer
and a certified copy of the administrative transcript. (See Dkt. Nos. 8, 9.)
Each party, seeking judgment on the pleadings, filed a brief. (See Dkt.
Nos. 13, 17.)
III. Contentions
VanGorden contends that the Commissioner’s decision is tainted by
legal error and is not supported by substantial evidence. (See Dkt. No. 13
at 3-5.) Specifically, she claims that the ALJ failed to properly assess her
treating physician’s opinion. (See id.) The Commissioner counters that the
appropriate legal standards were used by the ALJ and his decision is also
supported by substantial evidence. (See Dkt. No. 17 at 12-19.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (See
Dkt. No. 13 at 1-3; Dkt. No. 17 at 2-12.)
V. Standard of Review
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The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g)2 is well established and will not be repeated here. For a
full discussion of the standard and the five-step process by which the
Commissioner evaluates whether a claimant is disabled under the Act, the
court refers the parties to its previous decision in Christiana v. Comm’r of
Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y.
Mar. 19, 2008).
VI. Discussion
In her only argument, VanGorden asserts that the ALJ committed
reversible error by failing to consider the opinion of treating psychiatrist
Robert Webster, who co-signed a questionnaire completed by licensed
clinical social worker Esther McGurrin. (See Dkt. No. 13 at 3-5.) The
Commissioner counters that the ALJ considered the opinion and properly
afforded it little weight. (See Dkt. No. 17 at 15-19.) The court agrees with
VanGorden.
Medical opinions, regardless of the source, are evaluated by
considering several factors outlined in 20 C.F.R. § 404.1527(c). Controlling

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Review under 42 U.S.C. §§ 405(g) and 1383(c)(3) is identical. As
such, parallel citations to the Regulations governing SSI are omitted.
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weight will be given to a treating physician’s opinion that is “well-supported
by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence.” 20 C.F.R.
§ 404.1527(c)(2); see Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).
Unless controlling weight is given to a treating source’s opinion, the ALJ is
required to consider the following factors in determining the weight
assigned to a medical opinion: whether or not the source examined the
claimant; the existence, length and nature of a treatment relationship; the
frequency of examination; evidentiary support offered; consistency with the
record as a whole; and specialization of the examiner. See 20 C.F.R.
§ 404.1527(c). Social Workers are not acceptable medical sources and
thus, their opinions are not entitled to controlling weight. See id.
§ 404.1513(a), (d); SSR 06-03p, 2006 WL 2329939, at *2-3 (Aug. 9, 2006).
However, the opinions of social workers “should be evaluated on key
issues such as impairment severity and functional effects, along with the
other relevant evidence in the file.” SSR 06-03p, 2006 WL 2329939, at *3.
Here, McGurrin, who began treating VanGorden in February 2010,
completed a mental questionnaire and reported that, among other things,
VanGorden had a marked limitation in her ability to “[c]omplete a normal
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work day and work week without interruptions from psychological based
symptoms and to perform at a consistent pace without an unreasonable
number and length of rest periods” and an extreme limitation in her ability
to “[r]espond appropriately to changes in the work setting.” (Tr. at 351-52,
see id. at 317-22, 324-26, 337-38, 340, 342, 344.) Further, McGurrin
opined that VanGorden’s symptoms and treatment would reasonably be
expected to cause more than three absences from work per month. (See
id. at 352.) Several weeks after McGurrin completed the questionnaire, Dr
Robert Webster, who had examined VanGorden on several occasions,
(see id. at 327-28, 339, 341, 343), co-signed the form. (See id. at 368-70.)3
The ALJ considered McGurrin’s opinion and, noting that she was not an
acceptable medical source, afforded it little weight because it was
“inconsistent with treatment notes where [VanGorden] was repeatedly
counseled to look for work.” (Id. at 21.)
Although the ALJ cited to all of the medical records and specifically
noted that VanGorden was evaluated by Dr. Webster, he failed to weigh
Dr. Webster’s opinion as to Vangorden’s functional limitations. (See id. at
3

The record contains two copies of the form, one bearing
McGurrin’s signature alone and one bearing Dr. Webster’s co-signature.
(Compare Tr. at 351-53, with Tr. at 368-70.)
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20-21, 368-70.) The Commissioner argues that the ALJ considered the
questionnaire co-signed by Dr. Webster and determined that it only
represented the opinion of McGurrin. (See Dkt. No. 17 at 16-17.)4
However, it is unclear from the ALJ’s discussion of the questionnaire
whether he considered the co-signature of Dr. Webster or that the opinion
given was that of Dr. Webster as well as McGurrin. (See Tr. at 21.) The
point is significant because of the consideration a treating physician’s
opinion is entitled to. See 20 C.F.R. § 404.1527(c)(2); see also Payne v.
Astrue, Civil No. 3:10-cv-1565, 2011 WL 2471288, at *5 (D. Conn. June 21,
2011).
The Commissioner argues that, even if the questionnaire represented
the opinion of Dr. Webster, substantial evidence supports the ALJ’s
decision to afford it little weight. (See Dkt. No. 17 at 17-18.) The court
does not agree. Remand for further administrative proceedings is
appropriate because the ALJ failed to explicitly consider and weigh Dr.
Webster’s opinion. See, e.g., Burgin v. Astrue, 348 F. App’x 646, 649 (2d
Cir. 2009); Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999); see also

4

The Commissioner does not dispute that Dr. Webster was
VanGorden’s treating physician. (See Dkt. No. 17 at 15-19.)
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Treadwell v. Schweiker, 698 F.2d 137, 142 (2d Cir. 1983) (“the propriety of
agency action must be evaluated on the basis of stated reasons”).
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is REVERSED and
REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for
proceedings consistent with this Order; and it is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
February 1, 2013
Albany, New York

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