Barton v. Colvin

Filing 18

DECISION AND ORDER granting Plaintiff's # 13 motion for judgment on the pleadings; denying Defendant's # 16 motion for judgment on the pleadings. This matter is REMANDED to Defendant pursuant to 42 USC 405(g) for further proceedings consistent with this Decision and Order. Signed by Chief Judge Glenn T. Suddaby on 9/15/15. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JOHN H. BARTON,
Plaintiff,
v.

Case No. 3:13-CV-1199 (GTS)

CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

LACHMAN & GORTON
Counsel for Plaintiff
300 S. State St., Ste. 420
Syracuse, NY 13202

PETER A. GORTON, ESQ.

U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL – REGION II
Counsel for Defendant
26 Federal Plaza – Room 3904
New York, NY 10278

AMANDA LOCKSHIN, ESQ.

GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by John H. Barton
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the
Commissioner”) pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties’ crossmotions for judgment on the pleadings. (Dkt. Nos. 13, 16.) For the reasons set forth
below, Plaintiff’s motion is granted and Defendant’s motion is denied.

I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff was born on April 16, 1965. (T. 148.) He completed the eighth grade. (T.
159.) Generally, Plaintiff’s alleged disability consists of arthritis in his back. (Id.) His
alleged disability onset date is August 8, 2010. (T. 134.) His date last insured is
December 31, 2015. (T. 29, 139.)1 He previously worked in a manufacturing plant. (T.
151.)
B.

Procedural History

On October 22, 2010, Plaintiff applied for Disability Insurance Benefits (“SSD”)
under Title II of the Social Security Act. (T. 134.) Plaintiff’s application was initially
denied, after which he timely requested a hearing before an Administrative Law Judge
(“the ALJ”). On June 21, 2012, Plaintiff appeared before the ALJ, Marie Greener. (T. 2654.) On August 6, 2012, the ALJ issued a written decision finding Plaintiff not disabled
under the Social Security Act. (T. 13-25.) On September 12, 2013, the Appeals Council
(“AC”) denied Plaintiff’s request for review, rendering the ALJ’s decision the final
decision of the Commissioner. (T. 1-7.) Thereafter, Plaintiff timely sought judicial review
in this Court.
C.

The ALJ’s Decision

Generally, in her decision, the ALJ made the following five findings of fact and
conclusions of law. (T. 16-22.) First, the ALJ found Plaintiff met the insured status
requirements through December 31, 2015 and had not engaged in substantial gainful

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The record also lists Plaintiff’s date last insured as December 31, 2014. (T. 55, 148.) At
the hearing the ALJ and Plaintiff’s counsel stated Plaintiff’s date last insured was December 31, 2015;
therefore, this Court will use the December 31, 2015 date.

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activity since August 8, 2010. (T. 18.) Second, the ALJ found Plaintiff had the severe
impairments of lumbar degenerative disc disease (“DDD”) and obesity. (Id.) Third, the
ALJ found Plaintiff did not have an impairment that meets or medically equals one of the
listed impairments located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (T. 19.)
Fourth, the ALJ found Plaintiff had the residual functional capacity (“RFC”) to perform a
full range of sedentary work. (Id.)2 Fifth, the ALJ determined Plaintiff was unable to
perform his past relevant work; however, there were jobs that existed in significant
numbers in the national economy Plaintiff could perform. (T. 21-22.)
II.

THE PARTIES’ BRIEFINGS ON PLAINTIFF’S MOTION
A.

Plaintiff’s Arguments

Plaintiff makes four separate arguments in support of his motion for judgment on
the pleadings. First, Plaintiff argues the ALJ failed to find that Plaintiff’s sitting was
limited and he required a sit/stand option. (Dkt. No. 13 at 5-12 [Pl.’s Mem. of Law].)
Second, Plaintiff argues the ALJ did not properly evaluate the treating physician rule
and failed to re-contact the treating physician. (Id. at 12-15.) Third, Plaintiff argues the
ALJ failed to consider pain and the side effects of pain medication. (Id. at 15-16.)
Fourth, and lastly, Plaintiff argues the ALJ did not properly evaluate his credibility. (Id. at
16-18.)
B.

Defendant’s Arguments

In response, Defendant makes two arguments. First, Defendant argues the ALJ
properly considered the medical evidence and properly assessed Plaintiff’s RFC. (Dkt.

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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 often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria
are met. 20 C.F.R. § 404.1567(a).

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No. 16 at 4-10 [Def.’s Mem. of Law].) Second, and lastly, Defendant argues the ALJ
correctly assessed Plaintiff’s credibility. (Id. at 10-12.)
III.

RELEVANT LEGAL STANDARD
A.

Standard of Review

A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. See 42 U.S.C. §§ 405(g) and 1383(c)(3); Wagner v.
Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the
Commissioner’s determination will only be reversed if the correct legal standards were
not applied, or it was not supported by substantial evidence. See Johnson v. Bowen,
817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for doubt whether
the ALJ applied correct legal principles, application of the substantial evidence standard
to uphold a finding of no disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made according to the correct
legal principles.”); Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano,
615 F.2d 23, 27 (2d Cir. 1979).
“Substantial evidence” is evidence that amounts to “more than a mere scintilla,”
and has been defined as “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427 (1971). Where evidence is deemed susceptible to more than one rational
interpretation, the Commissioner’s conclusion must be upheld. See Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both

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sides, because an analysis of the substantiality of the evidence must also include that
which detracts from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).
If supported by substantial evidence, the Commissioner’s finding must be
sustained “even where substantial evidence may support the plaintiff’s position and
despite that the court’s independent analysis of the evidence may differ from the
[Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other
words, this Court must afford the Commissioner’s determination considerable
deference, and may not substitute “its own judgment for that of the [Commissioner],
even if it might justifiably have reached a different result upon a de novo review.”
Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
B.

Standard to Determine Disability

The Commissioner has established a five-step evaluation process to determine
whether an individual is disabled as defined by the Social Security Act. See 20 C.F.R. §
404.1620. The Supreme Court has recognized the validity of this sequential evaluation
process. See Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987). The
five-step process is as follows:
First, the [Commissioner] considers whether the claimant is currently engaged in
substantial gainful activity. If he is not, the [Commissioner] next considers
whether the claimant has a “severe impairment” which significantly limits his
physical or mental ability to do basic work activities. If the claimant suffers such
an impairment, the third inquiry is whether, based solely on medical evidence,
the claimant has an impairment which is listed in Appendix 1 of the regulations.
If the claimant has such an impairment, the [Commissioner] will consider him
disabled without considering vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a claimant who is afflicted with a
“listed” impairment is unable to perform substantial gainful activity. Assuming the
claimant does not have a listed impairment, the fourth inquiry is whether, despite
the claimant’s severe impairment, he has the residual functional capacity to
perform his past work. Finally, if the claimant is unable to perform his past work,
the [Commissioner] then determines whether there is other work which the
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claimant could perform. Under the cases previously discussed, the claimant
bears the burden of the proof as to the first four steps, while the [Commissioner]
must prove the final one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
IV.

ANALYSIS
A.

Whether the ALJ Properly Considered the Medical Evidence from
Thomas Osborne, M.D. and Khalid Sethi, M.D.

After carefully considering the matter, the Court answers this question in the
negative, for the reasons stated in Plaintiff’s memorandum of law. (Dkt. No. 13 at 12-15
[Pl.’s Mem. of Law].) The Court adds the following analysis.
The opinion of a treating source will be given controlling weight if it “is well
supported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. §
404.1527(c)(2).
The following factors must be considered by the ALJ when deciding how much
weight the opinion should receive, even if the treating source is not given controlling
weight: “(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; and (iv) whether the opinion is from a
specialist.” Id. at § 404.1527(c)(2). An ALJ is required to set forth his reasons for the
weight he assigns to the treating physician's opinion. Id., see also SSR 96-2p, 1996 WL
374188 (July 2, 1996); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000) (quoting Clark
v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.1998)).
Here, the ALJ afforded the opinions of Plaintiff’s treating sources, Dr. Osborne
and Dr. Sethi, “no weight.” (T. 20.) In rejecting the sources’ opinions, the ALJ did not
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follow the factors outlined in the Regulations, instead she reasoned that their
statements regarding Plaintiff’s disability status were entitled to “no weight” because
they were not “functionally specific” and because the opinions were made in the context
of Plaintiff’s worker’s compensation claim. (Id.) An ALJ does not have to accept the
opinion of a treating source; however, “a strong showing [] must be made in principle to
justify throwing a treating physician’s opinion away.” Borgo-Hansen v. Covlin, 2015 WL
3757520, at * 14 (D.Conn. June 17, 2015.) Here, the ALJ threw away the treating
sources’ opinions without proper justification. The ALJ failed to follow the Regulation as
a matter of law and further, she should have re-contacted the treating sources for a
functional assessment.
To be sure, an ALJ is responsible for making the determination or decision about
whether a plaintiff meets the statutory definition of disability. 20 C.F.R. § 404.1527.
Although an ALJ does not have to adopt a physician’s statement that a plaintiff is
disabled or unable to work, the ALJ must still adhere to the Regulations when assessing
medical opinions in the record. The treating sources in this case provided medical
statements for the purpose of worker’s compensation; therefore, by the very nature of
their work they were required to give an opinion regarding Plaintiff's ability (or inability)
to work. An ALJ cannot justifiably reject the whole of a treating source’s opinion
because that treating source opined on the disability status of the plaintiff within the
context of his own examination.
The Regulation, as outlined above, provides specific factors that must be
considered by an ALJ when weighing opinion evidence. To be sure, where an ALJ’s
reasoning and adherence to the Regulations is clear, she is not required to explicitly go

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through each and every factor of the Regulation. Atwater v. Astrue, 512 F. App'x 67, 70
(2d Cir. 2013) (plaintiff challenged ALJ’s failure to review explicitly each factor provided
for in 20 C.F.R. § 404.1527(c), the Court held that “no such slavish recitation of each
and every factor [was required] where the ALJ's reasoning and adherence to the
regulation [was] clear”). Here, the ALJ’s terse analysis and outright rejection of the
treating sources’ opinions in her decision ignores the Regulation completely. The only
indication that the ALJ was aware of the Regulation was in the decision’s boilerplate
language stating she “considered the opinion evidence in accordance with 20 C.F.R.
404.1527.” (T. 19.) The ALJ’s decision provided no indication that she actually applied
20 C.F.R. § 404.1527 in her rejection of the treating sources’ opinions.
An ALJ has an independent duty to make reasonable efforts to obtain a report
prepared by a claimant’s treating physician, including an assessment of the claimant’s
functional capacity, in order to afford the claimant a full and fair hearing. See Smith v.
Astrue, 896 F. Supp. 2d. 163, 176 (N.D.N.Y. 2012) (citing 20 C.F.R. § 404.1512(e));
Devora v. Barnhart, 205 F. Supp. 2d 164, 174 (S.D.N.Y. 2002) (collecting cases);
Hardhardt v. Astrue, No. 05–CV–2229, 2008 WL 2244995, at *9 (E.D.N.Y. May 29,
2008)). However, the ALJ has no duty to re-contact a source where the evidence
submitted by that source is complete. Where the source’s opinion includes all of the
factors set forth in 20 C.F.R. § 404.15133 and there is no indication that further contact
will result in additional information, re-contact is not necessary. See Hluska v. Astrue,
No. 06-CV-0485, 2009 WL 799967, at *17 (N.D.N.Y. Mar. 25, 2009).

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Pursuant to 20 C.F.R. § 404.1513(b), medical reports should include a patient’s (1)
medical history, (2) clinical findings, (3) laboratory findings, (4) diagnosis, (5) treatment prescribed with
response and prognosis, and a (6) statement about what the patient can still do despite his or her
impairments based on the findings set forth in factors (1) through (5).

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Here, the ALJ emphasized the lack of specific functional limitations provided by
the treating sources and used this lack of information to support her rejection of their
opinions. (T. 20.) Lack of specific functional limitations does not mean that a plaintiff has
none, “[a] treating doctor’s silence on the claimant’s work capacity does not constitute
substantial evidence supporting an ALJ’s functional capacity determination when the
doctor was not asked to express an opinion on the matter and did not do so, particularly
when that doctor did not discharge the claimant from treatment.” Hutsell v. Massanari,
259 F.3d 707, 712 (8th Cir. 2001) (citing Lauer v. Apfel, 245 F.3d 700, 705 (8th Cir.
2001).Given the ALJ’s heightened emphasis on the lack of specific functional
limitations, the ALJ should have re-contacted the treating source to obtain such
information.
Defendant argues that the ALJ’s RFC analysis was supported by substantial
evidence, because the ALJ properly relied on the opinions of the consultative examiner
and non-examining State agency medical consultant. (Dkt. No. 16 at 4-7 [Def.’s Mem. of
Law].) However, this Court cannot determine whether substantial evidence supported
the ALJ's RFC determination, because there is a “reasonable basis for doubt” as to
whether correct legal principles were applied; therefore, the substantial evidence
standard may not be used to uphold the ALJ's decision. Rockwood v. Astrue, 614 F.
Supp. 2d 252, 280 (N.D.N.Y. 2009) (citing Johnson v. Bowen, 817 F.2d 983, 986 (2d
Cir.1987)). This matter is remanded so that the ALJ may obtain a functional report from
Plaintiff’s treating physicians and properly analyze their opinions in accordance with the
factors outlined in 20 C.F.R. § 404.1527(c).

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Plaintiff also makes an argument that the ALJ failed to find Plaintiff’s sitting was
limited and Plaintiff required a sit/stand at will option. (Dkt. No. 13 at 5-12 [Pl.’s Mem. of
Law].) As this matter is being remanded for the ALJ to properly assess the treating
physician’s opinion, and to request additional evidence from the treating physician, the
ALJ should then re-evaluate Plaintiff’s full RFC, including any additional limitations on
sitting, at the subsequent hearing.
B.

Whether the ALJ Properly Assessed Plaintiff’s Credibility.

After carefully considering the matter, the Court answers this question in the
negative, for the reasons stated in Plaintiff’s memorandum of law. (Dkt. No. 13 at 15-16
[Pl.’s Mem. of Law].) The Court adds the following analysis.
A plaintiff’s allegations of pain and functional limitations are “entitled to great
weight where ... [they are] supported by objective medical evidence.” Rockwood, 614 F.
Supp. at 270 (quoting Simmons v. U.S. R.R. Ret. Bd., 982 F.2d 49, 56 (2d Cir.1992)).
However, the ALJ “is not required to accept [a plaintiff’s] subjective complaints without
question; he may exercise discretion in weighing the credibility of the [plaintiff’s]
testimony in light of the other evidence in the record.” Montaldo v. Astrue, No. 10-CV6163, 2012 WL 893186, at *17 (S.D.N.Y. Mar. 15, 2012). “When rejecting subjective
complaints, an ALJ must do so explicitly and with sufficient specificity to enable the
Court to decide whether there are legitimate reasons for the ALJ’s disbelief.” Rockwood,
614 F. Supp. 2d at 270.
“The ALJ’s credibility assessment must be based on a two step analysis of
pertinent evidence in the record. First, the ALJ must determine whether the claimant

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has medically determinable impairments, which could reasonably be expected to
produce the pain or other symptoms alleged.” Id., at 271.
Second, if medically determinable impairments are shown,
then the ALJ must evaluate the intensity, persistence, and
limiting effects of the symptoms to determine the extent to
which they limit the claimant’s capacity to work. Because an
individual’s symptoms can sometimes suggest a greater
level of severity of impairment than can be shown by the
objective medical evidence alone, an ALJ will consider the
following factors in assessing a claimant’s credibility: (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.

Id. Further, “[i]t is the role of the Commissioner, not the reviewing court, ‘to resolve
evidentiary conflicts and to appraise the credibility of witnesses,’ including with respect
to the severity of a claimant's symptoms.” Cichocki v. Astrue, 534 F. App'x 71, 75 (2d
Cir. 2013) (citing Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d
Cir.1983)).
Plaintiff essentially makes two arguments regarding the ALJ’s credibility
assessment. First, Plaintiff argues the ALJ erred in her overall credibility analysis and
second, Plaintiff argues the ALJ erred in failing to consider Plaintiff’s pain and side
effects from medications. (Dkt. No. 13 at 15-18 [Pl.’s Mem. of Law].)

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First, as this matter is being remanded for a proper evaluation of the objective
medical evidence, therefore, the ALJ should conduct a new credibility analysis based on
a thorough review of all the medical evidence in the record.
Second, when an ALJ’s credibility analysis is flawed because the determination
is based on so serious a misunderstanding of the plaintiff’s statements, as they pertain
to symptoms or pain intensity and duration as well as the possible limiting effects on his
capacity to work, then the decision cannot be deemed to have complied with the
evaluative requirements under 20 C.F.R. § 404.1529 and remand is required. See
Genier v. Astrue, 606 F.3d 46, 50 (2d Cir. 2010).
In support of her determination that Plaintiff was not credible, the ALJ claims
Plaintiff’s statements were inconsistent with examination results. (T. 21.) In support of
her conclusion, the ALJ provided the example of an October 2010 emergency room visit
during which the ALJ claimed it was observed that Plaintiff had “range of motion in all
extremities.” (Id. referring to T. 194.) However, while the report stated Plaintiff’s range of
motion in extremities was “normal,” it also Plaintiff had “limited [range of motion] of the
back.” (T. 194.) Further, the ALJ stated Plaintiff’s treating physicians noted Plaintiff was
only in “mild distress.” (T. 21.) Plaintiff’s treating physicians did note “mild distress” in
October 2011 (although they also noted that Plaintiff had “significant pain” when
bending forward), in December 2011, in January 2012, in February of 2012, and in
March of 2012. (T. 288, 284, 281, 277, and 274.) However, Plaintiff’s physician’s also
noted he was in “moderate distress” in August 2010, October 2010, and April 2012. (T.
205, 211, 271.) In May of 2012 it was noted that Plaintiff “appears as always in some
pain.” (T. 267.) The ALJ erred in her selective reading of the record and failing to

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reconcile contrary notations of limited range of motion, moderate distress, and pain
which supported Plaintiff’s credibility.
The ALJ’s credibility analysis was flawed because, as stated in Part IV.A, the
ALJ’s review of the objective medical evidence in the record was performed in error. A
credibility analysis could not be conducted in the absence of a proper analysis of the
objective medical evidence. The ALJ also misstated evidence in the record, which
further requires remand.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 13) is
GRANTED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 16) is
DENIED; and it is further
ORDERED that this matter is REMANDED to Defendant, pursuant to 42 U.S.C. §
405(g), for further proceedings consistent with this Decision and Order.
Dated:

September 15, 2015
Syracuse, NY
________________________________
Hon. Glenn T. Suddaby
Chief, U.S. District Judge

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