Church v. Colvin
Filing
15
MEMORANDUM & ORDER that the alternative relief prayed for in Church's complaint, ECF No. 1 , is GRANTED and the case is REMANDED for further proceedings consistent with this opinion. Signed by Judge William G. Young on 7/15/2016. (see)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MELISSA CHURCH,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social
Security,
Defendant.
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CIVIL ACTION
NO. 14-cv-00414-WGY
WILLIAM G. YOUNG, U.S. District Judge 1
July 15, 2016
MEMORANDUM & ORDER
I.
INTRODUCTION
The Plaintiff Melissa Church (“Church”) brings this action
against Carolyn W. Colvin, the Commissioner of the Social
Security Administration (the “Commissioner”), seeking reversal
or remand of the Commissioner’s denial of Church’s applications
for disability benefits and supplementary security income
(collectively, “benefits”).
Compl. 1, ECF No. 1.
Church
alleges that the Administrative Law Judge (the “hearing
1
Of the District of Massachusetts, sitting by designation.
See Reassignment Order, May 5, 2015, ECF No. 14.
officer”) 2 erred in discrediting the opinion of her treating
physician, assessing Church’s credibility, and determining
Church’s residual functional capacity (“RFC”).
Pl.’s Br.
Pursuant General Order No. 18 (“Pl.’s Mem.”) 7, 14, 20, ECF No.
12.
The Court agrees with Church in part: to the extent that
the hearing officer disbelieved Church because of her apparent
failure to lose weight -- and the hearing officer’s decision
indicates that this was a significant consideration in her
credibility assessment -- there was legal error, and a remand is
required properly to determine Church’s RFC.
A.
Procedural Posture
On April 29, 2011, Church filed for benefits, and her
applications were denied on July 11, 2011.
R. (“Admin. R.”) 55, 62, ECF No. 11. 3
Certification Admin.
Church requested a hearing
before a hearing officer on August 5, 2011.
Id. at 77-78.
The
hearing officer held a hearing by videoconference on October 18,
2012.
Id. at 23.
On November 8, 2012, the hearing officer
issued a written opinion ruling that Church was not disabled.
Id. at 28.
Church then requested that the Appeals Council
2
For an explanation of the Court’s use of the term “hearing
officer,” see Vega v. Colvin, No. CV 14-13900-WGY, 2016 WL
865221, at *1 n.1 (D. Mass. Mar. 2, 2016).
3
The administrative record in this case spans several ECF
filings, but since the record is consecutively paginated
throughout, the Court will refer only to this latter pagination
in its citations.
[2]
review the hearing officer’s decision, but this request was
denied on March 26, 2014.
Id. at 1, 6-7.
On April 14, 2014, Church filed her complaint against the
Commissioner in the U.S. District Court for the Northern
District of New York.
briefed the issues.
Compl. 1.
Both parties have fully
Def.’s Answer, ECF No. 9; Pl.’s Mem.;
Def.’s Mem. Supp. Mot. J. Pleadings (“Def.’s Mem.”), ECF No. 13.
The case was reassigned to this Court on May 5, 2015.
Reassignment Order, ECF No. 14.
B.
Factual Background
The Court incorporates the factual findings of the hearing
officer, see Admin. R. 15-23, except to the extent certain
findings are challenged by Church.
These findings will be
discussed in the Court’s analysis of Church’s three claims of
legal error.
II.
ANALYSIS
Church raises three challenges to the hearing officer’s
decision.
First, she claims that the hearing officer erred in
determining the appropriate weight to give the opinions of
various medical sources.
See Pl.’s Mem. 7-14.
Next, she
asserts error in the hearing officer’s assessment of her
credibility.
See id. at 14-20.
Finally, Church claims that the
hearing officer’s finding that Church can “sustain activity” is
[3]
not supported by substantial evidence, id. at 20-22.
These will
be discussed in turn.
A.
Church’s Medical Sources
Church’s claim of error regarding the hearing officer’s
weighing of medical sources has three components.
First, she
claims that Dr. Erik Hiester’s opinion should have been afforded
“[c]ontrolling, or at least [s]ignificant, [w]eight.”
Mem. 8.
Pl.’s
Second, Church contends that Dr. Sandra Boehlert’s
consultative opinion should not have received “significant
weight.”
Id. at 11.
Third, Church argues that the hearing
officer “improperly assess[ed]” Dr. John T. Walters’s opinion.
Id. at 14.
The Commissioner disputes all three points.
See
Def.’s Mem. 6-12.
1.
Dr. Hiester’s Opinion
The hearing officer gave “reduced weight to [treating
physician] Dr. Hiester’s medical source statement because [it
is] not consistent with the overall medical evidence and
appear[s] to be based on the self-reports of [Church.]”
R. 20.
Admin.
The hearing officer stated that “Dr. Hiester’s treatment
notes include a benign lumbar spine MRI as well as minimal
significant clinical findings during physical examinations other
than occasional tenderness to palpation.”
Id. at 21.
The
hearing officer also noted that the medical source statement was
“a standard ‘check a box’ or ‘fill in a blank’ form” with
[4]
“minimal (or no) commentary and no supporting attachments[,]”
and this fact rendered the statement less persuasive.
21.
Id. at
Finally, the hearing officer observed that the statement
was “contradicted by the [earlier] treatment records and
clinical findings of [Dr. Hiester.]”
Id.
Under the treating-physician rule, a hearing officer
generally owes “deference to the medical opinion of a claimant’s
treating physician[.]”
Halloran v. Barnhart, 362 F.3d 28, 32
(2d Cir. 2004) (internal citations omitted).
When a treating
physician’s opinion is “not consistent with other substantial
evidence in the record, such as the opinions of other medical
experts[,]” however, the hearing officer need not give the
treating source opinion controlling weight.
Id.
Here, Church points out that there is a lengthy treating
relationship with Dr. Hiester, Pl.’s Mem. 8, and argues that Dr.
Hiester’s “opinions are well supported by the medical evidence
of record[,]” id. at 9.
In particular, Church points to Dr.
Charles R. Campbell’s recommendations, Pl.’s Mem. 9 (citing
Admin. R. 233, 235, 240, 245), and Dr. Walters’s notes from
various times he met with her, id. (citing Admin. R. 257, 264,
378, 400), as support for Dr. Hiester’s medical source
statement.
The records of Dr. Campbell to which Church cites do not
help her position.
Such records include reports relating to
[5]
Church’s condition on each of August 9, 2010, August 10, 2010,
and August 11, 2010.
See Admin. R. 232-235, 240-41, 245.
These
notes merely describe Church’s condition before her
catheterization procedure, and as they relate to her condition
before her disability onset date of December 31, 2010, see id.
at 12, they are of limited relevance. 4
Dr. Walters’s records also do not help Church.
Dr.
Walters’s note from November 12, 2010 states that Church’s
“catheterization and stenting” procedure achieved (at least
initially) promising results: Church was “[d]oing well[,]” and
he would “see her in one year.”
Id. at 257-58.
On January 17,
2011, Church was examined by Dr. Walters after reporting chest
pain.
Id. at 378-79.
Although Dr. Walters indicated that
Church reported “random” chest pain that “radiates to [her] left
upper arm, [along with] intermittent palpitations/pounding[]like feeling[,]” id. at 378, the objective findings of the
examination were normal, see id. at 379.
4
Dr. Walters
In “late July 2010[,]” Church “was referred to Dr. Walters
for evaluation of exertional chest pain and dyspnea[.]” Admin.
R. 233. Dr. Campell’s examination of her on August 9, 2010, did
include a recommendation that Church “stop work until [her
heart] catheterization can be performed[.]” Id. at 233. This
catheterization was performed the next day, August 10, and Dr.
Campbell noted Church’s “moderately severe stenosis,” which led
to his recommendation of [a]ggressive risk factor management.”
Id. at 244-45. Her “[d]ischarge summary” of August 11, 2010,
noted the “[c]atherization” was successful on August 10, 2010,
id. at 240, and that Church has “coronary atherosclerosis,” id.
[6]
recommended “a Lexiscan scan[,]” and stated that if that scan
should turn up negative, then Church ought “continue with [her]
present therapy.”
Id.
Finally, Dr. Walters’s notes from his
October 3, 2011, examination indicate unexceptional objective
findings, see id. at 400-01, and explicitly state that Church
“is not having angina[,]” instead blaming her weight and
“smoking with known coronary disease” for her subjective
reported symptoms, id. at 400.
Church thus fails to undermine
the hearing officer’s decision to discount Dr. Hiester’s
opinion. 5
2.
Dr. Boehlert’s Opinion
Church next claims that the hearing officer erred in
according “significant weight” to the opinion of consulting
physician Dr. Boehlert.
See Pl.’s Mem. 11-14.
The
Commissioner, in contrast, claims that the hearing officer was
entitled to do so, because “[Dr. Boehlert’s] opinion was
consistent with her examination findings as well as the
longitudinal medical evidence in the record.”
5
Def.’s Mem. 9.
Church also takes issue with the hearing officer’s
apparent discounting of Dr. Hiester’s opinion based on the
check-box nature of the form Dr. Hiester filled out, Pl.’s Mem.
10-11. In light of the other substantial evidence supporting
the hearing officer’s discounting, however, any error was
harmless. See, e.g., Schlichting v. Astrue, 11 F.Supp.3d 190,
207 (N.D.N.Y. 2012) (applying harmless error analysis).
[7]
Church raises two particular objections to the hearing
officer’s reliance on Dr. Boehlert’s opinion: she did not review
Church’s medical records, Pl.’s Mem. 12 (citing Admin. R. 344),
and her opinion is inconsistent with her own examination notes,
id. at 12-14.
The Commissioner does not respond to these points
directly, but rather asserts that affirmance is appropriate
because of the objective clinical evidence supporting Dr.
Boehlert’s opinion.
See Def.’s Mem. 9-10.
As to Church’s first point, the report to which Church
herself cites -- Dr. Boehlert’s June 28, 2011 “Internal Medicine
Examination” -- in fact explicitly refers to Church’s medical
history.
See Admin. R. 344 (referencing specific past
evaluations and diagnoses in August 2010, December 2010, and
January 2011).
Thus, this argument is without merit.
As to Church’s second objection, Church first claims that
Dr. Boehlert’s diagnosis of carpal tunnel is inconsistent with
his finding that Church had “only” a “mild limitation” in “fine
motor activity[.]”
Pl.’s Mem. 12.
While Church is correct that
the report does reference carpal tunnel syndrome, in context the
statement is part of Church’s medical history, as recounted to
Dr. Boehlert by Church. 6
In light of Dr. Boehlert’s physical
6
This portion of Dr. Boehlert’s report states: “[Church]
has carpal tunnel syndrome for the last two months. It is
severe. She uses a brace all the time. It does help somewhat.
[8]
examination, which found Church’s “[h]and and finger dexterity
intact” and “[g]rip strength 5/5 bilaterally[,]” Admin. R. 347,
there is no inconsistency between his diagnosis and his
proffered functional limitations on Church’s “fine motor
activity.”
Next, Church points to the lack of “postural limitations”
as inconsistent with Dr. Boehlert’s finding that Church “can
only squat halfway down” and that Church’s “musculoskeletal exam
showed lateral flexion limited to 20 degrees bilaterally and
rotary movement limited to 20 degrees bilaterally.”
13.
Pl.’s Mem.
Church also claims an inconsistency between Dr. Boehlert’s
findings of a “positive Patrick sign, suggesting hip joint
disorder[,]” and that Church “experienced pain with range of
motion exercises of the hips in the sitting position,” on the
one hand, and the lack of proffered “sitting-related
limitations” on the other.
Id.
Church ignores, however, the
many findings in Dr. Boehlert’s report that support the lack of
limitations -- namely that Church “[n]eeded no help changing for
[the] exam or getting on and off [the] exam table[]” was “[a]ble
to rise from [a] chair without difficulty[;]” her “[c]ervical
spine shows full flexion, extension, lateral flexion
bilaterally, and full rotary movement bilaterally” and “[l]umbar
She was told she cannot have surgery until her cardiac status is
more stable for a longer duration.” Admin. R. 344.
[9]
spine shows full flexion, [and] extension[;]” and she had
“[f]ull [range of motion] of hips, knees, and ankles
bilaterally” with “stable and nontender” joints[.]”
345-46.
Admin. R.
Thus, there is no internal inconsistency in Dr.
Boehlert’s report that would require reversal.
3.
Dr. Walters’s Opinion
With respect to the hearing officer’s assessment of medical
sources, Church lastly claims that the hearing officer erred in
his assessment of Dr. Walters’s opinion.
Pl.’s Mem. 14.
Church
challenges the hearing officer’s interpretation of Dr. Walters’s
statement that Church “would not be able to do a treadmill[,]”
Admin. R. 228, asserting that in fact this statement “is a
reflection of [Church’s] significant functional limitations.”
Pl.’s Mem. 14.
This argument attempts to stretch this statement
far too broadly, and ignores the rest of Dr. Walters’s reports,
which, as discussed supra, support the hearing officer’s
decision.
B.
Evaluation of Church’s Credibility
Church next challenges the hearing officer’s evaluation of
her credibility.
See Pl.’s Mem. 14-20.
The hearing officer, in
determining Church’s residual functional capacity (“RFC”), found
that Church’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however,
statements [made by Church and third parties] concerning the
[10]
intensity, persistence, and limiting effects of these symptoms
are not fully credible.”
Admin. R. 19.
When making credibility determinations, if a hearing
officer determines that, like in the instant case, a claimant’s
“medically determinable impairments could reasonably be expected
to cause the alleged symptoms,” she must consider
1. The individual's daily activities;
2. The location, duration, frequency, and intensity of
the individual's pain or other symptoms;
3. Factors that precipitate and aggravate the
symptoms;
4. The type, dosage, effectiveness, and side effects
of any medication the individual takes or has taken to
alleviate pain or other symptoms;
5. Treatment, other than medication, the individual
receives or has received for relief of pain or other
symptoms;
6. Any measures other than treatment the individual
uses or has used to relieve pain or other symptoms
(e.g., lying flat on his or her back, standing for 15
to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning the individual's
functional limitations and restrictions due to pain or
other symptoms.
SSR 96-7P, 1996 WL 374186 at *3 (S.S.A. July 2, 1996); see,
e.g., Kessler v. Colvin, 48 F.Supp.3d 578, 594 (S.D.N.Y. 2014)
(quoting SSR 96-7P).
A hearing officer “who finds that a
claimant is not credible must do so explicitly and with
sufficient specificity to enable the Court to decide whether
there are legitimate reasons for the [hearing officer]’s
disbelief and whether his determination is supported by
substantial evidence.”
Henningsen v. Comm'r of Soc. Sec.
[11]
Admin., 111 F.Supp.3d 250, 268 (E.D.N.Y. 2015) (internal
quotation marks and citations omitted).
Church raises two substantial issues.
The first is the
hearing officer’s inference that her symptoms were not as
serious as she alleged because of her doctor’s conservative
treatment strategy, see Pl.’s Mem. 14, 17-18, and the second is
that the hearing officer impermissibly used Church’s failure to
lose weight as a mark against her credibility, see id. at 19-20. 7
The Court discusses these in turn.
1.
Conservative Treatment
7
Church also argues that “Dr. Walters[’s] refusal to
provide a medical opinion says nothing whatsoever about
Plaintiff’s limitations[.]” Pl.’s Mem. 14. In context,
however, this statement, made after explaining the hearing
officer’s interpretation of Dr. Walters’s prior treatment note,
was merely noting the absence of evidence to support Church’s
claimed impairments, not holding the absence against her, see
Admin. R. 19.
The hearing officer noted that, although Church “testified
. . . that she needs to move around constantly, . . . she sat
for the entire hearing and with no obvious problem.
Additionally, [Church] testified that she drives and spends a
lot of time sitting and watching television; she also pointed
out that sitting is ‘not bad,’ indicating that she is capable of
the sitting required in sedentary work.” Admin. R. 19-20.
Objecting to this observation, Church claims that this was
improper, especially given the video-conference setup. See
Pl.’s Mem. 16 (collecting cases). The videoconference setup was
appropriate to the hearing officer’s observations here, however,
because they related only to Church sitting and not, for
example, her “demeanor.” Compare Jopson v. Astrue, 517
F.Supp.2d 689, 706 (D. Del. 2007) (reversing where credibility
assessment based on demeanor was made via videoconference),
with, e.g., Weather v. Astrue, 32 F.Supp.3d 363, 374 n.2, 381
(N.D.N.Y. 2012) (affirming credibility determination made via
videoconference).
[12]
Church argues that the hearing officer improperly used
Church’s conservative treatment as evidence against her.
Pl.’s Mem. 14, 17-18.
See
The hearing officer here noted that
Church’s “treatment for musculoskeletal problems has been quite
conservative,” and that she had “declined injections and
surgery[.]”
Admin. R. 19.
consideration.
Church takes issue with this
See Pl.’s Mem. 15 (calling inference from
Church’s declining more aggressive treatment “dumbfounding”).
Hearing officers cannot discount “the opinion of the
treating physician . . . merely because he has recommended a
conservative treatment regimen.”
Burgess v. Astrue, 537 F.3d
117, 129 (2d Cir. 2008) (internal citation omitted).
“The fact
that a patient takes only over-the-counter medicine to alleviate
her pain may, however, help to support the Commissioner's
conclusion that the claimant is not disabled if that fact is
accompanied by other substantial evidence in the record, such as
the opinions of other examining physicians and a negative MRI.”
Id. at 129 (emphasis supplied) (citations omitted); see also,
e.g., Mayor v. Colvin, No. 15 CIV. 0344 (AJP), 2015 WL 9166119,
at *21 (S.D.N.Y. Dec. 17, 2015) (“Courts in this Circuit
routinely uphold credibility determinations in which the
[hearing officer] finds a claimant's statements about their
symptoms not credible based, inter alia, on a conservative
treatment record.”) (collecting cases).
[13]
Here, as described
supra, the findings of Dr. Boehlert constituted substantial
evidence to support the finding that Church’s symptoms were not
as disabling as claimed, and thus Church’s challenge, at least
as to this particular argument, must fail.
See Kessler v.
Colvin, 48 F.Supp.3d 578, 595 (S.D.N.Y. 2014) (internal citation
omitted) (“[S]o long as the credibility determination is
supported by substantial evidence, this Court may not disrupt
the [hearing officer’s] findings.”).
2.
Failure to Lose Weight
Church’s second claim of improper discrediting is based on
the hearing officer’s reliance on Church’s failure to lose
weight.
Specifically, Church claims that this reliance would be
appropriate only upon a finding that Church was in fact
disabled, and upon identifying a particular treatment chosen by
her doctor with which she failed to comply.
20 (citing SSR 02-1p).
See Pl.’s Mem. 19-
The Commissioner does not directly
answer this argument, other than asserting that, to the extent
Church argues that her impairments impede her ability to lose
weight, such arguments are “mere speculation on [Church’s] part
and . . . ignore[] established principles” regarding weight
loss.
Def.’s Mem. 13.
The Social Security Administration promulgated a ruling in
2002 instructing hearing officers on how properly to consider a
claimant’s obesity in their disability determinations.
[14]
See
generally SSR 02-1P, 2002 WL 34686281 (S.S.A. Sept. 12, 2002).
The ruling instructs that obesity should be considered in the
RFC determination, see SSR 02-1P, 2002 WL 34686281, at *6; and,
relevant for the instant case, commands that “[b]efore failure
to follow prescribed treatment for obesity can become an issue
in a case, [a hearing officer] must first find that the
individual is disabled because of obesity or a combination of
obesity and another impairment(s).”
Id. at *9.
Hearing
officers should “rarely use ‘failure to follow prescribed
treatment’ for obesity to deny . . . benefits.”
Id.
To use a
claimant’s failure to follow treatment to deny benefits, a
hearing officer must find (1) the claimant “has an impairment(s)
that meets the definition of disability, including the duration
requirement,” (2) that “[a] treating source has prescribed
treatment that is clearly expected to restore the ability to
engage in substantial gainful activity,” and (3) that “[t]he
evidence shows that the [claimant] has failed to follow
prescribed treatment without a good reason.”
Id.
Here, the hearing officer found that Church’s obesity was a
severe impairment.
See Admin. R. 15.
consistently to lose weight.
Church has been unable
See id. at 19.
Church’s failure
to lose weight apparently figured prominently into the hearing
officer’s RFC determination; indeed, it occupies an entire
paragraph in the credibility-analysis section of the RFC
[15]
determination, which includes strong language: Church’s
“treatment notes are replete with references to her failure to
follow medical advice to quit smoking and lose weight[;]” her
“‘problem is that she smokes and she is grossly overweight . . .
she is now trying to diet, but she had gained weight[;]’” “‘she
is her own worst enemy in the sense of being obese and smoking
with known coronary disease at a young age[.]’”
Id. at 19.
The
hearing officer also points to Dr. Walters’s statement that
Church should lose weight, id., but “[a] treating source's
statement that an individual ‘should’ lose weight or has ‘been
advised’ to get more exercise is not prescribed treatment,” SSR
02-1P, 2002 WL 34686281, at *9.
Allowing a hearing officer to discount a claimant’s
testimony on the basis of her failure to lose weight, without
making the findings that Social Security Ruling 02-1p requires,
is improper.
See Orn v. Astrue, 495 F.3d 625, 637 (9th Cir.
2007) (“At the time in question [the claimant] had not been
found disabled, so Social Security Ruling 02–1p precludes the
[hearing officer] from considering the effect of any failure to
follow treatment for obesity.”).
Why might the Social Security Administration have
promulgated Ruling 02-1P?
It helps to ensure that hearing
officers are not swayed by bias against obese claimants who have
not been able successfully to lose weight.
[16]
This bias is real,
and pernicious.
See, e.g., Harriet Brown, For Obese People,
Prejudice in Plain Sight, N.Y. Times D6 (March 15, 2010)
(describing stigma against obese individuals; reporting that a
“recent study shows that the higher a patient’s body mass, the
less respect doctors express for that patient.”).
As the ruling
itself explains, “[o]besity is a complex, chronic disease
characterized by excessive accumulation of body fat. . . . In
one sense, the cause of obesity is simply that the energy (food)
taken in exceeds the energy expended by the individual's body.
However, the influences on intake, the influences on
expenditure, the metabolic processes in between, and the overall
genetic controls are complex and not well understood.”
SSR 02-
1P, 2002 WL 34686281, at *2; see also, e.g., Gina Kolata, After
‘The Biggest Loser,’ Their Bodies Fought to Regain Weight, N.Y.
Times A1 (May 2, 2016) (quoting Dr. David Ludwig as stating “for
most people, the combination of incessant hunger and slowing
metabolism [as a result of successful dieting] is a recipe for
weight regain —- explaining why so few individuals can maintain
weight loss for more than a few months.”).
Here, because the
hearing officer appeared to place great significance on this
improper consideration, a remand for a redetermination of
Church’s RFC is required.
Cf., e.g., Henningsen v. Comm'r of
Soc. Sec. Admin., 111 F.Supp.3d 250, 269 (E.D.N.Y. 2015)
[17]
(remanding where hearing officer committed legal error in
credibility determination). 8
III. CONCLUSION
For the foregoing reasons, the alternative relief prayed
for in Church’s complaint, ECF No. 1, is GRANTED and the case is
REMANDED for further proceedings consistent with this opinion.
SO ORDERED.
/s/ William G. Young
WILLIAM G. YOUNG
DISTRICT JUDGE
8
Church also challenges the hearing officer’s RFC
determination insofar as it did not include a need to rest. See
Pl.’s Mem. 21-22. As the RFC determination will need to be made
anew, the Court need not currently address this contention.
[18]
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