Bartrum v. Astrue
Filing
19
DECISION AND ORDER. IT IS SO ORDERED, for the reasons stated herein, that the Commissioner's Motion for Judgment on the Pleadings is DENIED; Plaintiff's Motion for Judgment on the Pleadings is GRANTED; this case is REMANDED for further proceedings consistent with this Decision and Order; and the Clerk of the Court shall enter Judgment accordingly and close this case. Signed by Magistrate Judge Victor E. Bianchini on 11/26/2012. (sg )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
LUCY J. BARTRUM,
DECISION AND
ORDER
Plaintiff,
11-CV-850
(VEB)
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
I. INTRODUCTION
In June of 2009, Plaintiff Lucy J. Bartrum applied for supplemental security income
(“SSI”) benefits and disability insurance benefits (“DIB”) under the Social Security Act.
Plaintiff alleges that she has been unable to work since May of 2009 due to physical and
mental impairments. The Commissioner of Social Security denied Plaintiff’s applications.
Plaintiff, by and through her attorneys, Olinsky and Shurtliff, Howard D. Olinsky,
Esq., of counsel, commenced this action seeking judicial review of the Commissioner’s
decision pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3). The parties, by and through
their respective counsel, consented to the jurisdiction of a United States Magistrate Judge
on October 22, 2012. (Docket No. 18).
II. BACKGROUND
The relevant procedural history may be summarized as follows:
On June 24, 2009, Plaintiff applied for SSI benefits and DIB, alleging that she has
been unable to work since May 18, 2009. (T at 194-205, 226).1 The applications were
denied initially and Plaintiff timely requested a hearing before an Administrative Law Judge
(“ALJ”). A hearing was held in Syracuse, New York, on December 16, 2010, before ALJ
Barry Peffley, who presided via videoconference from Baltimore, Maryland. (T at 24, 26).
Plaintiff appeared with her attorney and testified. (T at 37-48). Testimony was also
received from Dothel Edwards, a vocational expert. (T at 48-55).
On January 7, 2011, ALJ Peffley issued a written decision finding that Plaintiff was
not disabled within the meaning of the Social Security Act during the relevant time period
and denying Plaintiff’s claims for benefits. (T at 14-23). The ALJ’s decision became the
Commissioner’s final decision on June 8, 2011, when the Appeals Council denied Plaintiff’s
request for review. (T at 1-4).
Plaintiff, by and through her attorney, timely commenced this action by filing a
Complaint on July 21, 2011. (Docket No. 1). The Commissioner interposed an Answer on
March 5, 2012. (Docket No. 9). Plaintiff filed a supporting Brief on April 19, 2012. (Docket
No. 12). The Commissioner filed a Brief in opposition on June 4, 2012. (Docket No. 14).
With leave of the Court, Plaintiff filed a Reply Brief on June 18, 2012. (Docket No. 16). As
noted above, the parties, through their respective attorneys, consented to the jurisdiction
of the undersigned on October 22, 2012. (Docket No. 18).
1
Citations to “T” refer to the Administrative Transcript. (Docket No. 10).
2
Pursuant to General Order No. 18, issued by the Chief District Judge of the Northern
District of New York on September 12, 2003, this Court will proceed as if both parties had
accompanied their briefs with a motion for judgment on the pleadings.2
For the reasons set forth below, Plaintiff’s motion is granted, the Commissioner’s
motion is denied, and this case is remanded for further proceedings.
III. DISCUSSION
A.
Legal Standard
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), 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. 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.”); see 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
it 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.
2
General Order No. 18 provides, in pertinent part, that “[t]he Magistrate Judge will treat the
proceeding as if both parties had accompanied their briefs with a motion for judgment on the pleadings.”
3
1420, 1427, 28 L.Ed.2d 842 (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).
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).
The Commissioner has established a five-step sequential evaluation process to
determine whether an individual is disabled as defined under the Social Security Act. See
20 C.F.R. §§ 416.920, 404.1520. The United States Supreme Court recognized the validity
of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S.Ct. 2287, 96 L.Ed.2d
119 (1987), and it remains the proper approach for analyzing whether a claimant is
disabled.3
3
This five-step process is detailed 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 has 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
4
While the claimant has the burden of proof as to the first four steps, the
Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S. at
146 n. 5; Ferraris v. Heckler, 728 F.2d 582 (2d Cir.1984).
The final step of the inquiry is, in turn, divided into two parts. First, the Commissioner
must assess the claimant's job qualifications by considering his or her physical ability, age,
education, and work experience. Second, the Commissioner must determine whether jobs
exist in the national economy that a person having the claimant's qualifications could
perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §§ 416.920(g); 404.1520(g); Heckler v.
Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983).
B.
Analysis
1.
Commissioner’s Decision
The ALJ determined that Plaintiff met the insured status requirements of the Social
Security Act through December 31, 2013, and had not engaged in substantial gainful
activity since May 18, 2009, the alleged onset date. (T at 16).
The ALJ found that Plaintiff had the following impairments considered “severe” under
the applicable Social Security Regulations (the “Regulations”): arthritis, degenerative disc
disease, chronic neck pain, coronary artery disease, cardiomegaly, cardiomyopathy,
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 claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982) (per curiam); see also Rosa v. Callahan, 168 F.3d
72, 77 (2d Cir.1999); 20 C.F.R. §§ 416.920, 404.1520.
5
bronchitis, obesity, and dysthymic disorder. (T at 16). However, the ALJ determined that
Plaintiff’s medically determinable impairments did not meet or equal one of the impairments
listed in Appendix I of the Regulations (the “Listings”). (T at 17-18).
After reviewing the medical evidence, the ALJ concluded that Plaintiff retained the
residual functional capacity to perform somewhat less than the full range of light work as
defined in 20 C.F.R. § 404.1567 (b) and 416.967 (b). (T at 18-21). The ALJ found that
Plaintiff was unable to perform any of her past relevant work as a cashier/checker, certified
nurse’s assistant, industrial truck operator, home attendant, or licensed practical nurse, as
the performance of those occupations was precluded by Plaintiff’s residual functional
capacity. (T at 21-22).
Considering Plaintiff’s residual functional capacity, age (47 years old on the alleged
onset date), education (high school), and work experience, the ALJ determined that Plaintiff
was able to perform jobs that exist in significant numbers in the national economy. (T at
22-23). Accordingly, the ALJ concluded that Plaintiff had not been under a “disability,” as
that term is defined under the Act, from the alleged onset date (May 18, 2009) through the
date of the ALJ’s decision (January 7, 2011), and was therefore not entitled to benefits. (T
at 23). As noted above, the ALJ’s decision became the Commissioner’s final decision on
June 8, 2011, when the Appeals Council denied Plaintiff’s request for review. (T at 1-4).
2.
Plaintiff’s Claims
Plaintiff argues that the Commissioner’s decision should be reversed. She offers
four (4) principal arguments in support of her position. First, Plaintiff argues that the ALJ
should have determined that her headaches were a severe impairment. Second, Plaintiff
Plaintiff contends that the ALJ’s residual functional capacity determination is not supported
6
by substantial evidence. Third, Plaintiff challenges the ALJ’s credibility determination.
Fourth, Plaintiff argues that the ALJ’s step 5 analysis was flawed. This Court will address
each argument in turn.
a.
Severity of Headaches
At step two of the sequential evaluation process, the ALJ must determine whether
the claimant has a severe impairment that significantly limits his or her physical or mental
ability to do basic work activities. See 20 C.F.R. §§ 404.1520(c), 416.920(c). The following
are examples of “basic work activities”: “walking, standing, sitting, lifting, pushing, pulling,
reaching, carrying, or handling ... seeing, hearing, and speaking ... [u]nderstanding,
carrying out, and remembering simple instructions ... [u]se of judgment ... [r]esponding
appropriately to supervision, co-workers and usual work situations.” Gibbs v. Astrue, No.
07-Civ-10563, 2008 WL 2627714, at *16 (S.D.N.Y. July 2, 2008); 20 C.F.R. §
404.1521(b)(l)-(5).
The claimant bears the burden of presenting evidence establishing severity. Miller
v. Comm'r of Social Sec., No. 05-CV-1371, 2008 WL 2783418, at *6-7 (N.D.N.Y. July 16,
2008); see also 20 C.F.R. § 404.1512(a). Although the Second Circuit has held that this
step is limited to “screen[ing] out de minimis claims,” Dixon v. Shalala, 54 F.3d 1019, 1030
(2d Cir.1995), the “mere presence of a disease or impairment, or establishing that a person
has been diagnosed or treated for a disease or impairment” is not, by itself, sufficient to
render a condition “severe.” Coleman v. Shalala, 895 F.Supp. 50, 53 (S.D.N.Y.1995).
Indeed, a “finding of ‘not severe’ should be made if the medical evidence establishes only
a ‘slight abnormality’ which would have ‘no more than a minimal effect on an individual's
ability to work.’” Rosario v. Apfel, No. 97-CV-5759, 1999 WL 294727 at *5 (E.D.N.Y. March
7
19,1999) (quoting Bowen v. Yuckert, 482 U.S. 137, 154 n. 12 (1987)).
Plaintiff argues that her headaches should have been considered a severe
impairment. She points to the following evidence in support of this argument: Plaintiff
completed a daily log documenting the severity of her headaches, in which she indicated
that she suffered from headaches on most days during September, October, November,
and December 2010, with the headache pain frequently confining her to bed. (T at 499502). Plaintiff testified that her headaches impair her concentration. (T at 44).
In December 2008, Dr. Scott Van Gorder, a treating physician, reported that Plaintiff
experiences headaches “chronic in nature, daily basis.” (T at 289). During the same month,
R. Jason Pratt, Plaintiff’s physical therapist, noted that Plaintiff complained of intermittent
headaches. (T at 357). Dr. Kalyani Ganesh, a consultative examiner, diagnosed a history
of headaches. (T at 363).
The ALJ did not identify Plaintiff’s headaches as a severe impairment and, in fact,
did not address the status of Plaintiff’s headaches as a separate impairment whatsoever.
(T at 16). The ALJ did, however, determine that Plaintiff’s chronic neck pain was a severe
impairment. (T at 16). Further, the ALJ addressed Plaintiff’s testimony regarding her
headaches and concentration, finding that the testimony was not entirely credible. (T at 18).
For the following reasons, this Court finds no reversible error with regard to this aspect of
the ALJ’s decision.
First, Plaintiff did not identify her headaches as a separate disabling impairment in
her intake interview. (T at 226). Second, it appears Plaintiff’s headaches were related to
her severe neck pain, which the ALJ did find to be a severe impairment. For example, in
a June 2009 treatment note, Dr. Van Gorder explained that Plaintiff had “a problem with
8
chronic daily headaches and chronic neck pain and the neck pain leads to the headaches.”
(T at 293). In a November 2009, Dr. Van Gorder indicated that Plaintiff’s headaches were
“associated with” her neck pain. (T at 497). Plaintiff does not point to any evidence
identifying limitations arising solely from her headaches (as opposed to limitations arising
from her chronic neck pain and the associated headaches). As noted above, the ALJ found
Plaintiff’s neck pain to be a severe impairment and was mindful of Plaintiff’s allegations
concerning headaches and concentration. (T at 16, 18). The ALJ’s RFC determination
incorporated a requirement that Plaintiff not be required to engage in activities likely to
aggravate her neck pain (e.g. frequently engaging in neck rotation, flexion, or extension).
(T at 19). Further, the ALJ also incorporated the testimony concerning concentration
problems by finding that Plaintiff was restricted to “work limited to simple, routine, and
repetitive tasks . . . .” (T at 19).
Lastly, because the ALJ found that Plaintiff suffered from other severe impairments,
was aware of (and incorporated) the evidence concerning chronic headaches, and
continued with the sequential analysis, any arguable error in not considering the headaches
as a separate impairment was, under the circumstances, harmless. See Maziarz v.
Secretary of Health & Human Services, 837 F.2d 240, 244 (6th Cir. 1987)(“[T]he Secretary
found that Maziarz suffered from the severe impairment of coronary artery disease, status
post right coronary artery angioplasty and angina pectoris. Accordingly, the Secretary
continued with the remaining steps in his disability determination. Since the Secretary
properly could consider claimant's cervical condition in determining whether claimant
retained sufficient residual functional capacity to allow him to perform substantial gainful
activity, the Secretary's failure to find that claimant's cervical condition constituted a severe
9
impairment could not constitute reversible error.”); McCartney v. Commissioner of Social
Sec., Civil Action No. 07-1572, 2009 WL 1323578, at *16 (W.D.Pa. May 8, 2009)(“Even if
the Court was to find that the ALJ did err in excluding headaches from the list of severe
impairments, any such error was harmless because the ALJ found other severe
impairments at step two and proceeded through the sequential evaluation on the basis of
Plaintiff's severe and non-severe impairments.”); Portorreal v. Astrue, No. C.A. 07-296ML,
2008 WL 4681636, at *3 (D.R.I. Oct. 21, 2008). Accordingly, this Court finds no reversible
error with regard to this aspect of the ALJ’s decision.
b.
RFC Determination
Residual functional capacity (“RFC”) is defined as: “what an individual can still do
despite his or her limitations.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999). “Ordinarily,
RFC is the individual's maximum remaining ability to do sustained work activities in an
ordinary work 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 8 hours a day, for 5 days a week, or an equivalent work schedule.” Id.
When making a residual functional capacity determination, the ALJ considers a
claimant's physical abilities, mental abilities, symptomatology, including pain and other
limitations that could interfere with work activities on a regular and continuing basis. 20
C.F.R. § 404.1545(a). An RFC finding will be upheld when there is substantial evidence
in the record to support each requirement listed in the regulations. LaPorta v. Bowen, 737
F.Supp. 180, 183 (N.D.N.Y.1990).
In the present case, the ALJ determined that Plaintiff retained the RFC to perform
light work, as defined in 20 CFR § 404.1567 (b) and 416.967 (b), except that Plaintiff would
10
need to work in a job where she was allowed to “sit or stand alternatively at will, but would
not have to leave the workstation.” (T at 18-19). The ALJ also concluded that Plaintiff could
frequently push or pull with her left upper extremities and frequently engage in neck
rotation, flexion or extension; but only occasionally climb ramps or stairs; never climb
ladders, reports or scaffolds; only occasionally stoop, kneel, crouch, bend or crawl;
frequently reach; and occasionally reach overhead with her left upper extremity. (T at 19).
The ALJ determined that Plaintiff must avoid concentrated exposure to operational control
of moving machinery and unprotected heights and avoid concentrated exposure to irritants
and poorly ventilated areas. (T at 19). The ALJ further found that Plaintiff was limited to
simple and repetitive tasks, in a workplace that involved only simple, work-related decision,
with few (if any) work place changes and no fast-paced production requirements. (T at 19).
Plaintiff challenges the ALJ’s RFC determination. In particular, Plaintiff points to a
September 2010 medical source statement from Dr. Scott Van Gorder, her treating
physician. In that statement, Dr. Van Gorder opined that Plaintiff could sit for more than
2 hours at a time, stand for 15 minutes at a time, stand/walk for less than 2 hours in an 8hour workday, and sit for at least 6 hours. (T at 408). He indicated that Plaintiff would need
to have her legs elevated the entire work-day and would need to shift positions at will and
take frequent, unscheduled breaks. (T at 408).
Dr. Van Gorder found that Plaintiff could occasionally lift less than 10 pounds, rarely
lift 20 pounds, and never lift more than that. He concluded that she could never look down
with sustained flexion of her neck, rarely turn her head right or left, and never look up or
hold her head in static position. (T at 408). Dr. Van Gorder opined that Plaintiff could never
grasp/turn/twist objects were her hands, never engage in fine manipulations with her
11
fingers, and never reach with her arms. (T at 409). He identified Plaintiff’s symptoms as
chest pain, edema, anginal equivalent pain, nausea, shortness of breath, palpitations,
fatigue, dizziness, weakness, and sweatiness. (T at 409).
Although Dr. Van Gorder generally rated Plaintiff’s mental abilities and aptitudes as
good with respect to unskilled work, he opined that Plaintiff would not be able to meet
competitive standards in terms of performing at a consistent pace without an unreasonable
number and length of rest periods and dealing with stress. (T at 410).
Under the “treating physician’s rule,” the ALJ must give controlling weight to the
treating physician's opinion when the opinion is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] record.” 20 C.F.R. § 404.1527(d)(2); Halloran v. Barnhart, 362
F.3d 28, 31-32 (2d Cir. 2004); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir.2000).4
Even if a treating physician's opinion is deemed not to be deserving of controlling
weight, an ALJ may nonetheless give it “extra weight” under certain circumstances. In this
regard, the ALJ should consider the following factors when determining the proper weight
to afford the treating physician's opinion if it is not entitled to controlling weight: (1) length
of the treatment relationship and the frequency of examination, (2) nature and extent of the
treatment relationship, (3) supportability of opinion, (4) consistency, (5) specialization of the
treating physician, and (6) other factors that are brought to the attention of the court. C.F.R.
§ 404.1527(d)(1)-(6); see also de Roman, 2003 WL 21511160, at *9; Shaw, 221 F.3d at
4
“The ‘treating physician's rule’ is a series of regulations set forth by the Commissioner in 20
C.F.R. § 404.1527 detailing the weight to be accorded a treating physician's opinion.” de Roman v.
Barnhart, No.03-Civ.0075, 2003 WL 21511160, at *9 (S.D.N.Y. July 2, 2003).
12
134; Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.1998); Schaal v. Apfel, 134
F.3d 496, 503 (2d Cir. 1998).
In the present case, the ALJ afforded “some weight” to Dr. Van Gorder’s September
2010 opinion and “great weight” to an earlier opinion provided by Dr. Van Gorder in
February of 2010. (T at 21). For the following reasons, this Court finds that the ALJ’s
consideration of Dr. Van Gorder’s opinions was based upon a fundamental factual error
and must be revisited on remand.
In February of 2010, Dr. Van Gorder indicated that Plaintiff complained of neck pain,
but was “currently doing okay” and was “hoping to work again.” (T at 496). He suggested
“no lifting greater than 20 pounds,” but opined that Plaintiff “could return to regular work as
needed.” (T at 496).
In his decision, the ALJ assigned “great weight” to the February 2010 opinion, which
he described as the treating physician’s “most recent decision . . . .” (T at 21)(emphasis
added). The ALJ mistakenly believed Dr. Van Gorder’s September 2010 opinion was
rendered in “September of 2009 . . . .” (T at 21).
This critical error caused the ALJ to conclude that Plaintiff had “shown significant
improvement from her cardiac and musculoskeletal impairments.” (T at 21). The ALJ
erroneously indicated that Plaintiff’s “primary care physician” (Dr. Van Gorder) believed that
Plaintiff could “return to work with minimal limitations.” (T at 20). In fact, Dr. Gorder’s
opinion had changed, but rather than showing improvement, the change of opinion
indicated a serious deterioration of Plaintiff’s condition, with work-related limitations
materially at odds with the ALJ’s RFC determination. The ALJ never addressed this
discrepancy because of his error regarding the date of the September 2010 evaluation.
13
The Commissioner dismisses the ALJ’s fundamental error in a footnote
(Commissioner’s Brief, Docket No. 14, at p. 17 n. 3) and then argues that Dr. Van Gorder’s
September 2010 opinion was, in any event, contradicted by the balance of the evidence.
However, the ALJ did not reject Dr. Van Gorder’s September 2010 opinion as
inconsistent with the evidence and, indeed, afforded the opinion “some weight.” (T at 21).
The ALJ gave “great weight” to the February 2010 opinion because of his erroneous belief
that it was the “most recent” and demonstrated that Plaintiff’s condition had improved. (T
at 21). In other words, the ALJ was inclined to give the most weight to the “most recent”
opinion from the treating physician. Thus, to accept the Commissioner’s argument, this
Court would have to completely ignore the manner in which the ALJ considered this
extremely critical evidence and create an entirely new rationale for the decision. This Court
simply cannot, and will not, re-weigh the medical evidence and/or “create post-hoc
rationalizations to explain the Commissioner’s treatment of evidence when that treatment
is not apparent from the Commissioner's decision itself.” Grogan v. Barnhart, 399 F.3d
1257, 1263 (10th Cir.2005); see also Snell v. Apfel, 177 F.3d 128, 134 (2d Cir.1999)
(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)); see also
Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999) (“Nor may [the Court] properly affirm an
administrative action on grounds different from those considered by the agency”) ( citing
SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).
The Commissioner also points to the report of Dr. Kalyani Ganesh as supportive of
the decision to deny benefits. Dr. Ganesh, a consultative examiner, assessed no gross
limitation as to sitting, standing, or walking; and a “mild to moderate” limitation as to lifting,
carrying, pushing, and pulling. (T at 363). However, Dr. Ganesh’s opinion was rendered
14
in September of 2009, a year before Dr. Van Gorder’s most recent assessment. In
addition, an opinion based upon a single examination deserves limited weight and cannot,
without more, override the assessment of a treating physician. See Crespo v. Apfel, No.
97 CIV 4777, 1999 WL 144483, at *7 (S.D.N.Y. Mar. 17,1999) (“In making a substantial
evidence evaluation, a consulting physician's opinions or report should be given limited
weight” because “they are often brief, are generally performed without benefit or review of
the claimant's medical history and, at best, only give a glimpse of the claimant on a single
day.”); Garzona v. Apfel, No. 96 CV 6249, 1998 WL 643645, at *1 (E.D.N.Y. Sep. 18,
1998)(noting that “the opinion of a non-examining consultative physician, without more, [is]
insufficient to constitute the requisite contrary substantial evidence” to override the treating
physician’s assessment).
For the foregoing reasons, this Court finds that a remand is necessary with regard
to Dr. Van Gorder’s opinions. The ALJ will need to correct his error regarding the date of
the September 2010 and re-weigh the evidence in light of that correction.5
c.
Credibility
Courts in the Second Circuit have determined pain is an important element in DIB
and SSI claims, and pain evidence must be thoroughly considered. See Ber v. Celebrezze,
333 F.2d 923 (2d Cir.1994). Further, if an ALJ rejects a claimant's testimony of pain and
limitations, he or she must be explicit in the reasons for rejecting the testimony. See
Brandon v. Bowen, 666 F.Supp. 604, 609 (S.D.N.Y.1997).
5
Plaintiff also notes that the psychiatric review technique form completed by “R. Altmansberger” is
incomplete, in that it did not contain a rating of Plaintiff’s functional limitations or a function-by-function
assessment of Plaintiff’s mental RFC. (T at 371-384). Given that the ALJ found Plaintiff’s dysthymic
disorder to be a severe impairment and assessed mental limitations, the Commissioner should seek to
have this form completed on remand.
15
However, subjective symptomatology by itself cannot be the basis for a finding of
disability. A claimant must present medical evidence or findings that the existence of an
underlying condition could reasonably be expected to produce the symptomatology alleged.
See 42 U.S.C. §§ 423(d)(5)(A), 1382c (a)(3)(A); 20 C.F.R. §§ 404.1529(b), 416.929; SSR
96-7p; Gernavage v. Shalala, 882 F.Supp. 1413, 1419 (S.D.N.Y.1995).
“An administrative law judge may properly reject claims of severe, disabling pain
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) (internal citations omitted).
To this end, the ALJ must follow a two-step process to evaluate the plaintiff's
contention of pain, set forth in SSR 96-7p:
First, the adjudicator must consider whether there is an
underlying medically determinable physical or medical
impairment (s) ... that could reasonably be expected to produce
the individual's pain or other symptoms ....
Second, ... the adjudicator must evaluate the intensity,
persistence, and limiting effects of the individual's symptoms to
determine the extent to which the symptoms limit the
individual's ability to do basic work activities ....
According to 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii) and 416.929(c)(3)(i)-(vii), if the
plaintiff's pain contentions are not supported by objective medical evidence, the ALJ must
consider the following factors in order to make a determination regarding the plaintiff’s
credibility:
1.
2.
[Plaintiff's] daily activities;
The location, duration, frequency and intensity of
[Plaintiff's] pain or other symptoms;
16
3.
4.
5.
6.
7.
Precipitating and aggravating factors;
The type, dosage, effectiveness, and side effects of any
medication [Plaintiff] take[s] or ha[s] taken to alleviate ...
pain or other symptoms;
Treatment, other than medication [Plaintiff] receive[s] or
ha[s] received for relief of ... pain or other symptoms;
Any measure [Plaintiff] use[s] or ha[s] used to relieve ...
pain or other symptoms;
Other factors concerning [Plaintiff's] functional
limitations and restrictions due to pain or other
symptoms.
If the ALJ finds that the plaintiff’s pain contentions are not credible, he or she must
state his reasons “explicitly and with sufficient specificity to enable the Court to decide
whether there are legitimate reasons for the ALJ's disbelief.” Young v. Astrue, No.
7:05-CV-1027, 2008 WL 4518992, at *11 (N.D.N.Y. Sept. 30, 2008) (quoting Brandon v.
Bowen, 666 F. Supp 604, 608 (S.D.N.Y.1987)).
In the present case, Plaintiff testified as follows: She has severe headaches, limited
mobility in her neck, shortness of breath, and tingling in her left arm. (T at 41-42). She has
edema in her feet and ankles, which manifests itself if she sits without her legs elevated.
(T at 41-42). Plaintiff drops items frequently due to numbness in her arm and generally has
left-sided weakness. (T at 42). She experiences severe headaches several times a month.
(T at 44). She could sit for about 30 minutes before needing to change positions and could
stand in one place for 10-15 minutes. (T at 45-46). Plaintiff becomes short of breath when
walking more than a block. (T at 46). She can occasionally lift 5 to 10 pounds and has
difficulty with stairs. (T at 47). She is depressed and cries frequently. (T at 48).
The ALJ concluded that Plaintiff’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms, but that her statements
concerning the intensity, persistence and limited effects of the symptoms were not credible
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to the extent they were inconsistent with his RFC assessment. (T at 20).
The ALJ’s credibility assessment was directly impacted by the error discussed above
concerning the date of Dr. Van Gorder’s September 2010 report.
Indeed, the ALJ
concluded that “the objective evidence [did] not indicate that the claimant’s impairments are
as severe as alleged or that she is unable to do work.” (T at 20). The ALJ then explained
that Plaintiff had “shown significant improvement from her cardiac and musculosketal
impairments” and noted that Plaintiff’s treating physician had “reported that [Plaintiff] can
return to work with minimal limitations.” (T at 21). These findings were based upon the
ALJ’s incorrect conclusion that Dr. Van Gorder’s February 2010 opinion pre-dated his
September 2010 assessment. Accordingly, the question of Plaintiff’s credibility must be
revisited on remand.
d.
Flawed Hypothetical Questions
At step 5 in the sequential evaluation, the ALJ was required to perform a two part
process to first assess Plaintiff's job qualifications by considering his physical ability, age,
education, and work experience, and then determine whether jobs exist in the national
economy that Plaintiff could perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §
404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 1954, 76 L.Ed.2d 66
(1983).
In this case, the ALJ’s step 5 analysis was informed by a series of hypothetical
questions presented to Dothel Edwards, a vocational expert. The ALJ described a series
of limitations consistent with his RFC determination and then asked the vocational expert
to opine as to whether those limitations would preclude the hypothetical claimant from
performing work that exists in significant numbers in the national economy. (T at 50-54).
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A hypothetical question given to the vocational expert is appropriate and may be
relied upon by the ALJ if the question fully encompasses the claimant’s limitations. Magee
v. Astrue, No. 5:05-CV-413, 2008 WL 4186336, at *20 (N.D.N.Y. Sept. 9, 2008) (citing
Varley v. Sec'y of Health & Human Servs., 820 F.2d 777, 799 (6th Cir.1987)). “If the factors
set forth in the hypothetical are supported by substantial evidence, then the vocational
expert's testimony may be relied upon by the ALJ in support of a finding of no disability.”
Id.
Here, because the ALJ’s RFC determination was flawed (as it was based upon a
fundamental error related to the treating physician’s opinion), the hypothetical questions
he presented to the vocational expert were likewise flawed. Accordingly, this aspect of the
ALJ’s decision also cannot be sustained.
3.
Remand
“Sentence four of Section 405 (g) provides district courts with the authority to affirm,
reverse, or modify a decision of the Commissioner ‘with or without remanding the case for
a rehearing.’” Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir. 2002) (quoting 42 U.S.C. § 405
(g)). Remand is “appropriate where, due to inconsistencies in the medical evidence and/or
significant gaps in the record, further findings would . . . plainly help to assure the proper
disposition of [a] claim.” Kirkland v. Astrue, No. 06 CV 4861, 2008 WL 267429, at *8
(E.D.N.Y. Jan. 29, 2008). For the foregoing reasons, this Court finds that remand is
warranted.
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IV. ORDERS
The Commissioner’s Motion for Judgment on the Pleadings is DENIED; Plaintiff’s
Motion for Judgment on the Pleadings is GRANTED; this case is remanded for further
proceedings consistent with this Decision and Order; and the Clerk of the Court shall enter
Judgment accordingly and close this case.
SO ORDERED.
Dated: November 26, 2012
Syracuse, New York
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