Davis v. Commissioner of Social Security

Filing 20

MEMORANDUM-DECISION and ORDER - That the Clerk is directed to substitute Carolyn W. Colvin, Acting Commissioner of Social Security, for defendant Michael J. Astrue, and amend the caption accordingly. 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 9/10/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
DANNETTE DAVIS,
Plaintiff,

5:12-cv-641
(GLS)

v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,1
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Olinsky Law Group
300 S. State Street
5th Floor, Suite 520
Syracuse, NY 13202
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261

KAREN S. SOUTHWICK, ESQ.

SANDRA M. GROSSFELD
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

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The Clerk is directed to substitute Carolyn W. Colvin, Acting Commissioner of Social
Security, for defendant Michael J. Astrue, and amend the caption accordingly. See Fed. R.
Civ. P. 25(d).

New York, NY 10278
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Dannette Davis 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 Davis’ arguments, the
Commissioner’s decision is reversed and remanded for further
administrative proceedings.
II. Background
On January 31, 2002, Davis filed applications for DIB and SSI under
the Social Security Act (“the Act”), alleging disability since August 24,
2001. (See Tr.2 at 15, 24.)3 After the applications were denied, Davis
requested a hearing before an Administrative Law Judge (ALJ), which was
2

Page references preceded by “Tr.” are to the Administrative Transcript. (See Dkt. No.

9.)
3

Although it is clear from the record that Davis applied for SSI and DIB, the
applications are not contained in the Administrative Transcript.
2

held on August 12 and October 28, 2003 before ALJ Alfred Tyminski. (See
id. at 25-31, 438-80.) Subsequently, ALJ Tyminski issued an unfavorable
decision and found that Davis was not disabled. (See id. at 12-23.) After
the Appeals Council’s subsequent denial of review, Davis commenced an
action in Federal District Court and, on consent of the parties, the matter
was remanded for further administrative proceedings. (See id. at 6-8, 87577.)4 Thereafter, the Appeals Council again remanded the case for a new
hearing, which was conducted before ALJ Joseph Medicis. (See id. at
878-82, 1115-42.) On May 30, 2007, ALJ Medicis issued a partially
favorable decision, finding Davis disabled as of June 3, 2003. (See id. at
1009-19.) At Davis’ request, the Social Security Administration Appeals
Council remanded the case to ALJ Bruce Fein (hereinafter “the ALJ”), who,
upon reconsideration, again partially denied Davis’ claim. (See id. at 486502, 1020-37.) This became the Commissioner’s final determination upon
the Appeals Council’s denial of review. (See id. at 481-83.)5
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While her appeal of ALJ Tyminski’s unfavorable decision was pending, Davis filed
another application for disability benefits. (See Tr. at 503, 543-46.) In a determination issued
in July 2005, the Commissioner approved that application, finding a disability onset date of
January 21, 2004, the date after ALJ Tyminski’s denial of her first set of applications. (See id.
at 1105-14.) Thus, the period at issue here is August 24, 2001 to January 20, 2004. (See id.
at 491; Dkt. No. 11 at 3.)
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Notably, the Appeals Council did not consider the ALJ’s October 2011 decision, but
rather, denied review because Davis failed to file written exceptions, or request an extension of
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Davis commenced the present action by filing her Complaint on April
13, 2012 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. 11, 18.)
III. Contentions
Davis contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (See Dkt. No. 11 at 1321.) Specifically, Davis claims that the ALJ erred in: (1) determining her
residual functional capacity (RFC); (2) evaluating her credibility; and (3)
finding that there were jobs in the national economy that she could
perform. (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. 18 at 7-16.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (See
Dkt. No. 11 at 3-11; Dkt. No. 18 at 1.)

time in which to submit exceptions, within thirty days of receipt of the ALJ’s decision. (See Tr.
at 481-83.)
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V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g)6 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
A.

RFC Determination
Among other arguments, Davis contends that the ALJ’s RFC

determination is unsupported by substantial evidence because the ALJ
failed to weigh the opinions of treating physicians George Mtanos and
Harminder Grewal. (See Dkt. No. 11 at 13-16.) Further, Davis argues that
the ALJ failed to follow the treating physician rule with respect to the
opinions of treating physician Fatme Allam and treating psychiatrist
Adekola Alao. (See id. at 16-18.) The court agrees with Davis that

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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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remand is necessary.
A claimant’s RFC “is the most [she] can still do despite [her]
limitations.” 20 C.F.R. § 404.1545(a)(1). In assessing a claimant’s RFC,
an ALJ must consider “all of the relevant medical and other evidence,”
including a claimant’s subjective complaints of pain. Id. § 404.1545(a)(3).
An ALJ’s RFC determination must be supported by substantial evidence7 in
the record. See 42 U.S.C. § 405(g). If it is, that determination is
conclusive and must be affirmed upon judicial review. See id.; Perez v.
Chater, 77 F.3d 41, 46 (2d Cir. 1996).
Here, the ALJ determined that, during the period of August 24, 2001
until June 3, 2003, Davis retained the RFC to perform light work requiring
simple tasks and instructions. (See Tr. at 497.) According to the ALJ,
Davis became disabled on June 4, 2003. (See id.) The ALJ based his
decision on the February 2002 opinions of consultative examiners Kalyani
Ganesh and Jeanne Shapiro as well as the March 2002 opinion of medical
consultant Allan Hochberg. (See id.) The ALJ relied on Dr. Mtanos’
treatment notes from June 4, 2003, in which he opined that Davis would

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“Substantial evidence is defined as more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept to support a conclusion.” Alston v.
Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) (internal quotation marks and citations omitted).
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find it hard to return to work due to her lupus symptoms, to establish her
disability onset date. (See id. at 498.) The ALJ also gave “[e]videntiary
weight” to the opinions of Dr. Alao with respect to Davis’ mental health
impairments, “but not to the statement that the effect of the symptoms were
the same on August 24, 2001” as on the date of her assessment. (Id. at
499.) The ALJ explained that Dr. Alao did not treat Davis throughout the
entire relevant period, her opinion was given on a questionnaire without
other choices available for the onset date, and the questionnaires were
prepared in retrospect at a point significantly remote from the period under
consideration. (See id.) The ALJ gave “[n]o evidentiary weight” to the
opinion of Dr. Allam, who first treated Davis for lupus on March 30, 2004.
(Id.)
Controlling weight will be given to a treating source’s opinion on the
nature and severity of a claimant’s impairments where it 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).
When a treating source’s opinion is given less than controlling weight, the
ALJ is required to consider the following factors: the length, nature and
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extent of the treatment relationship; the frequency of examination;
evidentiary support offered; consistency with the record as a whole; and
specialization of the examiner. 20 C.F.R. § 404.1527(c)(2)-(6). The ALJ
must provide “‘good reasons’ for the weight given to the treating source’s
opinion.’” Petrie v. Astrue, 412 F. App’x 401, 407 (2d Cir. 2011) (citations
omitted). “Nevertheless, where ‘the evidence of record permits [the court]
to glean the rationale of an ALJ’s decision,’” it is not necessary that the
ALJ “‘have mentioned every item of testimony presented to him or have
explained why he considered particular evidence unpersuasive or
insufficient to lead him to a conclusion of disability.’” Id. (citation omitted).
Notably, “remand is unnecessary, even if the ALJ ignores a treating
physician’s opinion, when the opinion is essentially duplicative of evidence
considered by the ALJ, and the report that the ALJ overlooked was not
significantly more favorable to the plaintiff.” Seekins v. Astrue, Civil No.
3:11CV00264, 2012 WL 4471266, at *5 (D. Conn. Aug. 14, 2012) (citing
Zabala v. Astrue, 595 F.3d 404, 409-10 (2d Cir. 2010)). Where discussion
of an omitted medical report “would not have changed the outcome of the
ALJ’s decision,” such omission constitutes “harmless error.” Walzer v.
Chater, No. 93 Civ. 6240, 1995 WL 791963, at *9 (S.D.N.Y. Sept. 26,
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1995).
Davis contends that remand is required because the ALJ failed to
consider Dr. Mtanos’ opinion, rendered on January 30, 2002, that Davis
was totally disabled until May 1, 2002. (See Tr. at 125-26.) Further, on
September 17, 2002, Dr. Mtanos stated that Davis was “currently totally
disabled.” (Id. at 167.) In addition, the ALJ failed to consider the opinion
of Dr. Grewal, on September 29, 2011, that Davis could sit for less than
two hours and stand/walk for less than two hours of an eight-hour day.
(See id. at 1101-04.) According to Dr. Grewal, Davis could rarely lift less
than ten pounds, never stoop/bend, and rarely use her fingers for fine
manipulations. (See id. at 1102.) In addition, Davis would be off task due
to her impairments more than twenty percent of the time, and absent from
work more than four days per month. (See id. at 1103-04.) Finally, Dr.
Grewal stated that she had treated Davis monthly since 2001, and her
limitations existed and persisted to the same degree since at least August
24, 2001. (See id. at 1104.)
The Commissioner contends that the ALJ’s failure to consider Dr.
Mtanos’ January and September 2002 opinions was harmless error
because the ultimate finding of disability is a matter reserved to the
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Commissioner. (See Dkt. No. 18 at 8.) Further, according to the
Commissioner, the indication that Davis was temporarily disabled implies
that she could work under the Regulations, which require that a claimant’s
disability last, or be expected to last, for a continuous period of at least
twelve months. (See id. at 8-9.) In addition, the Commissioner argues
that, like the other retrospective evidence of record, Dr. Grewal’s opinion
was not entitled to controlling weight because it was “not reliant for the
relevant period.” (Id. at 11.)
Contrary to the Commissioner’s argument, the ALJ should have
weighed the January and September 2002 opinions of Dr. Mtanos, as
instructed by the Appeals Council on remand. (See Tr. at 1035-36.)
Inexplicably, the ALJ relied on Dr. Mtanos’ statement in June 2003 that
Davis would have difficulty working, without considering his earlier
statements that she could not work. (See id. at 498.) Further, the ALJ’s
failure to consider the opinion of Dr. Grewal is not supported by his
reasoning for discounting the opinion of Dr. Allam. (See id. at 499.)
Specifically, the ALJ failed to give any weight to the opinion of Dr. Allam
because she had not treated Davis during the relevant time period. (See
id.) However, on her medical source statement, Dr. Grewal reported that
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she had treated Davis monthly since 2001. (See id. at 1101.) As the
omitted report was not duplicative, or less favorable to Davis, it cannot be
said that application of the correct legal principles to the record could lead
to only one conclusion. See Seekins, 2012 WL 4471266, at *5. As such,
remand is required.
B.

Remaining Findings and Conclusions
In light of the court’s decision to remand for further administrative

proceedings, it need not review the remainder of the ALJ’s decision to
determine if it is supported by substantial evidence.
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the Clerk is directed to substitute Carolyn W. Colvin,
Acting Commissioner of Social Security, for defendant Michael J. Astrue,
and amend the caption accordingly; and it is further
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.
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IT IS SO ORDERED.
September 10, 2013
Albany, New York

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