Evans v. Saul
MEMORANDUM-DECISION AND ORDER: WHEREFORE, based on the findings within, it is ORDERED, that the decision of the Commissioner is REVERSED and this case REMANDED, pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings consistent with this Memorandum-Decision and Order, and it is ORDERED, that the Clerk enter judgment for PLAINTIFF. Signed by US Magistrate Judge Andrew T. Baxter on 01/07/2021. (map)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ELIZABETH V. KRUPAR, ESQ., for Plaintiff
CHRISTOPHER L. POTTER, Special Asst. U.S. Attorney for Defendant
ANDREW T. BAXTER, U.S. Magistrate Judge
MEMORANDUM-DECISION and ORDER
This matter was referred to me, for all proceedings and entry of a final judgment,
pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No. 18, and in
accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, N.D.N.Y.
Local Rule 73.1 and the consent of the parties. (Dkt. Nos. 2, 4).
Plaintiff filed an application for Supplemental Security Income (“SSI”) on
September 23, 2016, alleging disability beginning November 15, 2014. (Administrative
Transcript (“T”) at 1993). Her application was denied initially on December 7, 2016.
(T. 1915, 1931-40). At the request of the plaintiff, Administrative Law Judge (“ALJ”)
Elizabeth Koennecke conducted a hearing on September 18, 2018, at which plaintiff
gave testimony. (T. 1874-99).
In a decision dated October 17, 2018, the ALJ found that plaintiff was not
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disabled. (T. 19-30). The ALJ’s decision became the Commissioner’s final decision
when the Appeals Council denied plaintiff’s request for review on December 13, 2019.
GENERALLY APPLICABLE LAW
To be considered disabled, a plaintiff seeking disability insurance benefits or SSI
disability benefits must establish that she is “unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than twelve months . . . .” 42 U.S.C. § 1382c(a)(3)(A). In
addition, the plaintiff’s
physical or mental impairment or impairments [must be] of such severity
that he is not only unable to do his previous work but cannot, considering
his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy, regardless
of whether such work exists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or whether he would be
hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner uses a five-step process, set forth in 20 C.F.R. sections
404.1520 and 416.920, to evaluate disability insurance and SSI disability claims.
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
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which meets or equals the criteria of an impairment 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 . . . .
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 can perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see 20 C.F.R. §§ 404.1520,
416.920. The plaintiff has the burden of establishing disability at the first four steps.
However, if the plaintiff establishes that her impairment prevents her from performing
her past work, the burden then shifts to the Commissioner to prove the final step. Id.
Scope of Review
In reviewing a final decision of the Commissioner, a court must determine
whether the correct legal standards were applied and whether substantial evidence
supported the decision. Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013); Brault v.
Soc. Sec. Admin, Comm’r, 683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g)).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012). It must be “more than a scintilla” of evidence scattered throughout the
administrative record. Id. However, this standard is a very deferential standard of
review “ – even more so than the ‘clearly erroneous standard.’” Brault, 683 F.3d at 448.
“To determine on appeal whether an ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining the evidence from
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both sides, because an analysis of the substantiality of the evidence must also include
that which detracts from its weight.” Williams on behalf of Williams v. Bowen, 859
F.2d 255, 258 (2d Cir. 1988). However, a reviewing court may not substitute its
interpretation of the administrative record for that of the Commissioner, if the record
contains substantial support for the ALJ’s decision. Id. See also Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
An ALJ is not required to explicitly analyze every piece of conflicting evidence
in the record. See, e.g., Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles
v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (we are unwilling to require an ALJ
explicitly to reconcile every conflicting shred of medical testimony). However, the ALJ
cannot “‘pick and choose’ evidence in the record that supports his conclusions.” Cruz
v. Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); Fuller v. Astrue, No.
09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6, 2010).
Plaintiff was born on May 18, 1972, making her 46 years old on the date of the
administrative hearing. (T. 1878). She lived with her mother, her 23-year-old son and
her 11-year-old daughter. (T. 1894). Plaintiff had a driver’s license and GED. (T.
Plaintiff testified about her various medical impairments, including
herniated/bulging discs, arthritis, shoulder impingement and rotator cuff tears, that
caused constant, daily pain in her neck and shoulders. (T. 1879-80). Plaintiff tried to
alleviate the pain with heat, ice, medication, and injections. (T. 1880-81). As a result
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of these conditions, she was limited in her ability to lift, reach, push and pull. (T. 188182). In addition, plaintiff’s hands were numb and weak. (T. 1884). She had carpal
tunnel surgery on her left hand, which resolved the “tingling.” (Id.). She continued to
struggle with clasping buttons and picking up items. (T. 1885). Plaintiff also had low
back pain that radiated down her right leg. (Id.). She experienced migraine headaches
at least twice a week that caused nausea and light and sound sensitivity. (T. 1890).
Medication helped, but did not always take her migraine pain away. (Id.). At times her
migraines lasted eleven hours. (T. 1891). In addition, plaintiff was diagnosed with
atrial fibulation and congestive heart failure. (T. 1892). She slept with a CPAP
Plaintiff’s chronic pain affected her sleep, waking her every two to three hours.
(T. 1886-87). As a result she was “drained,” and had difficulty concentrating. (T.
1887-88). She tried to take walks, however after one block she experienced pain in her
leg, neck and head. (T. 1888). It was painful for plaintiff to sit up for a long period of
time without head support. (Id.). She attempted to cook for her family, but needed
assistance with lifting and bending. (T. 1894-95). She tried to vacuum and do laundry.
(T. 1895). Plaintiff required “a lot” of breaks when performing household chores. (T.
1896). Driving exacerbated plaintiff’s leg pain. (Id.). She talked with friends on the
phone, but did not go out socially. (T. 1897).
THE ALJ’S DECISION
The ALJ first found that plaintiff had not engaged in substantial gainful activity
since her application date of August 31, 2016. (T. 22). Next, at step two, the ALJ
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found that plaintiff had the following severe impairments: migraine headaches, obesity,
neck impairment, back impairment, and bilateral shoulder impairment. (Id.). At the
third step, the ALJ determined that plaintiff’s impairments did not meet or medically
equal the criteria of any listed impairments in Appendix 1 to 20 C.F.R. Part 404,
Subpart P. (T. 25).
At step four, the ALJ found that plaintiff had the residual functional capacity to
perform a full range of light work, with the exception that plaintiff could only
occasionally stoop and squat. (T. 25). Next, the ALJ determined that plaintiff had no
past relevant work. (T. 29). However, the ALJ found that plaintiff’s additional
postural limitations had “little or no effect on the occupational base of unskilled light
work, because an individual needs to stoop only occasionally to perform substantially
all of the exertional requirements of most light jobs.” (T. 29-30). Accordingly, the ALJ
determined that plaintiff was not disabled from the application date of August 31, 2016
through the date of the ALJ’s decision.1 (T. 30).
ISSUES IN CONTENTION
Plaintiff raises the following arguments in support of her position that the ALJ’s
decision is not supported by substantial evidence:
The ALJ failed to develop a full and fair record. (Plaintiff’s Brief (“Pl.’s
Br.”) at 7-13) (Dkt. No. 9).
The ALJ failed to properly evaluate plaintiff’s fibromyalgia under SSR 122p. (Pl.’s Br. at 13-15).
The ALJ alternatively found that “even if the [plaintiff] were limited to the full range of
sedentary work activity, she would not be found disabled.” (T. 30).
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The ALJ erred in failing to identify plaintiff’s mental health impairments,
congestive heart failure, and carpal tunnel syndrome as severe
impairments. (Pl.’s Br. at 15-20).
The ALJ improperly assessed the medical evidence. (Pl.’s Br. at 20-25).
Defendant argues that the ALJ properly considered the evidence of record, and
the Commissioner’s decision is supported by substantial evidence. (Defendant’s Brief
(“Def.’s Br.”) at 2-25) (Dkt. No. 15). For the following reasons, this court finds that the
ALJ failed to adequately apply the treating physician rule to the opinion of plaintiff’s
neurologist, and remand is therefore warranted.
RFC is “what [the] individual can still do despite his or her limitations.
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. . . .” A “regular
and continuing basis” means eight hours a day, for five days a week, or an equivalent
work schedule. Balles v. Astrue, No. 3:11-CV-1386 (MAD), 2013 WL 252970, at *2
(N.D.N.Y. Jan. 23, 2013) (citing Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)
(quoting SSR 96–8p, 1996 WL 374184, at *2)); Babcock v. Berryhill, No. 5:17-CV00580 (BKS), 2018 WL 4347795, at *12-13 (N.D.N.Y. Sept. 12, 2018); Tankisi v.
Comm’r of Soc. Sec., 521 F. App’x 29, 33 (2d Cir. 2013); Stephens v. Colvin, 200 F.
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Supp. 3d 349, 361 (N.D.N.Y. 2016).
In rendering an RFC determination, the ALJ must consider objective medical
facts, diagnoses, and medical opinions based on such facts, as well as a plaintiff’s
subjective symptoms, including pain and descriptions of other limitations. 20 C.F.R.
§§ 404.1545, 416.945. See Martone v. Apfel, 70 F. Supp. 2d 145, 150 (N.D.N.Y. 1999)
(citing LaPorta v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y. 1990)); Kirah D. v.
Berryhill, No. 3:18-CV-0110 (CFH), 2019 WL 587459, at *8 (N.D.N.Y. Feb 13, 2019);
Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). An ALJ must specify the functions
plaintiff is capable of performing, and may not simply make conclusory statements
regarding a plaintiff’s capacities. Roat v. Barnhart, 717 F. Supp. 2d 241, 267
(N.D.N.Y. 2010); Martone v. Apfel, 70 F. Supp. 2d at 150 (citing Ferraris v. Heckler,
728 F.2d 582, 588 (2d Cir. 1984); LaPorta v. Bowen, 737 F. Supp. at 183, Stephens v.
Colvin, 200 F. Supp. 3d 349, 361 (N.D.N.Y. 2016); Whittaker v. Comm’r of Soc. Sec.,
307 F. Supp. 2d 430, 440 (N.D.N.Y. 2004). The RFC assessment must also include a
narrative discussion, describing how the evidence supports the ALJ’s conclusions,
citing specific medical facts, and non-medical evidence. Natashia R. v. Berryhill, No.
3:17-CV-01266 (TWD), 2019 WL 1260049, at *11 (N.D.N.Y. Mar. 19, 2019) (citing
SSR 96-8p, 1996 WL 374184, at *7).
Weight of the Evidence/Treating Physician
In making a determination, the ALJ weighs all the evidence of record and
carefully considers medical source opinions about any issue. SSR 96-5p, 1996 WL
374183, at *2-3 (1996). Under 20 C.F.R. §§ 404.1527(e) and 416.927(e), some issues
Case 5:20-cv-00093-ATB Document 16 Filed 01/07/21 Page 9 of 17
are not “medical issues,” but are “administrative findings.” The responsibility for
determining these issues belongs to the Commissioner. See SSR 96-5p, 1996 WL
374183, at *2. These issues include whether the plaintiff’s impairments meet or equal a
listed impairment; the plaintiff’s RFC; how the vocational factors apply; and whether
the plaintiff is “disabled” under the Act. Id.
In evaluating medical opinions on issues that are reserved to the Commissioner,
the ALJ must apply the factors listed in 20 C.F.R. §§ 404.1527(d) and 416.927(d). The
ALJ must clearly state the legal rules that he applies and the weight that he accords the
evidence considered. Drysdale v. Colvin, No. 14-CV-722, 2015 WL 3776382, at *2
(S.D.N.Y. June 16, 2015) (citing Rivera v. Astrue, No. 10 Civ. 4324, 2012 WL
3614323, at *8 (E.D.N.Y. Aug. 21, 2012) (citation omitted)).
“Although the treating physician rule generally requires deference to the medical
opinion of a claimant’s treating physician, . . . the opinion of the treating physician is
not afforded controlling weight where . . . the treating physician issued opinions that
are not consistent with other substantial evidence in the record . . . .” Halloran v.
Barnhart, 362 F.3d 28, 32 (2d Cir. 2004); Veino v. Barnhart, 312 F.3d 578, 588 (2d
Cir. 2002); 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). If an ALJ decides not to give
the treating source’s records controlling weight, then he must explicitly consider the
four Burgess factors: “(1) the frequen[cy], length, nature, and extent of treatment; (2)
the amount of medical evidence supporting the opinion; (3) the consistency of the
opinion with the remaining medical evidence; and (4) whether the physician is a
specialist.” Estrella v. Berryhill, 925 F.3d 90, 95-96 (2d Cir. 2019) (quoting Burgess v.
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Astrue, 537 F. 3d 117, 120 (2d Cir. 2008)). “[T]he ALJ must ‘give good reasons in [its]
notice of determination or decision for the weight [it gives the] treating source’s
[medical] opinion.’ ” Id. at 96 (citing Halloran v. Barnhart, 362 F.3d at 32). Should an
ALJ assign less than controlling weight to a treating physician’s opinion and fail to
consider the above-mentioned factors, this is a procedural error. Id. It is impossible to
conclude that the error is harmless unless a “searching review of the record . . . assures
us that the substance of the treating physician rule was not traversed.” Id.
Plaintiff argues that the ALJ improperly assessed the opinion of her
treating neurologist, Sundus Latif, M.D. (Pl.’s Br. at 22-26). Specifically, plaintiff
contends that the ALJ failed to explicitly consider the Burgess factors before assigning
Dr. Latif’s opinion less than controlling weight, or to otherwise provide “good reason”
for the limited weight afforded. (Id.).
Dr. Latif’s medical source statement, dated October 17, 2016, was the only
formal opinion provided to the agency from a treating physician, and was co-signed by
physician’s assistant (“PA”) Lisa Trickey.2 (T. 2361-65). In the October 2016 opinion,
Dr. Latif and PA Trickey stated that they had seen plaintiff every two months since
September 2014, and identified her diagnoses of chronic migraines, neck pain,
fibromyalgia and carpal tunnel syndrome. (T. 2361). They described plaintiff’s
headaches as occurring two to three times per week, with reported pain levels of
PA Trickey submitted a second medical source statement on September 10, 2018. (T.
2348). This opinion was not cosigned by Dr. Latif. (T. 2442).
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between eight and ten out of ten. (Id.). Included among the symptoms associated with
plaintiff’s headaches were nausea, “photosensity,”3 noise sensitivity, and muscle
spasms. (Id.). Dr. Latif and PA Trickey noted that plaintiff’s headaches were
exacerbated by bright lights and noise, and that she obtained relief from medication and
Botox injections. (T. 2362). They attributed plaintiff’s headaches to her tension,
cervical disc disease, and migraines. (T. 2363). They indicated that plaintiff was not a
Dr. Latif and PA Trickey concluded that plaintiff’s prognosis was fair, and that
her impairments had lasted, or could expect to last, for at least twelve months. (T.
2364). They opined that “during times [plaintiff] has a headache,” she would
“generally be precluded from performing even basic work activities and need a break
from the workplace.” (Id.). Dr. Latif and PA Trickey indicated that plaintiff would
need to lie down at unpredictable intervals during a work shift, at a frequency of two to
three times per week. (Id.). They found that plaintiff’s impairments would cause her to
be absent from work a “couple times per week.” (T. 2365).
The ALJ explicitly considered the medical source statement cosigned by Dr.
Latif and PA Trickey in his written decision, finding the opinion to be an
“overestimate” of plaintiff’s functional limitations. (T. 27). The ALJ acknowledged
the significant limitations opined regarding breaks throughout the workday and
absenteeism; however she noted that the providers failed to “identify any objective
The court assumes that the form provided by plaintiff’s counsel was intended to state
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findings to support such significant functional limitations.” (Id.). The ALJ also
acknowledged Dr. Latif’s opinion as to the frequency and severity of plaintiff’s
headaches. However, the ALJ pointed out that plaintiff’s records routinely described
her neurological evaluation as “generally within normal range.” (Id.). The ALJ also
stated that, “[t]ypically, a migraine headache can be objectively observed, and
[plaintiff] has never been observed to have one in any of the records.” (Id.). He further
observed that plaintiff “acknowledged that her headaches improved with Botox, and
that by October 2017 neurology records “described [plaintiff’s] migraine headaches as
stable, and she declined any further Botox injections.” (Id.).
Based on the aforementioned, the ALJ found that Dr. Latif and PA Trickey’s
opinion was “not fully supported by the objective and clinical findings of record.”
(Id.). The ALJ afforded the opinion “limited weight.” (Id.).
Because Dr. Latif treated plaintiff, his restrictive opinion regarding plaintiff’s
time off task and absenteeism due to her frequent migraines was subject to the treating
physician rule. In giving the opinion less than controlling weight, the ALJ was required
to “explicitly consider” the four Burgess factors to determine what weight to afford it.
Despite defendant’s argument to the contrary, the court cannot agree that the ALJ
sufficiently complied with this duty. Specifically, the ALJ erred by not discussing the
frequency, length, nature, and extent of treatment and the amount of medical evidence
supporting the opinion. Instead, the ALJ merely acknowledged that Dr. Latif was a
“treating neurologist,” and, arguably, went on to address the third Burgess factor–the
consistency of the opinion with the remaining medical evidence–in evaluating Dr.
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Latif’s assessment. The ALJ’s failure to consider the remaining Burgess factors does
not comport with the treating physician rule, and “[a] more thorough examination of
[Dr. Latif’s] notes and observations—instead of focusing only on the evidence that did
not support [Dr. Latif’s] conclusions—may have led to greater weight being assigned to
[this] opinion.” Bentley v. Comm’r of Soc. Sec., No. 19-CV-00739, 2020 WL 4677184,
at *5 (W.D.N.Y. Aug. 12, 2020) (internal quotations and citation omitted).
Accordingly, the ALJ was required “either to give [Dr. Latif’s] opinions
controlling weight or to [otherwise] provide good reasons for discounting them.”
Messina v. Comm’r of Soc. Sec. Admin., 747 F. App’x 11, 15 (2d Cir. 2018) (citing
inter alia 20 C.F.R. § 404.1527( [c] )(2)). Indeed, 20 C.F.R. § 404.1527(c)(2) provides
that the Commissioner “will always give good reasons in our notice of determination or
decision for the weight we give your treating source’s medical opinion.” “When the
ALJ fails to provide a good reason for not giving the treating physician’s opinion
‘controlling weight,’ remand is required unless adherence to the rule could have only
lead to the same conclusion.” Id. (citing Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir.
Here, the ALJ did not otherwise provide “good reasons” for affording Dr. Latif’s
opinion less than controlling weight. As the Second Circuit recently reiterated,
“headaches are subjective symptoms not subject to objective testing.” Drake v. Saul,
No. 20-204, ___ Fed. App’x ____, 2020 WL 7294561, at *2 (2d Cir. Dec. 11, 2020);
see also Groff v. Comm’r of Soc. Sec., No. 05-CV-54 (NAM/RFT), 2008 WL 4104689,
at *7 (N.D.N.Y. Sept. 3, 2008) (“[T]o place such emphasis on the absence of ‘any
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specific evaluation or treatment’ is not only a misstatement of the medical evidence, but
is also a misreckoning of the elusive task a doctor faces in diagnosing this impairment
as there exists no objective clinical test which can corroborate the existence of
migraines.”). Thus, it was improper for the ALJ to discount Dr. Latif’s opinion based
on lack of objective “findings” or “observations” upon neurological examination.
Likewise, the absence of an observed migraine in plaintiff’s treatment records did not
constitute a good reason to afford Dr. Latif’s opinion less than controlling weight. See
e.g, Kelsey O. v. Comm’r of Soc. Sec., No. 3:17-CV-525(ATB), 2018 WL 3193197, at
*5 (N.D.N.Y. June 28, 2018) (“The ALJ’s reliance on isolated treatment notes showing
that plaintiff was not experiencing headaches at the time of the examination fails to
recognize the episodic nature of the impairment.”); Groff v. Comm’r of Soc. Sec., 2008
WL 4104689, at *8 (“[Migraine] symptoms usually follow a pattern in each patient . . . .
The patient may have attacks daily or only once every several months.”) (citing The
Merck Manual 1376 (17th ed. 1999)). Nevertheless, plaintiff’s treatment records did
indicate that she was often in physical pain upon examination, as indicated by
“changing positions often,” “facial grimaces,” “rubbing of body area,” and “the need to
lay down.” (T. 2193, 2199, 2396, 2445, 2452).
The ALJ’s remaining reasons for affording Dr. Latif’s opinion less than
controlling weight are equally insufficient. The ALJ focused on plaintiff’s reported
improvement after Botox injections. However, plaintiff testified that she had to
discontinue the Botox treatment because of the negative side affects, including weeklong bouts of nausea, dry heaves, and pain. (T. 1891). The medical record confirms
Case 5:20-cv-00093-ATB Document 16 Filed 01/07/21 Page 15 of 17
that plaintiff discontinued treatment with Botox. Equally unpersuasive is the ALJ’s
justification that, “[w]hile the [plaintiff] reported to worsening headaches such that she
is unable to function, she acknowledged that she was still technically able to function.”
(T. 28). See Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998)(quoting Williams v.
Bowen, 859 F.2d 255, 260 (2d Cir. 1988)) (“[A] claimant need not be an invalid to be
found disabled under the Social Security Act.”).
Last, the court finds that the isolated comments identified by the ALJ that
plaintiff’s migraines appeared “stable at this time,” or were, at times, “controlled,” do
not necessarily contradict the opinion that plaintiff’s migraines would affect her time
off task and absenteeism, considering the nature of the condition and the other
treatment records noting the changing frequency of plaintiff’s migraines. See Disotell
v. Comm’r of Soc. Sec., No. 7:16-CV-0480 (WBC), 2017 WL 3491851, at *9
(N.D.N.Y. Aug. 14, 2017) (citing Kohler v. Astrue, 546 F.3d 260, 268 (2d Cir. 2008))
(“To be sure, the term ‘stable’ does not necessarily equate with ‘good’”).
For these reasons, the court concludes that the ALJ’s assessment of Dr. Latif’s
opinion did not comport with the treating physician rule. The ALJ’s failure to provide
“good reasons” for rejecting Dr. Latif’s opinion regarding plaintiff’s limitations due to
her migraine condition was procedural error, and the court cannot conclude that such
error was harmless based on the record presented. Plaintiff consistently reported that
she suffered from migraine pain that reached levels of ten out of ten with associated
spasms in the eye lids, photophobia, phonophobia and nausea. She was prescribed a
litany of medication, and received botox injections, in an effort to manage the severity
Case 5:20-cv-00093-ATB Document 16 Filed 01/07/21 Page 16 of 17
of her migraines. Dr. Latif and PA Trickey treated plaintiff on a regular basis for over
two years for her migraine symptoms, and they specifically opined that plaintiff was not
a malingerer. Considering these facts, it is clear that “[t]his is not a case where
application of the treating physician rule could lead to only one conclusion, i.e. that the
claimant was not disabled, obviating the need for remand.” Messina v. Comm’r of
Social Sec., 747 Fed. App’x at 17.
Because this matter requires remand for the ALJ to reevaluate Dr. Latif’s medical
opinion and plaintiff’s RFC, the court need not address plaintiff’s remaining arguments
on the merits. Upon remand, the ALJ is instructed to consider all the medical evidence
submitted by the plaintiff, including those records submitted to the court which are the
subject of plaintiff’s argument that the ALJ failed to develop the record. As
appropriate, the ALJ should otherwise consider each of the other alleged errors not
discussed in this decision. See Critoph v. Berryhill, No. 1:16-CV-00417, 2017 WL
4324688, at *4 (W.D.N.Y. Sept. 28, 2017) (“The ALJ is instructed to consider these
additional arguments on remand.”); Bell v. Colvin, No. 5:15-CV-01160 (LEK), 2016
WL 7017395, at *10 (N.D.N.Y. Dec. 1, 2016) (declining to reach arguments “devoted
to the question whether substantial evidence supports various determinations made by
[the] ALJ” where the court had already determined remand was warranted); Morales v.
Colvin, No. 13-CV-6844, 2015 WL 13774790, at *23 (S.D.N.Y. Feb. 10, 2015) (the
court need not reach additional arguments regarding the ALJ’s factual determinations
“given that the ALJ’s analysis may change on these points upon remand.”)
WHEREFORE, based on the findings above, it is
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ORDERED, that the decision of the Commissioner is REVERSED and this case
REMANDED, pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings
consistent with this Memorandum-Decision and Order, and it is
ORDERED, that the Clerk enter judgment for PLAINTIFF.
Dated: January 7, 2021
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