Grenier v. Colvin

Filing 19

MEMORANDUM-DECISION and ORDER - 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 7/14/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
AMY M. GRENIER,

Plaintiff,

6:13-cv-484
(GLS)

v.
CAROLYN W. COLVIN,
as Commissioner of Social
Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Office of Peter W. Antonowicz
148 West Dominick Street
Rome, NY 13440
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261
Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Chief Judge

PETER W. ANTONOWICZ, ESQ.

KAREN T. CALLAHAN
Special Assistant U.S. Attorney

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Amy M Grenier 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).
(Compl., Dkt. No. 1.) After reviewing the administrative record and
carefully considering Grenier’s arguments, the Commissioner’s decision is
reversed and remanded.
II. Background
On February 8 and February 23, 2010, Grenier filed applications for
SSI and DIB under the Social Security Act (“the Act”), respectively, alleging
disability since October 18, 2009. (Tr. 1 at 119, 126, 244-54.) After her
applications were denied, (id. at 157-62), Grenier requested a hearing
before an Administrative Law Judge (ALJ), which was held on March 23,
2011, (id. at 40-84, 163). On June 23, 2011, the ALJ issued an
unfavorable decision finding that Monroe was not disabled. (Id. at 133-49.)
At Grenier’s request, the Social Security Administration Appeals Council
remanded the case back to the ALJ, who, after a second administrative
1

Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 10.)

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hearing, again denied Grenier’s claim. (Id. at 15-39, 85-118, 150-54, 187.) 2
That decision became the final decision of the Commissioner when the
Appeals Council denied Grenier’s request for review. (Id. at 1-5.)
Grenier commenced the present action by filing her complaint on
April 29, 2013 wherein she sought review of the Commissioner’s
determination. (Compl.) The Commissioner filed an answer and a certified
copy of the administrative transcript. (Dkt. Nos. 9, 10.) Each party,
seeking judgment on the pleadings, filed a brief. (Dkt. Nos. 14, 17.)
III. Contentions
Grenier contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (Dkt. No. 14 at 14-26.)
Specifically, Grenier claims that the ALJ erred in: (1) determining her
residual functional capacity (RFC); and (2) evaluating the credibility of her
subjective complaints. (Id.) The Commissioner counters that the
appropriate legal standards were used by the ALJ and his decision is also
supported by substantial evidence. (Dkt. No. 17 at 7-18.)
IV. Facts

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The Appeals Council also instructed the ALJ to consolidate Grenier’s February 2010
claims with her subsequent applications for SSI and DIB benefits, filed while her appeal of the
ALJ’s unfavorable decision was pending. (Tr. at 152, 270-83.)

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The court adopts the parties’ undisputed factual recitations. (Dkt. No.
14 at 3-12; Dkt. No. 17 at 2.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g)3 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
Grenier claims that the ALJ erred in determining her RFC. (Dkt. No.

14 at 14-23.) Specifically, Grenier argues that, in making this
determination, the opinion of treating physician Vivienne Taylor should
have been given controlling weight, and the ALJ should have fully
considered the symptoms of Grenier’s fibromyalgia and mental

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42 U.S.C. § 1383(c)(3) renders section 405(g) applicable to judicial review of SSI
claims. As review under both sections is identical, parallel citations to the regulations
governing SSI are omitted.

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impairments. (Id.) The court agrees that remand is appropriate here.
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 evidence 4 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 Grenier suffers from various severe
impairments, including fibromyalgia, but retains the RFC to perform light
work that requires lifting and carrying twenty pounds occasionally and ten
pounds frequently. (Tr. at 25.) According to the ALJ, Grenier can stand
and/or walk for thirty minutes at a time, up to six hours of a workday, and
sit for one hour at a time, up to eight hours of a workday. (Id.) Grenier can
occasionally climb, balance, stoop, kneel, crouch, and crawl, but must
avoid concentrated exposure to respiratory irritants, extreme temperatures,

4

“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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and workplace hazards, such as moving machinery and heights. ( Id.)
Additionally, Grenier can perform unskilled work that is not fast paced, with
no more than frequent contact with co-workers, supervisors and the
general public. (Id.) In making his RFC determination, the ALJ relied on
the opinions of consulting examiners Roberto Rivera, Tanya PerkinsMwantuali and Dennis Noia, as well as non-examining psychological
consultant T. Harding. (Id. at 29.)
On the other hand, the ALJ gave “no weight” to the opinion of Dr.
Taylor that Grenier is only able to sit, stand, and walk for less than two
hours in an eight-hour workday, needs to change positions at will, requires
unscheduled breaks hourly to rest for thirty minutes, and should elevate her
legs fifty percent of the time if she works a sedentary job. (Id. at 780-81,
812-13.) Further, Dr. Taylor opined that Grenier can occasionally lift and
carry ten pounds, twist, and bend, rarely crouch or climb stairs, and never
climb ladders. (Id. at 780, 813-14.) Dr. Taylor indicated that Grenier can
only use her hands, fingers, and arms ten percent of an eight-hour
workday, and would be absent from work more than four days a month due
to her impairments. (Id. at 814.) Dr. Taylor also noted that Grenier’s
medications cause drowsiness and reduced concentration, and opined that
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pain causes Grenier to be off-task fifty percent of the workday. ( Id. at 779,
781.)
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
extent of the treatment relationship; the frequency of examination;
evidentiary support offered; consistency with the record as a whole; and
specialization of the examiner. See 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)
(internal quotation marks and 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 her or have explained why [s]he considered
particular evidence unpersuasive or insufficient to lead her to a conclusion
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of disability.” Id. (internal quotation marks and citation omitted).
The ALJ provided the following reasons for discounting the opinions
of Dr Taylor: (1) they were based entirely on Grenier’s subjective
complaints; (2) they were inconsistent with the other medical evidence of
record, especially the physical examinations of record; (3) Dr. Taylor’s
treatment notes contain no examination of Grenier’s hands, fingers, and
arms, but Dr. Taylor assigned extreme limitations to their use; (4) Dr.
Taylor only examined Grenier occasionally; and (5) Dr. Taylor’s treatment
records suggest that she was unaware of Grenier’s regular marijuana use.
(Tr. at 30.) The ALJ also discounted Dr. Taylor’s opinions because they
are in the form of “standard ‘check-a box’ or ‘fill-in-a-blank’” reports, without
significant explanation of the basis for the conclusions therein. ( Id.)
There is no dispute that Grenier suffers from fibromyalgia, as the ALJ
found. (Id. at 21.) Nevertheless, a “mere diagnosis of fibromyalgia without
a finding as to the severity of symptoms and limitations does not mandate a
finding of disability.” Rivers v. Astrue, 280 F. App’x 20, 22 (2d Cir. 2008).
In this case, the ALJ discounted Grenier’s treating physician’s opinion as to
the severity of her fibromyalgia symptoms and limitations, due in part, to a
lack of “consistent physical signs except for active trigger points.” (Tr. at
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27, 30.) However, fibromyalgia is a disease that eludes objective
measurement. See Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir.
2003). The Second Circuit has recognized that “[i]n stark contrast to the
unremitting pain of which fibrositis patients complain, physical
examinations will usually yield normal results—a full range of motion, no
joint swelling, as well as normal muscle strength and neurological
reactions.” Id. at 108-09 (internal quotation marks and citations omitted).
In fact, “the clinical signs and symptoms to support a fibromyalgia
diagnosis under the American College of Rheumatology (ACR) guidelines[]
includ[e] primarily widespread pain in all four quadrants of the body and at
least [eleven] of the [eighteen] specified tender points on the body.” Id. at
108. Here, treatment notes document multiple paired tender points and
indicate that Grenier complained of generalized body aches, especially in
her shoulders, elbows, knees, and hands. (Tr. at 578, 580, 599, 600, 60405, 609, 660, 692, 827, 844, 875, 893.) Indeed, Dr. Perkins-Mwantuali’s
consultative examination revealed “[thirteen] positive trigger points.” ( Id. at
893.) Thus, the ALJ erred in discounting Dr. Taylor’s opinions due, in part,
to a lack of “significant clinical findings during physical examinations,” and
her reliance “upon the complaints of [Grenier].” (Id. at 30); see
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Green-Younger, 335 F.3d at 107 (holding that a treating physician’s
reliance on a claimant’s subjective complaints of pain caused by
fibromyalgia “hardly undermines [the physician’s] opinion as to her
functional limitations, as [a] patient’s report of complaints, or history, is an
essential diagnostic tool.” (internal quotation marks and citation omitted)).
Although the ALJ erred in discounting Dr. Taylor’s opinion due to a
perceived lack of objective evidence, the court is mindful that there may be
reasons for continuing to discount her opinion. See Melville v. Apfel, 198
F.3d 45, 52 (2d Cir. 1999) (holding that the court may not “properly affirm
an administrative action on grounds different from those considered by the
agency”). Indeed, treatment notes from the offices of rheumatologists
Martin Morell and Rathika Martyn confirm the diagnosis of fibromyalgia, but
do not indicate the degree to which Grenier’s fibromyalgia restricts her
ability to perform basic work activities. (Tr. at 691-95, 744-66, 875-84.)
However, after examining Grenier in December 2009, a nurse practitioner
in Dr. Morell’s office noted that she “strongly encouraged [Grenier] to
continue work.” (Id. at 693.) Thereafter, in November 2010, another nurse
practitioner in Dr. Morell’s office indicated that Grenier’s fibromyalgia was
stable. (Id. at 761-62.) In addition, in June 2011 Dr. Rathika “encouraged
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[Grenier] on aerobic activities.” (Id. at 878.) Thus, the court remands this
case to the Commissioner to reconsider Grenier’s fibromyalgia, and,
consistent with his duty to develop the record, the ALJ should seek
clarification from Grenier’s treating sources regarding her functional
capabilities, if necessary to make a determination. 5 See Schmelzle v.
Colvin, Civil Action No. 6:12-cv-1159, 2013 WL 3327975 at *9, *14
(N.D.N.Y. July 2, 2013) (holding that remand to the Commissioner for
further development of the evidence is appropriate “unless there is
conclusive evidence of disability and no apparent basis to conclude that a
more complete record might support the Commissioner’s decision”).
With respect to the ALJ’s finding that Grenier can perform unskilled
work that is not fast paced, with no more than frequent contact with coworkers, supervisors and the general public, (Tr. at 25), after reviewing the
administrative record the court concludes that this determination is
supported by substantial evidence. Specifically, the ALJ’s mental RFC

5

With respect to Dr. Taylor’s opinion regarding Grenier’s use of her hands, fingers, and
arms, in addition to widespread pain, people who have fibromyalgia may experience a variety
of other symptoms including numbness and tingling of the extremities. See Questions and
Answers About Fibromyalgia, National Institute of Arthritis and Musculoskeletal and Skin
Diseases, http://www.niams.nih.gov/Health_Info/Fibromyalgia/ (last visited June 30, 2014).
Here, on numerous occasions Grenier complained of numbness and tingling, as well as
stiffness and pain in her hands. (Tr. at 604, 696, 763, 811, 843, 871, 897.) Accordingly, the
ALJ may need to seek clarification on Grenier’s ability to use her arms and hands on remand.

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determination is supported by the opinions of Dr. Noia and psychological
consultant Harding, as well as Grenier’s various Global Assessment of
Functioning (GAF) scores throughout the record, which indicate that she
suffered mild to moderate symptoms. 6 (Id. at 699-703, 710-23, 796, 839,
903, 921, 925.) Treatment notes completed by Grenier’s therapist in March
2012 indicate that Grenier was handling stress better and was less
depressed and anxious. (Id. at 921-22.) No further treatment was
recommended at that time. (Id. at 922.) Although Grenier points to other
evidence which she asserts indicates disabling mental limitations, (Dkt. No.
14 at 19), “whether there is substantial evidence supporting the appellant’s
view is not the question,” instead, the court must “decide whether
substantial evidence supports the ALJ’s decision.” Bonet ex rel. T.B. v.
Colvin, 523 F. App’x 58, 59 (2d. Cir. 2013).
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The GAF Scale “ranks psychological, social, and occupational functioning on a
hypothetical continuum of mental health-illness.” Pollard v. Halter, 377 F.3d 183, 186 n.1 (2d
Cir. 2004). A GAF score between fifty-one and sixty indicates moderate symptoms or
moderate difficulty in school, work, and social functioning. See Kohler v. Astrue, 546 F.3d 260,
262 n.1 (2d Cir. 2008). A score between sixty-one and seventy reflects a person with “‘[s]ome
mild symptoms (e.g. depressed mood or mild insomnia) OR some difficulty in social,
occupational, or school functioning . . . but [who is] generally functioning pretty well, has some
meaningful interpersonal relationships.’” Id. at 262 (quoting Diagnostic and Statistical Manual
of Mental Disorders 34 (4th ed., Text Rev. 2000)). A GAF of seventy-one to eighty “equates to
symptoms that are transient and expected reactions to pyschosocial stresses and no more
than a slight impairment in social, occupational or school functioning.” Kaminski v. Astrue, No.
09-CV-655, 2012 WL 887468, at *7 (N.D.N.Y. Feb. 21, 2012) (internal quotation marks and
citation omitted). Throughout the record, Grenier’s GAF scores ranged from fifty-five to
seventy-five. (Tr. at 796, 839, 903, 921, 925.)

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B.

Remaining Findings and Conclusions
Because Grenier’s remaining contentions may be impacted by the

subsequent proceedings directed by this Order, it would be premature of
the court to address them at this juncture. See Christiana, 2008 WL
759076 at *3.
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
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.

IT IS SO ORDERED.
July 14, 2014
Albany, New York

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