Mussaw v. Commissioner of Social Security

Filing 18

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 court's Order. Signed by Chief Judge Gary L. Sharpe on 3/28/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
TINA M. MUSSAW,
Plaintiff,

7:12-cv-303
(GLS)

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Conboy, McKay Law Firm
Carthage Office
307 State Street
Carthage, NY 13619
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261

LAWRENCE D. HASSELER,
ESQ.

JEREMY A. LINDEN
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
New York, NY 10278
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER

I. Introduction
Plaintiff Tina M. Mussaw 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 Mussaw’s arguments, the
Commissioner’s decision is reversed and remanded.
II. Background
On April 10 and 15, 2008, Mussaw filed applications for DIB and SSI
under the Social Security Act (“the Act”), alleging disability since May 16,
2007. (See Tr.1 at 50-51, 90-103.) After her applications were denied,
Mussaw requested a hearing before an Administrative Law Judge (ALJ),
which was held on January 25, 2010. (See id. at 25-49, 52-57, 60.) On
March 12, 2010, the ALJ issued a decision denying the requested benefits,
which became the Commissioner’s final determination upon the Social
Security Administration Appeals Council’s denial of review. (See id. at 1-3,
8-19.)
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Page references preceded by “Tr.” are to the Administrative
Transcript. (See Dkt. No. 8.)
2

Mussaw commenced the present action by filing a Complaint on
February 21, 2012, wherein she sought review of the Commissioner’s
determination. (See Compl. ¶¶ 1-4.) The Commissioner filed an answer
and a certified copy of the administrative transcript. (See Dkt. Nos. 7, 8.)
Each party, seeking judgment on the pleadings, filed a brief. (See Dkt.
Nos. 10, 16.)
III. Contentions
Mussaw contends that the Commissioner’s decision is tainted by
legal error and is not supported by substantial evidence.2 (See generally
Dkt. No. 10.) Specifically, Mussaw claims the ALJ: (1) improperly
assessed the severity of her obesity, broken bone in her right foot,
migraines and back pain; (2) afforded improper weight to the opinion of her
treating physician; (3) erred in assessing her credibility; and (4) made an
unsubstantiated finding at step five. (See Dkt. No. 10 at 12-24.) The
Commissioner counters that the ALJ’s decision is legally sound and

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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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supported by substantial evidence. (See generally Dkt. No. 16.)
IV. Facts
The evidence in this case is undisputed and the court adopts the
parties’ factual recitations. (See Dkt. No. 10 at 1-12; Dkt. No. 16 at 1.)
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 used by the
Commissioner in evaluating whether a claimant is disabled under the Act,
the court refers the parties to its previous opinion 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.

Severity Assessment
Mussaw first contends that the ALJ failed to find her “obesity, broken

bone in her right foot, migraines, and back pain to be severe impairments.”
(Dkt. No. 10 at 12-15.) The Commissioner, and the court, disagree. (See

3

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.
4

Dkt. No. 16 at 4-7.)
For an impairment or combination of impairments to be deemed
“severe,” it must “significantly limit[]” the claimant’s “physical or mental
ability to do basic work activities.” 20 C.F.R. § 404.1520(c). To meet the
duration requirement, an impairment must last, or be expected to last, for a
continuous period of at least twelve months. See id. § 404.1509. A finding
of non-severity results where the claimant suffers “only a slight abnormality
or a combination of slight abnormalities which would have no more than a
minimal effect on [her] ability to work.” Christiana, 2008 WL 759076, at *4
(internal quotation marks and citation omitted). The term “basic work
activities” refers to “the abilities and aptitudes necessary to do most jobs,”
including functions such as “[u]nderstanding, carrying out, and
remembering simple instructions.” 20 C.F.R. § 404.1521(b).
Notwithstanding Mussaw’s arguments to the contrary, which rely on
her subjective complaints, (see Dkt. No. 10 at 13-15), there is no evidence
that any of the physical impairments she complains of here “significantly”
inhibited her ability to do basic work activities, 20 C.F.R. § 404.1520(c). In
fact, as the Commissioner notes, “the medical record contains no clinical or
diagnostic evidence of a broken bone in [Mussaw]’s right foot,” a chipped
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bone in either foot, or “findings related to migraines.” (Dkt. No. 16 at 5-7.)
Because the impairments “must result from anatomical, physiological, or
psychological abnormalities which can be shown by medically acceptable
clinical and laboratory diagnostic techniques,” 20 C.F.R. § 404.1508, and
not merely subjective complaints, see id. § 404.1528(a), the ALJ was
correct in determining that the broken bone in her right foot, assuming
there was one, and her migraines, were not severe impairments. (See Tr.
at 14.) Likewise, there is no medical evidence that demonstrates
Mussaw’s obesity caused any more than minimal limitations in her ability to
do basic work activities. (See id.) And, in regard to her lower back pain, a
single report of tenderness on April 25, 2007 by Dr. Theresa Lang, (see id.
at 332), is insufficient to establish a medically determinable impairment that
persists “for a continuous period of not less than [twelve] months,” 20
C.F.R. §§ 404.1505, 404.1509—especially since Dr. Michael Clarke found
no tenderness in his exam six months later, (see Tr. at 182). Accordingly,
the court discerns no errors in the ALJ’s severity assessment.
B.

Treating Source Rule
Next, Mussaw argues that the ALJ erred in his application of the

treating source rule, and, as a result, improperly discounted the weight
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assigned to the opinion of her treating psychiatrist, Dr. Elizabeth Pierson.
(See Dkt. No. 10 at 15-20.) The Commissioner counters that any error by
the ALJ was harmless, and that his decision to discount Dr. Pierson’s
opinion is supported by substantial evidence. (See Dkt. No. 16 at 8-17.)
The court agrees with Mussaw that the ALJ’s erroneous analysis of Dr.
Pierson’s opinion necessitates remand.
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. 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
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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.
(internal quotation marks and citation omitted).
In assessing the opinion evidence of record, the ALJ assigned “little
weight” to a January 12, 2010 medical source statement in which Dr.
Pierson opined that, while Mussaw suffered only “slight” limitations in her
ability to understand, remember and carry out “short, simple instructions,”
she had “moderate” limitations in her “ability to make judgments on simple
work-related decisions,” as well as her ability to interact appropriately with
the public, supervisors, or co-workers. (Tr. at 17-18, 405-06.) Dr. Pierson
found further that Mussaw suffered “marked” limitations in her ability to
“[u]nderstand and remember detailed instructions,” and “[c]arry out detailed
instructions.” (Id. at 405.) In support of his decision to assign little weight
to this assessment, the ALJ noted a lack of supporting record evidence,
contradictory daily activities, and the fact that “[t]he record contains no
evaluation or treatment notes by Dr. Parson.” (Id. at 18.)
Mussaw contends that the misspelling of Dr. Pierson’s name,
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combined with the fact that the record did contain evaluation and treatment
notes by her, (see Tr. 404, 410, 415-16), indicates that the ALJ was
unaware that Mussaw’s treating psychiatrist was the true source of the
January 12, 2010 medical source statement, and that he therefore did not
weigh the opinion under the proper treating source framework. (See Dkt.
No. 10 at 15-20.) Although the court cannot definitively discern whether
the ALJ understood that the medical source statement was authored by Dr.
Pierson, and simply misspelled her name, or believed it to be the work of
another doctor entirely, his analysis of the statement was flawed under
either scenario. First, if the ALJ mistakenly assessed the medical source
statement as the work product of a psychiatrist with no treatment history of
Mussaw, he undoubtedly failed to properly apply the treating source rule. If
the ALJ simply misspelled Dr. Pierson’s name, on the other hand, his lack
of awareness that the record contained evaluation and treatment notes by
her nevertheless indicates that he did not properly consider the length,
nature and extent of the treatment relationship, or the frequency of
examination, as required by 20 C.F.R. § 404.1527.
The Commissioner contends that the ALJ’s error was harmless
because, given the limited nature of the treatment relationship, “Dr.
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Pierson’s opinion would not be entitled to controlling weight as a treating
source opinion, and the ALJ nonetheless properly evaluated her opinion
under the remaining factors of 20 C.F.R. §[] 404.1527.” (Dkt. No. 16 at 89.) The Commissioner’s contention that “the evidence of record may not
establish Dr. Pierson as a treating source” is belied by the fact that, in
addition to completing the January 12, 2010 medical source statement, she
examined Mussaw on December 21, 2009 and February 19, 2010,
prescribed her medication without direct examination on January 21, 2010,
and was consulted regarding Mussaw by social worker Sara Hutcheson.
(Id. at 9; see Tr. at 404, 405, 410, 411, 415-16).4 In any event, as noted
above, the Commissioner’s argument that “the ALJ nonetheless properly
evaluated her opinion under the remaining factors of 20 C.F.R.
§[] 404.1527,” (Dkt. No. 16 at 8), is simply untrue in light of his erroneous
belief that the record was devoid of evaluation or treatment notes, (see Tr.
4

An acceptable medical source is considered a “treating source”
where “the medical evidence establishes that [the claimant] see[s], or
ha[s] seen, the source with a frequency consistent with accepted medical
practice for the type of treatment and/or evaluation required for [his or her]
medical condition(s).” 20 C.F.R. § 404.1502. The Commissioner “may
consider an acceptable medical source who has treated or evaluated [the
claimant] only a few times or only after long intervals (e.g., twice a year) to
be [a] treating source if the nature and frequency of the treatment or
evaluation is typical for [the claimant’s] condition(s).” Id.
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at 18).
Finally, the Commissioner argues that any error by the ALJ was
harmless because Dr. Pierson’s medical source statement was not
supported by clinical or diagnostic findings and was inconsistent with the
substantial evidence of record. (See Dkt. No. 16 at 9-17.) “Where there is
a reasonable basis for doubt whether the ALJ applied correct legal
principles,” however, “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.” Johnson v. Bowen, 817
F.2d 983, 986 (2d Cir. 1987). Because there is, at minimum, a reasonable
basis to doubt that the ALJ applied the proper legal standard in assessing
Dr. Pierson’s medical source statement,5 denial of disability cannot be
premised on satisfaction of the substantial evidence standard. While the
need for agency reconsideration gives way “where application of the
correct legal principles to the record could lead to only one conclusion,” Id.

5

Additionally, as Mussaw mentions briefly in her papers, the opinion
expressed by Dr. Pierson in the medical source statement is the only
medical opinion to which the ALJ expressly assigned weight. (See Dkt.
No. 10 at 16, 18-19.)
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at 986, the record here compels no such singular outcome. As such,
remand is required.
C.

Remaining Contentions
Because Mussaw’s remaining contentions may be impacted by the

subsequent proceedings directed by this Order, (see Dkt. No. 10 at 20-25),
it would be improper for the court to consider them at this juncture.
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.
March 28, 2013
Albany, New York

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