Collette v. Commissioner of Social Security

Filing 14

MEMORANDUM-DECISION AND ORDER: The Court hereby ORDERS that the Commissioner's decision denying disability benefits is REVERSED and this matter is REMANDED to the Commissioner, pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings consistent with this Memorandum- Decision and Order; and the Court further ORDERS that the Clerk of the Court shall enter judgment and close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum- Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 9/28/2016. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ROBERT W. COLLETTE,
Plaintiff,
vs.

7:15-cv-00956
(MAD)

COMMISSIONER OF SOCIAL SECURITY
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

CONBOY, MCKAY, BACHMAN &
KENDALL, LLP
407 Sherman Street
Watertown, New York 13601
Attorneys for Plaintiff

LAWRENCE D. HASSELER, ESQ.

SOCIAL SECURITY ADMINISTRATION
Office of Regional General Counsel
Region II
26 Federal Plaza, Room 3904
New York, New York 10278
Attorneys for Defendant

DAVID L. BROWN, SPECIAL AUSA

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Robert W. Collette, ("Plaintiff") commenced this action on August 5, 2015, pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3), seeking review of a decision of the Commissioner of Social
Security (the "Commissioner") denying Plaintiff's application for Disability Insurance Benefits
("DIB"). See Dkt. No. 1.

II. BACKGROUND

Plaintiff's date of birth is July 21, 1980, which made him thirty-one years old on October
27, 2011, the alleged onset of his disability. See Dkt. No. 9, Administrative Transcript ("T."), at
128. Plaintiff completed high school in 1999, and he also completed vocational schooling in
criminal justice. See id. at 152. Plaintiff is seeking a closed period of disability from October 27,
2011 through April 9, 2013. See id. at 28, 49. During this period of time, Plaintiff took care of
his personal hygiene without assistance, remembered to take his medications, prepared his own
meals, laundered his clothes, and cleaned his residence. See id. at 161-62. He was a licenced
driver and drove to his disability hearing. See id. at 30, 162-63. Plaintiff was able to complete
his shopping in stores. See id. at 163. During this period of alleged disability, Plaintiff was not
able to enjoy his hobbies of playing sports, but he continued to be social on a weekly basis. See
id. at 164. Plaintiff does not suffer from any mental health conditions. See id. at 34.
Also during this time, Plaintiff experienced a little pain when he lifted objects, but he did
not have any limitations in standing, walking, sitting, climbing stairs, kneeling, squatting, using
his hands, seeing, hearing, or talking. See id. at 165. He also does not have any problems paying
attention, remembering things, completing tasks, or getting along with people in authority. See
id. at 166-67. Plaintiff was watching his infant daughter during this period of alleged disability.
See id. at 169.
Plaintiff's past relevant work includes part-time work as a dishwasher and a gardener in
1999 through 2002. See id. at 152. He then worked as a full-time laborer for manufacturing
companies intermittently from 1998 through 2009. See id. at 33, 152. For the majority of the
time from 2003 until the alleged onset of disability, Plaintiff worked full time as a painter for an
independent contractor with the United States Navy. See id. at 31-32, 152. In that position, he

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sandblasted ships and submarines to remove paint and used a spray machine and brushes to paint
them. See id.
Plaintiff claims that he does not experience pain but described his symptom as stiffness in
both his shoulders. See id. at 167. He stated that this stiffness began to affect his activities on
October 27, 2011. See id. at 167. Prior to the alleged onset of disability, Plaintiff had previously
been injured and undergone shoulder surgery on his right shoulder. See id. at 38. He returned to
work for approximately five months, but he experienced increased stiffness in both shoulders
until he was unable to reach overhead. See id. at 39. Plaintiff testified that he was not able to
work during the alleged period of disability because he had to go to physical therapy four days a
week and his doctors told him that he was not able to work. See id. at 37.
On October 1, 2012, Plaintiff filed applications for a closed period of disability from
October 27, 2011 through April 9, 2013 and DIB. See id. at 28, 49, 54, 128-29. In his
application, Plaintiff claims that he was unable to work due to injuries to both his shoulders and
the surgical repair to both his shoulders. See id. at 151. This application was initially denied on
December 26, 2012. See id. at 54, 61, 63. Plaintiff then requested a hearing by an administrative
law judge. See id. at 7. A hearing was conducted on December 5, 2013 before Administrative
Law Judge Marie Greener (the "ALJ"). See id. at 26-49. The ALJ issued an unfavorable decision
to Plaintiff dated March 17, 2014. See id. at 14-25. The ALJ made the following determinations:
(1) Plaintiff meets the insured status requirements of the Social Security Act through September
30, 2016; (2) Plaintiff has not engaged in substantial gainful activity since October 27, 2011, the
alleged onset of disability; (3) Plaintiff's severe impairments include bilateral shoulder tendinitis
and arthritis; (4) Plaintiff does not have an impairment or combination of impairments that meet
or medically equal the severity of a Listed Impairment in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the
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"Listed Impairment(s)"); (5) Plaintiff has the residual functional capacity ("RFC") to lift and/or
carry ten pounds occasionally and less than ten pounds frequently but should not reach overhead
or perform overhead activities with his upper extremities, and he is able to sit for six hours or
stand/walk for six hours in an eight-hour work day; (6) Plaintiff is not capable of performing any
past relevant work; and (7) considering Plaintiff's age, education, work experience, and RFC,
there are jobs that exist in significant numbers in the national economy that Plaintiff can perform.
See id. Therefore, the ALJ concluded that Plaintiff was not under a disability, as defined in the
Social Security Act, from October 27, 2011 through the date of the ALJ's decision. See id. at 20.
Plaintiff timely filed a request for a review of the ALJ's decision with the Appeals
Council, see id. at 7-8, and, in a notice dated July 23, 2015, the request was denied rendering the
ALJ's decision the Commissioner's final decision, see id. at 1-5. Plaintiff then commenced this
action for judicial review of the denial of his claims by the filing of a complaint on August 5,
2015. See Dkt. No. 1. Both parties have moved for judgment on the pleadings. See Dkt. Nos. 11,
12. The Court orders that the Commissioner's decision is reversed and remanded.

III. DISCUSSION
A. Standard of Review
In reviewing a final decision by the Commissioner under 42 U.S.C. § 405, the Court does
not determine de novo whether a plaintiff is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3);
Brault v. Soc. Sec. Admin., 683 F.3d 443, 447 (2d Cir. 2012); Pratts v. Chater, 94 F.3d 34, 37 (2d
Cir. 1996). The Court must examine the administrative transcript as a whole to determine
whether the decision is supported by substantial evidence and whether the correct legal standards
were applied. See Brault, 683 F.3d at 447; Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 507 (2d
Cir. 2009); Schaal v. Apfel, 134 F.3d 496, 500-01 (2d Cir. 1998). "A court may not affirm an
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ALJ's decision if it reasonably doubts whether the proper legal standards were applied, even if it
appears to be supported by substantial evidence." Barringer v. Comm'r of Soc. Sec., 358 F. Supp.
2d 67, 72 (N.D.N.Y. 2005) (citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)). The
Second Circuit has explained that upholding a determination based on the substantial evidence
standard where the legal principals may have been misapplied "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, 817 F.2d at 986. However, if the record is such that the
application of the correct legal principles "could lead to only one conclusion, there is no need to
require agency reconsideration." Id.
"Substantial evidence" is evidence that amounts to "more than a mere scintilla," and it has
been defined to be "such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations and quotation
marks omitted). If supported by substantial evidence, the Commissioner's factual determinations
are conclusive, and the court is not permitted to substitute its analysis of the evidence. See
Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982) ("[The court] would be derelict in [its]
duties if we simply paid lip service to this rule, while shaping [the court's] holding to conform to
our own interpretation of the evidence"). 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 and Human Servs., 733 F.2d 1037, 1041 (2d Cir.
1984). This very deferential standard of review means that "once an ALJ finds facts, [the Court]
can reject those facts 'only if a reasonable factfinder would have to conclude otherwise.'" Brault,
683 F.3d at 448 (quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994)).
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B.

Analysis
Plaintiff contends that the ALJ's determination denying his disability applications should

be remanded back to the Commissioner for the following reasons: (1) the disability determination
was not supported by substantial evidence because the treating physician rule was not properly
applied and (2) the determination that there are jobs in significant numbers in the national
economy that Plaintiff can perform was not supported by substantial evidence. See Dkt. No. 11 at
11-16.
1. Five-step analysis
For purposes of both DIB and SSI, a person is disabled when he 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 12 months." 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C.
§ 1382c(a)(3)(A).
The Social Security Administration regulations outline the
five-step, sequential evaluation process used to determine whether a
claimant is disabled: (1) whether the claimant is currently engaged
in substantial gainful activity; (2) whether the claimant has a severe
impairment or combination of impairments; (3) whether the
impairment meets or equals the severity of the specified
impairments in the Listing of Impairments; (4) based on a "residual
functional capacity" assessment, whether the claimant can perform
any of his or her past relevant work despite the impairment; and (5)
whether there are significant numbers of jobs in the national
economy that the claimant can perform given the claimant's residual
functional capacity, age, education, and work experience.
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess v. Astrue, 537 F.3d 117, 120
(2d Cir. 2008)); see also 20 C.F.R. §§ 404.1520(a)(4)(i)-(v); 416.920(a)(4)(i)-(v).
2. Treating Physician Rule

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Plaintiff contends that the ALJ's decision is not supported by substantial evidence because
the treating physician rule was not properly applied, and, as a result, controlling weight was not
assigned to Edward Choung, D.O.'s opinion. See Dkt. No. 11 at 11-15. Specifically, Plaintiff
argues that Dr. Choung's opinion should have been accorded controlling weight because there is
no substantial evidence to the contrary. Dtk. No. 11 at 20. Dr. Choung's treatment notes indicate
that Plaintiff was temporarily disabled due to his post-operative status, pursuant to workers'
compensation standards from April 2012 through April 2013. See T. at 257-63, 264-70, 287, 30002.
A treating physician's medical opinions about the severity of a plaintiff's impairments and
symptoms can be entitled to "controlling weight" when the opinions are "well-supported by
medically acceptable clinical and laboratory diagnostic techniques and [are] not inconsistent with
the other substantial evidence in [the] case record." 20 C.F.R. § 404.1527(c)(2); see also 20
C.F.R. § 404.1527(a)(2); Martin v. Astrue, 337 Fed. Appx. 87, 89 (2d Cir. 2009) ("Although the
final responsibility for deciding issues relating to disability is reserved to the Commissioner, . . .
an ALJ must give controlling weight to a treating physician's opinion on the nature and severity
of the [plaintiff's] impairment when the opinion is well-supported by medical findings and not
inconsistent with other substantial evidence."); Williams v. Comm'r of Soc. Sec., 236 Fed. Appx.
641, 643-44 (2d Cir. 2007) (noting that inconsistent evidence can be in the form of opinions of
other medical experts).
If an ALJ refuses to assign a plaintiff's treating physician's opinion controlling weight, he
or she must state a good reason for that determination. See Saxon v. Astrue, 781 F. Supp. 2d 92,
102 (N.D.N.Y. 2011). The "[f]ailure to provide 'good reasons' for not crediting the opinion of a
claimant's treating physician is a ground for remand." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.
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1999) (quoting Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998)). The regulations list factors the
ALJ should consider when evaluating the appropriate weight to assign to medical opinions,
including a treating source's opinion that is not assigned controlling weight. See 20 C.F.R. §§
404.1527(c); 416.927(c). The factors include (1) the frequency of the examination and the length,
nature and extent of the treatment relationship; (2) the evidence in support of the treating
physician's opinion; (3) the consistency of the opinion with the record as a whole; (4) whether the
opinion is from a specialist; and (5) other factors brought to the Social Security Administration's
attention that tend to support or contradict the opinion. See 20 C.F.R. §§ 404.1527(c);
416.927(c); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000). A treating physician's opinion can
be contradicted by other substantial evidence, such as opinions of other medical experts. See
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (citing 20 C.F.R. § 404.1527(d)(2)); Veino
v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). The less consistent an opinion is with the record
as a whole, the less weight it is to be given. Otts v. Comm'r of Soc. Sec., 249 Fed. Appx. 887, 889
(2d Cir. 2007).
To begin with, Dr. Choung offered conclusions in his treatment records that Plaintiff was
temporarily disabled during his postoperative period under the workers' compensation standard.
See T. at 257-63, 264-70, 287, 300-05. Dr. Choung did not offer any medical opinions regarding
the nature and severity of Plaintiff's impairments. Also, Dr. Choung did not offer any medical
opinions about Plaintiff's physical or mental restrictions until April 9, 2013 – the end date of
Plaintiff's alleged disability – when he stated that Plaintiff could not complete any overhead
activities or lift over ten pounds. See id. at 305. Under the Social Security Regulations,
"[m]edical opinions are statements from physicians . . . that reflect judgments about the nature
and severity of [a plaintiff's] impairment(s), including [a plaintiff's] symptoms, diagnosis and
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prognosis, what [a plaintiff] can still do despite impairments(s), and [a plaintiff's] physical or
mental restrictions. See 20 C.F.R. § 1527(a)(2). Accordingly, Dr. Choung's conclusions are not
medical opinions under the definition provided in the Regulations. Moreover, a medical source's
statement that a plaintiff is disabled is not given any special significance because this is a
determination that is reserved to the Commissioner. See 20 C.F.R. § 404.1527(d)(1)-(3); Snell v.
Apfel, 177 F.3d 128, 133 (2d Cir. 1999) ("A treating physician's statement that the claimant is
disabled cannot itself be determinative.").
Also, as noted, Dr. Choung's statements about Plaintiff's disability was in reference to the
workers compensation standards of disability. See T. at 257-63, 264-70, 287, 300-05. "[T]he
standards which regulate workers' compensation relief are different from the requirements which
govern the award of disability insurance benefits under the Act. Accordingly, an opinion
rendered for purposes of workers' compensation is not binding on the [Commissioner]." See
Rosado v. Shalala, 868 F. Supp. 471 (E.D.N.Y. 1994) (citing Coria v. Heckler, 750 F.2d 245, 247
(3d Cir. 1984)). For these reasons, collectively and independently, this Court finds that Dr.
Choung's statements that Plaintiff was disabled postoperatively are not entitled to any special
consideration under the treating physician rule.
Plaintiff makes a general argument that the RFC was not supported by substantial
evidence. The Court finds that there is substantial medical evidence to support the ALJ's
determination that Plaintiff was limited to sedentary work, as that term is defined under 20 C.F.R.
§ 404.1567(a), and that Plaintiff was not able to lift more than ten pounds, with the additional
limitation that Plaintiff is unable to reach overhead or perform overhead activities. See T. at 15.
Plaintiff explained that he did not experience "pain" during the period of disability but, instead, he
describes his symptoms as stiffness in his shoulders. See id. at 39, 167. Plaintiff states that the
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stiffness in his shoulders increased until he was not able to reach overhead. See id. at 39. During
this period of alleged disability, Plaintiff experienced a little pain when he lifted objects, but he
was not limited in standing, walking, sitting, climbing stairs, kneeling, squatting, using his hands,
seeing, hearing, or talking. See id. at 165. Also, Plaintiff continued to provide care to his infant
daughter during this period of time. See id. at 169. He was able to prepare his own meals,
launder his clothes, clean his residence, shop for his needs, and drive a car. See id. at 161-62.
Dr. Choung's treatment records document that on January 9, 2012, Plaintiff had "nearly
full range of motion about his bilateral shoulders" with full strength in his rotator cuff. See id. at
248. Dr. Choung records described that Plaintiff had "some anterior shoulder pain" prior to
surgery, see id. at 254, and "some discomfort" after his first surgery. See id. at 259. Dr. Choung
notes "mild impingement signs and no real tenderness to palpation." See id. On July 16, 2012,
Plaintiff had no complaints of pain, and, on September 5, 2012, Dr. Choung reported that Plaintiff
had "no real impingement signs and no tenderness" in his right shoulder. See id. at 261.
Plaintiff's left shoulder is reported as having "some tenderness to palpation" on September 5,
2012, but his left rotator cuff strength was within normal limits and his range of motion was
"essentially full." See id. at 262. After surgery on his left shoulder, the medical records indicate
that Plaintiff continued to have essentially full range of motion and full motor strength without
any significant tenderness to palpation and mild impingement signs. See id. at 287, 300. On
February 26, 2013, Plaintiff reported left shoulder stiffness and "some soreness" about his
shoulders. See id. at 301.
The Court finds that based upon Plaintiff's testimony about his activities of daily living
and his symptoms, Plaintiff's reported symptoms and impairments, and the medical evidence,
there is substantial evidence to support the ALJ's determination of Plaintiff's RFC.
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3. Vocational Expert
Although Plaintiff's contention is not clear, he ostensibly makes a argument that the ALJ's
determination of not disabled is unsupported by substantial evidence because a vocational expert
was needed. See Dkt. No. 11 at 14-16. Plaintiff seems to argue that the ALJ needed a vocational
expert at step five to determine whether there were jobs that exist in significant numbers in the
national economy that he could perform. See id. at 15. The ALJ relied upon the MedicalVocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P, App. 2 (2008), (the "Guidelines"), because
Plaintiff could perform all or substantially all of the exertional demands at a given level of
exertion. See T. at 20. Specifically, the ALJ found that Plaintiff could perform all or
substantially all of the exertional demands of sedentary work, as defined in 20 C.F.R. §
404.1567(a). Under Rule 201.28 of the Guidelines, Plaintiff, as a younger individual with a high
school degree, is directed as not disabled.
However, Plaintiff has nonexertional impairments that must be considered. The ALJ
acknowledged that Plaintiff's job base could be eroded by his inability to reach overhead or
perform overhead activities, which is a nonexertional impairment, but the ALJ concluded that
Plaintiff's impairment is not a significant limitation and does not limit the number of sedentary
jobs he can perform. See T. at 20; see also 20 C.F.R. § 404.1569(c)(vi). The vocational
guidelines cannot be relied on if "a non-exertional impairment has more than a negligible impact
on a claimant's ability to perform the full range of work, and instead must obtain the testimony of
a vocational expert." Sesa v. Colvin, 629 Fed. Appx. 30, 32 (2d Cir. 2015) (internal quotations
marks and citations omitted).
Significant limitations of reaching "may eliminate a large number of occupations a person
could otherwise do." SSR 85-15, 1985 WL 56857, *7 (1985) ("Titles II and XVI: Capability To
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Do Other Work – Themedical-Vocational Rules As A Framework For Evaluating Solely
Nonexertional Impairments"). "Varying degrees of limitations would have different effects, and
the assistance of a VS may be needed to determine the effects of the limitations." Id. Where, as
here, a plaintiff's impairment limits him from never reaching overhead, the Court finds that this is
a significant nonexertional limitation that requires the use of a vocational expert at step five in
order for the Commissioner to meet her burden of proof. See, e.g., Montoya v. Colvin, ___ Fed.
Appx. ___, 2016 WL 1622240, *2 (9th Cir. 2016) (stating that a limitation of occasional reaching
overhead was not negligible, precluding reliance on the vocational guidelines).
Accordingly, the Court remands this case for a step-five determination on whether there
are a significant number of jobs in the national economy that the claimant can perform given the
claimant's residual functional capacity, age, education, and work experience. In addition, the ALJ
should also take into consideration whether the frequency of Plaintiff's physical therapy
appointments during the period of alleged disability would have precluded employment. See,
e.g., Samuels v. Colvin, Civil No. 3:11–CV–1046, 2013 WL 4776519, *6 n.5 (D. Conn. Sept. 6,
2013).

IV. CONCLUSION
After carefully reviewing the entire record in this matter, the Parties' submissions, and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that the Commissioner's decision denying disability benefits is REVERSED
and this matter is REMANDED to the Commissioner, pursuant to sentence four of 42 U.S.C. §
405(g), for further proceedings consistent with this Memorandum-Decision and Order; and the
Court further

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ORDERS that the Clerk of the Court shall enter judgment and close this case; and the
Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.

IT IS SO ORDERED
Dated: September 28, 2016
Albany, New York

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