Febo v. Astrue

Filing 21

ORDER ADOPTING REPORT & RECOMMENDATION for 17 Report and Recommendation. Having reviewed the record de novo as to the issues raised in Defendant's objections and finding Defendant's objections without merit, this Court adopts Magistrate J udge Netburn's R&R in its entirety. The Court declines to reach the question of whether the Commissioner has shown that the ALJ's decision was supported by substantial evidence. Defendant's motion is denied. Plaintiff's motion for judgment on the pleadings is granted to the extent that the case is remanded to the Commissioner for further proceedings and review consistent with this Order. The Clerk of Court is directed to enter judgment and close this case. (Signed by Judge Paul A. Crotty on 3/14/2014) (djc) Modified on 3/14/2014 (djc).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

------------------------------------------------------------)(
DORIS FEBO,
Plaintiff,
-against12 Civ. 8085 (PAC)(SN)
CAROLYN W. COLVIN, COMMISSIONER
OF SOCIAL SECURITY,
ORDER ADOPTING REPORT &
RECOMMENDATION

Defendant.

------------------------------------------------------------)(
HONORABLE PAUL A. CROTTY, United States District Judge:
Plaintiff Doris Febo brings this action pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. §
1383(c), seeking judicial review ofa final decision of Carolyn Colvin, the acting Commissioner
of Social Security' (the "Commissioner") denying her application for Disability Insurance and
Supplemental Security Insurance ("SSI") benefits. Febo moves for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure and, in the alternative requests
remand to the Commissioner for further proceedings. (Docket No. II.) The Commissioner
cross-moves for judgment on the pleadings pursuant to Rule 12(c). (Docket No. 14.)
On November 14, 2012, this matter was referred to Magistrate Judge Sarah Netburn for
purposes of general pretrial and dispositive motions. Upon consideration of the parties' crossmotions, Magistrate Judge Netburn issued a Report and Recommendation ("R&R") on
September 4, 2013 , recommending denial of the Commissioner's motion for judgment on the
pleadings, and granting Plaintiff's motion to remand the case to the Commissioner for proper
, This case was originally captioned as Doris Febo v. Michael 1. Astrue, Commissioner o/Social Security. Carolyn
W. Colvin became the Commissioner of Social Security on February 14,2013. Colvin was thereafter substituted for
Astrue as the Defendant in this suit, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.

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application of the treating physician rule. Specifically, Magistrate Judge Netbum found the
Administrative Law Judge's ("ALJ") application ofthe treating physician rule suffered from
several related errors necessitating remand: (1) the ALl's decision that the treating physician's
opinion was not entitled to controlling weight was not supported by substantial evidence; (2) in
deciding that the treating physician's opinion was not controlling, the AU did not properly apply
the six-factor test required by the regulations; and (3) the ALJ improperly assessed the weight of
the consultative physicians' opinions. (R&R at 23.) Magistrate Judge Netbum also found that (I)
"the AU committed legal error in assessing Febo's credibility" (R&R at 34); and (2) "[aJfter
clarification and development of the record upon remand, the testimony of a vocational expert
may be necessary." (R&R at 35.) Since Magistrate Judge Netbum concluded that the AU
committed legal errors requiring remand, she did not reach the ultimate question of whether the
ALJ's decision was supported by substantial evidence. (R&R at 37.)
Defendant objected to Magistrate Judge Netburn's R&R: (1) the AU was not required to
address each factor listed in 20 C.F.R. §§ 404.l527(c), 416.927(c), 416.927(c) in his
determination of the weight to be given to the Plaintiff's treating physician; (2) the ALJ properly
gave little weight to the Plaintiff's treating physician because the ALJ addressed relevant facts
and found that Dr. Clair's opinion was inconsistent with the rest of the record; (3) the AU
properly gave great weight to the state agency medical consultant and consultative examiner as
per SSR 96-6p; and (4) the ALl properly evaluated the Plaintiff's credibility after considering the
entirety of the record. Plaintiff responded to Defendant's Objections urging the Court to adopt
Magistrate Judge Netbum ' s R&R.
For the reasons that follow, the Court adopts Magistrate Judge Netburn's R&R in its

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entirety. The case is remanded for further proceedings consistent with this Order Adopting
Report and Recommendation.

DISCUSSION 2
I.

Standard
A district court may "accept, reject, or modify, in who le or in part, the findings or

recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l)(c). When a timely
objection is made to the magistrate's recommendations, the Court is required to review the
contested portions de novo. Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). The
Court however, "may adopt those portions of the [R&RJ to which no objections have been made
and which are not facially erroneous." La Torres v. Walker, 216 F. Supp. 2d 157, 159 (S.D.N.Y.
2000).

II.

Analysis

In reviewing the Commissioner's application of the five step sequence to Plaintiffs
disability claim, there is no dispute as to Steps 1 to 3. Since there are no objections, and finding
no clear error, the Court adopts these portions of Magistrate Judge Netburn's R&R.
There are disputes, however, as to the weight to be given to Plaintiffs treating physician;
the weight to be given to the state agency medical consultant and consultative examiner; and
how credibility is to be determined, especially in connection with analyzing claimant's residual
functional capacity at Step 4. These determinations in turn affect Step 5.

A.

ALJ Axelsen's Assessment of Dr. Clair's Opinion

Defendant objects to the R&R, arguing that the AU properly evaluated the medical
The facts of this case are taken from Magistrate Judge Netbum's R&R. For the sake of consistency, this opinion
uses the same notation for citations to the record as the R&R.

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opillion of Dr. Clair, one of Plaintiff's treating physicians. Defendant asserts that no mandatory
recitation of each factor 3 is required where the ALl's reasoning and adherence to the regulations
are clear. Atwater v. Astrue, 512 Fed. Appx. 67, 70 (2d Cir. 2013). It is not evident from the
ALI 's opinion, however, that these factors were considered. While no complete recitation is
required, the ALl should have more explicitly addressed how the factors listed in 20 C.F.R. §
404.1527 led to his detennination.
Defendant also objects to Magistrate Judge Netburn's finding that there was no
substantial evidence to support the ALl's decision that the treating physician' s opinion was not
entitled to controlling weight. (Def. ' s Obj. at 4.) Where an ALl does not credit the findings ofa
treating physician, the claimant is entitled to an explanation of that decision. Snell v. Apfel, 177
F.3d 128, 134 (2d Cir. 1999). Additionally, 20 C.F.R. § 404.1527(c)(2) requires the
Commissioner to "always give good reasons in [its] notice ofdetennination or decision for the
weight [it] givers] [a party's] treating somce' s opinion." "The requirement of reason-giving
exists, in part, to let claimants understand the disposition of their cases." Snell, 177 F.3d at 134.
The ALl cited three reasons to support his decision: (1) Plaintiff is able to care for her
personal needs; (2) she has the ability to seek public assistance; and (3) she has the capacity to
plan trips to and from Florida and New York. Plaintiffs assistance with daily chores, however,
does not plainly undennine her overall ability to care for her personal needs. See Rivera v. Apfel,
1999 WL 138920 at * 10 (S.D.N.Y. 1999). Furthennore, the record reflects that the tasks that the
ALI references approach the full extent of what Plaintiff is able to do. The record also indicates

J The six factors are (I) examining relationship (of doctor and claimant); (2) treatment relationship (of doctor and
claimant); (3) supportability (oflhe opinion, based on medical records); (4) consistency (with the record); (5)
specia lization (of the doclor); and (6) other fac tors (including the treating physician' s fami liarity with disability). 20
C.F.R. § 404.1527.

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that Plaintiff has a tendency toward isolation and periodically has harmful thoughts and panic
attacks. Though the ALJ based his decision partially on Plaintiff's alleged capacity to plan trips,
Plaintiff experiences anxiety when traveling alone. (See, e.g., R. 288.)
The ALJ also fails to mention the significant length of the treatment relationship between
Dr. Clair and Plaintiff; the nature and extent of the treatment relationship; the evidence in the
record that supports Dr. Clair' s opinion; and Dr. Clair's specialization in treating depression and
anxiety. Failing to address such factual considerations constitutes legal error. Given the weight
of the evidence that opposes the ALI' s decision, on remand he should consider the evidence
supporting Dr. Clair' s opinion, and provide clear reasoning ifhe decides not to accept it.

B.

ALJ Axelsen's Assessment of Dr. Flach's and Dr. Reddy's Opinions

Defendant also asserts that the ALJ properly assigned great weight to Dr. Flach's and Dr.
Reddy' s opinions, consulting physicians who met Plaintiff once and not at all , respectively.
(Defs Obj. at 6; R&R at 27.) The opinions of non-treating physicians may only be entitled to
greater weight than treating physicians when those reports "provide[J more detailed and
comprehensive information than what was available to the individual's treating source." SSR 96-

6p.
The information available to and provided by Dr. Clair is far more extensive than that
available to the consultants. The record includes treating notes that reflect Febo's frequent
appointments with Dr. Clair over a 14 month period. The Defendant cites Diaz v. Shalala , 59
FJd 307 (2d Cir. 1995) for the proposition that opinions of nonexamining source may override
treating sources ' opinions provided they are supported by evidence in the record. But in that
case the " treating source" was a chiropractor, whose opinion was not entitled to controlling

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weight under the regulations. That case is distinguishable from this one, in which Dr. Clair is a
psychiatrist.
More importantly, this Court doubts that the consultants' opinions, which were based on
a review of Plaintiffs file and at most one meeting with Plaintiff, are superior to Dr. Clair's
opinion, which was based on a much more involved and extensive period of treatment. The ALJ
relied on the consultants' opinions because of their experience in evaluating disabilities and their
consistency with the claimant's alleged ability "to care for her personal needs; travel from one
state to another; and seek public assistance." (R. 22.) But given the inadequacy of these reasons,
discussed above, this explanation alone does not warrant the great weight given to the
consultants' opinions over those ofthe treating physician pursuant to SSR 96-6p.

C.

ALJ Axelsen's Evaluation of Plaintiffs Credibility

Defendant objects to Magistrate Judge Netbum's finding that the ALJ improperly
evaluated Plaintiff's credibility regarding the intensity, persistence, and limiting effects of
Plaintiffs symptoms which affect her residual functional capacity. Where an ALJ rejects
testimony as not credible, the reasoning for the ALJ's finding "must ... be set forth with
sufficient specificity to permit intelligible plenary review of the record." Williams v. Bowen, 859
F.2d 255, 260-61 (2d Cir. 1988). The ALJ determined that the Plaintiff was not credible because
Plaintiff is "able to care for her personal needs; has the ability to seek public assistance; and has
the capacity to plan trips to and from Florida and New York." (R. 22.) The ALJ should have
explained how he reconciled this position with other record evidence, for example, the
medications Plaintiff had been prescribed to control her symptoms, her persistent tendency
towards isolation, her additional treatment for alcoholism, and the fact that her anxiety is clearly

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triggered by social interactions. Additionally, while Defendant submits that the AU made his
credibility finding on the basis of the entire case record (R. 20), that does not satisfy the
specificity requirement set out in Williams. In light of this evidence, the AU was required to
further explain his credibility determination.
Furthermore, the AU assessed Plaintiff's credibility and his residual functional capacity
in reverse order. Regardless of what Defendant argues the AU intended by saying "the
claimaint's statements concerning the intensity, persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent with the above residual functional
capacity assessment," (R. 22.) this boilerplate statement is problematic because it "implies that
ability to work is determined first and is then used to determine the claimaint's credibility."

Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012).4 An AU cannot discredit a claimant's
subjective complaints because they do not comport with the AU's own RFC assessment. See,

e.g., Perrin v. Astrue, 2012 WL 4793543 at *5 (E.D.N.Y. Oct 9, 2012); Cruz v. Colvin, 2014 WL
774966 at *2 (S.D.N.Y. Feb. 21, 2014). The AU should have first determined the extent to
which claimant' s statements about the intensity, persistence, and limiting effects of her
symptoms were credible in light of the objective record evidence, and then used this as one
aspect of his own RFC analysis. This legal error also must be corrected on remand.

D. Use of the Medical Vocational Guidelines
In Step 5 of the five-step sequence used in evaluating disability claims pursuant to 20
C.F.R. §§ 404.1520 & 416.920, the ALJ relied on the Medical-Vocational Guidelines to

4 While the Defendant cites Campbell v. Comm'r o/Soc. Sec. , 2010 WL 5536324, (N.D.N.Y. Dec. 20, 2010) which
contains similar boilerplate language, in Campbell the language was excused because it was attached to an otherwise
sound assessment. That is not true here

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determine the work that Febo could perform. Based on the conclusion of his analysis ofFebo's
residual functional capacity at Step 4, the ALl did not consult a vocational expert; he concluded
that Febo's mental limitations did not affect the occupational base of unskilled work she is able
to perform.

CR. 22.)

At Step 5, the Commissioner bears the burden to "produce evidence to show the
existence of alternative substantial gainful work which exists in the national economy and which
the claimant could perform, considering not only his physical capability but as well his age, his
education, his experience, and his training." Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980).
The Commissioner can rely on the medical vocational guideline "grids" in making this
determination. Martin v. Astrue, 337 F. App'x 87, 90 (2d Cir.2009). However, "relying solely on
the [g]rids is inappropriate when nonexertionallimitations 'significantly diminish' plaintiffs
ability to work so that the [g]rids do not particularly address plaintiffs limitations." Vargas v.
Astrue, 10 Civ. 6306, 2011 WL 2946371 at *13 (S.D.N.Y. July 20,2011).

As discussed above, on remand the Commission must reconsider and more specifically
explain its findings about Febo's residual functional capacity. IfFebo's mental impairments are
determined to be more severe than the ALl originally found, then strict application of the grids is
inappropriate and consultation with a vocational expert is necessary.
CONCLUSION
Having reviewed the record de novo as to the issues raised in Defendant's objections and
finding Defendant's objections without merit, this Court adopts Magistrate Judge Netbum's
R&R in its entirety. The Court declines to reach the question of whether the Commissioner has
shown that the ALl's decision was supported by substantial evidence. Defendant's motion is
denied. Plaintiffs motion for judgment on the pleadings is granted to the extent that the case is

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remanded to the Commissioner for further proceedings and review consistent with this Order.
The Clerk of Court is directed to enter judgment and close this case.

Dated: New York, New York
March 14,2014

PAULA. CROTTY
United States District Judge

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