Pickering v. Commissioner of Social Security
Filing
21
OPINION AND ORDER re: 18 CROSS MOTION for Judgment on the Pleadings filed by Commissioner of Social Security, 16 MOTION for Judgment on the Pleadings filed by Harvey E. Pickering. For the reasons set forth below, Pickering's motion is GRANTED, the Commissioner's motion is DENIED, and the case is REMANDED for further proceedings. Having resolved Doc. Nos. 16 and 18, the clerk of court is directed to terminate this action. (As further set forth in this Order.) (Signed by Magistrate Judge Ronald L. Ellis on 2/10/2016) (kko)
t, USDC.SDNY
t DOCUMENT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HARVEY E. PICKERING,
HEl,ECTRONlCALLY
~I
14-CV-6902 (RLE)
- against -
CAROLYN W. COLVIN,
Defendant.
.
~~~~~~~~~~~~~~~~~~~~91
RONALD L. ELLIS, U.S.M.J.
I.
INTRODUCTION
Plaintiff Harvey Pickering ("Pickering") commenced this action under the Social Security
Act (the "Act"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the
Commissioner of Social Security (the "Commissioner") denying his application for
Supplemental Security Income ("SSI") benefits. Pursuant to 28 U.S.C. § 636(c), the Parties have
consented to the jurisdiction of the undersigned. (Doc. No. 9.)
Before the Court are the Parties' motions for judgment on the pleadings pursuant to Rule
12(c) of the Federal Rules of Civil Procedure. (Doc. Nos. 16 and 18.) Pickering raises two
issues: (1) the ALJ failed to accord adequate weight to the opinion of the treating physician; and
(2) the ALJ failed to properly consider the side effects of Pickering's medications. (Plaintiffs
Memorandum of Law in Support ("Pl. Mem.") at i.) The Commissioner argues that substantial
evidence of record supports the finding that Pickering was not disabled under the Act during the
period at issue, 1 and asks the Court to affirm the Commissioner's decision. (Defendant's
Memorandum of Law in Support ("Def. Mem.") at 1.) For the reasons that follow, Pickering's
1
Ii.
FILED·
\DOC#:
. _
'
1 uA-rr:·r1t~t."'tl! . Q .J ' ,J I
J
\
\I_
.,.F.
OPINION AND ORDER
Plaintiff,
I
The period at issue runs from July 13, 2011, the date Pickering filed the application for SSI benefits, to June 28,
2013, the date of the ALJ's Hearing Decision. See 20 C.F.R. § 416.335 (The earliest month that SSI benefits may be
paid is the month after the application for benefits was filed).
motion is GRANTED, the Commissioner's cross-motion is DENIED, and the case is
REMANDED for further moceedimrs before the Bocial Becuritv Administration.
II. BACKGROUND
A.
Procedural History
Pickering applied for SSI benefits on July 13, 2011, alleging disability beginning on
February 23, 2011, because of asthma, obesity, schizoaffective disorder, depression, anxiety,
partial amputation of the left second toe, and left arm fracture with internal pin fixation.
(Complaint, Doc. No. 1, at 1-2; See also Transcript of Administrative Proceedings ("Tr.") at 3443.) The Social Security Administration ("SSA") initially denied Pickering's application on
October 12, 2011, and on December 19, 2011, Pickering filed a written request for a hearing
before an Administrative Law Judge ("ALJ"). (Tr. at 60-65, 69.) Pickering's request was
granted and, on April 9, 2013, he appeared and testified via video teleconference at a hearing
before ALJ Sheena Barr. (Tr. at 28-50.) In a decision dated June 28, 2013, the ALJ found that
Pickering was not disabled and was not eligible for SSI benefits. (Tr. at 21.) Pickering
requested a review by the Appeals Council on July 24, 2013. (Tr. at 7.) On July 9, 2014, the
Appeals Council denied Pickering's request and the ALJ's decision became the Commissioner's
final decision. (Tr. at 1-6.) Pickering filed this Complaint on August 25, 2014.
B.
The ALJ Hearing
1.
Administrative Hearing Testimony and Other Sworn Statements
Pickering was born in New York City on June 17, 1963. (Tr. at 138.) He is five feet,
eight inches tall and weighs 185 pounds. (Tr. at 156.) Pickering is a high school graduate who
completed two years of college in 1993, where he earned an associate's degree and received
specialized training as an airplane mechanic. (Tr. at 156-57 .) Pickering also worked as an
2
assembler in a retail store until June 1, 1993, when he had to stop working because of his mental
and nhv~ical imnairments.
(Tr.
at 156.) Pickering: has not worked since that time. (ld.)
In December 2010, Pickering began seeing Dr. Nasreen Kader, a psychiatrist, who
diagnosed him with depression and anxiety, and listed clinical findings of "depressed mood,"
"lack of motivation," "extreme anxiety," "insomnia," and "poor concentration." (Tr. at 519;
308.) At the ALJ hearing, Pickering testified that he sees Dr. Kader once a month for therapy
and medication management, and that he has been receiving psychiatric treatment solely from
Dr. Kader since their first meeting in 2010. (Tr. at 35.) He also testified that the medications
prescribed by Dr. Kader help to alleviate his anxiety, but also sometimes cause dizziness,
nervousness, difficulty concentrating, and paranoia. (Tr. at 35-36.) In addition to Dr. Kader's
diagnoses of depression and anxiety, Pickering testified that he also suffers from asthma and
joint pain. (Tr. at 37-40.)
At the hearing, Pickering testified that he has been suffering from asthma for "several
years" and was hospitalized for the condition "several times." (Tr. at 37.) He testified that the
asthma makes it hard to breathe, and that he can only walk about five or six blocks before losing
his breath, at which point he requires a pump from an asthma inhaler to continue walking. (Id.)
He also testified that he has been taking three asthma medications as part of his treatment. (Id.)
Pickering stated that he broke his left arm in a motorcycle accident a "couple years ago"
and, because of the irregular nature of the break, physicians "had to put 11 plates and 19 screws
to hold it together." (Tr. at 40.) As a result, he suffers from constant joint pain, especially
"when the weather changes," but was advised not to have the screws surgically removed. (Tr. at
40-41.) Because of the discomfort in his left arm, Pickering testified that he can lift "maybe two
pounds, or three pounds, or something like that." (Tr. at 41.) Pickering also testified that he had
3
his left toe amputated following another motorcycle accident "a couple years" prior to the
he::iring_ Ud_I Althmrnh he is ah le to walk "okav." he stated that he has "a lot of nain" when
doing so. (Tr. at 42.) Pickering testified that he can walk about five or six blocks before needing
to "take the pressure off' his foot, and that he feels sharp pain at times similar to "being
electrically shocked." (Id.) He also stated that he can stand for fifteen to twenty minutes before
needing to sit down, and that he does not suffer from any back problems. (Tr. at 42-43.)
At the hearing, ALJ Barr asked Pickering about an August 2011 visit to a consultative
examiner for the SSA, where he allegedly disclosed that he had used cocaine a few months prior
to the examination. (Tr. at 43, 214.) Pickering denied having ever made the remark, stating: "I
never said no such thing." (Tr. at 44.) Pickering also testified that he had used cocaine as a
teenager, but was no longer using and had not used the drug since he was "like 18 years old, 19
years old." (Tr. at 43.)
ALJ Barr next turned to vocational expert Rocco Meola ("Meola"), who testified about
Pickering's ability to adjust to certain kinds of work, based on the evidence in record. (Tr. at
45.) The ALJ asked Meola about a hypothetical individual of Pickering's age, education and
work experience, who could do light work, and was limited to: (1) unskilled, low stress work,
that required no more than occasional decision-making; (2) no more than occasional interaction
with co-workers, supervisors, and the general public; (3) no more than occasional climbing; and,
(4) no concentrated exposure to dust, fumes or odors. (Tr. at 45-46.) Meola testified that "with
those limitations in the hypothetical, there [were] jobs that one [could] do." (Tr. at 46.) He went
on to testify that the types of work consistent with the hypothetical would be jobs such as a
labeler, a produce weigher, and an assembler. (Id.) Meola also testified that if the hypothetical
4
individual was off-task, or distracted, for up to fifteen percent (15%) of the workday, he would
hP ~hlP to nerfmm the identified inh~ (Tr_ at 4R·49.I
2.
Medical Evidence
a.
Evidence Prior to the Period at Issue
Prior to applying for disability benefits, Pickering received medical treatment at the
Jacobi Medical Center at least six times. (Tr. at 219-37.) Records from the Center show that on
several visits, Pickering denied any complaints. He was also regularly described as alert and
oriented in all spheres. (Tr. at 219, 222, 224-28.)
On October 22, 2010, Pickering saw Dr. Anthony Greenridge, a physician at Bronx
Lebanon Hospital ("Bronx Lebanon"), in connection with his application for the New York City
Human Resources Administration ("HRA") public assistance program. (Tr. at 358-62, 450-53,
487-88.) The physical examination, which included chest, extremities, reflexes, sensation, motor
system, and neurological examination, was normal throughout. (Tr. at 358-59.) Dr. Greenridge
diagnosed Pickering with depression, anxiety, asthma, and stated that Pickering had "left forearm
repair" and second left toe amputation because of a motorcycle accident. (Tr. at 361.) Dr.
Greenridge assessed that Pickering was restricted to walking up to three hours per day, and to a
low-stress work environment without exposure to dust. (Tr. at 359-60.)
Pickering also saw Dr. Jorge Kirschstein at Bronx Lebanon in connection with his public
assistance application. (Tr. at 370-74, 524-32.) While a mental status examination revealed
depressed mood and constricted affect, 2 Dr. Kirschstein noted that Pickering was calm and
cooperative, with normal speech and neat appearance, as well as logical form of thought and
A restricted or constricted affect describes a mild restriction in the range or intensity of the display of feelings. See
Affect, GALE ENCYCLOPEDIA OF PSYCHOLOGY (2001 ), http://www.encyclopedia/com/topic/Affect.aspx (last visited
Jan. 6, 2016).
2
5
normal thought content. (Tr. at 372.) Dr. Kirschstein, however, assessed that Pickering's ability
tn ner~i~t wa~ ~everelv imnairert_ anrt that his ahilities to follow work rules. accent suncrvision.
deal with the public, relate to co-workers, adapt to change, and adapt to stressful situations were
all moderately impaired. (Tr. at 372-73.) Dr. Kirschstein diagnosed Pickering with major
depressive disorder and anxiety disorder, and recommended that he be monitored for alcohol
abuse. (Id.) Through HRA, Pickering was supplied with an application for SSI benefits, and
was referred to Dr. Nasreen Kader for treatment. (Tr. at 426-27.)
Dr. Kader, a psychiatric specialist, examined Pickering on December 11, 2010, and
continued to treat Pickering for his mental health conditions. (Tr. at 519, 308-09.) On February
23, 2011, Dr. Kader completed a form for HRA, listing diagnoses of depression and anxiety, in
addition to her clinical findings of depressed mood, lack of motivation, extreme anxiety,
insomnia, and poor concentration. (Tr. at 308-09, 474-75.) Pickering's prescription medications
consisted of Celexa, Seroquel, Ambien, and Adderall. 3 (Tr. at 308-09.) Dr. Kader checked a
box on the HRA form to indicate that Pickering was temporarily unemployable. (Tr. at 309.)
On April 27, 2011, Dr. Kader completed the same form for HRA. (Tr. at 476-77.) The
assessment was the same as in February, except that clinical findings were listed as depressed
mood, anhedonia, anxiety, and insomnia. (Id. at 476.) Dr. Kader again completed the HRA
form on June 22, 2011. (Id. at 4 72-73.) The information on the form was identical to the
information on the April 2011 form, except that the doctor added the medication Trazadone to
3
Celexa, or Citalopram, is used to treat depression, and is sometimes used to treat eating disorders, alcoholism,
panic disorder, premenstrual dysphoric disorder, and social phobia. Seroquel, or Quetiapine, is used to treat
symptoms of schizophrenia, episodes of mania, or depression in patients with bipolar disorder. Ambien, or
Zolpidem, is used to treat insomnia. Adderall is used as part of a treatment program to control symptoms of
attention deficit hyperactivity disorder (ADHD), and to treat narcolepsy. See U.S. NATIONAL LIBRARY OF
MEDICINE, MEDLINEPLUS (Dec. 22, 2015), https://www.nlm.nih.gov/medlineplus/.
6
Pickering's other four medications, and checked a box to indicate that Pickering was "[u]nable to
wm~
for !:lt lfl~l;'.t 17 mnnth~ (m~v he ellaihle for lornr term d1sahll1tv henefit~I." (fd.)
b.
Evidence Relating to the Period at Issue
At issue before the Court is the period beginning on July 13, 2011, the date Pickering
applied for SSI benefits, and ending on June 28, 2013, the date of ALJ Barr's decision.
(1)
Treating Psychiatrist Dr. Nasreen Kader, M.D.
During the relevant period, Dr. Kader saw Pickering on January 18, 2012, and noted that
he was "stressed" and "anxious," but sleeping well. (Tr. at 581.) At the request of Pickering's
counsel, Dr. Kader completed a "Psychiatric Assessment" form dated January 22, 2012, where
she noted that Pickering suffered from "depressed mood," "extreme anxiety," "paranoid
ideation," "lack of motivation," "insomnia, [and] poor concentration." (Tr. at 556.) Dr. Kader
also stated that she treated Pickering for "monthly outpatient medication management" and
"therapy." (Id.) Dr. Kader diagnosed Pickering with "mood disorder," "paranoid (psychotic
disorder, NOS [not otherwise specified])," and "anxiety disorder, NOS [not otherwise
specified]." (Tr. at 557.) Describing the limitations to support her psychiatric assessment, Dr.
Kader noted that Pickering: (1) was unable to take public transportation; (2) was unable to take
criticism from supervisors; (3) was paranoid about other people in the workplace; and, (4) had
non-functional work skills. (Tr. at 559-60.) She surmised that Pickering's impairments were
expected "to last at least twelve months," rated his ability to make occupational, performance, or
personal social adjustments as "poor/none," and indicated that his overall prognosis was poor.
(Tr. at 557-559.) She opined, however, that Pickering was able to manage his own benefits. (Tr.
at 560.)
7
Dr. Kader's treatment notes from February 22, 2012, indicated that Pickering was "doing
well" !ind did not renmt anv ~uicidal or homicidal ideation. nor audiovisual hallucinations. (fd.)
On March 21, 2012, she noted that Pickering denied suicidal or homicidal thoughts, but was "not
sleeping." Dr. Kader increased Pickering's Seroquel prescription. (Tr. at 582.) On April 18,
2012, Pickering reported that with the help of Seroquel, he was "sleeping better." (Id.)
Pickering again denied having any suicidal or homicidal thoughts or audiovisual hallucinations,
but reported hearing "some whispering." (Id.) On May 23, 2012, Dr. Kader noted that Pickering
was "doing well" with his clinical course, but had "[run] out of medication" two to three days
early. (Tr. at 582.) On June 20, 2012, Pickering stated that he was anxious at times, but
"sleeping well." (Tr. at 583.) On July 18, 2012, Dr. Kader noted that Pickering felt "anxious,
depressed at times," was "not sleeping," and "still hear[ing] whispering." (Id.) On August 22,
2012, Pickering reported that the "whispering sounds [were] still there." (Id.) Nevertheless, Dr.
Kader reported that he was "doing well." (Id.)
On September 19, 2012, Pickering reported that he was still feeling anxious, but "sleeping
better." (Tr. at 584.) Dr. Kader decreased Pickering's Adderall prescription. (Id.) On October
17, 2012, she recorded that Pickering "had some anxiety attacks" and "sleep problems" in the
preceding month. (Id.) She also noted that Pickering was still hearing voices. (Id.) On
November 21, 2012, Pickering reported that he was not sleeping, and was hearing whispers.
(Id.) Dr. Kader prescribed Zyprexa, an antipsychotic medication, and noted that Pickering was
"becoming paranoid." (Id.) On December 19, 2012, she increased Pickering's Zyprexa
prescription after he reported that he was "still feel[ing] anxious" and not sleeping. (Id.)
On January 30, 2013, Pickering reported that he had been admitted to "Bronx-Lebanon
hospital for dizziness." (Tr. at 585.) Dr. Kader discontinued Zyprexa. (Id.) On February 20,
8
2013, Pickering stated that he was "sleeping better" and Dr. Kader noted that he was "doing
hetter th1~ month_"
(fd_)
On March 27. 201 l Pickerin2: renorted that he was "fcclln£ dcnrcsscd"
and, once again, "hearing whispering sounds." (Tr. at 586.) Dr. Kader increased Pickering's
Seroquel and Celexa prescriptions. (Id.)
At the request of Pickering's counsel, Dr. Kader completed another "Psychiatric
Assessment" form on April 13, 2013. (Tr. at 576, 586.) She reported the following clinical
findings: "alert, oriented x 3, 4 hears voices (auditory hallucinations - some people talks [sic] to
him), denies suicidal/homicidal ideations, impulse control - good." (Tr. at 576.) As in the
January 2012 assessment, Dr. Kader stated that Pickering suffered from "depressed mood,"
"frequent panic attacks," "paranoid ideations" that "people are attacking him," "insomnia" and a
"lack of concentration and motivation." (Id.) Dr. Kader recorded the diagnoses of mood
disorder, "psychotic disorder," and "anxiety disorder." (Id.) Lastly, Dr. Kader rated Pickering's
abilities as "poor-to-none" in occupational, performance, and personal-social adjustments. (Tr.
at 577-80.)
On an April 24, 2013 visit to Dr. Kader, Pickering had a urinary drug screen, which
tested positive for alcohol. (Tr. at 586.) Pickering denied the use of other drugs. (Id.) Dr.
Kader reduced Pickering's Klonopin prescription, and discontinued Adderall. (Id.)
(2)
Dr. Arlene Broska, M.D.
Dr. Arlene Broska performed a psychological consultative examination of Pickering on
August 29, 2011. (Tr. at 213.) Pickering told Dr. Broska that he was hospitalized for two weeks
in 2001 or 2002, after he attempted suicide by overdosing on cocaine. (Id.) Pickering reported
4
Alert and oriented x 3 refers to a patient who is responsive to his or her environment, and knows: (I) who he or she
is; (2) where he or she is; and (3) the approximate time. See Alert and oriented x 3, SEGEN'S MEDICAL DICTIONARY
(2012), http://medical-dictionary.thefreedictionary.com/alert+and+oriented+x+3 (last visited Dec. 22, 2015).
9
that he began seeing Dr. Kader for medication management in December 2010, and that "his
medication helnf edl him with his thinkimz and his sleen." (Tr. at 213· 14.) lie also rcnortcd that
he drank a beer "everyday" and had used cocaine "several months" prior to the examination.
(Tr. at 214.) Pickering also stated that he cleaned and did laundry once a week, and "[was] able
to dress, bathe and groom himself." (Tr. at 215.) Pickering noted that "he prefer[red] to stay
away from people" and "like[ d] to sit by the river or the bridge ... where he [could] be alone."
(Id.) He added that he "[found] it very calming to be around water." (Id.)
On mental status examination, Dr. Broska assessed that Pickering's "demeanor and
responsiveness to questions was cooperative," and his "manner of relating, social skills, and
overall presentation were fair." (Tr. at 214.) Pickering was "casually dressed" and "well
groomed," and had a normal gait, posture, and motor behavior. (Id.) His eye contact was
"appropriate," his speech was "fluent" and voice "clear," and his "expressive and receptive
language abilities were adequate." (Tr. at 215.) Dr. Bro ska observed, however, that Pickering's
thinking was "marked by paranoid thought patterns" and his affect was "anxious." (Id.)
Pickering's mood was "neutral," his sensorium "clear" and he was fully oriented. (Id.)
Dr. Broska assessed that Pickering's attention and concentration were "mildly impaired,"
but noted that he was able to "maintain attention and concentration during the interview." (Tr. at
215.) Pickering "reversed two letters in spelling 'world' backwards," but could count forward by
threes and perform "simple calculations." (Id.) Dr. Broska also noted that Pickering's recent
and remote memory skills were "mildly impaired." (Id.) Pickering was able to recall "3 out of 3
objects immediately and 2 out of 3 objects after five minutes," and could "repeat 5 digits forward
and 2 digits backward." (Id.) Dr. Broska assessed Pickering's insight as "fair," his judgment as
10
"fair to poor," and his level of intellectual functioning as "in the average range with general fund
of information annmnriate to exnerience_" (fd_)
Dr. Broska diagnosed Pickering with schizoaffective disorder and a history of alcohol
and cocaine abuse, and assessed that he was able to "follow and understand simple direction and
instructions" and "perform simple tasks independently." (Tr. at 216.) Dr. Broska opined that
Pickering "may have some difficulty when learning new tasks," and "may not always make
appropriate decisions, particularly around using drugs." (Id.) Dr. Broska stated that Pickering
may also have difficulty "maintaining a regular schedule" and felt that he "may have difficulty at
times relating adequately with others and appropriately dealing with stress." (Id.)
(3)
Dr. William Lathan, M.D.
Dr. William Lathan performed an internal medicine consultative examination on August
29, 2011. (Tr. at 533-36.) He observed that Pickering was "appropriate in dress and affect and
cooperative," and Pickering said that he was able to "perform all activities of personal care and
daily living." (Tr. at 533.) Pickering also stated that he "drinks alcohol" but does not use
"tobacco and street drugs." (Id.) Apart from a visible partial amputation of the left second toe,
Dr. Lathan found no abnormalities on examination, and Pickering appeared to be in "no acute
distress," with normal gait and stance. (Tr. at 534.) Dr. Lathan diagnosed Pickering with a
history of asthma and depression, "status post fracture left upper extremity with internal pin
fixation surgery," and "status post partial amputation of the second left toe." (Tr. at 535.) In his
medical source statement, Dr. Lathan opined that Pickering would have moderate restrictions for
"lifting, pushing, pulling and carrying with the left upper extremity," as well as a moderate
restriction for "standing and walking." (Id.)
11
(4)
Dr. E. Kamin, M.D.
On SPntPmher 141011 _after reviewing the evidence of record. state aJ!encv rnvcholo£i~t
E. Kamin assessed Pickering's mental residual functional capacity ("RFC"). (Tr. at 537-54.) Dr.
Kamin found that Pickering had a schizoaffective disorder, and a history of alcohol and cocaine
abuse. (Tr. at 539, 545.) Dr. Kamin assessed no significant limitation in Pickering's ability to:
(1) remember locations and work-like procedures; (2) understand, remember, and carry out very
short and simple instructions; (3) ask simple questions or request assistance; and, (4) be aware of
normal hazards and take appropriate precautions. (Tr. at 551-52.) Dr. Kamin also determined
that Pickering could: (1) maintain attention and concentration for at least two-hour intervals; (2)
sustain a normal workday and workweek; (3) maintain a consistent pace; (4) adapt to changes in
a work setting; and, (5) use judgment to make simple work-related decisions in a low-contact
setting. (Tr. at 553.) Dr. Kamin noted that Pickering might have difficulty responding to
supervisors and coworkers appropriately and would have difficulty in dealing with the public.
(Id.)
3.
The Findings of ALJ Sheena Barr
On June 28, 2013, ALJ Barr issued her decision that Pickering was not disabled within
the meaning of§ 1614(a)(3)(A) of the Act and had not been disabled since July 13, 2011, the
date his application was filed. (Tr. at 11.) The ALJ found that although Pickering had severe
impairments in the form of asthma, obesity, schizoaffective disorder, depression, anxiety, and a
history of polysubstance abuse, the impairments were not severe enough to meet or medically
equals the severity of one of the listed impairments of C.F .R. Part 404, Subpart P, Appendix 1
(20 C.F.R. § 416.925 and§ 416.926). (Tr. at 14.)
12
To reach this conclusion, the ALJ conducted the five-step sequential analysis as required
hv 10 CF.R. M404.1510. 41 o.920. At the first sten. ALJ fiarr determined that Pickering had
not engaged in substantial gainful activity since July 13, 2011. (Tr. at 13.) At step two, the ALJ
utilized evidence submitted by Pickering's examiners to determine that Pickering had the
following severe impairments: "asthma; obesity; schizoaffective disorder; depression; anxiety;
and a history of polysubstance abuse." (Id.) At step three, the ALJ determined that Pickering
did not have an impairment or combination of impairments that meets or equals those listed in 20
§ C.F.R. Part 404, Subpart P, Appendix 1, and thus Pickering was not presumed disabled. (Tr. at
14.)
Before continuing on to step four, the ALJ assessed Pickering's RFC. In making her
assessment, ALJ Barr considered "all symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with the objective medial evidence and other evidence ... "
(Tr. at 16.) She cited the lack of mental and physical evidence to show a particularly pervasive
or debilitating combination of impairments, such as x-rays and pulmonary function testing,
which failed to show any acute abnormalities. (Tr. at 17.) The ALJ also relied on factors
pursuant to the "Commissioner of Social Security Ruling 96-7p" in making her determination
"because symptoms may sometimes suggest a greater degree of impairment than can be shown
by the medical evidence alone." (Tr. at 18.) These factors include: (1) the individual's daily
activities; (2) the location, duration, frequency, and intensity of the individual's pain or other
symptoms; (3) factors that precipitate and aggravate the symptoms; (4) the type, dosage,
effectiveness, and side effects of any medication the individual takes or has taken to alleviate the
pain or other symptoms; (5) treatment, other than medication, the individual has received for
relief of pain or other symptoms; (6) any measures other than treatment the individual has used
13
to relieve pain or other symptoms; and (7) any other factors concerning the individual's
fnnrtioml limit~tion~ ~nrt re~trictinm caused hv nain nr other svmntoms.
(Tr. at 1B·19.)
ALJ Barr found that Pickering's daily activities were not "greatly inhibited" by his daily
or mental symptoms. (Tr. at 19.) The ALJ cited Pickering's statement to Dr. Lathan that he
could handle all activities of personal care and daily living, and his statement to Dr. Broska that
he could do some cooking, shopping, and laundry. (Id.) She determined that Pickering's
treatment had largely been "conservative" because he had only one inpatient hospitalization for
"physical and psychiatric problems" since the alleged onset date. (Id.) The ALJ stated that
Pickering received "routine outpatient care" from Dr. Kader for his mental condition, and
"intermittent treatment" for his physical disorders. (Id.)
Specifically regarding Pickering's physical conditions, The ALJ found that objective
clinical findings were "very slight" and failed to support Pickering's testimony of pain and
functional limitation. (Tr. at 17.) To support this determination, ALJ Barr noted that the
objective medical evidence did not support Pickering's subjective allegations of disabling
physical limitations. She stated that Pickering made few complaints regarding asthma or his
"left foot and forearm problems" in the record. (Tr. at 19.) The ALJ also cited evidence of
asthma treatment at Jacobi Medical Center between 2009 and 2011, which revealed visits several
months apart for "mild intermittent" asthma. (Tr. at 17.)
The ALJ determined that Pickering's testimony about his psychiatric condition and
functional limitations was not credible, as it was not supported by objective clinical findings.
(Tr. at 17.) The ALT noted that while Pickering described his underlying mental impairments as
extreme anxiety, insomnia, depression, and anxiety disorder, and stated that his medications
"caused side effects such as dizziness, nervousness, difficulty concentrating and paranoia," the
14
objective evidence regarding his psychiatric impairments did not support these "statements
concerninQ the ___ limitimr effects of these svmntoms." (Tr. at 17· 1R.)
~he found
that while
Pickering professed difficulty in getting along with others, he was not homebound or isolative.
(Tr. at 19.) She stated that Pickering's psychiatric complaints were "intermittent at best, with
some complaints of auditory hallucinations but not at every visit. .. " (Id.) The ALJ contrasted
these complaints with Dr. Kader's "frequent statements" that Pickering was doing "better" or
"well." (Id.) While Dr. Kader's notes reflected that Pickering heard voices and whispers at
times, the ALJ found that Pickering had not testified to such symptoms during the hearing, and
that no other medical source in the record concurred with Dr. Kader' s opinions regarding the
nature and intensity of Pickering's condition. (Tr. at 20.) The ALJ concluded that the reports of
Dr. Broska and Dr. Kamin, and Pickering's "admissions as to his daily activities," provided a
"more substantial basis" for the mental RFC assessment than the findings of Dr. Kader. (Id.)
The ALJ considered whether there were any side effects from Pickering's medication,
and determined that his allegations were not credible to the disabling extent alleged. (Tr. at 1619.) In considering Pickering's credibility, the ALJ described his testimony regarding his
claimed side effects from the medications. (Tr. at 16.) Pickering stated that the medications
caused side effects such as dizziness, nervousness, difficulty concentrating, and paranoia"), and
addressed several side effects. (Tr. at 19.) With respect to his paranoia, ALJ Barr noted that
Pickering had one inpatient hospitalization in January 2013 for a combination of physical and
psychiatric problems, but no other hospitalization despite his occasional complaints of auditory
hallucinations. (Id.) ALJ Barr also explicitly focused on Pickering's ability to concentrate in
determining his RFC. (Tr. at 15-17.) She did not find that Pickering's ability to concentrate was
significantly diminished. (Tr. at 15-16.) Dr. Broska opined that Pickering's attention and
15
concentration were only mildly impaired and noted that he was able to maintain attention and
concentration dminQ the interview_ (Tr. at 21 Jt and Dr. Kamin assessed that Pickering could
maintain attention and concentration for at least two-hour intervals. (Tr. at 553.)
ALJ Barr also cited the fact that Pickering had "not [been] fully forthcoming at the
hearing" about his history of substance abuse. (Tr. at 19.) As part of her rationale, ALJ Barr
cited Pickering's statement to Dr. Broska in August 2011, regarding his history of cocaine use
and indicating that he drank daily, as well as evidence showing a positive toxicology screen for
cocaine and marijuana in 1999, and an admission of marijuana use to an examining internist in
January 2001. (Id.) "Against this evidence," ALJ Barr wrote, "the claimant's statements during
the hearing, that he had not used alcohol or drugs since he was a teenager, carry very little
credence." (Id.)
The ALJ determined that Pickering had the RFC to perform a range of light work that did
not require concentrated exposure to dust, fumes, odors, or other pulmonary irritants, or more
than occasional climbing. (Tr. at 16.) Given his RFC, she found that Pickering could perform
simple, unskilled work that required no more than occasional decision-making, or occasional
contact with coworkers, supervisors, and the general public, and concluded that Pickering's
medical conditions would not significantly impair his ability to perform the demands of certain
light work. (Tr. at 11, 16.) Having assessed Pickering's RFC, the ALJ continued on to step four
of the analysis, and determined that Pickering had no past relevant work. (Tr. at 21.)
Finally, at step five of the analysis, the ALJ found that, given Pickering's age, education,
work experience, and residual functional capacity, there were a considerable number of jobs in
the national economy that he would be able to perform. (Tr. at 21-22; see 20 C.F.R. §§
416.920(g), 416.969, 416.969a.) The ALJ supported her finding with testimony from the
16
vocational expert, Meola, which demonstrated that other work existed in significant numbers in
the m1tional economv that Pickering could do.
(Tr.
at 20: see 20 Cf.R. oo 41fi.912( g).
416.960(c).) Accordingly, ALJ Barr found Pickering not disabled.
C.
Appeals Council Review
After the ALJ's decision issued on June 28, 2013, Pickering requested a review by the
Appeals Council, which was denied on July 9, 2014. (Tr. at 1-7.)
III.
A.
DISCUSSION
Standard of Review
Upon judicial review, "[t]he of findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive[.]" 42 U.S.C. §§ 405(g),
1383(c)(3). Therefore, a reviewing court does not determine de nova whether a claimant is
disabled. Brault v. Soc. Sec. Admin. Comm 'r, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam)
(citing Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)); accord Mathews v. Eldridge, 424 U.S.
319, 339 n.21 (1976) (citing 42 U.S.C. § 405(g)). Rather, the court is limited to "two levels of
inquiry." Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). First, the court must determine
whether the Commissioner applied the correct legal principles in reaching a decision. 42 U.S.C.
§ 405(g); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999) (citing Johnson, 817 F.2d at 986);
accord Brault, 683 F.3d at 447. Second, the court must decide whether the Commissioner's
decision is supported by substantial evidence in the record. 42 U.S.C. § 405(g). If the
Commissioner's decision meets both of these requirements, the reviewing court must affirm; if
not, the court may modify or reverse the Commissioner's decision, with or without remand. Id.
An ALJ's failure to apply the correct legal standard constitutes reversible error, provided
that the failure "might have affected the disposition of the case." Pollard v. Halter, 377 F.3d
17
183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)); accord
Knhler v A.\'true. 14fi FJd 2fi0. 2fi5 Gd Cir. 200~). This annlies to an AL.T's failure to follow an
applicable statutory provision, regulation, or Social Security Ruling ("SSR"). See, e.g., Kohler,
546 F.3d at 265 (regulation); Schaal v. Callahan, 933 F. Supp. 85, 93 (D. Conn. 1997) (SSR). In
such a case, the court may remand the matter to the Commissioner under sentence four of 42
U.S.C. § 405(g), especially if deemed necessary to allow the ALJ to develop a full and fair
record to explain his reasoning. Crysler v. Astrue, 563 F. Supp. 2d 418, 428 (N.D.N.Y. 2008)
(citing Martone v. Apfel, 70 F. Supp. 2d 145, 148 (N.D.N.Y. 1999)).
If the reviewing court is satisfied that the ALJ applied correct legal standards, then the
court must "conduct a plenary review of the administrative record to determine ifthere is
substantial evidence, considering the record as a whole, to support the Commissioner's
decision." Brault, 683 F.3d at 447 (quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)).
The Supreme Court has defined substantial evidence as requiring "more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)); accord Brault, 683 F.3d at 447-48. The substantial evidence
standard means once an ALJ finds facts, a reviewing court may reject those facts "only if a
reasonable factfinder would have to conclude otherwise." Brault, 683 F.3d at 448 (quoting
Warren v. Shala/a, 29 F.3d 1287, 1290 (8th Cir. 1994)) (emphasis omitted).
To be supported by substantial evidence, the ALJ's decision must be based on
consideration of "all evidence available in [the claimant]'s case record." 42 U.S.C.
§§ 423(d)(5)(B), 1382c(a)(3)(H)(i). The Act requires the ALJ to set forth "a discussion of the
evidence" and the "reasons upon which it is based." 42 U.S.C. §§ 405(b)(l). While the ALJ's
18
decision need not "mention[] every item of testimony presented," Mongeur v. Heckler, 722 F.2d
1ml 1040 nct fir_ 19R11 (ner curiam tor "reconcile exnllcitlv everv confiicting shred of
medical testimony," Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Fiorello v.
Heckler, 725 F.2d 174, 176 (2d Cir. 1983)), the ALJ may not ignore or mischaracterize evidence
of a person's alleged disability. See Ericksson v. Comm 'r of Soc. Sec., 557 F.3d 79, 82-84 (2d
Cir. 2009) (mischaracterizing evidence); Kohler v. Astrue, 546 F.3d 260, 269 (2d Cir. 2008)
(overlooking and mischaracterizing evidence); Ruiz v. Barnhart, No. 01 Civ. 1120 (DC), 2002
WL 826812, at *6 (S.D.N.Y. May 1, 2002) (ignoring evidence); see also Zabala, 595 F.3d at 409
(reconsideration of improperly excluded evidence typically requires remand). Eschewing rote
analysis and conclusory explanations, the ALJ must discuss the "the crucial factors in any
determination ... with sufficient specificity to enable the reviewing court to decide whether the
determination is supported by substantial evidence." Calzada v. Astrue, 753 F. Supp. 2d 250,
269 (S.D.N.Y. 2010) (quoting Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)).
When "new and material evidence" is submitted, the Appeals Council may consider the
additional evidence "only where it relates to the period on or before the date of the administrative
law judge hearing decision." 20 C.F.R. § 404.970(b). "New evidence" refers to "any evidence
that has not been considered previously during the administrative process." Shrack v. Astrue,
608 F. Supp. 2d 297, 302 (D. Conn. 2009).
B.
Evaluation of Disability Claims
1.
Applicable Law
Under the Social Security Act, every individual considered to have a "disability" is
entitled to disability insurance benefits. 42 U.S.C. § 423(a)(l). The Act defines "disability" as
an "inability to engage in any substantial gainful activity by reason of any medically
19
determinable physical or mental impairment which can be expected to result in death or which
ha~ la~ted or can he exnected to
last for acontinuous ncriod of not less than 1Zmonths." Id. at
§§ 416(i)(l)(A), 423(d)(l)(A), 1382c(a)(3)(A); see also 20 C.F.R. §§ 404.1505, 416.905. A
claimant's 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." 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(B); see also 20 C.F.R. §§ 404.1505, 416.905.
To determine whether an individual is entitled to receive disability benefits, the
Commissioner is required to conduct the following five-step inquiry: (1) determine whether the
claimant is currently engaged in any substantial gainful activity; (2) if not, determine whether the
claimant has a "severe impairment" that significantly limits his or her ability to do basic work
activities; (3) if so, determine whether the impairment is one of those listed in Appendix 1 of the
regulations - if it is, the Commissioner will presume the claimant to be disabled; (4) if not,
determine whether the claimant possesses the RFC to perform his past work despite the
disability; and (5) if not, determine whether the claimant is capable of performing other work.
20 C.F.R. § 404.1520; Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Gonzalez v. Apfel, 61 F.
Supp. 2d 24, 29 (S.D.N.Y. 1999). While the claimant bears the burden of proving disability at
the first four steps, the burden shifts to the Commissioner at step five to prove that the claimant
is not disabled. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Cage v. Comm'r of Soc. Sec.,
692 F.3d 118, 123 (2d Cir. 2012).
The ALT may find a claimant disabled at either step three or step five of the Evaluation.
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At step three, the ALJ will find that a disability
exists if the claimant proves that his or her severe impairment meets or medically equals one of
20
the impairments listed in the regulations. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant
fails to move this_ however_ then the ALJ will comnlete the remainim~- stens of the Evaluation.
20 C.F.R. §§ 404.1520(e), 404.1545(a)(5), 416.920(e), 416.945(a)(5).
A claimant's RFC is "the most [she] can still do despite [her] limitations." 20 C.F.R.
§§404.1545(a), 416.945(a); Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010); see also S.S.R. 969P (clarifying that a claimant's RFC is her maximum ability to perform full-time work on a
regular and continuing basis). The ALJ's assessment of a claimant's RFC must be based on "all
relevant medical and other evidence," including objective medical evidence, such as x-rays and
MRis; the opinions of treating and consultative physicians; and statements by the claimant and
others concerning the claimant's impairments, symptoms, physical limitations, and difficulty
performing daily activities. Genier, 606 F.3d at 49 (citing 20 C.F.R. § 404.1545(a)(3)); see also
20 C.F.R. §§ 404.1512(b), 404.1528, 404.1529(a), 404.1545(b).
In evaluating the claimant's alleged symptoms and functional limitations for the purposes
of steps two, three, and four, the ALJ must follow a two-step process, first determining whether
the claimant has a "medically determinable impairment that could reasonably be expected to
produce [her alleged] symptoms." 20 C.F.R. §§ 404.1529(b), 416.929(b); Genier, 606 F.3d at
49. If so, then the ALJ "evaluate[s] the intensity and persistence of [the claimant's] symptoms so
that [the ALJ] can determine how [those] symptoms limit [the claimant's] capacity for work."
20 C.F.R. § 404.1529(c); see also 20 C.F.R. § 416.929(c); Genier, 606 F.3d at 49. The ALJ has
"discretion in weighing the credibility of the claimant's testimony in light of the other evidence
of record." Genier, 606 F.3d at 49 (citing Marcus v. California, 615 F.2d 23, 27 (2d Cir. 1979));
see also 20 C.F.R. §§ 404.1529(a), 416.929(a) (requiring that a claimant's allegations be
"consistent" with medical and other evidence); Briscoe v. Astrue, No. 11 Civ. 3509 (GWG),
21
2012 WL 4356732, at *16-19 (S.D.N.Y. Sept. 25, 2012) (reviewing an ALJ's credibility
determination t Tn makinQ the determination of whether there is anv other work the claimant can
perform, the Commissioner has the burden of showing that "there is other gainful work in the
national economy which the claimant could perform." Balsamo v. Chafer, 142 F.3d 75, 80 (2d
Cir. 1998) (citation omitted).
Pickering alleges that ALJ Barr: (1) failed to comply with 20 C.F.R. § 414.1527 by
declining to accord controlling weight to the opinion of Dr. Nasreen Kader, his treating
psychiatrist; and (2) made a disability determination that is not supported by substantial evidence
because the ALJ made no mention of how the side effects·of Pickering's medications would
affect his RFC in her assessment. (Pl. Compl. at 3.) The Commissioner maintains that the ALJ
properly applied the correct legal principles in reaching her decision. (Def. Mem. at 13.)
2.
The ALJ's Assessment of the Treating Physician Rule
The SSA regulations require the Commissioner to evaluate every medical opinion
received. See 20 C.F.R. § 404.1527(c); see also Schisler v. Sullivan, 3 F.3d 563,567 (2d Cir.
1993). The treating physician's medical opinion as to the claimant's disability, even if
retrospective, will control if it is well-supported by medically acceptable techniques and is not
inconsistent with substantial evidence in the record. See 20 C.F.R. §§ 404.IS27(c)(2),
416.927(c)(2); Gonzalez, 61 F. Supp. 2d at 29. If the treating physician's opinion is not given
controlling weight, the Commissioner must nevertheless determine what weight to give it by
considering: (1) the length, nature, and frequency of the relationship; (2) the evidence in support
of the physician's opinion; (3) the consistency of the opinion with the record as a whole; (4) the
specialization of the physician; and (5) any other relevant factors brought to the attention of the
ALJ that support or contradict the opinion. 20 C.F.R. §§ 404. 1 527(c)(2)(i-ii); Schisler, 3 F.3d
22
at 567-69. The Commissioner may rely on the opinions of other physicians, even non-examining
ones_ hut the same factors must be weighed as enumerated above. ZO C.f .R. G416.9Z7(c). More
weight must be given to a treating physician than a non-treating one and to an examining source
as opposed to a non-examining source. 20 C.F.R. §§ 404. I 527(c)-(e), 416.927(c)-(e).
An ALJ cannot reject a treating physician's diagnosis without first attempting to fill clear
gaps in the administrative record. Rosa, 168 F.3d at 78. "If an ALJ perceives inconsistencies in
a treating physician's reports, the ALJ bears an affirmative duty to seek out more information
from the treating physician and to develop the administrative record accordingly." Id (citing
Harnett v. Apfel, 21 F. Supp. 2d 217, 221 (E.D.N.Y. 1998) (internal citations omitted)). Where
there are deficiencies in the record, the duty to develop the record exists even when the claimant
is represented by counsel. Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996). "The regulations also
state that, '[w]hen the evidence we receive from your treating physician ... or other medical
source ... is inadequate for us to determine whether you are disabled ... [w]e will first recontact
your treating physician ... or other medical source to determine whether the additional
information we need is readily available.'" Id (citing 20 C.F.R. § 404.1512(e)). The ALJ
commits legal error by rejecting the treating physician's medical assessment without fully
developing the factual record. Rosa, 168 F.3d at 78.
The ALJ considered Dr. Kader's treatment relationship with Pickering and noted Dr.
Kader's specialty as a treating psychiatrist, but determined that the restrictive limitations
assessed by Dr. Kader conflicted with: (1) Dr. Broska's examination findings; (2) Dr. Kamin's,
Dr. Broska's, and Dr. Kirschstein's diagnoses assessing far less restrictive limitations; (3) Dr.
Kader's lack of mental status examination findings; and, (4) the "frequent statements" in Dr.
Kader's treatment notes indicating that Pickering was improving or doing well. (Tr. at 19-20.)
23
At the hearing, ALJ Barr asked that Dr. Kader' s treatment notes be submitted within two
week~ of the hearinu_
(Tr at 11-14.)
The AL.l then nlaced significant cmnhasis on the ucrccivcd
inconsistencies between statements in the notes that Pickering was "doing better" or "doing
well," and Dr. Kader's finding that Pickering had an extremely limited functional capacity. (Tr.
at 582-85; 558.) For example, in May 2012, Kader noted that Pickering was "doing well" with
medication, and in June and July 2012, she reported that Pickering was anxious and depressed
only "at times." (Tr. at 582-83.) By August 2012, Dr. Kader's notes reflected continued
improvement, with a report that Pickering was still "doing well," without explanation. (Tr. at
583.) In February 2013, following a few months with reports of anxiety and difficulty sleeping,
Dr. Kader reported that Pickering's sleep had improved and he was once more "doing better."
(Tr. at 585.) Dr. Kader's treatment notes indicating improvements in Pickering's conditions
were inconsistent with the later, more restricted finding of April 2013, in which Dr. Kader noted
that Pickering had a depressed mood, extreme anxiety, was paranoid, and had poor to no abilities
to adjust to employment. (Tr. at 558.)
While she allowed additional treatment notes by Dr. Kader to be submitted after the
hearing, the ALJ ultimately found that assertions that Pickering was doing well or better
contradicted Dr. Kader's conclusion of an extremely limited RFC. On this basis, the ALJ did not
give Dr. Kader's opinions controlling weight. (Tr. at 20; 33-34.) The Second Circuit recognizes
that when confronted with a situation where there is insufficient explanation or lack of support
for a treating physician's diagnosis of complete disability, the ALJ has a duty to develop the
administrative record before rejecting a treating physician's diagnosis. See Rosa, 168 F.3d at 79;
see also Clark v. Comm 'r of Soc. Sec., 143 F .3d 115, 118 (2d Cir. l 998)(finding that it was
"entirely possible" that the treating physician, if asked, "could have provided sufficient
24
explanation for any seeming lack of support for his ultimate diagnosis of complete disability).
The additional evidence suhmitted at the instruction of the ALJ did not cxnlain. and in fact onlv
seemed to increase, the discrepancies in Dr. Kader's diagnosis. After receiving the treatment
notes from Dr. Kader following the hearing, there is no indication that the ALJ attempted to seek
additional information from Dr. Kader to explain the apparent inconsistencies between the
submitted notes and her diagnosis of Pickering's inability to adjust to employment. It is
especially troubling that the ALJ did not take steps to fill inconsistencies between Dr. Kader's
assessments, given the fluctuating nature of mental impairments, and given that Dr. Kader had
treated Pickering since 2010. See Rosa, 168 F .3d at 79 (quoting Wagner v. Sec. of Health and
Human Services, 906 F.2d 856, 861 (2d Cir. 1999) ("These 'notes' take up a single page for the
three years at issue ... it thus cannot be seriously argued that they represent an exhaustive record
of [claimant's] condition over the whole period"). Thus, the Court finds that the ALJ committed
legal error by failing to fully develop the record.
3.
The ALJ's Decision was Not Supported by Substantial Evidence
The ALJ' s determination that Pickering had the RFC for simple, unskilled work took into
consideration both his physical and mental impairments, and was supported by medical records,
as well as his purported limitations. The ALJ concluded that Pickering had the RFC for simple,
unskilled work that required, in connection with his mental impairments, a low-stress and lowcontact position that consisted of no more than occasional decision-making or occasional contact
with co-workers, supervisors, and the general public. In connection with his exertional
requirements, the ALJ determined that the RFC for simple, unskilled work allowed Pickering to
occasionally climb, but avoid exposure to dust, fumes, odors, and other pulmonary irritants. (Tr.
at 16; 21-22.)
25
The ALJ based her assessment of Pickering's RFC on the conclusions of Dr. Lathan,
Dr Rm~ka_ and Dr. Kamin. (Tr. at 20.) The evidence regarding rickcrin£'s uhvsicCll
impairments that ALJ Barr used to support her determination included Pickering's testimony
that he was hospitalized for asthma one to two years prior to the hearing date. (Tr. at 17.) He
also stated that his left arm hurt because of hardware, that he could lift no more than two to
three pounds, and that he could stand for fifteen to twenty minutes, but had no problem sitting.
(Id.) The ALJ noted that overall, Pickering made "few complaints regarding asthma or his left
foot and forearm problems in the record." (Tr. at 19.) ALJ Barr considered Pickering's
treatment at Jacobi Medical Center between October 2009 and March 2011 for intermittent
asthma. Testing in March 2011 revealed mild obstructive airways disease. (Tr. at 219-37.)
Dr. Lathan performed an internal medicine examination on August 29, 2011, and observed that
Pickering "appeared in no acute distress, with normal gait and stance, and did not use any
assistive devices." (Tr. at 17; 533-36.) He did not cite any abnormalities of the extremities
apart from the partial amputation of his left second toe. Dr. Nathan concluded that Pickering
would have "moderate restriction for lifting, pushing, pulling and carrying" with his left arm.
(Tr. at 535.) He also determined Pickering's moderate restriction for standing and walking.
(Id.)
The evidence ALJ Barr used to support her determination of Pickering's mental
impairments included the opinions of consultative examiner Dr. Broska and state agency
psychologist Dr. Kamin. Based on her examination, Dr. Broska assessed that Pickering could
follow and understand simple directions and instructions, perform simple tasks independently,
and perform some complex tasks independently. (Tr. at 216.) Dr. Broska's evaluation yielded
largely unremarkable findings. Pickering was cooperative, responsive to questioning, and
26
maintained appropriate contact throughout the appointment. (Tr. at 213-217.) Moreover,
PickerinQ's sneech was intelli!Iihle. his voice clear. and lamrnage abilities seemed adcauatc.
(Tr.
at 214.) In addition, Pickering's mood was neutral, his senses were clear, and he was fully
oriented. (Tr. at 215.) Dr. Broska assessed only mild impairments in attention, concentration
and memory, and noted that Pickering was able to maintain attention and concentration during
the examination, could count and perform simple calculations, and could recall three out of three
objections immediately and two out of three objects after five minutes. (Id.) Dr. Broska also
assessed that Pickering had average intelligence and that his general fund of information was
appropriate given his experience. (Id.)
Dr. Kamin reviewed the record, including Dr. Broska's report, and assessed that
Pickering had the ability to understand, execute, and remember simple instructions and work-like
procedures, as well as the ability to "make simple work-related decisions in a low-contact
setting." (Tr. at 553.) Dr. Kamin also assessed that Pickering could maintain attention and
concentration for at least two-hour intervals, sustain a normal workday and workweek, and
maintain a consistence pace. (Id.) Based on the findings of these consultative examiners, the
ALJ concluded that Dr. Kader's suggestions of Pickering's greater functional restrictions were
not supported by substantial evidence. (Tr. at 21.)
The Second Circuit has consistently refused to uphold an ALJ's decision to reject at
treating physician's diagnosis because other examiners reported dissimilar findings. See Rosa,
168 F.3d at 81 (rejecting the Commissioner's reliance on the consulting physicians' opinions
merely because they were inconsistent with those of the treating physician, and did not identify
any serious impairments); Carroll v. Sec. of Health and Human Services, 705 F.2d 638, 643 (2d
Cir. 1983) (holding that it was improper for the ALJ to disregard the finding of the treating
27
physician because the three remaining doctors who examined the claimant reached no such
coneh1~1nn~)· ~{J{J
nfm Snhnf Pw.~ki v AnfeL 9R1 F. Sunn.100.114 rn.n.N.Y. 1999) ("The hurden
of proof is on the Commissioner to offer positive evidence that plaintiff can perform sedentary
work, and the burden is not carried merely by pointing to evidence that is consistent with his
otherwise unsupported assertion").
In this case, the ALJ failed to meet the burden that shifts to the Commissioner in step five
of the analysis. See Gonzalez, 61 F. Supp. 2d at 29. She did not have substantial evidence to
justify her determination that Pickering retained the RFC to perform light, unskilled work. The
ALJ improperly rejected Dr. Kader's findings that Pickering suffered serious impairment in
social and occupational functioning without filling the gaps in the administrative record. Merely
pointing to the opinions of Dr. Broska and Dr. Kamin, without offering positive evidence that
Pickering can perform low-contact, low-stress work, is not sufficient to support a finding of not
disabled. While the Court recognizes the ALJ' s use of a vocational expert, the testimony that
was credited by the ALJ is not supported by the evidence in the record. See Mcintyre v. Colvin,
758 F.3d 148 (2d Cir. 2014) (finding that the ALJ reasonably credited the testimony of the
vocational expert which was not undermined by an evidence in the record, and which was given
on the basis of the expert's professional experience and clinical judgment); Chavez v. Astrue, 699
F. Supp. 2d 1125, 1137 (C.D. Cal. 2009) ("[H]ypothetical questions to a vocational expert must
consider all of the claimant's limitations"). The ALJ posited hypotheticals based on Pickering's
exertional and non-exertional limitations, and specifically inquired about jobs that would require
low to no contact with the general public, coworkers, and supervisors. (Tr. at 28-50.) The AL.T,
however, ignored the vocational expert's finding that if an individual could not interact with
coworkers or supervisors, it would eliminate all the jobs he previously indicated, because "there
28
[had] to be at least occasional interaction ... at unskilled work activity." (Tr. at 48.) Instead, the
ALT solelv relled on the vocational exnert's findin!!s of the tYne of iohs that an individual could
do requiring only occasional interaction with coworkers and supervisors.
Based on the inadequate record before the Court, the ALJ' s reliance on the vocational
expert, and her decision to reject Pickering's claim for disability benefits, cannot be upheld.
C.
Remedy
Under 42 U.S.C. § 405(g), the District Court has the power to affirm, modify, or
reverse the ALJ' s decision with or without remanding for a rehearing. Remand may be
appropriate if "the ALJ has applied an improper legal standard." Rosa, 168 F .2d at 82-83.
Moreover, where an ALJ has committed a legal error that may have affected the disposition of
the case, such a failure constitutes a reversible error. Pollard v. Halter, 377 F.3d 183, 189 (2d
Cir. 2004). Here, the Commissioner failed to meet her burden in showing that Pickering could
do other work, by committing a legal error and relying on evidence that was supported by the
record. The Court, therefore, rejects the ALJ's decision. Because the ALJ failed to apply the
proper legal standard regarding the treating physician, and thus the ALJ' s decision was not
supported by substantial evidence, the Court declines to reach the issue of the ALJ' s
consideration of the side effects of Pickering's medications at this time.
IV.
CONCLUSION
For the reasons set forth below, Pickering's motion is GRANTED, the Commissioner's
motion is DENIED, and the case is REMANDED for further proceedings. Having resolved
Doc. Nos. 16 and 18, the clerk of court is directed to terminate this action.
SO ORDERED this ID":iay of February 2016.
New York, New York
~~
The Honorable Ronald L. Ellis
United States Magistrate Judge
29
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?