Maldonado v. Colvin
Filing
19
OPINION AND ORDER re: 11 MOTION for Judgment on the Pleadings . filed by Jason Maldonado, 14 CROSS MOTION for Judgment on the Pleadings . filed by Carolyn W. Colvin. Accordingly, for all the foregoing reasons, plaintiff 's motion for judgment on the pleadings is granted. The Commissioner's motion is denied, and this case is remanded to the SSA for further proceedings. The Clerk of the Court is respectfully requested to close Docket Items 11 and 14. (As further set forth in this Order.) (Signed by Magistrate Judge Henry B. Pitman on 2/28/2017) Copies Sent By Chambers (cf)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
JASON MALDONADO,
:
Plaintiff,
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
15 Civ. 4016 (HBP)
:
-against-
:
OPINION
AND ORDER
:
:
:
-----------------------------------X
PITMAN, United States Magistrate Judge:
I.
Introduction
Plaintiff Jason Maldonado brings this action pursuant
to Section 205(g) of 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").
The
parties have consented to my exercising plenary jurisdiction
pursuant to 28 U.S.C. § 636(c).
Plaintiff and the Commissioner
have both moved for judgment on the pleadings pursuant to Rule
12(c) of the Federal Rules of Civil Procedure.
For the reasons
set forth below, plaintiff's motion (Docket Item ("D.I.") 11) is
granted and the Commissioner's motion (D.I. 14) is denied.
II.
Facts1
A.
Procedural Background
Plaintiff filed an application for SSI on June 12,
2012, alleging that he had been disabled since December 1, 2011
(Tr. 70, 141-49).
Plaintiff completed a "Disability Report" in
support of his claim for benefits (Tr. 158-66).
Plaintiff
claimed that he was disabled due to bipolar disorder, an anxiety
disorder, schizophrenia, depression and a lower back condition
(Tr. 159).
tions:
Plaintiff reported that he took the following medica-
Abilify and Seroquel for schizophrenia, Ambien for
insomnia, Atarax and Ativan for anxiety, Lexapro for anxiety and
depression, Trazodone for depression and Oxycodone for back pain
(Tr. 162).
Plaintiff also reported that he received psychologi-
cal therapy and physical therapy for his conditions (Tr. 163).
On September 26, 2012, the Social Security Administration (the "SSA") denied plaintiff's application, finding that he
was not disabled (Tr. 71-76).
Plaintiff timely requested and was
granted a hearing before an Administrative Law Judge (an "ALJ")
1
I recite only those facts relevant to my resolution of the
pending motion. The administrative record that the Commissioner
filed, pursuant to 42 U.S.C. § 405(g) (see SSA Administrative
Record, dated July 16, 2015 (D.I. 9) ("Tr.")) more fully sets out
plaintiff's medical history.
2
(Tr. 77-79).
ALJ Michael Friedman held a hearing on September
27, 2013 (Tr. 32-45).
The ALJ reviewed the claim de novo and, in
a decision dated December 6, 2013, determined that plaintiff was
not disabled within the meaning of the Act from June 12, 2012 to
the date of the decision (Tr. 12-26).
The ALJ's decision denying
benefits became final on March 27, 2015 when the Appeals Council
denied plaintiff's request for review (Tr. 1-4).
Plaintiff
commenced this action on May 26, 2015 seeking review of the
Commissioner's decision (Complaint, filed May 26, 2015 (D.I. 1)).
B.
Plaintiff's
Social Background
Plaintiff was born in 1978 and was 34 years old at the
time he filed his application for SSI (Tr. 155).
He has an
eighth grade education (Tr. 160) and previously worked as a
barber's apprentice (Tr. 160-61).
He never worked for more than
a few months at a time (Tr. 35, 160-61).
At his hearing before the ALJ, plaintiff testified that
he was homeless and moved around from place to place (Tr. 34-35).
He was staying with his cousin at the time of the hearing (Tr.
34).
Plaintiff further testified that his cousin helped him with
grocery shopping because he was "very bad with prices and stuff,
handling money" (Tr. 37-38).
3
Plaintiff also testified that he had limited cooking
skills, cleaned "[b]asic things," enjoyed watching television and
smoked one pack of cigarettes per day (Tr. 38).
Plaintiff also
stated that he stopped using drugs about three years prior to the
hearing and had one relapse (Tr. 39).
C.
Plaintiff's
Medical Background
1.
Physical Health Treatment Records
a.
AllMed and
Rehabilitation of New York
Dr. Michael Pierce, M.D., evaluated plaintiff on May 7,
2012 (Tr. 498).
Plaintiff reported that he had chronic back pain
as a result of a fall from a ladder in 2005 (Tr. 498).
Plaintiff
also reported that his pain was moderate and intermittent and
that it was aggravated by bending and sitting (Tr. 498).
Dr.
Pierce noted that plaintiff walked with a cane and that plaintiff
had a history of opioid dependence, for which plaintiff participated in a methadone maintenance treatment program (Tr. 498,
500).
A physical examination of plaintiff did not reveal any
abnormal findings (Tr. 500-01).
Dr. Pierce diagnosed plaintiff
with opioid dependence, which was being treated by a methadone
maintenance treatment program, a back contusion, tobacco abuse
4
and a chronic Hepatitis C infection (Tr. 501-02).
Dr. Pierce
referred plaintiff for pain management (Tr. 502).
Plaintiff returned to Dr. Pierce on May 16, 2012 with
complaints of low back pain that radiated to his right leg (Tr.
546).
An examination revealed pain with forward flexion (Tr.
546).
Dr. Pierce again diagnosed plaintiff with opioid depend-
ence, which was being treated by a methadone maintenance treatment program,, a chronic Hepatitis C infection, chronic back pain
and a lumbar contusion (Tr. 546).
Dr. Pierce prescribed Percocet
(Tr. 546).
On June 7, 2012, Dr. Pierce noted that plaintiff walked
with a cane and that he had chronic low back pain that radiated
to the right leg (Tr. 543).
Dr. Pierce increased plaintiff's
dosage of Percocet and ordered a urine toxicology screening (Tr.
543).
Four weeks later, Dr. Pierce noted that plaintiff's urine
test was positive for "opiate" and "meth" (Tr. 621).
Dr. Pierce
diagnosed plaintiff with opioid dependence, which was being
treated by a methadone maintenance treatment program, cocaine
abuse that was in remission, a lumbar contusion and a chronic
hepatitis C infection (Tr. 621).
On July 25, 2012, pain management specialist Dr. Henry
Sardar, D.O., examined plaintiff (Tr. 551-52).
Dr. Sardar
observed that plaintiff walked with a cane and with a slow gait
5
and that plaintiff had difficulties standing and walking without
an assistive device (Tr. 551).
Dr. Sardar's examination of
plaintiff revealed a decreased range of lumbar spinal motion in
all planes, particularly with flexion and extension and with pain
reported at the end range, significant spasm, taut muscle bands,
tenderness to palpation over the lumbar paraspinal region bilaterally and "weakness to [the] right [leg] with 4/5" (Tr. 551).
The cervical spine had a normal range of motion and plaintiff's
arms were normal (Tr. 551).
Dr. Sardar diagnosed plaintiff with
myalgia,2 muscle spasm, low back pain, right leg pain, gait
dysfunction, difficulty walking, opioid dependence and chronic
pain syndrome (Tr. 551).
Dr. Sardar prescribed Flexeril, Emla
cream, Percocet and physical therapy (Tr. 552).
Dr. Sardar also
administered an injection of Depo-Medrol and lidocaine to the
right sacroiliac joint (Tr. 552).
On August 1, 2012, Dr. Pierce noted that plaintiff
walked with a cane and that forward flexion was painful (Tr.
509).
He diagnosed plaintiff with chronic low back pain syn-
drome, opioid dependence, which was being treated by a methadone
maintenance treatment program, and a chronic hepatitis C infection (Tr. 509).
Dr. Pierce also renewed plaintiff's prescription
2
Myalgia is pain in a muscle. Dorland's Illustrated Medical
Dictionary ("Dorland's") 1214 (32nd ed. 2012).
6
for Percocet (Tr. 509).
Dr. Pierce saw plaintiff again on August
28, 2012 for chronic back pain (Tr. 504).
Dr. Pierce again noted
that forward flexion was painful (Tr. 504).
He also noted that
plaintiff's urine tested positive for oxycodone (Tr. 504).
Dr.
Pierce diagnosed plaintiff with a lumbar contusion and opioid
dependence, and he continued to prescribe Percocet to plaintiff
(Tr. 504).
Plaintiff returned to Dr. Sardar on September 27, 2012
for chronic low back pain (Tr. 657-58).
Plaintiff's pain radi-
ated to his right leg, and the pain was accompanied by numbness
and tingling (Tr. 657).
Plaintiff also reported that his lower
back pain was an average of seven on a scale of one to ten (Tr.
657).
Plaintiff also stated that his medications were not
effective (Tr. 657).
An examination of the lumbar spine revealed
a decreased range of motion in all planes, particularly with
flexion and extension and with pain reported at the end range,
significant spasm, taut muscle bands, tenderness to palpation
over the lumbar paraspinal region bilaterally and "weakness to
[the] right [leg] with 4/5" (Tr. 657).
Dr. Sardar diagnosed
plaintiff with myalgia, low back pain, right leg pain, gait
dysfunction, difficulty walking, opioid dependence and chronic
pain syndrome (Tr. 657).
Dr. Sardar recommended plaintiff for
further physical therapy (Tr. 657).
7
Dr. Sardar examined plaintiff again on October 22, 2012
(Tr. 653-54).
Dr. Sardar noted that plaintiff's pain medications
provided satisfactory relief, although plaintiff reported that
his back pain on average was a seven on a scale of one to ten
(Tr. 653).
On examination, the lumbar spine had a decreased
range of motion in all planes, particularly with flexion and
extension and with pain reported at the end range (Tr. 653).
Dr.
Sardar also noted that plaintiff had significant spasm, taut
muscle bands and tenderness to palpation over the lumbar
paraspinal region bilaterally (Tr. 653).
Dr. Sardar diagnosed
plaintiff with myalgia, muscle spasm, low back pain, pain in
limb, gait dysfunction, difficulty walking, opioid dependence and
chronic pain syndrome (Tr. 653).
Dr. Sardar recommended contin-
ued physical therapy, and he ordered magnetic resonance imaging
("MRI") of plaintiff's lumbar spine (Tr. 653).
Dr. Pierce saw plaintiff on October 23, 2012 (Tr. 604).
He noted that plaintiff had chronic low back pain, with pain now
radiating to the left leg (Tr. 604).
Dr. Pierce also noted that
plaintiff walked with a cane and had slightly decreased right leg
strength and normal left leg strength (Tr. 604).
An examination
revealed that plaintiff's lumbar range of motion was limited to
sixty degrees in forward flexion and a straight-leg-raise test
8
was positive on the right side (Tr. 604).3
Dr. Pierce diagnosed
plaintiff with opioid dependence, which was being treated by a
methadone maintenance treatment program,, lumbar radiculopathy, a
chronic hepatitis C infection and lumbar contusion (Tr. 604).
An
October 31, 2012 MRI of the lumbar spine revealed significant
intervertebral disc narrowing and suggested degenerative disc
disease (Tr. 652).
There was no significant disc protrusion or
neural compromise at the T12 to S1 levels (Tr. 652).
Dr. Pierce saw plaintiff again on November 20, 2012
(Tr. 602).
That examination again revealed that a straight-leg-
raise test was positive on the right side (Tr. 602).
Dr. Pierce
noted that x-rays of the lumbar spine revealed sacralization4
(Tr. 602).
Dr. Pierce diagnosed plaintiff with opioid depend-
ence, which was being treated by a methadone maintenance treatment program, and lumbar radiculitis5 (Tr. 602).
3
During this test, the patient lies on his or her back and
lifts the symptomatic leg with the knee fully extended. Dorland's at 1900. Pain in the leg between 30 and 90 degrees of elevation indicates lumbar radiculopathy, "with the distribution of
the pain indicating the nerve root involved." Dorland's at 1900.
Radiculopathy is a "disease of the nerve roots." Dorland's at
1571. It can be caused by inflammation or impingement by a tumor
or bony spur. Dorland's at 1571.
4
Sacralization is an "anomalous fusion of the fifth lumbar
vertebra to the first segment of the sacrum, so that the sacrum
consists of six segments." Dorland's at 1662.
5
Radiculitis is "inflammation of the root of a spinal nerve,
(continued...)
9
Dr. Pierce examined plaintiff on February 19, 2013 (Tr.
699).
The examination conducted on that date again revealed that
a straight-leg-raise test was positive on the right side (Tr.
699).
Dr. Pierce diagnosed plaintiff with lumbar radiculopathy
and opioid and tobacco dependence (Tr. 699).
Plaintiff returned to Dr. Pierce on April 10, 2013 (Tr.
696).
Dr. Pierce again noted that plaintiff walked with a cane
and his examination revealed that a straight-leg-raise test was
positive on the right side (Tr. 696).
Plaintiff also told Dr.
Pierce that he could not work because he was unable to lift heavy
items and he experienced unrelenting low back pain when he stood
for prolonged periods (Tr. 696).
Dr. Pierce diagnosed plaintiff
with opioid dependence, which was being treated by a methadone
maintenance treatment program, lumbar radiculopathy, lumbar
contusion, tobacco abuse and a chronic hepatitis C infection (Tr.
696).
Dr. Pierce also completed a Multiple Impairment Questionnaire on April 10, 2013 (Tr. 901-08).
Dr. Pierce noted that
he had treated plaintiff on a monthly basis since May 16, 2012
for lumbar contusion and lumbar radiculopathy (Tr. 901).
5
Dr.
(...continued)
especially of that portion of the root which lies between the
spinal cord and the intervertebral canal." Dorland's at 1571.
10
Pierce noted that plaintiff's primary symptom was constant low
back pain that radiated to the right leg, precipitated by prolonged standing and walking (Tr. 902-03).
Dr. Pierce opined that plaintiff could sit for three
hours total and stand/walk for two hours total in an eight-hour
workday (Tr. 903).
Dr. Pierce noted that plaintiff had to get up
and move around for five to ten minutes once an hour when sitting
(Tr. 903-04).
He opined that it would be necessary or medically
recommended that plaintiff not sit or stand/walk continuously in
a work setting (Tr. 903-04).
Additionally, Dr. Pierce believed
that plaintiff could lift/carry up to ten pounds occasionally and
that plaintiff had significant limitations in performing repetitive reaching, handling, fingering or lifting (Tr. 904).
Dr.
Pierce cited the October 31, 2012 MRI of plaintiff's lumbar spine
in support of his diagnoses, as well as a positive right femoral
stretch sign (Tr. 901-02).6
Dr. Pierce opined that plaintiff's symptoms would
likely increase if he were placed in a competitive work environment (Tr. 905).
He also noted that plaintiff's symptoms were
frequently severe enough to interfere with his attention and
concentration (Tr. 906).
Finally, Dr. Pierce noted that plain-
6
A femoral stretch test is used to diagnose lesions of the
third or fourth lumbar disc. Dorland's at 1890.
11
tiff was capable of moderate stress and that plaintiff would
likely be absent from work more than three times per month due to
his impairments (Tr. 906-07).
b.
Dr. Catherine Pelczar-Wissner, M.D.
At the request of the SSA, Dr. Catherine PelczarWissner performed a physical consultative examination of plaintiff on August 28, 2012 (Tr. 567-70).
back pain (Tr. 567).
Plaintiff complained of
He also stated that he cleaned, did laun-
dry, listened to the radio, shopped, showered and dressed "when
he [got] a chance" (Tr. 568).
Dr. Pelczar-Wissner observed that plaintiff walked into
the exam room with a very wide gait with a cane (Tr. 568).
Dr.
Pelczar-Wissner indicated that plaintiff subsequently walked
around with a slow, but normal, gait and that he was able to walk
without the cane (Tr. 568).
Plaintiff was able to walk a few
steps on his heels and toes, and then his gait became wide again
once he started using the cane (Tr. 568).
could squat only halfway (Tr. 568).
In addition, plaintiff
Plaintiff did not need help
changing for the examination or getting on and off the table, and
he was able to rise from a chair without difficulty (Tr. 568).
Dr. Pelczar-Wissner did not believe plaintiff's cane was medically necessary (Tr. 568).
12
Dr. Pelczar-Wissner's examination of plaintiff's
cervical spine showed full flexion, extension, lateral flexion
bilaterally and rotary movement bilaterally (Tr. 569).
Addition-
ally, straight-leg-raise testing was negative for both legs and
the range of motion in plaintiff's lumbar spine was zero to sixty
degrees (Tr. 569).
Plaintiff's arms and legs all had a full
range of motion, his joints were stable and nontender and his
deep tendon reflexes were normal and equal in all extremities
(Tr. 569).
Plaintiff did not have any sensory deficits or muscle
atrophy, and he had full strength in all extremities (Tr. 569).
An x-ray of the lumbar spine was also negative (Tr. 569).
Dr.
Pelczar-Wissner diagnosed plaintiff with complaints of low back
pain and a "history of substance abuse, on methadone since 2011
and off heroin since then" (Tr. 570).
She also opined that
plaintiff had a mild restriction for heavy lifting and carrying
(Tr. 570).
13
2. Mental Health Treatment Records
a.
Dr. Edward Fruitman, M.D.7
Dr. Pierce referred plaintiff to a psychiatrist, Dr.
Edward Fruitman, M.D., and plaintiff's treatment with Dr. Fruitman began on May 30, 2012 for bipolar disorder (Tr. 544).
During
an appointment on June 12, 2012, plaintiff stated that he had
mood swings and felt paranoid and nervous around people (Tr. 54142).
Plaintiff also stated that he had had prior psychiatric
treatment for bipolar disorder (Tr. 541).
Dr. Fruitman noted
that plaintiff was shaking back and forth during the appointment,
and he diagnosed plaintiff with "bipolar I disorder, most recent
episode (or current) depressed, severe, without mention of
psychotic behavior" (296.53) and "bipolar I disorder, most recent
episode (or current) unspecified" (296.70) (Tr. 541).
Dr. Fruitman completed a Psychosocial Assessment on
July 2, 2012 (Tr. 491).
According to this report, plaintiff was
experiencing sadness, depression, severe insomnia, mood swings,
auditory hallucinations, nervousness and paranoia around large
crowds (Tr. 491).
Dr. Fruitman noted that plaintiff's legs were
7
Dr. Fruitman's notes are handwritten and portions are
illegible. The legible portions of plaintiff's records are
described herein.
14
shaking and that "he was extremely anxious" (Tr. 492).
Dr.
Fruitman also reported that plaintiff was oriented to time, place
and person, had good eye contact and was able to understand
questions posed to him (Tr. 492).
Further, plaintiff was pleas-
ant and did not demonstrate psychotic symptoms (Tr. 492).
Dr.
Fruitman's examination also revealed a labile and broad affect
and psychomotor agitation (Tr. 492).
Plaintiff denied any
current hallucinations because they were controlled by medication
(Tr. 492).
Plaintiff's memory did not appear to be impaired;
additionally, plaintiff's judgment and impulse control were
adequate, his speech, rate and tone were normal and his speech
was fluent and goal-directed (Tr. 492-93).
was able to focus on tasks (Tr. 493).
Moreover, plaintiff
Dr. Fruitman diagnosed
plaintiff with bipolar disorder and a history of polysubstance
abuse that was in remission (Tr. 493).
Dr. Fruitman rated
plaintiff's Global Assessment of Functioning ("GAF") score as 68,
indicating mild symptoms (Tr. 493).8
8
Dr. Fruitman noted that
"The GAF is a scale promulgated by the American Psychiatric
Association to assist 'in tracking the clinical progress of
individuals [with psychological problems] in global terms.'"
Kohler v. Astrue, 546 F.3d 260, 262 n.1 (2d Cir. 2008), quoting
Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of
Mental Disorders 32 (4th ed. 2000). A score of 41-50 indicates
serious symptoms, a score of 51-60 indicates moderate symptoms
and a score of 61-70 indicates some mild symptoms or some difficulty in social or occupational functioning, but generally
(continued...)
15
plaintiff's mood changes had been evident in counseling sessions
and that plaintiff needed to continue taking medication and
attending psychotherapy (Tr. 493).
Plaintiff saw Dr. Fruitman for a follow-up appointment
on July 24, 2012 (Tr. 511).
Plaintiff stated that he continued
to have mood swings, but that he was "doing ok" (Tr. 511).
Dr.
Fruitman noted that plaintiff was dressed appropriately and that
he had been taking his medication (Tr. 511).
In a letter dated August 7, 2012, Dr. Fruitman reported
that he was treating plaintiff for bipolar disorder (Tr. 495).
According to the letter, plaintiff felt he could not work because
he was irritable and easily agitated and was anxious being around
people (Tr. 495).
Additionally, plaintiff stated he had poor
concentration and had frequent panic attacks (Tr. 495).
Dr.
Fruitman reported that plaintiff was restless in their sessions
and that plaintiff appeared to have frequent mood changes (Tr.
495).
Dr. Fruitman opined that plaintiff did not appear to be
able to concentrate sufficiently to work (Tr. 495).
8
(...continued)
functioning "pretty well." See Global Assessment of Functioning,
New York State Office of Mental Health, available at
https://www.omh.ny.gov/omhweb/childservice/mrt/global_assessment_
functioning.pdf (last visited Feb. 28, 2017).
16
In a follow-up appointment on August 8, 2012, Dr.
Fruitman reported that plaintiff was not exhibiting symptoms of
psychosis or mania and was doing well on medication (Tr. 506-07).
Dr. Fruitman diagnosed plaintiff with bipolar disorder, single
manic episode, unspecified (Tr. 507).
On August 21, 2012, Dr.
Fruitman noted that although plaintiff was taking his medication,
plaintiff still felt nervous and overactive (Tr. 613).
Dr. Fruitman completed a report on September 18, 2012
at the request of the SSA (Tr. 572-78).
Dr. Fruitman reported
that he had been treating plaintiff once a month since May 30,
2012 for bipolar disorder (Tr. 572).
He also reported that
plaintiff's symptoms included mood swings, anger, anxiety,
avoidance of large crowds and easy irritability (Tr. 572).
According to the report, plaintiff did not like to work with
people, and plaintiff stated that he got into arguments easily
(Tr. 576).
Plaintiff's GAF score was 50, indicating serious
symptoms; a mental status examination revealed stuttering speech,
an anxious or hyper mood and nervousness (Tr. 574-75).
Dr.
Fruitman opined that plaintiff could not deal with much stress
and became "verbally explosive" due to poor coping skills (Tr.
576).
Dr. Fruitman also opined that plaintiff had a slightly
impaired memory and that he lost concentration when given multiple tasks (Tr. 577).
Dr. Fruitman stated that plaintiff was
17
limited in his ability to interact socially because he did not
respond well to large crowds (Tr. 577).
On October 3, 2012, Dr. Fruitman noted that plaintiff
was feeling better and that his mood had improved with medication
(Tr. 607).
In a letter dated October 17, 2012, Dr. Fruitman
noted that plaintiff suffered from bipolar disorder (Tr. 606).
Dr. Fruitman also indicated that plaintiff's medications made
plaintiff drowsy and that plaintiff continued to attend monthly
appointments with both a psychiatrist and psychotherapist (Tr.
606).
According to the letter, plaintiff reported that he could
not work because of difficulty taking directions, easy agitation,
frequent anxiety attacks and an inability to be around people
(Tr. 606).
On October 24, 2012, plaintiff reported to Dr. Fruitman
that his mood and insomnia were improving (Tr. 603).
However, a
few weeks after that, on November 7, 2012, Dr. Fruitman noted
that plaintiff appeared sullen and depressed and was "not the
same as before" (Tr. 599).
On December 5, 2012, plaintiff
reported that he was feeling "ok" and that his insomnia and mood
improved with medication, with no side effects reported (Tr.
600).
However, on December 11, 2012, plaintiff informed Dr.
Fruitman that he had "problems (didn't want to share)" and that
he felt paranoid (Tr. 705).
Dr. Fruitman also noted plaintiff's
18
depressed mood (Tr. 705).
On January 4, 2013, plaintiff followed
up with Dr. Fruitman for a medication refill (Tr. 704).
Plain-
tiff reported at that time that he was "doing ok," but that he
was still experiencing depressive symptoms (Tr. 704).
Dr. Fruitman completed a Psychiatric/Psychological
Impairment Questionnaire on January 8, 2013, covering the period
from May 30, 2012 to January 4, 20139 (Tr. 683-90).
diagnosed plaintiff with bipolar disorder (Tr. 683).
Dr. Fruitman
In addi-
tion, Dr. Fruitman noted that plaintiff's GAF score was 50,
indicating serious symptoms, and his highest GAF score over the
past seven months was 55, indicating moderate symptoms (Tr. 683).
Dr. Fruitman reported that plaintiff responded to treatment, but
was still suffering from mood swings (Tr. 683).
Dr. Fruitman
found that plaintiff suffered from poor memory, sleep disturbance, recurrent panic attacks, social withdrawal or isolation,
decreased energy, manic syndrome, generalized persistent anxiety
and hostility or irritability (Tr. 684).
Plaintiff's primary
symptoms were mood swings with hyperactivity at times and depression at other times (Tr. 685).
9
Dr. Fruitman wrote that plaintiff's most recent exam was
January 4, 2012. However, because Dr. Fruitman first treated
plaintiff on May 30, 2012, Dr. Fruitman most likely meant that
plaintiff's most recent exam was January 4, 2013.
19
Dr. Fruitman opined that plaintiff was markedly limited
in his ability to:
(1) understand and remember detailed instruc-
tions; (2) carry out detailed instructions; (3) maintain attention and concentration for extended periods; (4) perform activities within a schedule, maintain regular attendance and be
punctual within customary tolerance; (5) sustain ordinary routine
without supervision; (6) work in coordination with or proximity
to others without being distracted by them; (7) complete a normal
workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable
number and length of rest periods; (8) interact appropriately
with the general public; (9) accept instructions and respond
appropriately to criticism from supervisors; (10) get along with
co-workers or peers without distracting them or exhibiting
behavioral extremes and (11) respond appropriately to changes in
the work setting (Tr. 686-87).
Dr. Fruitman also opined that
plaintiff had mild limitations in his ability to:
(1) remember
locations and work-like procedures; (2) understand and remember
one- or two-step instructions; (3) carry out simple one- or twostep instructions; (4) travel to unfamiliar places or use public
transportation and (5) set realistic goals or make plans independently (Tr. 686-88).
Finally, Dr. Fruitman opined that there
was no evidence of a limitation in plaintiff's ability to:
20
(1)
make simple work-related decisions; (2) ask simple questions or
request assistance; (3) maintain socially appropriate behavior
and to adhere to basic standards of neatness and cleanliness and
(4) be aware of normal hazards and take appropriate precautions
(Tr. 687-88).
Dr. Fruitman also opined that plaintiff was
incapable of tolerating "even 'low stress'" work (Tr. 689).
According to Dr. Fruitman, plaintiff would likely be absent from
work two to three times a month (Tr. 690).
Dr. Fruitman completed another Psychiatric / Psychological Impairment Questionnaire on January 29, 2013, covering the
period from June 12, 2012 to January 4, 2013 (Tr. 674-81).
Dr.
Fruitman diagnosed plaintiff with bipolar disorder (Tr. 674).
Plaintiff's GAF score was 60, indicating moderate symptoms, and
his highest GAF score during that seven-month period was 68,
indicating mild symptoms (Tr. 674).
Dr. Fruitman reported that
plaintiff was responding to treatment (Tr. 674).
Dr. Fruitman
found that plaintiff suffered from frequent mood swings, poor
memory, mood disturbance, recurrent panic attacks, difficulty
thinking or concentrating, decreased energy, generalized persistent anxiety and irritability (Tr. 674-75).
Plaintiff's primary
symptoms were mood swings, periods of irritability and insomnia
(Tr. 676).
21
Dr. Fruitman opined that plaintiff had marked limitations in his ability to:
(1) understand and remember detailed
instructions; (2) carry out detailed instructions; (3) maintain
attention and concentration for extended periods; (4) sustain
ordinary routine without supervision; (5) work in coordination
with or proximity to others without being distracted by them; (6)
complete a normal workweek without interruptions from
psychologically-based symptoms and to perform at a consistent
pace without an unreasonable number and length of rest periods
and (7) accept instructions and respond appropriately to criticism from supervisors (Tr. 677-78).
Dr. Fruitman also opined
that plaintiff had moderate limitations in his ability to:
(1)
perform activities within a schedule, maintain regular attendance
and be punctual within customary tolerance; (2) interact appropriately with the general public; (3) get along with co-workers
or peers without distracting them or exhibiting behavioral
extremes; (4) respond appropriately to changes in the work
setting and (5) set realistic goals or make plans independently
(Tr. 677-79).
Dr. Fruitman opined that plaintiff had mild
limitations in his ability to:
(1) remember locations and work-
like procedures; (2) understand and remember one- or two-step
instructions; (3) carry out simple one- or two-step instructions;
(4) make simple work-related decisions; (5) maintain socially
22
appropriate behavior and (6) travel to unfamiliar places or use
public transportation (Tr. 677-79).
Finally, Dr. Fruitman opined
that there was no evidence of a limitation in plaintiff's ability
to:
(1) ask simple questions or request assistance; (2) adhere
to basic standards of neatness and cleanliness and (3) be aware
of normal hazards and take appropriate precautions (Tr. 678-79).
Dr. Fruitman noted that plaintiff did not respond well
to criticism, that he could not remember detailed information and
that he had poor concentration (Tr. 677-78).
According to Dr.
Fruitman, plaintiff was incapable of "even 'low stress'" work and
would likely be absent from work two to three times a month (Tr.
680-81).
Plaintiff saw Dr. Fruitman on February 26, 2013 (Tr.
698).
At that time, plaintiff stated that he felt overwhelmed
and frustrated, and Dr. Fruitman observed that plaintiff was
anxious (Tr. 698).
Dr. Fruitman completed a Treating Physician's
Wellness Plan Report, in which Dr. Fruitman diagnosed plaintiff
with panic disorder and bipolar disorder (Tr. 692).
Dr. Fruitman
found that plaintiff knew who he was, where he was and the
approximate time and that he suffered from increased anxiety,
mood changes, periods of hyperactivity, passive suicide ideation
and feelings of depression and of being overwhelmed (Tr. 692).
He also found that plaintiff was compliant with treatment, which
23
included the medications Klonopin, Lamictal, Sinequan and Ambien
(Tr. 692).
Dr. Fruitman opined that plaintiff was unemployable
for six months (Tr. 693).
b.
Dr. Arlene Broska, Ph.D.
At the request of the SSA, Dr. Arlene Broska, Ph.D.,
performed a psychiatric consultative examination of plaintiff on
August 28, 2012 (Tr. 561-65).
Plaintiff complained of waking up
at night, having a poor appetite and feeling dysphoric and
fatigued (Tr. 561).
Plaintiff also complained that he got
anxious when around large numbers of people, that he got distracted and that he felt bad about himself (Tr. 561-62).
He
reported that he could dress, bathe and groom himself (Tr. 563).
He also stated that he cleaned and did the laundry every two
weeks (Tr. 563).
Plaintiff further stated that he shopped and
traveled independently on public transportation, although he did
not enjoy traveling independently (Tr. 563).
He also reported
that he had friends, listened to the radio and attended his drug
treatment program (Tr. 563).
Dr. Broska observed that plaintiff's demeanor and
responsiveness to questions were cooperative and that his manner
of relating, social skills and overall presentation were fair
(Tr. 562).
According to Dr. Broska's report, plaintiff was
24
casually dressed and well groomed (Tr. 562).
Additionally, his
posture and motor behavior were normal, and eye contact was
appropriate (Tr. 562).
Plaintiff's thought process was coherent
and goal-directed, his affect was anxious and his mood was
neutral (Tr. 562-63).
There was no evidence of hallucinations,
delusions or paranoia (Tr. 562).
Plaintiff's sensorium was clear
and his attention was intact, and he knew who he was, where he
was and the approximate time (Tr. 563).
Plaintiff's recent and
remote memory skills were mildly impaired due to anxiety, and his
insight and judgment were poor (Tr. 563).
Dr. Broska estimated
that plaintiff's level of intellectual functioning was below
average (Tr. 563).
Dr. Broska diagnosed plaintiff with bipolar disorder,
not otherwise specified, opioid dependence and polysubstance
dependence that was in early remission (Tr. 564).
She opined
that plaintiff was able to follow and understand simple directions and instructions, perform simple and complex tasks independently and maintain attention, concentration and a regular
schedule (Tr. 563-64).
Dr. Broska also opined that plaintiff may
not always make appropriate decisions, relate adequately with
others or deal appropriately with stress (Tr. 564).
Dr. Broska
concluded that "[t]he results of the examination appear to be
consistent with psychiatric problems and substance abuse prob25
lems, but in itself, it does not appear to be significant enough
to interfere with the claimant's ability to function on a daily
basis" (Tr. 564).
c.
Dr. M. Meade
At the request of the SSA, Dr. M. Meade, a state agency
psychologist, reviewed the record and completed a Psychiatric
Review Technique form and a Mental Residual Functional Capacity
Assessment form on September 24, 2012 (Tr. 64-69).
Dr. Meade
opined that plaintiff was moderately limited in his ability to:
(1) understand and remember detailed instructions; (2) carry out
detailed instructions; (3) maintain attention and concentration
for extended periods; (4) complete a normal workday and workweek
without interruptions from psychologically-based symptoms and to
perform at a consistent pace without an unreasonable number and
length of rest periods; (5) interact appropriately with the
general public; (6) accept instructions and respond appropriately
to criticism from supervisors; (7) respond appropriately to
changes in the work setting and (8) travel in unfamiliar places
or use public transportation (Tr. 66-67).
Dr. Meade also opined
that plaintiff was not significantly limited in the following
abilities:
(1) remember locations and work-like procedures; (2)
understand and remember very short and simple instructions; (3)
26
carry out very short and simple instructions; (4) perform activities within a schedule, maintain regular attendance and be
punctual within customary tolerances; (5) sustain an ordinary
routine without special supervision; (6) work in coordination
with or in proximity to others without being distracted by them;
(7) make simple work-related decisions; (8) ask simple questions
or request assistance; (9) get along with co-workers or peers
without distracting them or exhibiting behavioral extremes; (10)
maintain socially appropriate behavior and to adhere to basic
standards of neatness and cleanliness; (12) be aware of normal
hazards and take appropriate precautions and (13) set realistic
goals or make plans independently of others (Tr. 66-67).
Dr. Meade noted that plaintiff's recent and remote
memory skills were mildly impaired due to anxiety and that
plaintiff lost concentration if given a large number of tasks
(Tr. 66).
Dr. Meade also noted that plaintiff could not deal
with significant stress and that, when confronted with stress,
plaintiff would get "verbally explosive and [would lose] his
coping skills" (Tr. 67).
Additionally, although plaintiff
traveled independently by public transportation, he did not like
to do so (Tr. 67).
Dr. Meade also noted that plaintiff got
anxious and did not respond well to large crowds (Tr. 67).
Thus,
Dr. Meade concluded that plaintiff was not disabled (Tr. 68).
27
d.
New York City
Correctional Health Services
Plaintiff was incarcerated on April 17, 2013 for
approximately two months (Tr. 840).
During his time in incarcer-
ation, plaintiff received treatment for mood disorder,
polysubstance dependence and anti-social personality disorder
(Tr. 729-835).
Mental status examinations revealed irritable,
anxious and depressed moods (Tr. 745, 761, 779, 796), mildly
impaired judgment (Tr. 753, 780) and slight psychomotor agitation
(Tr. 796).
Plaintiff was prescribed Vistaril and Remeron, which
helped him to a limited extent (Tr. 761).
One doctor, Dr. Robert
Roy, noted that plaintiff was cooperative and that he had an
appropriate affect, adequate impulse control and judgment and
normal thought content (Tr. 745-46).
Dr. Roy rated plaintiff's
GAF score as 61 to 70, indicating mild symptoms (Tr. 746).
3.
Additional Evidence Submitted
to the Appeals Council
Plaintiff submitted additional evidence to the Appeals
Council.
In an April 2014 Federation Employment & Guidance
Service report, the examining source indicated that plaintiff's
symptoms, including mood instability, a panic disorder and lumbar
radiculopathy, "would greatly inhibit his ability to work" (Tr.
28
931).
A social worker also noted that plaintiff "appeared to
have pain that caused him to alternate between sitting and
standing often" (Tr. 950).
Additionally, in May 2014, Dr. Fruitman completed
another Mental Impairment Questionnaire, in which he noted that
plaintiff's symptoms included hostility or irritability, manic
syndrome, difficulty thinking or concentrating, poor recent and
remote memory, generalized or persistent anxiety, recurrent panic
attacks, pervasive loss of interests, decreased energy, slowed
speech, visual hallucinations and insomnia (Tr. 984).
Dr.
Fruitman noted that plaintiff had moderate limitations in understanding and memory, concentration and persistence, social
interactions and adaptation, and he opined that plaintiff would
miss two to three days of work per month (Tr. 986-87).
In July
2014, Dr. Fruitman completed yet another Psychiatric / Psychological Impairment Questionnaire and opined that plaintiff had
moderate limitations in understanding and memory, sustained
concentration and persistence, social interactions and adaptation
(Tr. 977-78).
He also opined that plaintiff was incapable of
handling "even 'low stress'" work and that he could be expected
to miss two to three days of work per month (Tr. 976, 979).10
10
Plaintiff also submitted a report from Dr. Romeeda Moham(continued...)
29
D.
Proceeding
Before the ALJ
An attorney represented plaintiff at the hearing before
the ALJ (Tr. 32).
limitations.
Plaintiff first testified about his physical
He explained that he had back pain since falling
off a ladder in 2005 (Tr. 35).
Plaintiff's back pain was chroni-
c, although it was worse on days when it was raining or cold or
when plaintiff exerted himself (Tr. 39-40).
Plaintiff estimated
that he could stand or sit for two to three hours, but he had to
stop and rest after standing for about an hour and after sitting
for forty-five minutes (Tr. 37, 41).
He also estimated that he
could walk ten to fifteen blocks, but he had to take a break
after six blocks (Tr. 37, 41-42).
Plaintiff also testified that
he had been treated with pain injections and that he used a cane
and wore a back brace (Tr. 35-36).
According to plaintiff, his
medications caused significant drowsiness (Tr. 40).
After taking
his medications, plaintiff had to lie down for two to three hours
(Tr. 40).
Plaintiff described his pain as a seven or eight on a
10
(...continued)
med of All Med, but the Appeals Council declined to consider this
evidence because the new information was dated October 14, 2014,
post-dating the ALJ's December 6, 2013 decision (Tr. 2).
30
scale of one to ten without medication and a four with medication
(Tr. 42).
Plaintiff also testified about his mental limitations.
He stated he had anxiety and difficulty concentrating, remembering and being around people he does not know (Tr. 36).
Plaintiff
described having anxiety or panic attacks when around a number of
people, in an elevator, or waiting on a long line; plaintiff
estimated that this occurred about three to four times per week
(Tr. 42).
He also had difficulty sleeping at night (Tr. 40-41).
Plaintiff also experienced paranoia and mood swings (Tr. 43).
Plaintiff saw a psychiatrist once a month and a therapist twice a
month and was taking medication (Tr. 36).
III.
Analysis
A.
Applicable
Legal Principles
1.
Standard of Review
The Court may set aside the final decision of the
Commissioner only if it is not supported by substantial evidence
or if it is based upon an erroneous legal standard.
42 U.S.C.
§ 405(g); Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per
curiam); Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012);
31
Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008).
Moreover,
the court cannot "affirm an administrative action on grounds
different from those considered by the agency."
Lesterhuis v.
Colvin, 805 F.3d 83, 87 (2d Cir. 2015), quoting Burgess v.
Astrue, supra, 537 F.3d at 128.
The Court first reviews the Commissioner's decision for
compliance with the correct legal standards; only then does it
determine whether the Commissioner's conclusions were supported
by substantial evidence.
Byam v. Barnhart, 336 F.3d 172, 179 (2d
Cir. 2003), citing Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir.
1999).
"Even if the Commissioner's decision is supported by
substantial evidence, legal error alone can be enough to overturn
the ALJ's decision."
Ellington v. Astrue, 641 F. Supp. 2d 322,
328 (S.D.N.Y. 2009) (Marrero, D.J.).
However, "where application
of the correct legal principles to the record could lead to only
one conclusion, there is no need to require agency reconsideration."
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
"'Substantial evidence' is 'more than a mere scintilla.
It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.'"
Talavera v. Astrue,
supra, 697 F.3d at 151, quoting Richardson v. Perales, 402 U.S.
389, 401 (1971).
Consequently, "[e]ven where the administrative
record may also adequately support contrary findings on particu32
lar issues, the ALJ's factual findings 'must be given conclusive
effect' so long as they are supported by substantial evidence."
Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam),
quoting Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982).
Thus, "[i]n determining whether the agency's findings were
supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory
evidence and evidence from which conflicting inferences can be
drawn."
Selian v. Astrue, supra, 708 F.3d at 417 (internal
quotation marks omitted).
2.
Determination
of Disability
A claimant is entitled to SSI if the claimant can
establish an inability "to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment . . . which has lasted or can be expected to
last for a continuous period of not less than twelve months."11
42 U.S.C. § 1382c(a)(3)(A); see also Barnhart v. Walton, 535 U.S.
11
The standards that must be met to receive SSI benefits
under Title XVI of the Act are the same as the standards that
must be met in order to receive disability insurance benefits
under Title II of the Act. Barnhart v. Thomas, 540 U.S. 20, 24
(2003). Accordingly, cases addressing the latter are equally
applicable to cases involving the former.
33
212, 217-22 (2002) (both the impairment and the inability to work
must last twelve months).
The impairment must be demonstrated by "medically
acceptable clinical and laboratory diagnostic techniques," 42
U.S.C. § 1382c(a)(3)(D), and it must be "of such severity" that
the claimant cannot perform his previous work and "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. § 1382c(a)(3)(B).
Whether such
work is actually available in the area where the claimant resides
is immaterial.
42 U.S.C. § 1382c(a)(3)(B).
In making the disability determination, the Commissioner must consider:
"(1) the objective medical facts; (2)
diagnoses or medical opinions based on such facts; (3) subjective
evidence of pain or disability testified to by the claimant or
others; and (4) the claimant's educational background, age, and
work experience."
Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.
1999), quoting Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.
1983) (internal quotation marks omitted).
In determining whether an individual is disabled, the
Commissioner must follow the five-step process required by the
regulations.
20 C.F.R. § 416.920(a)(4); see Selian v. Astrue,
supra, 708 F.3d at 417-18; Talavera v. Astrue, supra, 697 F.3d at
34
151.
The first step is a determination of whether the claimant
is engaged in substantial gainful activity.
416.920(a)(4)(i).
20 C.F.R. §
If he is not, the second step requires deter-
mining whether the claimant has a "severe medically determinable
physical or mental impairment."
20 C.F.R. § 416.920(a)(4)(ii).
If he does, the inquiry at the third step is whether any of these
impairments meet one of the listings in Appendix 1 of the regulations.
20 C.F.R. § 416.920(a)(4)(iii).
To be found disabled
based on a listing, the claimant's medically determinable impairment must satisfy all of the criteria of the relevant listing.
Sullivan v. Zebley, 493 U.S. 521, 530 (1990); Otts v. Commissioner of Soc. Sec., 249 F. App'x 887, 888 (2d Cir. 2007) (summary order); 20 C.F.R. § 416.920(a)(4)(iii).
meets a listing, the claimant is disabled.
If the claimant
20 C.F.R. §
416.920(a)(4)(iii).
If the claimant does not meet any of the listings in
Appendix 1, step four requires an assessment of the claimant's
residual functional capacity ("RFC") and whether the claimant can
still perform his past relevant work given his RFC.
20 C.F.R. §
416.920(a)(4)(iv); see Barnhart v. Thomas, supra, 540 U.S. at 2425.
If he cannot, then the fifth step requires assessment of
whether, given the claimant's RFC, he can make an adjustment to
35
other work.
20 C.F.R. § 416.920(a)(4)(v).
be found disabled.
If he cannot, he will
20 C.F.R. § 416.920(a)(4)(v).
RFC is defined in the applicable regulations as "the
most [the claimant] can still do despite [his] limitations."
20 C.F.R. § 416.945(a)(1).
To determine RFC, the ALJ
"'identif[ies] the individual's functional limitations or restrictions and assess[es] his or her work-related abilities on a
function-by-function basis, including the functions in paragraphs
(b),(c), and (d) of 20 [C.F.R. §§] 404.1545 and 416.945.'"
Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (per
curiam), quoting Social Security Ruling ("SSR") 96-8p, 1996 WL
374184 at *1 (July 2, 1996).
The results of this assessment
determine the claimant's ability to perform the exertional
demands12 of sustained work which may be categorized as sedentary, light, medium, heavy or very heavy.
20 C.F.R. § 416.967;
see Schaal v. Apfel, 134 F.3d 496, 501 n.6 (2d Cir. 1998).
This
ability may then be found to be limited further by nonexertional
factors that restrict the claimant's ability to work.13
See
12
Exertional limitations are those which "affect [the claimant's] ability to meet the strength demands of jobs (sitting,
standing, walking, lifting, carrying, pushing, and pulling)." 20
C.F.R. § 416.969a(b).
13
Nonexertional limitations are those which "affect only
[the claimant's] ability to meet the demands of jobs other than
the strength demands," including difficulty functioning because
(continued...)
36
Michaels v. Colvin, 621 F. App'x 35, 38 n.4 (2d Cir. 2015)
(summary order); Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir.
2010).
The claimant bears the initial burden of proving
disability with respect to the first four steps.
Once the
claimant has satisfied this burden, the burden shifts to the
Commissioner to prove the final step -- that the claimant's RFC
allows the claimant to perform some work other than his past
work.
Selian v. Astrue, supra, 708 F.3d at 418; Burgess v.
Astrue, supra, 537 F.3d at 128; Butts v. Barnhart, 388 F.3d 377,
383 (2d Cir. 2004), amended in part on other grounds on reh'g,
416 F.3d 101 (2d Cir. 2005).
In some cases, the Commissioner can rely exclusively on
the medical-vocational guidelines (the "Grids") contained in
C.F.R. Part 404, Subpart P, Appendix 2 when making the determination at the fifth step.
(N.D.N.Y. 1995).
Gray v. Chater, 903 F. Supp. 293, 297-98
"The Grid[s] take[] into account the claimant's
RFC in conjunction with the claimant's age, education and work
experience.
Based on these factors, the Grid[s] indicate[]
13
(...continued)
of nervousness, anxiety or depression, maintaining attention or
concentration, understanding or remembering detailed instructions, seeing or hearing, tolerating dust or fumes, or manipulative or postural functions, such as reaching, handling, stooping,
climbing, crawling or crouching. 20 C.F.R. § 416.969a(c).
37
whether the claimant can engage in any other substantial gainful
work which exists in the national economy."
Gray v. Chater,
supra, 903 F. Supp. at 298; see Butts v. Barnhart, supra, 388
F.3d at 383.
Exclusive reliance on the Grids is not appropriate
where nonexertional limitations "significantly diminish [a
claimant's] ability to work."
Bapp v. Bowen, 802 F.2d 601, 603
(2d Cir. 1986); accord Butts v. Barnhart, supra, 388 F.3d at 38384.
"Significantly diminish" means "the additional loss of work
capacity beyond a negligible one or, in other words, one that so
narrows a claimant's possible range of work as to deprive him of
a meaningful employment opportunity."
Bapp v. Bowen, supra, 802
F.2d at 606 (footnote omitted); accord Selian v. Astrue, supra,
708 F.3d at 421; Zabala v. Astrue, supra, 595 F.3d at 411.
When
the ALJ finds that the nonexertional limitations significantly
diminish a claimant's ability to work, then the Commissioner must
introduce the testimony of a vocational expert or other similar
evidence in order to prove "that jobs exist in the economy which
the claimant can obtain and perform."
Butts v. Barnhart, supra,
388 F.3d at 383-84 (internal quotation marks and citation omitted); see also Heckler v. Campbell, 461 U.S. 458, 462 n.5 (1983)
("If an individual's capabilities are not described accurately by
a rule, the regulations make clear that the individual's particu38
lar limitations must be considered.").
An ALJ may rely on a
vocational expert's testimony presented in response to a hypothetical if there is "substantial record evidence to support the
assumption[s] upon which the vocational expert base[s] his
opinion."
Dumas v. Schweiker, 712 F.2d 1545, 1554 (2d Cir. 1983)
(footnote omitted); accord Snyder v. Colvin, 15-3502, 2016 WL
3570107 at *2 (2d Cir. June 30, 2016) (summary order) ("When the
hypothetical posed to the vocational expert is based on a residual functional capacity finding that is supported by substantial
evidence, the hypothetical is proper and the ALJ is entitled to
rely on the vocational expert's testimony."); Rivera v. Colvin,
11 Civ. 7469 (LTS)(DF), 2014 WL 3732317 at *40 (S.D.N.Y. July 28,
2014) (Swain, D.J.) ("Provided that the characteristics described
in the hypothetical question accurately reflect the limitations
and capabilities of the claimant and are based on substantial
evidence in the record, the ALJ may then rely on the vocational
expert's testimony regarding jobs that could be performed by a
person with those characteristics.").
3.
Treating Physician Rule
In considering the evidence in the record, the ALJ must
give deference to the opinions of a claimant's treating physicians.
A treating physician's opinion will be given controlling
39
weight if it is "well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in . . . [the] record."
20 C.F.R.
§ 416.927(c)(2)14; see also Shaw v. Chater, 221 F.3d 126, 134 (2d
Cir. 2000); Diaz v. Shalala, 59 F.3d 307, 313 n.6 (2d Cir. 1995);
Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993).
"[G]ood reasons" must be given for declining to afford
a treating physician's opinion controlling weight.
20 C.F.R. §
416.927(c)(2); see Schisler v. Sullivan, supra, 3 F.3d at 568;
Burris v. Chater, 94 Civ. 8049 (SHS), 1996 WL 148345 at *4 n.3
(S.D.N.Y. Apr. 2, 1996) (Stein, D.J.).
The Second Circuit has
noted that it "'do[es] not hesitate to remand when the Commissioner has not provided "good reasons" for the weight given to a
treating physician[']s opinion.'"
Morgan v. Colvin, 592 F. App'x
49, 50 (2d Cir. 2015) (summary order) (second alteration in
original), quoting Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir.
2004); accord Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015)
(per curiam).
Before an ALJ can give a treating physician's
opinion less than controlling weight, the ALJ must consider
14
SSA recently adopted regulations that alter the standards
applicable to the review of medical opinion evidence for claims
filed on or after March 27, 2017. See 20 C.F.R. § 416.920c.
Because plaintiff's claim was filed before that date, those
amended regulations do not apply here.
40
various factors to determine the amount of weight the opinion
should be given.
These factors include:
(1) the length of the
treatment relationship and the frequency of examination; (2) the
nature and extent of the treatment relationship; (3) the medical
support for the treating physician's opinion; (4) the consistency
of the opinion with the record as a whole; (5) the physician's
level of specialization in the area, and (6) other factors that
tend to support or contradict the opinion.
20 C.F.R. §
416.927(c)(2)-(6); see Schisler v. Sullivan, supra, 3 F.3d at
567; Mitchell v. Astrue, 07 Civ. 285 (JSR), 2009 WL 3096717 at
*16 (S.D.N.Y. Sept. 28, 2009) (Rakoff, D.J.); Matovic v. Chater,
94 Civ. 2296 (LMM), 1996 WL 11791 at *4 (S.D.N.Y. Jan. 12, 1996)
(McKenna, D.J.).
Although the foregoing factors guide an ALJ's
assessment of a treating physician's opinion, the ALJ need not
expressly address each factor.
Atwater v. Astrue, 512 F. App'x
67, 70 (2d Cir. 2013) (summary order) ("We require no such
slavish recitation of each and every factor where the ALJ's
reasoning and adherence to the regulation are clear.").
As long as the ALJ provides "good reasons" for the
weight accorded to the treating physician's opinion and the ALJ's
reasoning is supported by substantial evidence, remand is unwarranted.
See Halloran v. Barnhart, supra, 362 F.3d at 32-33; see
also Atwater v. Astrue, supra, 512 F. App'x at 70; Petrie v.
41
Astrue, 412 F. App'x 401, 406-07 (2d Cir. 2011) (summary order);
Kennedy v. Astrue, 343 F. App'x 719, 721 (2d Cir. 2009) (summary
order).
"The opinions of examining physicians are not control-
ling if they are contradicted by substantial evidence, be that
conflicting medical evidence or other evidence in the record."
Krull v. Colvin, 15-4016, 2016 WL 5417289 at *1 (2d Cir. Sept.
27, 2016) (summary order) (citation omitted).
The ALJ is respon-
sible for determining whether a claimant is "disabled" under the
Act and need not credit a physician's determination to this
effect where it is contradicted by the medical record.
See Wells
v. Commissioner of Soc. Sec., 338 F. App'x 64, 66 (2d Cir. 2009)
(summary order).
The ALJ may rely on a consultative opinion
where it is supported by substantial evidence in the record.
See
Richardson v. Perales, supra, 402 U.S. at 408; Camille v. Colvin,
652 F. App'x 25, 27-28 (2d Cir. 2016) (summary order); Diaz v.
Shalala, supra, 59 F.3d at 313 n.5; Mongeur v. Heckler, supra,
722 F.2d at 1039.
4.
Credibility
In determining a claimant's RFC, the ALJ is required to
consider the claimant's reports of pain and other limitations, 20
C.F.R. § 416.929, but is not required to accept the claimant's
subjective complaints without question.
42
McLaughlin v. Secretary
of Health, Educ. & Welfare, 612 F.2d 701, 704-05 (2d Cir. 1980).
"It is the function of the [Commissioner], not [the reviewing
courts], to resolve evidentiary conflicts and to appraise the
credibility of witnesses, including the claimant."
Carroll v.
Secretary of Health & Human Servs., 705 F.2d 638, 642 (2d Cir.
1983) (internal quotation marks omitted); see also Mimms v.
Heckler, 750 F.2d 180, 185-86 (2d Cir. 1984); Aponte v. Secretary, Dep't of Health & Human Servs., 728 F.2d 588, 591-92 (2d
Cir. 1984).
The ALJ has discretion to weigh the credibility of
the claimant's testimony in light of the medical findings and
other evidence in the record.
Marcus v. Califano, 615 F.2d 23,
27 (2d Cir. 1979).
The regulations provide a two-step process for evaluating a claimant's subjective assertions of disability.
At the first step, the ALJ must decide whether the
claimant suffers from a medically determinable impairment that could reasonably be expected to produce the
symptoms alleged. 20 C.F.R. § 404.1529(b). That
requirement stems from the fact that subjective assertions of pain alone cannot ground a finding of disability. 20 C.F.R. § 404.1529(a). If the claimant does
suffer from such an impairment, at the second step, the
ALJ must consider "the extent to which [the claimant's]
symptoms can reasonably be accepted as consistent with
the objective medical evidence and other evidence" of
record. Id. The ALJ must consider "[s]tatements [the
claimant] or others make about [his] impairment(s),
[his] restrictions, [his] daily activities, [his]
efforts to work, or any other relevant statements [he]
make[s] to medical sources during the course of examination or treatment, or to [the agency] during inter43
views, on applications, in letters, and in testimony in
[its] administrative proceedings." 20 C.F.R. §
404.1512(b)(3); see also 20 C.F.R. § 404.1529(a);
S.S.R. 96-7p.
Genier v. Astrue, supra, 606 F.3d at 49 (alterations and emphasis
in original); see also Snyder v. Colvin, supra, 2016 WL 3570107
at *1-*2, citing SSR 16-3P, 2016 WL 1119029 (Mar. 16, 2016)15; 20
C.F.R. § 416.929(a).
The ALJ must explain the decision to reject
a claimant's testimony "'with sufficient specificity to enable
the [reviewing] Court to decide whether there are legitimate
reasons for the ALJ's disbelief' and whether [the ALJ's] decision
is supported by substantial evidence."
Calzada v. Astrue, 753 F.
Supp. 2d 250, 280 (S.D.N.Y. 2010) (Sullivan, D.J.) (alteration in
original) (adopting report and recommendation), quoting Fox v.
Astrue, No. 05 Civ. 1599 (NAM)(DRH), 2008 WL 828078 at *12
(N.D.N.Y. Mar. 26, 2008); see also Lugo v. Apfel, 20 F. Supp. 2d
662, 664 (S.D.N.Y. 1998) (Rakoff, D.J.).
The ALJ's determination
of credibility is entitled to deference.
See Snell v. Apfel, 177
F.3d 128, 135 (2d Cir. 1999) ("After all, the ALJ is in a better
position to decide issues of credibility."); Gernavage v. Shalala, 882 F. Supp. 1413, 1419 n.6 (S.D.N.Y. 1995) (Leisure, D.J.)
15
SSR 16-3p supersedes SSR 96-7p, 1996 WL 374186 (July 2,
1996), and clarifies the policies set forth in the previous SSR.
See SSR 16-3P, supra, 2016 WL 1237954.
44
("Deference should be accorded the ALJ's determination because he
heard plaintiff's testimony and observed his demeanor.").
B.
The ALJ's Decision
The ALJ applied the five-step analysis described above
and determined that plaintiff was not disabled (Tr. 15-26).
At step one of the sequential analysis, the ALJ determined that plaintiff had not engaged in substantial gainful
activity since June 12, 2012, the date plaintiff filed an application for SSI (Tr. 20, citing 20 C.F.R. § 416.971 et seq.).
At step two, the ALJ found that plaintiff had the
following severe medically determinable impairments:
degenera-
tive disc disease of thoracic spine; history of lumbar contusion;
impulse control disorder; bipolar affective disorder, depressed;
anxiety disorder; antisocial personality disorder and "[h]istory
of [p]olysubstance (heroin, alcohol, marijuana, crack cocaine,
benzodiazepine, PCP, and street methadone) [d]ependence on
[m]ethadone [m]aintenance" (Tr. 20, citing 20 C.F.R. §§ 416.908,
416.920(c)).
The ALJ found that plaintiff's history of chronic
hepatitis C infection was not severe because it did not cause
hepatic complications (Tr. 20).
The ALJ also found that plain-
tiff's history of schizophrenia was not severe because it was "so
remote as to not now be relevant" (Tr. 20).
45
At step three, the ALJ found that plaintiff's disabilities did not meet the criteria of the listed impairments and that
plaintiff was not, therefore, entitled to a presumption of
disability (Tr. 20-22).
The ALJ observed that there was no
evidence to support the criteria of any listing and no "opinion
by a physician or psychologist designated by the Commissioner
that the claimant has an impairment" that meets or equals any of
the listings (Tr. 20-21).
Specifically, the ALJ analyzed whether
plaintiff's physical impairments met listing 1.00 (musculoskeletal impairments) and whether plaintiff's mental impairments met
listings 12.04 (affective disorders), 12.06 (anxiety-related
disorders), 12.08 (personality disorders) and 12.09 (substance
addition disorders).
20 C.F.R. Pt. 404, Subpt. P, App. 1.
The ALJ then determined that plaintiff retained the
physical RFC to
occasionally lift and/or carry a maximum of 20 pounds;
to frequently lift and/or carry up to 10 pounds; to
cumulatively (and not necessarily continuously) sit,
stand and/or walk with normal breaks up to a total of 6
hours in an 8-hour workday; and to push and/or pull up
to his lifting/carrying limitations.
(Tr. 22-23 (footnotes omitted)).
The ALJ also determined that plaintiff retained the
mental RFC to
perform the simple, routine, repetitive type tasks
involved in unskilled work . . . including the abili46
ties to understand, remember, and carry out simple
instructions; to make simple work-related decisions; to
respond appropriately to supervision, co-workers and
usual work situations; and to deal with changes in a
routine work setting except for work requiring the
stressor of more than occasional contact with others.
(Tr. 23).
To reach his RFC determination, the ALJ examined the
opinions of the treating and consulting physicians and assessed
the weight to give to each opinion based on the objective medical
record.
With respect to plaintiff's physical impairments, the
ALJ afforded "little (and not controlling) weight" to Dr. Pierce's assessment of plaintiff's exertional limitations because the
ALJ found that it was contradicted by Dr. Pierce's own records
(Tr. 23-24).
The ALJ noted that while Dr. Pierce cited a lumbar
spine MRI to support his conclusion regarding plaintiff's restrictions in his Multiple Impairment Questionnaire, the only MRI
of record of plaintiff's lumbar spine, taken on October 31, 2012,
did not show lumbosacral abnormalities, although it did show disc
narrowing at T10-T11 (Tr. 23).
The ALJ also noted that Dr.
Pierce's exam on May 7, 2012 reported normal findings, and during
that examination plaintiff had complained "only of moderate pain"
(Tr. 23).
Moreover, the ALJ stated that while plaintiff reported
47
worsening symptoms to Dr. Pierce over time, "no basis was shown
for this development" (Tr. 23).
The ALJ also found that Dr. Pierce's findings were
contradicted by Dr. Pelczar-Wissner's findings (Tr. 23-24).
Specifically, Dr. Pelczar-Wissner found that plaintiff's use of a
cane was not medically necessary and that there was "only a mild
restriction for heavy lifting and carrying" (Tr. 23-24 (internal
quotation marks omitted)).
The ALJ further noted that Dr.
Pelczar-Wissner's assessment was consistent with Dr. Fruitman's
finding that plaintiff's only physical limitation was an inability to perform heavy lifting and with a hospital treatment record
dated July 5, 2011 noting that plaintiff did not have any ambulatory or gait problems (Tr. 24).
Thus, the ALJ gave "partial
weight" to Dr. Pelczar-Wissner's opinion because "it was made by
an acceptable medical source who has a great degree of understanding of Social Security disability programs and their evidentiary requirements and because it is consistent with the medical
findings of record" (Tr. 24).
With respect to plaintiff's mental impairments, the ALJ
afforded "little (and not controlling) weight" to Dr. Fruitman's
assessment (Tr. 24).
The ALJ noted that Dr. Fruitman's assess-
ment that plaintiff had specific marked restrictions in the
January 29, 2013 Psychiatric/Psychological Impairment Question48
naire was contradicted by a GAF score of 60 in that same questionnaire (Tr. 24).
The ALJ also found that the questionnaire
covered the period from June 6, 2012 through January 4, 2013, a
time period during which Dr. Broska assessed functional limitations that were "radically less restrictive" (Tr. 24).
The ALJ afforded "great weight" to Dr. Broska and Dr.
Meade's opinions because they were made "after a comprehensive
evaluation of either [plaintiff] or of the documentary evidence
of record regarding [plaintiff's] mental impairments," because
they were supported by the medical evidence in the record and
because "they [were] made by acceptable medical sources who have
a great degree of understanding of Social Security disability
programs and their evidentiary requirements" (Tr. 24).
Next, the ALJ found that plaintiff was not credible.
He found that although plaintiff's medically determinable impairments could reasonably be expected to cause plaintiff's claimed
symptoms to some degree, plaintiff's statements concerning the
intensity, persistence and limiting effects of his symptoms were
not consistent with the "objective medical and other evidence
especially in light of [plaintiff's] description of his essentially unlimited activities of daily living and his spares [sic]
work history" (Tr. 25).
49
At step four, the ALJ found that plaintiff was unable
to perform any past relevant work as a barber's apprentice
because he would have needed to be in constant contact with other
people (Tr. 25).
At step five, the ALJ found that jobs existed in
significant numbers in the national economy that plaintiff could
perform, given his age, education, work experience and RFC and
the rules in the Grids (Tr. 25).
The ALJ noted that if plaintiff
had the RFC to perform the full range of light work, "a finding
of not disabled would have been directed by Grid Rule 202.18"
(Tr. 25 (internal quotation marks omitted)).
However, plain-
tiff's "additional limitations have little or no effect on the
occupational base of unskilled light work" (Tr. 25-26).
Citing
SSR 85-15, the ALJ stated that "a limitation to unskilled work
which ordinarily involves dealing with objects rather than with
data or people would not significantly erode the occupational
bases for work at all exertional levels" (Tr. 26).
Accordingly,
the ALJ found that plaintiff was not disabled (Tr. 26).
C.
Analysis of the
ALJ's Decision
Plaintiff contends that the ALJ committed legal error
and that his decision was not supported by substantial evidence
50
(Memorandum of Law in Support of Plaintiff's Motion for Judgment
on the Pleadings, dated Oct. 30, 2015 (D.I. 12) ("Pl.'s Mem.")).
As described above, the ALJ went through the sequential
process required by the regulations.
The ALJ's analysis at steps
one and two were decided in plaintiff's favor, and the Commissioner has not challenged those findings.
The ALJ's analysis at
step three was decided in the Commissioner's favor, and plaintiff
has not challenged that finding.
I shall, therefore, limit my
discussion to whether the ALJ's analysis at steps four and five
complied with the applicable legal standards and was supported by
substantial evidence.
1.
ALJ's Analysis at
Step Four: RFC Assessment
Plaintiff objects to the ALJ's RFC assessment on two
grounds.
First, plaintiff asserts that the ALJ failed to weigh
properly the medical opinion evidence (Pl.'s Mem., at 11-19).
Second, plaintiff argues that the ALJ failed to evaluate properly
plaintiff's credibility (Pl.'s Mem., at 19-21).
For the reasons
stated below, I conclude that the ALJ's analysis in both regards
was flawed.
51
a.
Medical Opinion Evidence
Plaintiff argues that the ALJ erred in failing to give
Dr. Pierce and Dr. Fruitman's opinions controlling weight because
they were supported by medically acceptable clinical and laboratory diagnostic techniques and were consistent with substantial
evidence in the record (Pl.'s Mem., at 11-19).
i.
Dr. Pierce
With respect to plaintiff's physical RFC, the ALJ
"afforded little (and not controlling weight) to Dr. Pierce's
assessment of [plaintiff's] exertional limitations" because the
assessment was not supported by the MRI that Dr. Pierce cited and
because it was contradicted by Dr. Pierce's other findings and by
Dr. Pelczar-Wissner's findings (Tr. 23-24).
The ALJ gave "par-
tial weight" to Dr. Pelczar-Wissner's opinion because, in part,
they were consistent with Dr. Fruitman's opinion that plaintiff's
only physical limitation was an inability to perform heavy
lifting and with a hospital treatment record that did not note
any ambulatory or gait problems (Tr. 23-24).
The ALJ's decision is problematic for several reasons.
First, contrary to the ALJ's finding, Dr. Pierce's assessment of
plaintiff's exertional limitations is supported by medically
52
acceptable clinical and laboratory diagnostic techniques.
While
the MRI did not show lumbosacral abnormalities, it did show
significant intervertebral disc narrowing and suggested degenerative disc disease (Tr. 652).
The ALJ did not explain how those
MRI results were inconsistent with Dr. Pierce's assessment of
plaintiff's exertional limitations.
Additionally, the ALJ did
not acknowledge an x-ray taken a month after the MRI that showed
sacralization.
Dr. Pierce also cited a positive right femoral
stretch sign in support of his opinions concerning plaintiff's
exertional limitations; the ALJ also failed to acknowledge this
fact.
Second, the ALJ's conclusion that Dr. Pierce's assessment was not supported by substantial evidence is based on an
improper selective view of the record.
Clarke v. Colvin, 15 Civ.
354, 2017 WL 414489 at *9 (S.D.N.Y. Jan. 31, 2017) (Forrest,
D.J.) ("[T]he ALJ selectively relied on evidence that weighed
against a finding of disability.
This is improper -- an ALJ may
not 'pick and choose evidence which favors a finding that the
claimant is not disabled.'"), quoting Rodriguez v. Astrue, 07
Civ. 534 (WHP)(MHD), 2009 WL 637154 at *25 (S.D.N.Y. Mar. 9,
2009) (Pauley, D.J.).
Although the ALJ was correct that a
physical examination on May 7, 2012 was normal, the ALJ ignored
other evidence that would support Dr. Pierce's assessment of
53
plaintiff's exertional limitations.
Dr. Pierce's findings during
his multiple examinations of plaintiff included pain with forward
flexion (Tr. 504, 509, 546), a limited range of lumbar spinal
motion to sixty degrees in forward flexion (Tr. 604) and positive
straight-leg-raise testing for the right side (Tr. 601, 604, 696,
699).
Dr. Pierce also either renewed or increased plaintiff's
prescription for Percocet on multiple occasions (Tr. 504, 509,
543).
Dr. Sardar also found significant spasm, taut muscle
bands, tenderness to palpation over the lumbar paraspinal region
bilaterally and a "weakness to [the] right [leg] with 4/5"; Dr.
Sardar also recommended that plaintiff take medications and
attend physical therapy (Tr. 551-52, 657).16
Additionally,
although the ALJ noted that there was no basis in the record for
16
The Commissioner argues that "[s]ignificantly, Dr. Sardar
did not preclude Plaintiff from the performance of work-related
activities" (Memorandum of Law in Support of the Commissioner's
Cross-Motion for Judgment on the Pleadings and in Opposition to
Plaintiff's Motion for Judgment on the Pleadings, filed Nov. 24,
2015 (D.I. 15) ("Def.'s Mem."), at 16). Dr. Sardar's silence
does not weigh for or against a finding of disability. Compare
Rosa v. Callahan, 168 F.3d 72, 81 (2d Cir. 1999) ("[T]here was no
indication in the reports that the consultants intended anything
by their silence or that they set out to 'express [an] opinion on
[the] subject . . . ." (second and third alterations in original;
internal quotation marks omitted)), with Dumas v. Schweiker,
supra, 712 F.2d at 1553 ("The [Commissioner] is entitled to rely
not only on what the record says, but also on what it does not
say."), citing Rutherford v. Schweiker, 685 F.2d 60, 63 (2d Cir.
1982) and Berry v. Schweiker, 675 F.2d 464, 468 (2d Cir. 1982)
(per curiam).
54
plaintiff's claim of worsening symptoms during subsequent visits,
a "patient's reports of complaints, or history, is an essential
diagnostic tool."
Green-Younger v. Barnhart, 335 F.3d 99, 107
(2d Cir. 2003) (internal quotation marks omitted).
Third, the ALJ's conclusion that Dr. Pierce's assessment should be discounted because it was inconsistent with Dr.
Pelczar-Wissner's assessment is problematic.
Dr. Pelczar-Wissner
examined plaintiff on one occasion and did not have the benefit
of plaintiff's complete medical record.
"Opinions from a one-
time consultative physician are not ordinarily entitled to
significant weight, in particular where that physician does not
have the benefit of the complete medical record."
Duran v.
Colvin, 14 Civ. 8677 (HBP), 2016 WL 5369481 at *18 (S.D.N.Y.
Sept. 26, 2016) (Pitman, M.J.); see Selian v. Astrue, supra, 708
F.3d at 419 ("We have previously cautioned that ALJs should not
rely heavily on the findings of consultative physicians after a
single examination."); Tarsia v. Astrue, 418 F. App'x 16, 18 (2d
Cir. 2011) (summary order) ("Because it is unclear whether [the
consulting physician] reviewed all of [the claimant's] relevant
medical information, his opinion is not 'supported by evidence of
record' as required to override the opinion of [the] treating
physician.").
Moreover, the fact that Dr. Pelczar-Wissner's
assessment was consistent with Dr. Fruitman's assessment and the
55
hospital ambulatory note is not persuasive because Dr. Fruitman
was treating plaintiff for his mental impairments, not his
physical impairments, and the hospital ambulatory note related to
a single examination conducted more than a year before Dr.
Pelczar-Wissner performed her consultative examination.
The ALJ's decision to discount Dr. Pierce's opinion was
directly relevant to the ALJ's RFC determination.
Dr. Pierce
opined that plaintiff could sit for three hours total and
stand/walk for two hours total in an eight-hour workday and that
plaintiff could lift/carry ten pounds occasionally (Tr. 903-04).
That is inconsistent with the ALJ's physical RFC finding.
ii.
Dr. Fruitman
With respect to plaintiff's mental RFC, the ALJ "afforded little (and not controlling) weight to Dr. Fruitman's
assessment of [plaintiff's] mental limitations" because it was
contradicted by Dr. Broska's assessment that plaintiff had
"functional limitations that are radically less restrictive," and
by Dr. Fruitman's own determination that plaintiff had a GAF
score of 60 (Tr. 24).
The ALJ "afforded great weight" to the
assessments of Drs. Broska and Meade "because those opinions were
made after a comprehensive evaluation of either the claimant or
of the documentary evidence of record regarding [plaintiff's]
56
mental impairments" and because they were supported by the
medical evidence, among other reasons (Tr. 24).
This aspect of the ALJ's decision is problematic for
several reasons.
First, "[a] medical opinion may be assigned
more weight if it is supported by psychiatric signs, which are
medically demonstrable phenomena that indicate specific psychological abnormalities, e.g. abnormalities of behavior, mood,
thought, memory, orientation, development, or perception."
Burgess v. Colvin, 15 Civ. 9585 (RLE), 2016 WL 7339925 at *12
(S.D.N.Y. Dec. 19, 2016) (Ellis, M.J.), citing 20 C.F.R. §
416.928; see Sanfilippo v. Colvin, No. 14-CV-3067 (RRM), 2016 WL
1252757 at *8 (E.D.N.Y. Mar. 27, 2016) (ALJ erred by failing to
give treating psychiatrist's opinion controlling weight because
her reports were "clearly based on clinical findings of psychiatric abnormalities"), judgment entered by, 2016 WL 1226752
(E.D.N.Y. Mar. 27, 2016).
Dr. Fruitman's assessment was sup-
ported by psychiatric signs; specifically, he found that plaintiff suffered from poor memory, mood disturbance, recurrent panic
attacks, difficulty thinking or concentrating, decreased energy,
generalized persistent anxiety and irritability (Tr. 675).
Second, Dr. Fruitman's treatment notes support his
assessment of plaintiff's mental limitations.
For example, Dr.
Fruitman found that even though plaintiff was responding to
57
treatment, he was still experiencing mood swings, auditory
hallucinations, nervousness, anger, depression, easy irritability
and anxiety (Tr. 495, 549, 572, 575, 599, 674, 683, 692, 698).
Dr. Fruitman had also opined that plaintiff could not deal with
stress and became "verbally explosive" due to poor coping skills
(Tr. 576).
Additionally, according to Dr. Fruitman, plaintiff
had a slightly impaired memory and a loss of concentration when
given a lot of tasks (Tr. 577).
These treatment notes are
consistent with plaintiff's health records made during his brief
incarceration (Tr. 745, 753, 761, 779, 780, 796).17
17
The ALJ's conclusion that Dr. Fruitman's assessment should
not be given controlling weight because it was inconsistent with
plaintiff's GAF score of 60 does not, by itself, require remand.
A GAF score is of limited value; as explained in Mainella v.
Colvin, No. 13-CV-2453-JG, 2014 WL 183957 at *5 (E.D.N.Y. Jan.
14, 2014), the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (the "DSM") has dropped the use
of GAF scores, and SSA has limited their use because there is "no
way to standardize measurement and evaluation." (internal quotation marks omitted). Additionally, the GAF score is not designed
to predict outcomes and is so "general that [it is] not useful
without additional supporting description and detail." Mainella
v. Colvin, supra, 2014 WL 183957 at *5; see Berry v. Commissioner
of Soc. Sec., 14 Civ. 3977 (KPF), 2015 WL 4557374 at *3 n.10
(S.D.N.Y. July 29, 2015) (Failla, D.J.).
Nonetheless, plaintiff's GAF score was not the only factor
the ALJ considered in declining to give Dr. Fruitman's opinion
controlling weight. See Gonzalez v. Colvin, No. 15-CV-6123P,
2016 WL 4009532 at *5-*6 (W.D.N.Y. July 27, 2016); Camille v.
Colvin, 104 F. Supp. 3d 329, 342 (W.D.N.Y. 2015), aff'd, 652 F.
App'x 25 (2d Cir. 2016) (summary order). Moreover, "the ALJ was
permitted to consider Plaintiff's GAF score[] as part of [his]
(continued...)
58
Third, the ALJ should not have afforded Dr. Broska's
and Dr. Meade's opinions great weight.
"Where mental health
treatment is at issue, the treating physician rule takes on added
importance" because "the longitudinal relationship between a
mental health patient and [his] treating physician provides the
physician with a rich and nuanced understanding of the patient's
health that cannot be readily achieved by a single consultative
exam."
Bodden v. Colvin, 14 Civ. 8731 (SN), 2015 WL 8757129 at
*9 (S.D.N.Y. Dec. 14, 2015) (Netburn, M.J.).
Dr. Broska examined
plaintiff one time and did not have the benefit of plaintiff's
complete medical record.
See Selian v. Astrue, supra, 708 F.3d
at 419; Tarsia v. Astrue, supra, 418 F. App'x at 18; Duran v.
Colvin, supra, 2016 WL 5369481 at *18.
Moreover, although Dr.
Meade had access to plaintiff's medical records, Dr. Meade did
not examine plaintiff.
Affording controlling weight to a physi-
cian who merely conducts a record review is particularly problematic when dealing with mental impairments because "observation of
the patient is critical to understanding the subjective nature of
17
(...continued)
analysis because Volume IV [of the DSM, which included GAF
scores] was in effect at the time of Plaintiff's treatment."
Camille v. Colvin, supra, 104 F. Supp. 3d at 342; see Vanterpool
v. Colvin, 12 Civ. 8789 (VEC)(SN), 2014 WL 1979925 at *2 n.2
(S.D.N.Y. May 15, 2014) (Caproni, D.J.) (adopting report and
recommendation).
59
the patient's disease and in making a reasoned diagnosis."
Rodriguez v. Astrue, supra, 2009 WL 637154 at *26 (internal
quotation marks omitted); see Vazquez v. Commissioner of Soc.
Sec., 14 Civ. 6900 (JCF), 2015 WL 4562978 at *14 (S.D.N.Y. July
21, 2015) (Francis, M.J.).
Thus, "[c]ourts have held that the
conclusions of a physician who merely reviews a medical file and
performs no examination are entitled to little, if any, weight."
Rodriguez v. Astrue, supra, 2009 WL 637154 at *26 (internal
quotation marks omitted).
The ALJ's decision to discount Dr. Fruitman's opinion
was directly relevant to the ALJ's RFC determination.
Dr.
Fruitman opined that plaintiff had marked limitations in his
ability to sustain an ordinary routine without supervision, to
work in coordination with or proximity to others without being
distracted by them and to accept instructions and respond appropriately to criticism from supervisors (Tr. 677-78).
Dr. Fruitm-
an also opined that plaintiff had moderate limitations in his
ability to respond appropriately to changes in the work setting
(Tr. 678).
These opinions are inconsistent with the ALJ's mental
RFC finding.18
18
Dr. Fruitman's opinion that plaintiff had mild limitations
in the ability to understand, remember and carry out simple oneor two-step instructions and to make simple work-related deci(continued...)
60
Thus, the ALJ's RFC determination, which discounted
plaintiff's treating physicians' opinions, was not supported by
substantial evidence and warrants remand.19
b.
Credibility Assessment
The ALJ found that plaintiff's statements concerning
the intensity, persistence and limiting effects of his symptoms
could not reasonably be accepted as consistent "with the objective medical and other evidence especially in light of [plaintiff's] description of his essentially unlimited activities of
daily living and his spares [sic] work history" (Tr. 25).
Plaintiff argues that the ALJ's credibility assessment is not
supported by substantial evidence.
First, plaintiff argues that
18
(...continued)
sions, and Dr. Fruitman's opinion that plaintiff had limitations
in social interactions, were consistent with the ALJ's RFC
determination.
19
Plaintiff also argues that the ALJ erred by failing to
consider the factors set forth in 20 C.F.R. § 416.927(c)(2)-(6)
for evaluating opinions from a treating source (Pl.'s Mem., at
17). However, as noted above, while the ALJ must consider the
factors, he "need not explicitly discuss" them. Thompson v.
Colvin, 12 Civ. 7024 (PAE)(HBP), 2014 WL 7392889 at *15 (S.D.N.Y.
Dec. 29, 2014) (Engelmayer, D.J.) (adopting report and recommendation); accord Kaczkowski v. Colvin, 15 Civ. 9356 (GWG), 2016 WL
5922768 at *18 (S.D.N.Y. Oct. 11, 2016) (Gorenstein, M.J.) ("The
failure to explicitly list each of these factors does not constitute legal error requiring remand where the ALJ applied the
substance of the treating physician rule." (internal quotation
marks omitted)).
61
his sparse work history "does not automatically equate with a
conclusion that [plaintiff's] allegations of disability are not
credible" (Pl.'s Mem., at 21).
Second, plaintiff argues that the
ALJ's "bald statement that unspecified 'objective evidence' does
not support [plaintiff's] statements regarding [his] disability
is insufficient" (Pl.'s Mem., at 20).
Third, plaintiff argues
that the ALJ made a conclusory finding that plaintiff had no
restrictions in his activities of daily living and that even if
that conclusory finding were true, "[n]one of [plaintiff's]
activities of daily living are performed for sustained periods
comparable to those required to hold a . . . job" (Pl.'s Mem., at
21 (ellipses in original; internal quotation marks omitted)).
The ALJ did not err by relying on plaintiff's sparse
work history; indeed, the ALJ was required to consider it.
Genier v. Astrue, supra, 606 F.3d at 49 (alterations and emphasis
in original).
Notwithstanding this, the ALJ's credibility assessment
is flawed.
As noted above, the ALJ was obligated to explain his
decision to reject plaintiff's testimony "'with sufficient
specificity to enable the [reviewing] Court to decide whether
there are legitimate reasons for the ALJ's disbelief' and whether
[the ALJ's] decision is supported by substantial evidence."
Calzada v. Astrue, supra, 753 F. Supp. 2d at 280, quoting Fox v.
62
Astrue, supra, 2008 WL 828078 at *12; see also Lugo v. Apfel,
supra, 20 F. Supp. 2d at 664.
Here, in conclusory terms, the ALJ
stated that plaintiff's statements were inconsistent with "the
objective medical . . . evidence" without ever identifying the
objective medical evidence to which he was referring.
As ex-
plained in Lugo v. Apfel, supra, 20 F. Supp. 2d at 663-64,
the ALJ's opinion makes no explicit or specific reference to the [objective medical] evidence on which [he]
relied in determining that plaintiff's claims of [the
intensity, persistence and limiting effects of his
claimed symptoms] were not credible . . . . Conclusory
determinations such as these leave a reviewing court no
basis on which to determine whether the proper factors
were considered and the appropriate legal standards
applied.
Accord Bushansky v. Commissioner of Soc. Sec., 13 Civ. 2574
(JGK), 2014 WL 4746092 at *7-*8 (S.D.N.Y. Sept. 24, 2014) (Koeltl, D.J.).
Thus, "the ALJ failed to provide sufficient reasons
for review."
Bushansky v. Commissioner of Soc. Sec., supra, 2014
WL 4746092 at *7.
"Even assuming the ALJ considered all the
relevant [objective medical] evidence and simply failed to
document that analysis, the credibility finding remains insufficient" because such an analysis "likely would be tainted here by
the ALJ's failure to properly evaluate the opinions of" Drs.
Pierce and Fruitman.
Bunn v. Colvin, No. 11-CV-6150 (NGG), 2013
WL 4039372 at *12 (E.D.N.Y. Aug. 7, 2013).
63
To the extent the ALJ provided reasons for his credibility assessment, they are insufficient.
Contrary to the ALJ's
finding, plaintiff's activities of daily living are not "essentially unlimited."
Plaintiff testified that he had limited
cooking skills and performed only basic cleaning (Tr. 38).
Additionally, he had to lie down for two to three hours after
taking his medications (Tr. 40).
Regarding those activities of
daily living that plaintiff was able to perform, such as bathing,
dressing, traveling independently and shopping with help (Tr. 21,
563), "there is no evidence that [plaintiff] engaged in any of
these activities for sustained periods comparable to those
required" by light work.
Balsamo v. Chater, 142 F.3d 75, 81 (2d
Cir. 1998) (internal quotation marks omitted); accord Alfaro v.
Colvin, No. 14-CV-4392, 2015 WL 4600654 at *11 (E.D.N.Y. July 29,
2015) ("[T]he ALJ erred in concluding that evidence of carrying
on basic activities that do not require continuous sitting or
standing showed [the claimant] could meet the requirements of
sedentary work."); Glessing v. Commissioner of Soc. Sec., No. 13
Civ. 1254 (BMC), 2014 WL 1599944 at *11 (E.D.N.Y. Apr. 21, 2014).
Thus, the ALJ's credibility assessment was flawed,
requiring remand.
The ALJ should reconsider his assessment in
light of the objective medical record and the standards set forth
above.
64
2.
ALJ's Analysis at
Step Five: Plaintiff's
Ability to Work
Plaintiff also challenges the ALJ's conclusion that
plaintiff could perform work that exists in significant numbers
in the national economy.
Specifically, plaintiff contends that
he has significant nonexertional limitations, namely, difficulties in social functioning and in concentration, persistence and
pace; he argues that, pursuant to SSR 85-15, 1985 WL 56857 (Jan.
1, 1985), reliance on the Grids was, therefore, improper.
Plaintiff contends that his nonexertional limitations required
the ALJ to secure the testimony of a vocational expert before
determining whether plaintiff was disabled (Pl.'s Mem., at 2324).
The Commissioner responds that the ALJ's reliance on
the Grids was proper because (1) "the ALJ's step three finding
that Plaintiff had moderate limitations in social functioning and
concentration, persistence or pace need not be explicitly included in the RFC determination"; (2) plaintiff's moderate
limitations in concentration, persistence or pace were taken into
consideration by the ALJ in assessing plaintiff's RFC; (3)
plaintiff's "ability to perform simple, routine, repetitive
tasks, and the ability to understand, remember and carry out
65
simple instructions and make simple work-related decisions . . .
encompasses the basic mental demands of unskilled work," as
outlined in SSR 85-15, supra, 1985 WL 56857, and (4) SSR 85-15
indicates that a limitation to unskilled work ordinarily involves
dealing with objects, not people, and does not significantly
erode the occupational base for work (Def.'s Mem., at 24-25).
First, although the ALJ found that plaintiff had
moderate difficulties in social functioning and concentration,
persistence or pace at step three (Tr. 21-22), that is not
necessarily inconsistent with the ALJ's RFC assessment at step
four and his finding at step five that plaintiff's limitations
had little to no effect on the occupational base of unskilled
light work.
See McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir.
2014); Avant v. Colvin, No. 6:15-cv-6671 (MAT), 2016 WL 5799080
at *3 (W.D.N.Y. Oct. 5, 2016) (analysis at step three "assesses
the functional effects of a claimant's mental impairments, but it
is entirely separate and analytically distinct from, a subsequent
determination of mental residual functional capacity[,] where the
focus is on an assessment of an individual's ability to do
sustained work-related physical and mental activities in a work
setting on a regular and continuing basis" (alteration and
emphases in original; internal quotation marks and citations
66
omitted)); Jimenez v. Colvin, 12 Civ. 6001 (PGG)(FM), 2016 WL
5660322 at *12 (S.D.N.Y. Sept. 30, 2016) (Gardephe, D.J.)
However, as explained above, see supra Section III.A.2,
exclusive reliance on the Grids is not appropriate where
nonexertional limitations "significantly diminish [a claimant's]
ability to work."20
Bapp v. Bowen, supra, 802 F.2d at 603;
accord Butts v. Barnhart, supra, 388 F.3d at 383-84.
Where
nonexertional limitations are claimed, and before the ALJ relies
exclusively on the Grids, the ALJ must first "consider the
intermediate question -- whether the range of work [a claimant]
could perform was so significantly diminished as to require the
introduction of vocational testimony."
F.2d at 606.
Bapp v. Bowen, supra, 802
If the answer to that question is affirmative, the
ALJ cannot rely on the Grids alone and must secure the testimony
of a vocational expert to determine whether the claimant is
disabled.
The principal problem in this case is that the ALJ
failed to address the "intermediate question" set forth in Bapp - whether plaintiff's nonexertional limitations significantly
20
While the ALJ noted that plaintiff's physical impairments
were exertional (Tr. 24), he did not note whether any of his
impairments were nonexertional. Plaintiff's mental impairments
appear to be nonexertional because there is no evidence (and no
reason to believe) that they affect his ability to sit, stand,
walk, lift, carry, push or pull. 20 C.F.R. § 416.969a(b).
67
diminished his ability to perform the basic mental demands of
unskilled work -- and went instead directly to the Grids to
determine whether plaintiff was disabled.
94 F.3d 34, 39 (2d Cir. 1996).
See Pratts v. Chater,
As in Bapp v. Bowen, supra, 802
F.3d at 603 (internal quotation marks omitted), in which the ALJ
concluded that "claimant's capacity for the full range of light
work has not been significantly compromised by his additional
nonexertional limitations," ALJ Friedman noted that "the additional limitations have little or no effect on the occupational
base of unskilled light work" (Tr. 25-26).
As in Bapp v. Bowen,
supra, 802 F.3d at 606, the ALJ made this determination "in the
context of the ultimate question, i.e. was [plaintiff] disabled"
and failed to consider whether vocational expert testimony was
needed.
The ALJ's failure to consider the intermediate question
was legal error, requiring remand.
See Bapp v. Bowen, supra, 802
F.2d at 606; DeLeon v. Colvin, No. 3:15-CV-1106 (JCH), 2016 WL
3211419 at *5 (D. Conn. June 9, 2016); Hernandez v. Colvin, 13
Civ. 3035 (RPP), 2014 WL 3883415 at *15 (S.D.N.Y. Aug. 7, 2014)
(Patterson, D.J.) ("Although an ALJ has discretion to conclude
that the Grid adequately addresses a plaintiff's non-exertional
impairments, courts in this Circuit have held that the ALJ is
obligated to explain such a finding."); Westcott v. Colvin, No.
12-CV-4183 (FB), 2013 WL 5465609 at *4 (E.D.N.Y. Oct. 1, 2013)
68
(on remand, "before applying the Grids, the ALJ must first
analyze whether their application is appropriate"); Bunn v.
Colvin, supra, 2013 WL 4039372 at *10 (ordering the ALJ, on
remand, "to determine whether the Commissioner has shown that
[the claimant's] ability to perform the full range of light,
unskilled work is not significantly diminished as a result of his
nonexertional impairments"); Cruz v. Colvin, 12 Civ. 7346
(PAC)(AJP), 2013 WL 3333040 at *19 (S.D.N.Y. July 2, 2013) (Peck,
M.J.) (Report & Recommendation) ("If [the ALJ] treated the Grid
as dispositive because he found that [the claimant's]
nonexertional limitations did not significantly reduce, or only
had a negligible impact on, [the claimant's] work capacity, [the
ALJ] was obligated to explain that finding."), adopted by, 2014
WL 774966 (S.D.N.Y. Feb. 21, 2014) (Crotty, D.J.); Aas v. Astrue,
No. 08-CV-4488 (DLI), 2010 WL 3924687 at *11 (E.D.N.Y. Sept. 29,
2010).
The Commissioner's arguments are unavailing.
First, to
the extent the Commissioner's arguments can be read as asserting
that the ALJ made an implicit finding that plaintiff's
nonexertional limitations did not significantly diminish plaintiff's ability to work, the argument is not convincing.
If
plaintiff had nonexertional limitations that, in the ALJ's
opinion, did not significantly diminish his ability to work, the
69
ALJ had an obligation to explain how he reached his conclusion,
and his failure to do so is plain error.
St. Louis ex rel. D.H.
v. Commissioner of Soc. Sec., 28 F. Supp. 3d 142, 148 (N.D.N.Y.
2014); Baron v. Astrue, 11 Civ. 4262 (JGK)(MHD), 2013 WL 1245455
at *19 (S.D.N.Y. Mar. 4, 2013) (Dolinger, M.J.) (Report & Recommendation), adopted by, 2013 WL 1364138 (S.D.N.Y. Mar. 26, 2013)
(Koeltl, D.J.); accord Lewis v. Astrue, 11 Civ. 7538 (JPO), 2013
WL 5834466 at *22 (S.D.N.Y. Oct. 30, 2013) (Oetken, D.J.) ("Courts in this Circuit have long held that an ALJ's failure to
acknowledge relevant evidence or to explain its implicit rejection is plain error." (internal quotation marks omitted)); Camilo
v. Commissioner of Soc. Sec. Admin., 11 Civ. 1345 (DAB)(MHD),
2013 WL 5692435 at *15 (S.D.N.Y. Oct. 2, 2013) (Batts, D.J.)
(adopting report and recommendation).
Second, the Commissioner's and the ALJ's (along with
plaintiff's) citation to SSR 85-15 is erroneous.
SSR 85-15,
supra, 1985 WL 56857, applies only where the claimant suffers
solely from nonexertional impairments; as noted in footnote 20,
plaintiff here also suffers from exertional impairments.
Roma v.
Astrue, 468 F. App'x 16, 20 (2d Cir. 2012) (summary order) ("SSR
85-15, descriptively titled 'The Medical-Vocational Rules as a
Framework for Evaluating Solely Nonexertional Impairments,' does
not apply to a case, such as this one, in which the claimant
70
suffers from a combination of exertional and non-exertional
impairments." (emphasis in original)).
Whether plaintiff's
nonexertional impairments, by themselves, warrant a finding of
disability does not resolve the question of whether all of
plaintiff's impairments, taken together, warrant a finding of
disability.
See Burgin v. Astrue, 348 F. App'x 646, 647 (2d Cir.
2009) (summary order) ("The Commissioner is required to 'consider
the combined effect of all of [the claimant's] impairments
without regard to whether any such impairment, if considered
separately, would be of sufficient severity' to establish eligibility for Social Security benefits" (alteration in original)),
citing 20 C.F.R. § 404.1523; Baron v. Astrue, supra, 2013 WL
1245455 at *21.
Accordingly, on remand, the ALJ should re-evaluate
whether the Commissioner has shown that plaintiff's capability to
perform the full range of unskilled light work was not significantly diminished by his physical and mental limitations.
While
this initial determination need not require a vocational expert,
if the ALJ determines that plaintiff's nonexertional limitations
significantly diminish his ability to perform the full range of
unskilled light work, then the ALJ must secure the testimony of
such an expert.
71
IV.
Conclusion
Accordingly, for all the foregoing reasons, plaintiff's
motion for judgment on the pleadings is granted.
The Commis-
sioner's motion is denied, and this case is remanded to the SSA
for further proceedings.
The Clerk of the Court is respectfully
requested to close Docket Items 11 and 14.
Dated:
New York, New York
February 28, 2017
SO ORDERED
United States Magistrate Judge
Copies transmitted to:
All Counsel of Record
72
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