Grant v. Colvin
Filing
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OPINION AND ORDER for 16 Report and Recommendations, 14 Motion for Judgment on the Pleadings filed by Carolyn W. Colvin, 12 Motion for Judgment on the Pleadings filed by Tonia Somone Grant. I have reviewed the remainder of Magistrate Jud ge Pitman's thorough Report and Recommendation for clear error and find none. Therefore, I adopt the Report in its entirety. Plaintiff's motion for judgment on the pleadings, (Doc. 12), is GRANTED to the extent that this matter be remande d for further proceedings, and the Commissioner's cross-motion for judgment on the pleadings, (Doc. 14), is DENIED. This case is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with the Report. The Clerk of Court is respectfully directed to terminate the open motions at Documents 12 and 14 and close this case. SO ORDERED. (Signed by Judge Vernon S. Broderick on 11/15/2018) (rro) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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TONIA SOMONE GRANT,
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Plaintiff,
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-v:
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NANCY A. BERRYHILL, ACTING
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COMMISSIONER OF SOCIAL SECURITY, :
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Defendant. :
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11/15/2018
16-CV-7604 (VSB) (HBP)
OPINION AND ORDER
Appearances:
Howard D. Olinsky
Olinsky Law Group
Syracuse, New York
Counsel for Plaintiff
Sixtina Fernandez
United States Attorney’s Office
New York, New York
Counsel for Defendant
VERNON S. BRODERICK, United States District Judge:
Plaintiff Tonia Somone Grant brings this action pursuant to § 205(g) of the Social
Security Act (the “SSA”), 42 U.S.C. §§ 405(g), seeking judicial review of a determination by the
Commissioner of Social Security (the “Commissioner”) that she is not entitled to Supplemental
Security Income (“SSI”) or disability insurance benefits (“DIB”). Plaintiff and Defendant crossmoved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. On November 22, 2017, Magistrate Judge Henry Pitman issued a detailed and
thorough Report and Recommendation (“Report” or “R&R”) recommending that Plaintiff’s
motion for judgment on the pleadings be granted and the Commissioner’s cross-motion for
judgment on the pleadings be denied. (Doc. 16.) Before me is Defendant’s objection to the
R&R. For the reasons discussed below, I adopt the Report in full.
Factual Background and Procedural History
I assume the parties’ familiarity with the facts and record of prior proceedings, and
restate only the information necessary to explain my decision.1
Plaintiff was born in 1970. (R&R 3.) She worked part-time as an order clerk at a bakery
between 1994 and 2000. (Id.) In 2009, Nurse Practitioner Barbara Wells (“NP Wells”) at
Community Health Hudson River Healthcare, Inc. began treating Plaintiff. (Id. at 5.) Plaintiff
visited NP Wells on February 14, 2013, complaining of sharp, stabbing pain in her lower back
for two days, which caused her to be unable to sleep. (Id.) NP Wells observed that Plaintiff had
an antalgic gait and a slight right spasm in her mid-back.2 (Id.) NP Wells prescribed Plaintiff
hydrocodone-acetaminophen tablets and referred Plaintiff for an x-ray of her spine. (Id.) In a
letter dated March 29, 2013, NP Wells stated that Plaintiff was unable to work in any capacity
due to illness. (Id.)
After Plaintiff visited NP Wells on several more occasions in 2013 complaining of back
and hip pain, NP Wells completed a Residual Functional Capacity (“RFC”) Questionnaire for
Plaintiff on December 10, 2013. (Id. at 6–8.) NP Wells stated that Plaintiff’s diagnoses were
bursitis, coronary artery disease, and back pain, and that she experienced lower back and hip
pain. (Id. at 8.) NP Wells provided her opinion that Plaintiff could lift up to ten pounds
occasionally, walk one-half block without rest or significant pain, sit and stand for ten minutes at
a time, needed to shift positions from sitting to standing or walking, and needed ten to fifteen
1
A more detailed description of the underlying facts and procedural history is contained in Magistrate Judge
Pitman’s Report and Recommendation, dated May 11, 2017. (Doc. 18.)
2
Antalgic means “‘counteracting or avoiding pain, as a posture or gait assumed so as to lessen pain.’” (R&R 5,
n.7.)
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minute breaks every hour during an eight-hour workday. (Id.) NP Wells also opined that
Plaintiff would miss work more than four days per month because of her impairments. (Id.)
NP Wells completed a second RFC Questionnaire for Plaintiff on August 26, 2014. (Id.
at 8–9.) NP Wells again diagnosed Plaintiff with, among other things, lower back and hip pain.
She concluded that Plaintiff’s impairments would frequently interfere with her ability to perform
work-related tasks. (Id. at 9.) NP Wells reiterated her opinions that Plaintiff would need hourly
breaks of ten to fifteen minutes and would miss work three to four times a month. (Id.) NP
Wells and Dr. Bryan Labrenz completed a third RFC Questionnaire for Plaintiff on October 24,
2014. (Id.) They concluded—consistent with prior questionnaires—that Plaintiff would need
hourly breaks and would miss three to four days per month due to her impairments. (Id. at 10.)
On June 4, 2013 and January 15, 2014, Plaintiff visited Dr. Edward J. Kirby, an
orthopedic surgeon. (Id. at 10–11.) During the second appointment, Dr. Kirby diagnosed
Plaintiff with lower back pain. (Id. at 12.) On April 2, 2014, Dr. Kirby completed a Medical
Source Statement of Ability to Do Work-Related Activities, in which he opined that Plaintiff
could carry up to fifty pounds occasionally, and up to twenty pounds frequently. (Id. at 13.) He
also found that Plaintiff could sit for six hours and stand and walk for four hours during an eighthour workday, but that she could only sit for two hours at a time and stand and walk for one hour
at a time without interruption. (Id.) According to Dr. Kirby, Plaintiff could continuously climb,
balance, stoop, and kneel, and she could frequently crouch and crawl. (Id.)
Plaintiff filed an application for SSI on April 16, 2013, claiming disability due to two
heart attacks, blood clots in her legs, diabetes, lower back pain, high blood pressure, and high
cholesterol. (R&R 2.) She later amended the onset date to March 16, 2013. (Id.) Her claims
were initially denied on May 10, 2013. After Plaintiff requested a hearing before an
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administrative law judge (“ALJ”), Plaintiff—with the assistance of an attorney representative—
appeared and testified at a hearing before ALJ Katherine Edgell on February 28, 2014. (Id. 2-3.)
A supplemental hearing was held on October 8, 2014, at which a vocational expert testified. (Id.
at 3.) The ALJ issued a decision finding that plaintiff was not disabled and denying her SSI
claim on January 29, 2015. (Id.) The Appeals Council denied her request for review on July 28,
2016. (Id.)
Plaintiff filed this action on September 28, 2016. (Doc. 1.) I referred the case to
Magistrate Judge Pitman on September 30, 2016. (Doc. 7.) Plaintiff filed her motion for
judgment on the pleadings on March 20, 2017, (Docs. 12–13), and Defendant cross-moved for
judgment on the pleadings on May 15, 2017, (Docs. 14–15). Magistrate Judge Pitman issued his
Report and Recommendation on November 22, 2017. (Doc. 16.) Defendant filed its objection
on December 5, 2017, (Doc. 17), and Plaintiff filed her response on December 12, 2017, (Doc.
18).
Legal Standards
A.
Review of the Magistrate Judge’s Report
A district court reviewing a magistrate judge’s report and recommendation “may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1). A party may make objections to a report and recommendation
“[w]ithin 14 days after being served with a copy of the recommended disposition.” Fed. R. Civ.
P. 72(b)(2); 28 U.S.C. § 636(b)(1). The district court “may adopt those portions of the report to
which no ‘specific, written objection’ is made, as long as the factual and legal bases supporting
the findings and conclusions set forth in those sections are not clearly erroneous or contrary to
law.” Adams v. N.Y. State Dep’t of Educ., 855 F. Supp. 2d 205, 206 (S.D.N.Y. 2012) (quoting
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Fed. R. Civ. P. 72(b)). “If a party timely objects to any portion of a magistrate judge’s report and
recommendation, the district court must ‘make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.’” Bush v.
Colvin, No. 15 Civ. 2062 (LGS) (DF), 2017 WL 1493689, at *4 (S.D.N.Y. Apr. 26, 2017)
(quoting United States v. Romano, 794 F.3d 317, 340 (2d Cir. 2015)).
A party’s objection “must be specific and clearly aimed at particular findings in the
R&R.” Bussey v. Rock, No. 12-CV-8267 (NSR) (JCM), 2016 WL 7189847, at *2 (S.D.N.Y.
Dec. 8, 2016) (internal quotation marks omitted). “[T]he court will review the R&R strictly for
clear error when a party makes only conclusory or general objections, or simply reiterates the
original arguments.” Id. (internal quotation marks omitted); see also Ortiz v. Barkley, 558 F.
Supp. 2d 444, 451 (S.D.N.Y. 2008) (noting that reviewing court “is only obliged to review the
Report for clear error” where “objections largely reiterate the arguments made to, and rejected
by” the magistrate judge); Vega v. Artuz, No. 97-CV-3775, 2002 WL 31174466, at *1 (S.D.N.Y.
Sept. 30, 2002) (“[O]bjections that are merely perfunctory responses argued in an attempt to
engage the district court in a rehashing of the same arguments set forth in the original petition
will not suffice to invoke de novo review of the magistrate’s recommendations.”).
B.
Review of the Commissioner’s Decision
In reviewing a social security claim, “it is not [the court’s] function to determine de novo
whether plaintiff is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quoting Pratts
v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)); see also Riordan v. Barnhart, No. 06 CIV 4773 AKH,
2007 WL 1406649, at *4 (S.D.N.Y. May 8, 2007). Instead, a reviewing court considers merely
whether the correct legal standards were applied and whether substantial evidence supports the
decision. Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008); see also 42 U.S.C. § 405(g) (on
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judicial review, “[t]he findings of the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive”). “Substantial evidence means more than
a mere scintilla” and “means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Burgess, 537 F.3d at 127 (quoting Halloran v. Barnhart, 362
F.3d 28, 31 (2d Cir. 2004)). It is “a very deferential standard of review—even more so than the
‘clearly erroneous’ standard.” Brault v. Comm’r of Soc. Sec., 683 F.3d 443, 448 (2d Cir. 2012)
(citing Dickinson v. Zurko, 527 U.S. 150, 153 (1999)). “The substantial evidence standard
means once an ALJ finds facts, [a reviewing court] can reject those facts only if a reasonable
factfinder would have to conclude otherwise.” Id. (internal quotation marks omitted).
C.
Disability Standard
To be considered disabled under the SSA, a claimant must show 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 at least 12 months, that is “of such
severity that he is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work.” 42
U.S.C. § 423(d)(1)(A), (2)(A). The Commissioner has established a five-step evaluation process
to determine whether an individual is disabled. See 20 C.F.R. §§ 404.1520, 416.920. The fivestep process is as follows:
First, the [Commissioner] considers whether the claimant is currently engaged in
substantial gainful activity. If he is not, the [Commissioner] next considers whether
the claimant has a “severe impairment” which significantly limits his physical or
mental ability to do basic work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based solely on medical evidence, the
claimant has an impairment which is listed in Appendix 1 of the regulations. If the
claimant has such an impairment, the [Commissioner] will consider him disabled
without considering vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a claimant who is afflicted with a
“listed” impairment is unable to perform substantial gainful activity. Assuming the
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claimant does not have a listed impairment, the fourth inquiry is whether, despite
the claimant’s severe impairment, he has the residual functional capacity to perform
his past work. Finally, if the claimant is unable to perform his past work, the
[Commissioner] then determines whether there is other work which the claimant
could perform. [T]he claimant bears the burden of the proof as to the first four
steps, while the [Commissioner] must prove the final one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
Discussion
Defendant objects to Magistrate Judge Pitman’s finding that the ALJ erred in her
assessment of the opinion evidence and thus failed to make her RFC determination based on
substantial evidence. (Def.’s Obj. 1.)3 Specifically, Defendant contends that the ALJ
appropriately exercised her discretion in assigning the opinions of NP Wells limited weight, and
the opinions of NP Wells were accepted, there is not enough evidence in the record as a whole to
assess greater limitations than those incorporated in the ALJ’s RFC findings. (Id. at 4–8.) I
disagree, and adopt the Report.
A.
Applicable Law
The “treating physician rule” provides that a treating physician’s opinion only “given
controlling weight if it is well supported by medical findings and not inconsistent with other
substantial record evidence.” Shaw v. Carter, 221 F.3d 126, 134 (2d Cir. 2000). In other words,
an ALJ need not afford great or controlling weight to a treating physician when substantial
evidence in support is lacking. See Halloran v. Barnhart, 362 F.3d 28, 32–33 (2d Cir. 2004).
Before an ALJ can afford a treating physician less than controlling weight, she must consider
various factors, including: (1) the length of the treatment relationship and frequency of
3
“Def.’s Obj.” refers to Defendant’s Objections to the Magistrate Judge’s Report and Recommendation, filed on
December 5, 2017. (Doc. 17.)
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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 tending to support or
contradict the opinion. See 20 C.F.R. § 416.927(c)(2)–(6); see also Schisler v. Sullivan, 3 F.3d
563, 567 (2d Cir. 1993). While the ALJ need not explicitly address each factor in her analysis,
she must provide “good reason” for the weight she gives to the treating source’s opinion. See
Halloran v. Barnhart, 362 F.3d 28, 32–33 (2d Cir. 2004).
Under the regulations in effect at the time of the Commissioner’s ruling, the opinions of a
treating nurse practitioner were not given controlling weight. See Genier v. Astrue, 298 F. App’x
105, 108 (2d Cir. 2008) (summary order). Rather, they were considered “‘other sources’ whose
opinions may be considered with respect to the severity of the claimant’s impairment and ability
to work, but need not be assigned controlling weight.” Id. Nevertheless, the factors laid out in
20 C.F.R. § 416.927 should still be applied in determining the weight assigned to “other
sources.” Titles II & Xvi:II & Xvi: Considering Opinions & Other Evidence from Sources Who
Are Not “Acceptable Med. Sources” in Disability Claims; Considering Decisions on Disability
by Other Governmental & Nongovernment, SSR 06-03P (S.S.A. Aug. 9, 2006). The ALJ is
ultimately responsible for reaching an RFC assessment based on the record as a whole. 20
C.F.R. §§ 404.1527(c)(2), 416.1927(c)(2).
B.
Application
Defendant first argues that Magistrate Judge Pitman erroneously ruled that the ALJ did
not consider the appropriate factors in affording NP Wells’ opinion evidence limited weight.
(Def.’s Obj. 4.) While Defendant correctly notes that the ALJ is not required to explicitly
address each factor, (id.), there is no indication that the ALJ even implicitly considered the
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factors. In particular, is assessing NP Wells’ opinions limited weight, the ALJ “did not consider
that NP Wells had a lengthy treatment relationship with plaintiff and had been involved in the
treatment of her multiple impairments.” (R&R 37.) In contrast, the ALJ afforded Dr. Kirby’s
assessment “partial weight,” despite the fact that Plaintiff had only visited Dr. Kirby twice, but
had been visiting NP Wells since 2009 and every three months for over 15 years. (R&R 37–38.)
In addition, the ALJ erroneously attributed NP Wells’ opinion limited weight under the finding
that Dr. Kirby concluded that Plaintiff was not limited by her lower back pain, despite the fact
that Dr. Kirby diagnosed Plaintiff with lower back pain and bursitis of the hip, noted she limited
ability to crouch and crawl, had decreased range of motion in her lower back, and recommended
she receive treatment. (Id. at 38-39.) In other words, the ALJ failed to consider the consistency
of NP Wells’ opinion with the record as a whole—including Dr. Kirby’s findings and
diagnosis—because she failed to consider and misconstrued the record as a whole.
Indeed, the ALJ entirely ignored the substantial evidence in the record evidencing
Plaintiff’s back and hip pain. In addition to Dr. Kirby’s diagnosis of back and hip pain, (id. at
40), Plaintiff’s treatment notes and diagnoses indicate that she suffered chronic back and hip pain
throughout the relevant period, (id. at 39). Plaintiff testified that she had experienced, been
treated for, and needed substantial assistance as a result of back pain for years. (Id. at 40.)
Significantly, the ALJ’s overlooking of evidence signaling Plaintiff’s back and hip pain was not
harmless error, since she did not factor it into her RFC analysis. (Id. 41-42.)
Defendant contends that the fact that a particular impairment was not found severe at step
two of the analysis does not offer a basis for remand. (Def.’s Obj. 5.) However, as Magistrate
Judge Pitman explained, the ALJ must nevertheless consider Plaintiff’s back and hip pain in her
analysis even if she determines it is a non-severe impairment, see Parker-Grose v. Astrue, 462 F.
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App’x 16, 18 (2d Cir. 2012) (summary order) (“A RFC determination must account for
limitations imposed by both severe and nonsevere impairments.”); Salisbury v. Colvin, No.
13cv2805 (VEC)(MHD), 2015 WL 5458816, at *44 (S.D.N.Y. Sept. 1, 2015) (“[E]ven if nonsevere, the ALJ must account for limitations arising from [a] mental impairment when
determining plaintiff’s RFC.”), report and recommendation adopted, No. 13-CV-2805
(VEC)(MHD), 2015 WL 5566275 (S.D.N.Y. Sept. 21, 2015), but the ALJ completely omitted
Plaintiff’s lower back and hip conditions from her analysis despite evidence in the record that
Plaintiff “regularly sought treatment for these conditions and that NP Wells, Dr. Labrenz and Dr.
Kirby diagnosed plaintiff with these conditions,” (R&R 41-42). Were the ALJ to have
considered Plaintiff’s back and hip pain as severe or non-severe impairments, she may have
accepted the October 2014 RFC assessment of NP Wells and Dr. Labrenz that Plaintiff needed
unscheduled breaks and monthly absences from work.
Based on the foregoing, I agree with Magistrate Judge Pitman’s reasoned conclusion that
the ALJ’s determination was not based on substantial evidence and that the matter should be
remanded to the Commissioner for further administrative proceedings.
Conclusion
I have reviewed the remainder of Magistrate Judge Pitman’s thorough Report and
Recommendation for clear error and find none. Therefore, I adopt the Report in its entirety.
Plaintiff’s motion for judgment on the pleadings, (Doc. 12), is GRANTED to the extent that this
matter be remanded for further proceedings, and the Commissioner’s cross-motion for judgment
on the pleadings, (Doc. 14), is DENIED. This case is remanded pursuant to sentence four of 42
U.S.C. § 405(g) for further proceedings consistent with the Report.
The Clerk of Court is respectfully directed to terminate the open motions at Documents
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12 and 14 and close this case.
SO ORDERED.
Dated: November 15, 2018
New York, New York
______________________
Vernon S. Broderick
United States District Judge
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