Santiago v. Berryhill
Filing
17
OPINION AND ORDER: re: 11 MOTION for Summary Judgment filed by Jimmy Santiago, 13 CROSS MOTION for Judgment on the Pleadings filed by Nancy Berryhill, 9 MOTION for Summary Judgment filed by Jimmy Santiago. For the foregoing reasons, the conclus ions in the Report as to the ALJ's application of the treating physician rule, and the recommendation to grant Defendant's motion, are rejected. Accordingly, the Commissioner's motion for judgment on the pleadings is DENIED, and Plaint iff's motion for summary judgment is GRANTED insofar as the case is REMANDED to the ALJ pursuant to 42 U.S.C. §405(g) for further proceedings consistent with this opinion. The Clerk of Court is directed to close the motions at docket number 9, 11 and 13 and to close the case. (Signed by Judge Lorna G. Schofield on 9/14/2018) (ama) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
:
JIMMY SANTIAGO,
:
:
Plaintiff,
:
:
-against:
NANCY BERRYHILL, Acting Commissioner :
:
of Social Security,
:
Defendant. :
:
:
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9/14/2018
17 Civ. 5149 (LGS)
OPINION AND ORDER
LORNA G. SCHOFIELD, District Judge:
Plaintiff Jimmy Santiago filed this action against the Acting Commissioner (the
“Commissioner”) of the Social Security Administration July 7, 2017, seeking review of the final
decision of Administrative Law Judge Seth Grossman (the “ALJ”) denying him benefits under
the Social Security Act (the “Act”). Magistrate Judge Ona T. Wang issued a Report and
Recommendation (the “Report”), recommending that the Court grant Defendant’s motion for
judgment on the pleadings and deny Plaintiff’s motion for summary judgment. Plaintiff objected
to the Report. For the following reasons, Plaintiff’s motion for summary judgment is granted
insofar as the case is remanded to the ALJ for proper application of the treating physician rule,
and the Commissioner’s motion for judgment on the pleadings is denied.
BACKGROUND
The following facts are taken from the administrative record and the parties’ submissions.
At issue is Plaintiff’s application for disability benefits under Title II of the SSA.
A.
Plaintiff’s Medical History
1. Dr. Steven Pacia, M.D., Treating Physician
Dr. Steven Pacia, a neurologist, began treating Plaintiff on May 26, 2010. Plaintiff told
Dr. Pacia, his treating physician, that he had experienced seizures since he was a child, and these
symptoms continued during his adolescence, averaging about four seizures per year. Dr. Pacia
saw Plaintiff every six months for follow-up appointments. On July 8, 2013, Dr. Pacia
completed a “Disability Claim Form” and stated that the primary condition affecting Plaintiff’s
functional capacity was “primary generalized epilepsy” and that his secondary diagnosis was
“memory loss.” He stated that Plaintiff had suffered from seizures since he was a child, and
since January 2013, he “has not possessed the cognitive capacity to perform the duties required
to secure gainful employment.”
On January 28, 2015, Dr. Pacia filled out a “Seizures Impairment Questionnaire” in
which he opined that Plaintiff suffers from a “permanent [and] life[]long condition that will
require lifelong medication [and] monitoring with resulting persistent cognitive impairment.” He
stated that the frequency of Plaintiff’s seizures is “variable [but] well controlled in recent
months.” Dr. Pacia concluded that Plaintiff’s symptoms are severe enough to “constantly”
interfere with his attention and concentration, that Plaintiff is incapable of performing a “low
stress” job because stress is a precipitating cause of his seizures and that he has short term
memory impairment. He also stated that Plaintiff’s medications interfere with short-term
memory and concentration.
In a letter dated the same day, Dr. Pacia stated that his concerns about Plaintiff’s shortterm memory had been confirmed by a neuropsychological examination performed by Dr.
Virginia de Sanctis. He specified that memory loss resulted from “organic . . . impairment”
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caused by epilepsy and the “high dose” medication required to control his epilepsy. From these
observations, Dr. Pacia concluded that Plaintiff lacked the cognitive capacities to perform duties
required for gainful employment.
2. Dr. Priyanka Sabharwal, M.D.
Dr. Sabharwal, a Neurology Fellow at New York University’s Comprehensive Epilepsy
Center, examined Plaintiff alongside Dr. Pacia. Dr. Sabharwal observed that Plaintiff was
“having [a] terrible time with his short term memory.” She opined that Plaintiff should avoid
situations that enhance seizure recurrence, including “undue stress.”
3. Dr. Virginia Ann de Sanctis, Ph.D., Psychologist
On June 7, 2013, at Dr. Pacia’s request, Dr. de Sanctis examined Plaintiff and prepared a
“Neuropsychology Consultation Report” that comprehensively evaluated Plaintiff’s current
cognitive and behavioral functioning. After performing a series of tests, Dr. de Sanctis
concluded that Plaintiff’s “neuropsychological abilities showed marked variability with scores
ranging from impaired to high average.” She stated that Plaintiff has neuropsychological deficits
in “aspects of verbal fluency, learning, and memory, with more minor difficulties in attention,
working memory, and confrontation naming.” In making this conclusion, Dr. de Sanctis opined
that “elevated levels of stress, sleep problems, symptoms of anxiety and depression, as well as
prescription drug use may be important contributing factors to consider as attention and working
memory skills are particularly vulnerable to these factors.”
4. Dr. Marilee Mescon, Consulting Internal Medicine Doctor
On October 31, 2013, Dr. Marilee Mescon, an internal medicine physician, examined
Plaintiff at the request of New York State Division of Disability Determination. She conducted a
consultative “Neurologic Examination.” Dr. Mescon concluded that although Plaintiff suffers
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from memory impairment, there was “[n]o suggestion of impairment in insight or judgment,”
and that his “mood and affect” were appropriate. She also concluded that Plaintiff can sit and
stand, but he cannot not climb, push, pull or carry heavy things, work at heights or drive a motor
vehicle.
5. Dr. Fredelyn Damari, Ph.D., Psychologist Consultative Examiner
On October 13, 2013, Dr. Fredelyn Damari examined Plaintiff for a consultative
“Psychiatric Evaluation.” Dr. Damari examined Plaintiff and found that he was cooperative and
his speech was normal. Dr. Damari found that Plaintiff’s attention and concentration and recent
and remote memory skills are “mildly impaired.” She also stated that Plaintiff is “moderately
impaired” in his ability to deal with stress. She concluded that Plaintiff can perform simple tasks
independently.
6. Dr. T. Harding, Ph.D., State Agency Psychological Consultant
On November 18, 2013, Dr. T. Harding, a state agency psychological consultant,
reviewed the record evidence and completed a “Mental Residual Functional Capacity
Assessment.” She determined that Plaintiff is able to understand, remember and carry out very
short and simple instructions. Dr. Harding also stated that Plaintiff is “moderately limited” in his
ability to maintain attention and concentration for extended periods and to complete a normal
workday without interruption from psychologically based symptoms.
B.
Social History
Plaintiff completed a “Function Report” on October 21, 2013. In that report, he made the
following statements about his daily life. During the day, Plaintiff takes his medication, speaks
on the phone and watches television. Plaintiff suffers from insomnia because he is stressed from
not working. Although he lives alone, his son visits him several days a week. Plaintiff uses
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post-it notes and his phone to remember things, and he pre-fills his medication for the week in
Monday to Friday packets. Sometimes, he forgets to brush his teeth. He prepares meals that
require boiling water, but sometimes he forgets to turn off the stove. He used to keep the house
clean but no longer can because he suffers from headaches that prevent him from doing chores.
Plaintiff can go out alone, but he is afraid to leave the house alone on “bad days.” Nevertheless,
Plaintiff is able to pay bills, count change and handle a savings account. Although he enjoys
playing golf, it is now “trying.” He also plays chess, darts, and pool “when he is up to it.”
Plaintiff suffers from migraines, slow speech or stuttering and an inability to remember things or
pay attention.
C.
Proceedings before ALJ
On September 10, 2015, Plaintiff appeared for an administrative hearing with an attorney.
Plaintiff reported that he has short-term memory issues and needs to set reminders on his phone
to remember things. He also stated that he routinely feels drowsy and has an upset stomach as a
result of his medication, requiring him to lie down for thirty to forty-five minutes every day.
Plaintiff also testified that he is able to drive but rarely does so.
D.
ALJ’s Report
On February 12, 2016, the ALJ issued a decision concluding that under the relevant SSA
regulations, Plaintiff is not disabled. His opinion followed a five-step process outlined in the
administrative guidelines to the SSA to make this determination.
At step one, the ALJ concluded that Plaintiff had not engaged in substantial gainful
activity since the onset date of his alleged disability.
At step two, the ALJ concluded that Plaintiff suffers from anxiety, depression and
seizures/epilepsy, all of which qualify as severe impairments.
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At step three, the ALJ determined that Plaintiff’s impairments are not severe enough to
qualify Plaintiff as disabled. As a result, the ALJ analyzed Plaintiff’s residual functional
capacity (“RFC”). The ALJ relied on his own observations of Plaintiff, opinion evidence from
Plaintiff’s treating physician, other physicians who examined him and consultative experts. He
assigned Dr. Harding’s opinion “significant weight,” noting that her observations were based on
a “thorough” review of the medical record and “comprehensive understanding of the agency
rules and regulations,” although she did not examine Plaintiff. In assigning Dr. Damari’s
opinion “good weight,” the ALJ stated that Dr. Damari’s observations were consistent with
Plaintiff’s allegations. The ALJ gave Dr. Mescon’s opinion “good weight” and stated that “her
expertise as a neurologist” gave her insight into Plaintiff’s capabilities. However, the ALJ
assigned Dr. Pacia’s opinion “little weight,” and by way of explanation, stated that “there is
little, if any, testing contained in the record that would suggest [Plaintiff] is incapable of simple
tasks.” Dr. Pacia is also a neurologist and is Plaintiff’s treating physician. The ALJ concluded
that Plaintiff has the RFC to perform jobs that involve a “full range of simple tasks with some
more complex tasks or instructions.”
At step four, the RFC determination led the ALJ to conclude that Plaintiff is unable to
perform his past relevant work.
At step five, based on Plaintiff’s RFC, the ALJ concluded that Plaintiff can still perform
jobs that exist in significant numbers in the national economy. Accordingly, the ALJ opined that
Plaintiff is not disabled.
E.
Judge Wang’s Report
The Report recommends that the Commissioner’s cross-motion for judgment on the
pleadings be granted, in effect affirming the Commissioner’s decision that Plaintiff is not entitled
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to disability benefits. With respect to the so-called treating physician rule that derives from 20
C.F.R. § 404.1527(c), the Report finds that remand is not warranted by the ALJ’s failure to give
controlling weight to the opinions of Plaintiff’s treating physician, Dr. Pacia. The Report states
that, although “the ALJ did not expressly address each factor relevant to evaluating a treating
physician’s opinion,” he provided “little weight” to Dr. Pacia’s opinions because they were
“inconsistent with other substantial evidence, including the medical evidence and Plaintiff’s own
statements.” The Report states that although Dr. Pacia’s conclusions rely on Dr. de Sanctis’s
neuropsychological examination, there is “nothing in her conclusions that supports Dr. Pacia’s
opinion that Plaintiff is so cognitively impaired that his symptoms would ‘constantly’ interfere
with his attention and concentration.” The Report also states that “Dr. Damari’s examination
findings and opinion supported the ALJ’s RFC finding that Plaintiff could perform simple tasks.”
Finally, the Report concludes that Plaintiff’s testimony corroborates the ALJ’s finding that
Plaintiff can perform simple tasks.
F.
Plaintiff’s Objections
In the Objection to the Report, Plaintiff argues that Judge Wang did not consider that the
ALJ failed to follow the treating physician rule because he gave “little weight” to the opinions of
Plaintiff’s treating physician, Dr. Pacia, and gave “significant weight” to the opinion of the state
agency psychological consultant. He further contends that Dr. Pacia’s opinion is “wellsupported and not inconsistent with other substantial evidence [on the] record.”
STANDARD
A.
Reviewing Magistrate Judge Report and Recommendations
A reviewing court “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). The district court
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“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 Fed. R. Civ. P. 72(b) and citing Thomas v. Arn, 474 U.S.
140, 149 (1985)).
“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.’” United
States v. Romano, 794 F.3d 317, 340 (2d Cir. 2015) (quoting 28 U.S.C. § 636(b)(1)). Even when
exercising de novo review, a “district court need not . . . specifically articulate its reasons for
rejecting a party’s objections or for adopting a magistrate judge’s report and recommendation in
its entirety.” Morris v. Local 804, Int’l Bhd. of Teamsters, 167 F. App’x. 230, 232 (2d Cir. 2006)
(summary order); accord Rapaport v. Comm’r of Soc. Sec., No. 16 Civ. 2617, 2018 WL
3122056, at *2 (S.D.N.Y. June 26, 2018).
B.
Reviewing ALJ Opinions
A claimant is disabled “if she is unable to . . . engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last for a continuous period of not less
than 12 months.” McIntyre v. Colvin, 758 F.3d 146, 149–50 (2d Cir. 2014) (internal quotation
marks omitted); accord Reyes v. Berryhill, No. 17 Civ. 01851, 2018 WL 3728933, at *4
(S.D.N.Y. Aug. 6, 2018). A disability determination of the ALJ may be set aside only if “it is
based upon legal error or is not supported by substantial evidence.” Rosa v. Callahaa, 168 F.3d
72, 77 (2d Cir. 1999); accord Greenhaus v. Berryhill, No. 16 Civ. 10035, 2018 WL 1626347, at
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*7 (S.D.N.Y. Mar. 30, 2018). “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.”
Brault v. Soc. Sec. Admin., Com’r, 683 F.3d 443, 447–48 (2d Cir. 2012) (internal quotation
marks removed); accord Mauro v. Berryhill, 270 F. Supp. 3d 754, 759 (S.D.N.Y. 2017) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)).
C.
Treating Physician Rule
Under the Act’s treating physician rule, a treating physician’s opinion is entitled to
controlling weight as long as it is supported by medical evidence and is not inconsistent with
other substantial evidence in the record. Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)
(quoting 20 C.F.R. § 404.1527(c)(2)). “The opinion of the treating physician is not afforded
controlling weight where . . . the treating physician issued opinions that are not consistent with
other substantial evidence in the record, [including] the opinions of other medical experts.”
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004); accord Gonzalez v. Comm’r of Soc. Sec.,
No. 17 Civ. 1976, 2018 WL 4054866, at *13 (S.D.N.Y. Aug. 24, 2018). This is because
“[g]enuine conflicts in the medical evidence are for the Commissioner to resolve.” Burgess, 537
F.3d at 128 (alteration in original) (internal quotation marks omitted); accord Nazario v.
Berryhill, No. 16 Civ. 01091, 2018 WL 3475471, at *4 (S.D.N.Y. July 18, 2018). “However, not
all expert opinions rise to the level of evidence that is sufficiently substantial to undermine the
opinion of the treating physician.” Burgess, 537 F.3d at 128. A consulting physician’s opinions
or report are typically given limited weight because “consultative exams are often brief, are
generally performed without benefit or review of claimant’s medical history and, at best, only
give a glimpse of the claimant on a single day. Often, consultative reports ignore or give only
passing consideration to subjective symptoms without stated reasons.” Cruz v. Sullivan, 912
9
F.2d 8, 13 (2d Cir. 1990) (internal quotation marks omitted); Marcano v. Berryhill, No. 16 Civ.
08033, 2018 WL 2316340, at *18 (S.D.N.Y. Apr. 30, 2018).
The regulations state that when an ALJ refuses to afford controlling weight to the medical
opinion of a treating physician, the ALJ should consider, inter alia, the following factors when
determining the appropriate weight to give to the opinion: (1) the frequency of examination and
the length, nature and extent of the treatment relationship; (2) the evidence in support of the
treating physician’s opinion; (3) the consistency of the opinion with the record as a whole and (4)
whether the opinion is from a specialist and (5) any other significant factors. 20 C.F.R. §
404.1527(c)(2) – (6). The ALJ must “explicitly consider” the factors outlined in the regulation,
Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013); accord Tilles v. Comm’r of Soc. Sec., No. 13
Civ. 6743, 2015 WL 1454919, at *29 (S.D.N.Y. Mar. 31, 2015). In analyzing the factors, the
Act’s regulations require that the ALJ “give good reasons” for the weight afforded to the treating
source’s opinion, and failure to do so warrants remand. 20 C.F.R § 404.1527(c)(2); Zabala v.
Astrue, 595 F.3d 402, 409 (2d Cir 2010) (“The ALJ was required either to give [the treating
physician’s] opinions controlling weight or to provide good reasons for discounting them.”);
accord Ogirri v. Berryhill, No. 16 Civ. 9143, 2018 WL 1115221, at *8 (S.D.N.Y. Feb. 28, 2018).
DISCUSSION
Plaintiff’s objection to the Report’s application of the treating physician rule is sustained.
In giving “little weight” to the opinion of Plaintiff’s treating physician, the ALJ misapplied the
treating physician rule because he did not analyze all the factors outlined in 20 C.F.R. §
404.1527(c), insufficiently analyzed one of the factors, and failed to consider other factors that
bolster the weight of Dr. Pacia’s opinion. Based on a de novo review of the administrative
record and applicable legal authorities, the Report is rejected with respect to the conclusions it
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draws regarding the ALJ’s application of the treating physician rule and the resulting
recommendation to grant Defendant’s motion.
A. The Factors the ALJ Should Have Considered
The ALJ did not consider at least three factors outlined in 20 C.F.R. § 404.1527(c) before
deciding to afford “little weight” to Dr. Pacia’s opinion: the frequency of examination and the
length, nature and extent of the treatment relationship, the evidence in support of the treating
physician’s opinion and whether the opinion is from a specialist.
First, the ALJ’s decision does not analyze the nature and length of the treating
relationship between Plaintiff and Dr. Pacia. At the time Dr. Pacia gave his opinion about
Plaintiff’s condition, he had been treating Plaintiff for five years and, based on the visits
recorded in the record alone, examined him seven times. See Ogirri, 2018 WL 1115221, at *12
(“Given that [the treating physician,] Dr. Tse[,] had been treating Ogirri for three months and had
seen him three times when she provided her opinion, she was likely to obtain a more longitudinal
picture of Ogirri’s condition than consultative examiners who saw Ogirri for only a few hours, or
than Dr. T. Harding, who did not examine Ogirri and only reviewed the record . . . .”). He also
administered Plaintiff’s drug regimen, made critical decisions about dosage and drug type
depending on the treatment’s effects on Plaintiff’s condition and was familiar with the
precipitating causes of Plaintiff’s seizures. The ALJ’s decision does not reference these facts in
deciding to assign Dr. Pacia’s opinion “little weight.”
Ignoring this prior history, the ALJ’s decision treats Dr. Pacia’s opinion on par with
consultative experts who examined Plaintiff on only one occasion for a short period of time.
Nazario, 2018 WL 3475471, at *6 (holding that the ALJ’s crediting consultative experts over the
treating physician was “particularly troubling given the relatively limited scope of their
11
interactions with [the p]laintiff”). Dr. Harding, whose opinion the ALJ assigned the most
weight, did not examine Plaintiff at all. See Restuccia v. Colvin, No. 13 Civ. 3294, 2014 WL
4739318, at *8 (S.D.N.Y. Sept. 22, 2014) (the ALJ’s reliance on consultative source was
erroneous, in part, because the expert did not examine the patient at all).
Second, the ALJ did not consider evidence in the record that supports Dr. Pacia’s
opinions before deciding to afford his opinion “little weight.” Dr. Pacia’s assessment that
Plaintiff cannot perform gainful activity was informed, in part, by the observation that Plaintiff
should avoid situations of stress because it is a precipitating factor to his seizures. Dr.
Sabharwal, a neurology fellow at New York University’s Comprehensive Epilepsy Center,
examined Plaintiff and similarly concluded that he should avoid any situations with “undue
stress” to manage this epilepsy properly. Despite being a neurology fellow at an epilepsy
treatment center, the ALJ’s opinion does not mention Dr. Sabharwal’s treatment conclusions at
all. See Castillo v. Colvin, No. 13 Civ. 5089, 2015 WL 153412, at *21 (S.D.N.Y. Jan. 12, 2015)
(“No mention was made of Dr. Rosario or the psychotherapists who treated plaintiff[,] implying
that no weight was given to that evidence.”). Dr. Damari, a psychologist, also raised the issue of
stress, stating that Plaintiff is “moderately impaired” in his ability to deal with it. Dr. de Sanctis,
a psychologist upon which Dr. Pacia’s opinion in part relied, similarly stated that Plaintiff’s
“attention and working memory skills are particularly vulnerable” to “elevated levels of stress.”
These opinions support Dr. Pacia’s conclusion that Plaintiff’s employment capabilities are
restricted by his inability to cope in environments that cause even low stress. Similarly, just as
Dr. Pacia stated that Plaintiff is unable to undertake gainful employment, Dr. Harding concluded
that Plaintiff is moderately limited in his ability to complete a workday without unreasonable rest
periods or breaks. The ALJ did not address this evidence supporting Dr. Pacia’s opinions, and
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the ALJ failed to give “good reasons” why, in spite of it, Dr. Pacia’s opinion deserves “little
weight.”
Third, the ALJ did not consider that, as a neurologist, Dr. Pacia is a specialist in brain
function and is particularly qualified to assess how stress impacts Plaintiff’s epilepsy, and how
his medications impact his short-term memory. See Rolon v. Comm’r of Soc. Sec., 994 F. Supp.
2d 496, 508 (S.D.N.Y. 2014) (holding that the ALJ erred in failing to consider the treating
physician’s status as a specialist when overriding their opinion in favor of non-specialists).
Instead, the ALJ incorrectly identified Dr. Mescon as a neurologist, when in fact she is an
internist, and afforded her opinion “good weight.” See Cabreja v. Colvin, No. 14 Civ. 4658,
2015 WL 6503824, at *29 (S.D.N.Y. Oct. 27, 2015) (ALJ erred in not considering that “Dr.
Mitamura’s specialty is in orthopedic surgery . . . , which is centrally relevant to [the plaintiff’s]
injuries, much more so than Dr. Pelczar-Wissner’s status as an internist.”) (internal citation
omitted).
In not explicitly considering these factors before assigning “little weight” to Dr. Pacia’s
opinion, the ALJ committed legal error in his application of the treating physician rule. See, e.g.,
Ogirri, 2018 WL 1115221, at *12 (holding that the ALJ did not comply with the treating
physician rule when her decision cursorily concluded that the treating physician’s opinion was
inconsistent with the record as a whole but “made no express mention of the other factors, nor
. . . appear[ed] to have considered them, despite the fact that she was obligated to do so”); Craig
v. Comm’r of Soc. Sec., 218 F. Supp. 3d 249, 266 (S.D.N.Y. 2016) (remanding the case where
the ALJ failed to consider “the evidence that supported [the treating physician,] Dr. Hameedi’s[,]
opinion; the length of the treatment relationship between Dr. Hameedi and [Plaintiff], including
the frequency of examination; the nature and extent of the relationship; and Dr. Hameedi’s
13
specialization”); Ramos v. Comm’r of Soc. Sec., No. 13 Civ. 3421, 2015 WL 7288658, at *7
(S.D.N.Y. Nov. 16, 2015) (remanding, in part, because the ALJ considered only the “consistency
of the [treating physician’s] opinion with the record as a whole” but not the other regulatory
factors).
B. The Factor the ALJ Considered
The ALJ did analyze one factor -- the extent to which Dr. Pacia’s opinion is consistent
with the record as a whole -- but failed to consider his entire opinion in light of the record. In
assessing Dr. Pacia’s opinion, the ALJ stated Dr. Pacia’s conclusions about Plaintiff’s stress and
concentration impairments. He concluded, using Dr. de Sanctis’s report, that Dr. Pacia’s opinion
deserves “little weight” because the record contains little evidence that Plaintiff is incapable of
performing simple tasks.
Notably, Dr. Pacia’s opinion did not conclude that Plaintiff lacks the cognitive ability to
perform simple tasks, and his conclusions are not necessarily at odds with the ALJ’s assessment.
Assuming that Plaintiff can perform simple tasks,1 if -- as Dr. Pacia concluded -- the small
stresses of work can precipitate seizures, Plaintiff may still lack the RFC to engage in gainful
employment. The ALJ’s opinion does not provide any reason to disregard Dr. Pacia’s
conclusion that a seizure could be triggered even by minor stress. Cf. Astrue, 708 F.3d at 418–19
(ALJ erred in relying on physician’s treatment note in isolation and “ignor[ing] the context of the
notation”).
1
Dr. Pacia and other experts’ assessments differ only as to the severity of Plaintiff’s
concentration impairment. Whereas Dr. Pacia concluded that Plaintiff’s symptoms “constantly”
affected his attention and concentration, Dr. Damari concluded that Plaintiff is “mildly impaired
in his ability to maintain attention and concentration.” Dr. de Sanctis stated that Plaintiff has
“minor difficulties” in attention, while Dr. Harding stated that Plaintiff’s ability to understand
and remember detailed instructions was moderately limited. The ALJ also stated that Plaintiff
occasionally drives and plays pool, both of which require concentration.
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Other experts confirmed that Plaintiff is impaired in his ability to cope with stress. Dr.
Sabharwal concluded that Plaintiff should avoid “undue stress” to manage his epilepsy. Dr.
Damari’s report also states that Plaintiff is “moderately impaired in his ability to . . . deal with
stress”. Dr. de Sanctis’s report similarly concludes that Plaintiff’s “attention and working
memory skills are particularly vulnerable” to “elevated levels of stress.” In failing to assess the
consistency of Dr. Pacia’s opinion with the opinions of other experts in light of the “full . . .
treatment being administered,” including the impact of stress as a precipitating factor of
Plaintiff’s seizures, the ALJ failed to provide “good reasons” for discounting Dr. Pacia’s opinion.
See Castillo, 2015 WL 153412, at *22 (“[T]here is no indication that the ALJ considered Dr.
Brewer’s notations in the context of the full psychiatric and psychotherapeutic treatment being
administered at the Emma L. Bowen center.”).
On remand, the ALJ should assess Dr. Pacia’s opinion, considering all aspects of the
opinion, the record and the other regulatory factors.
CONCLUSION
For the foregoing reasons, the conclusions in the Report as to the ALJ’s application of the
treating physician rule, and the recommendation to grant Defendant’s motion, are rejected.
Accordingly, the Commissioner’s motion for judgment on the pleadings is DENIED, and
Plaintiff’s motion for summary judgment is GRANTED insofar as the case is REMANDED to
the ALJ pursuant to 42 U.S.C. §405(g) for further proceedings consistent with this opinion.
The Clerk of Court is directed to close the motions at docket number 9, 11 and 13 and to
close the case.
Dated: New York, New York
September 14, 2018
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