Swanson v. Commissioner of Social Security
Filing
15
DECISION AND ORDER DENYING Defendant's 10 Motion for Judgment on the Pleadings; GRANTING in part and DENYING in part Plaintiff's 5 Motion for Judgment on the Pleadings; REMANDING the decision of the ALJ to the Commissioner of Social Security for further proceedings consistent with this Decision and Order; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, Chief Judge on 10/15/2013. -CLERK TO FOLLOW UP- (MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DEBORAH ANN SWANSON,
Plaintiff,
v.
DECISION AND ORDER
12-CV-645S
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL SECURITY,1
Defendant.
1.
Plaintiff Deborah Swanson challenges an Administrative Law Judge’s (“ALJ”)
determination that she was not disabled within the meaning of the Social Security Act (“the
Act”).
2.
Swanson filed an application for Disability Insurance benefits (“DIB”) under
Title II of the Act on November 23, 2009. Therein, she alleged an inability to work as of
August 21, 2009 due to a shoulder replacement, back injuries, and depression. (R. 139.)2
The application was denied and, at Swanson’s request, a video hearing was held before
Administrative Law Roxanne Fuller on August 29, 2011. Swanson appeared with an
attorney and testified. The ALJ considered the case de novo, and on October 6, 2011,
issued a decision denying the application for benefits. Swanson filed a request for review
with the Appeals Council, which denied the request on May 8, 2012. She commenced this
1
Carolyn W . Colvin becam e Acting Com m issioner of Social Security on February 14, 2013. She is
substituted for Michael J. Astrue as the Defendant in this action, under Rule 25(d) of the Federal Rules of
Civil Procedure.
2
Citations to the adm inistrative record are designated as “R.”
1
civil action on July 9, 2012, challenging the Commissioner’s final decision.3
3.
Swanson filed a motion for judgment on the pleadings pursuant to Rule 12(c)
of the Federal Rules of Civil Procedure on January 7, 2013. The Commissioner filed his
motion for judgment on the pleadings on March 25, 2013. The motions were fully briefed
on April 24, 2013, at which time this Court took the matter under advisement without oral
argument. For the reasons set forth below, the Commissioner’s motion is denied,
Swanson’s motion is granted in part and denied in part, and the ALJ’s decision is
remanded to the Commissioner for further proceedings.
4.
A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec’y
of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s
determination will be reversed only if it is not supported by substantial evidence or there
has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v.
Califano, 615 F.2d 23, 27 (2d Cir. 1979). Substantial evidence is that which amounts to
“more than a mere scintilla”; it has been defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971). Where
evidence is deemed susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60,
62 (2d Cir. 1982).
5.
“To determine on appeal whether the ALJ's findings are supported by
substantial evidence, a reviewing court considers the whole record, examining the
evidence from both sides, because an analysis of the substantiality of the evidence must
3
The ALJ’s May 26, 2011 decision becam e the Com m issioner’s final decision in this case when
the Appeals Council denied Plaintiff’s request for review.
2
also include that which detracts from its weight.” Williams on Behalf of Williams v. Bowen,
859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner's
finding must be sustained “even where substantial evidence may support the plaintiff's
position and despite that the court's independent analysis of the evidence may differ from
the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other
words, this Court must afford the Commissioner's determination considerable deference,
and may not substitute “its own judgment for that of the [Commissioner], even if it might
justifiably have reached a different result upon a de novo review.” Valente v. Sec’y of
Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
6.
The Commissioner has established a five-step sequential evaluation process
to determine whether an individual is disabled as defined under the Act. See 20 C.F.R.
§§ 404.1520, 416.920. The United States Supreme Court recognized the validity of this
analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287, 2291, 96 L. Ed. 2d
119 (1987), and it remains the proper approach for analyzing whether a claimant is
disabled.
7.
This five-step process is detailed below:
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 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.
3
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam); see also Rosa v.
Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. § 404.1520.
8.
Although the claimant has the burden of proof as to the first four steps, the
Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S. at
146 n. 5; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984). The final step of this inquiry
is, in turn, divided into two parts. First, the Commissioner must assess the claimant's job
qualifications by considering his physical ability, age, education, and work experience.
Second, the Commissioner must determine whether jobs exist in the national economy that
a person having the claimant's qualifications could perform. See 42 U.S.C. § 423(d)(2)(A);
20 C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S. Ct. 1952, 1954,
76 L. Ed. 2d 66 (1983).
9.
In this case, Swanson underwent a shoulder replacement to treat
degenerative joint disease in February 2006, was involved in a motor vehicle accident in
May 2006, and another in July 2006, and has had multiple surgeries for bunions and
hammertoes. The ALJ made the following findings with regard to the five-step process: (1)
Swanson had not engaged in substantial gainful activity since August 21, 2009 (R. 15); (2)
the degenerative changes of her left shoulder, lumbar radiculopathy, herniated cervical
disc, hammertoes of the left foot, and depression are severe impairments within the
meaning of the Act (Id.); (3) these impairments did not meet or medically equal any of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (R. 16); (4) Swanson
retains the residual functional capacity (“RFC”) to perform sedentary work with several
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specified limitations4 (R. 18); (5) she is unable to perform her past relevant work (R. 22);
and (6) jobs exist in substantial number in the national economy that an individual of
Swanson’s age, education, past relevant experience, and RFC can perform (R. 23.)
Ultimately, the ALJ concluded that Swanson was not under a disability as defined by the
Act. (Id.)
10.
Swanson maintains the ALJ: (1) erroneously failed to find that her bilateral
arm/wrist nerve disorders were a severe impairment, (2) did not apply the appropriate legal
standard in determining her RFC, (3) did not properly assess her credibility, and (4) did not
meet the Commissioner’s burden of proof at step five of the sequential process.
11.
“A ‘severe’ impairment is one that significantly limits an individual's physical
or mental ability to do basic work activities. Tryon v. Astrue, No. 10-CV-537, 2012 U.S.
Dist. LEXIS 14486, at *5 (N.D.N.Y. Feb. 7, 2012) (citations omitted). “Basic work activities”
are the “abilities and aptitudes necessary to do most jobs,” and include, inter alia, walking,
standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling. 20 C.F.R. §
404.1521(b)(1). At step two, Swanson has the burden of establishing severity. “The ‘mere
presence of a disease or impairment, or establishing that a person has been diagnosed
or treated for a disease or impairment’ is not, itself, sufficient to deem a condition severe.”
McConnell v. Astrue, 03-CV-052, 2008 U.S. Dist. LEXIS 24638, at *6 (N.D.N.Y. Mar. 27,
2008) (citing Coleman v. Shalala, 895 F.Supp. 50, 53 (S.D.N.Y.1995)). Indeed, a “finding
of ‘not severe’ should be made if the medical evidence establishes only a ‘slight
4
The ALJ determ ined that Swanson had the residual functional capacity to perform sedentary
work, except for frequent push or pull with the left arm ; frequent push, pull, or foot control operation with
the left foot, never clim b ram ps, stairs, ladders, ropes, or scaffolds, never balance, occasional stoop,
crouch, kneel and crawl, frequent reaching with left arm , frequent gross and fine m anipulation with the left
(non-dom inant) hand, and no use of m oving m achinery. In addition the ALJ found Swanson could
rem em ber and carry out one- to two-step instructions, and perform sim ple, routine, repetitive tasks. (R.
18.)
5
abnormality’ which would have ‘no more than a minimal effect on an individual's ability to
work.’” Rosario v. Apfel, No. 97-CV-5759, 1999 U.S. Dist. LEXIS 5621 (E.D.N.Y. March
19,1999) (quoting Social Security Ruling 85-28).
As noted above, ALJ Fuller’s step two finding identified five severe impairments. The
ALJ proceeded to discuss two other alleged conditions, but found no medical evidence on
record to support the existence of significantly limiting impairments. She did not discuss,
or make any step two findings with regard to, Swanson’s alleged bilateral nerve disorders.
Swanson first reported experiencing numbness and tingling in her index, long
middle, and small fingers bilaterally after her first car accident, in June 2006. (R. 247.) She
did not experience any clumsiness of the hands, and she continued to work. (Id.) In July
2008, Swanson reported increasing pain in her neck associated with some numbness. (R.
273.) Her physician, Dr. Huckell, ordered an EMG study which suggested a peripheral
nerve problem, but Swanson reported, on October 7, 2008, that physical therapy had
helped reduce the numbness in her hands. (R. 291.) She continued to work full-time. (R.
292.)
After Swanson ceased working, she reported, on October 8, 2009, that she
experienced intermittent numbness and tingling of the left upper extremity, and increased
clumsiness to the hands. (R. 243.) On March 10, 2010, Swanson was seen by consultative
physician, Dr. Kathleen Kelley, for an orthopedic examination. Swanson, who is right-hand
dominant, reported occasional sharp pain down the right arm into the right fingers. (R.
339.) Dr. Kelley found she had full range of motion of the right shoulder, and of the elbows,
forearms, wrists, and fingers bilaterally. Her hand and finger dexterity were intact. (R. 341.)
On April 7, 2010, Swanson told Dr. Huckell she continued to experience numbness and
tingling of the left upper extremity, and increased clumsiness to the hands. (R. 415.) She
6
made no mention of right arm or hand pain, and Dr. Huckell noted full range of motion
bilaterally in her shoulders, elbows, and wrists. (R. 415-16.) On July 20, 2011, Swanson
advised another of her treating sources, Dr. Bansal, that she had begun experiencing a
shooting pain to her right hand about two weeks prior. (R. 490.) Two weeks later, at the
administrative hearing, Swanson testified to tingling in her left hand only. (R. 39.) She
stated that Dr. Falcone, who had performed her left shoulder replacement surgery in 2006,
recently had her tested for carpal tunnel syndrome due to shooting tingling she was
experiencing in her left hand. (R. 37-39.) The ALJ left the record open for fourteen days
so those test results could be included. (R. 40-41.) The objective measurement of
Swanson’s nerve function revealed moderate left median neuropathy at the wrist, mild right
median neuropathy at the wrist, and left ulner neuropathy at the elbow. (R. 519.)
Swanson contends she suffers from a nerve disorder that limits her manipulative
abilities and manual dexterity. When seen by various physicians, she reported intermittent
numbness and occasional pain, yet no treating or consultative physician made an objective
finding that the function of her hands and fingers were limited, much less that the loss of
function was such that it limited her ability to perform basic work activities. To the contrary,
Drs. Huckell and Kelley observed full range of wrist motion bilaterally, and Dr. Kelley found
her manual dexterity intact. Clinical test results from 2011 characterize her neuropathy as
mild on the right. While the ALJ included the well-documented degenerative changes in
Swanson’s left shoulder among her severe impairments, on this record, the ALJ’s failure
to find that Swanson had a severe bilateral nerve disorder does not constitute reversible
error.
12.
Next, Swanson challenges the ALJ’s determination that she has the residual
7
functional capacity to perform sedentary work. She first argues that the ALJ failed to fully
develop the administrative record when she did not request RFC assessments from
treating physicians Huckell and Falcone,5 both of whom opined that Swanson was unable
to work at all. It is well established in the Second Circuit that an ALJ is under an obligation
to develop the administrative record fully, to ensure that there are no inconsistencies in the
record that require further inquiry, and to obtain the reports of treating physicians and elicit
the appropriate testimony during the proceeding. See Rosa v. Callahan, 168 F.3d 72, 79
(2d Cir. 1999); McClaney v. Astrue, 2012 U.S. Dist. LEXIS 123756, at *28-29 (E.D.N.Y.
Aug. 10, 2012). Social Security Administration regulations provide that:
[m]edical reports should include . . . [a] statement about what you can still do
despite your impairment(s) . . . . Although we will request a medical source
statement about what you can still do despite your impairment(s), the lack of
the medical source statement will not make the report incomplete.
20 C.F.R. §§ 404.1513(b)(6), 416.913(b)(6) [emphasis added].
Recently, the Second Circuit Court of Appeals rejected a claimant’s contention that
an ALJ's failure to request an RFC assessment from a treating physician necessarily or
automatically requires a remand. Tankisi v. Commissioner of Social Security, No.
12-1398-CV, 2013 U.S. App. LEXIS 6545, 2013 WL 1296489 (2d Cir. Apr. 2, 2013). While
the Circuit Court acknowledged that the plain text of the regulations is neither conditional
nor hortatory and “seems to impose on the ALJ a duty to solicit . . . medical opinions,” it
went on to reason as follows:
[T]he text indicates that “[m]edical reports should include . . . [a] statement
about what you can still do despite your impairment,” not that they must
5
Dr. Falcone’s statem ent relative to disability appears in a report subm itted to the Appeals
Council, after ALJ had issued a decision in this case. Thus, there is no arguable basis for a finding of error
with respect to Dr. Falcone.
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include such statements. Id. (emphasis added). It also indicates that “the
lack of the medical source statement will not make the report incomplete.” Id.
Other regulations also state that a case record “may contain medical
opinions.” See, e.g., 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2) (emphasis
added). These provisions indicate that the ALJ's conclusions would not be
defective if he requested opinions from medical sources and the medical
sources refused. Taken more broadly, they suggest remand is not always
required when an ALJ fails in his duty to request opinions, particularly where,
as here, the record contains sufficient evidence from which an ALJ can
assess the petitioner's residual functional capacity. See Moser v. Barnhart,
89 F. App'x 347, 348 (3d Cir.2004); Scherschel v. Barnhart, 72 F. App'x 628,
630 (9th Cir.2003); Ripley v. Chater, 67 F.3d 552, 557 (5th Cir.1995).
Id. at *11-12.6
This case is readily distinguished from the circumstances in Tankisi. While the
administrative record in that case did not contain “formal opinions” from treating physicians,
a treating source had otherwise assessed Tankisi’s limitations. Id. at *12. Similarly, in the
only district court decision to apply Tankisi’s reasoning to date, the ALJ had given the
plaintiff’s counsel an opportunity, following the hearing, to submit an RFC assessment from
a treating nurse practitioner. Kunkel v. Comm’r of Soc. Sec., 12-CV-6478CJS, 2013 U.S.
Dist. LEXIS 117911, at *38 (W.D.N.Y. Aug. 20, 2013). In concluding that the ALJ’s failure
to request an assessment from a particular physician did not require remand, the district
court noted that the ALJ’s RFC was substantially in accord with the assessment provided
by the nurse practitioner, and both the physician in question and the nurse practitioner had
treated the plaintiff at the same clinic. Id. at *50-53. Here, in contrast, the record contains
6
Just days prior to the Tankisi decision, this Court rem anded a Social Security case on the
ground the regulations require that, for a record to be com plete, an ALJ m ust request an opinion from the
claim ant’s treating physician. The record will not be deem ed defective if the physician doesn’t com ply;
what is necessary is that the ALJ attempt to obtain opinion evidence. Martello v. Astrue, 12-CV-215S,
2013 U.S. Dist. LEXIS 46574 (W .D.N.Y. Mar. 29, 2013). Tankisi now requires that, where the ALJ fails in
his clearly-defined duty, I m ust not rem and on that basis alone, but m ust first determ ine whether the
record contains sufficient evidence from which an ALJ can assess residual functional capacity.
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no formal or informal RFC assessment by a treating source.
The question of whether “the record contains sufficient evidence from which an ALJ
can assess the petitioner's residual functional capacity” necessarily dovetails with the
“treating physician rule,” which mandates that the opinion of a claimant’s treating physician
“regarding the nature and severity of [the claimant’s] impairments” be given controlling
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] case record.”
20 C.F.R. § 404.1527(d)(2). Here, Dr. Huckell stated in office treatment notes that
Swanson is “permanently disabled.” ALJ Fuller characterized this notation as “opinion” and
afforded it no weight because “it goes to the ultimate issue, which is reserved to the
commission,” rather than to the nature and severity of her impairments. (R. 21.)
It previously has been noted in this district that “it is unreasonable to expect a
physician to make, on his own accord, the detailed functional assessment demanded by
the Act in support of a patient seeking SSI benefits.” Ubiles v. Astrue, No. 11-CV-6340,
2012 U.S. Dist. LEXIS 100826, at *24 (W.D.N.Y. July 2, 2012) (holding remand was
required where ALJ found treating physician’s office notes stating plaintiff was “presently
disabled” were vague and non-specific, but made no attempt to seek clarification or request
an assessment of plaintiffs physical limitations). There is no evidence that ALJ Fuller
attempted to obtain the information necessary to properly apply the treating physician’s
rule. Absent a reasonable explanation for the failure to obtain an RFC assessment from
any treating source, the Court cannot conclude the ALJ fulfilled her affirmative duty to
develop the record. Accordingly, the matter will be remanded. Zabala v. Astrue, 595 F.3d
402, 409 (2d Cir. 2010) (failure to satisfy treating physician rule constitutes legal error, and
10
“ordinarily requires remand to the ALJ for consideration of the improperly excluded
evidence”).
13.
Swanson also contends the RFC assessment is flawed because ALJ Fuller
did not assess her work-related abilities on a function-by-function basis. Social Security
Ruling 96-8p states that “[e]xertional capacity addresses an individual's limitations and
restrictions of physical strength and defines the individual's remaining abilities to perform
each of seven strength demands: sitting, standing, walking, lifting, carrying, pushing, and
pulling.” 1996 SSR LEXIS 5, at *2. The ruling further provides that, prior to assessing a
claimant’s residual functional capacity, “[e]ach function must be considered separately.”
Id.
The Second Circuit has confirmed, however, that an ALJ need not separately
discuss a claimant’s ability to perform each exertional function, so long as the RFC
determination is set forth with sufficient specificity to permit the court to decide whether it
is supported by substantial evidence. Campbell v. Astrue, 465 Fed. Appx. 4, 6 (2d Cir.
2012) (summary order) (citing Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)); see
also, Murphy v. Astrue, No. 12-CV-6271MAT, 2013 U.S. Dist. LEXIS 51088, at *16-18
(W.D.N.Y. Apr. 9, 2013); Lloyd v. Astrue, No. 12-CV-122S, 2013 U.S. Dist. LEXIS 25794,
at *10 (W.D.N.Y. Feb. 23, 2013) (failure of ALJ to conduct function-by-function assessment
is not ipso facto ground for remand). Because it already has been determined that further
development of the record is required before such a determination can be made here,
there is no need to address this argument.
14.
Next, Swanson urges that ALJ Fuller did not apply the appropriate legal
standards in assessing her credibility. The ALJ found that Swanson’s medically
11
determinable impairments could reasonably be expected to cause left shoulder pain, left
hand pain, and foot pain, but that her statements “concerning the intensity, persistence and
limiting effects of these symptoms are not credible to the extent they are inconsistent with
the [RFC] assessment.” (R. 19.) Because the Court already has concluded there is a basis
for ordering remand, there is no need to address other alleged errors. The Court will
discuss this issue briefly, however, so that Swanson’s credibility may be properly assessed
on remand.
Social Security Ruling 96-7p requires that, “[i]n determining the credibility of the
individual's statements, the adjudicator must consider the entire case record, including the
objective medical evidence, the individual's own statements about symptoms, statements
and other information provided by treating or examining physicians or psychologists and
other persons about the symptoms and how they affect the individual, and any other
relevant evidence in the case record.” SSR 96-7p, 1996 SSR LEXIS 4, at *2-3. “The
determination . . . must contain specific reasons for the finding on credibility . . . and must
be sufficiently specific to make clear . . . the weight the adjudicator gave to the individual’s
statements and the reasons for that weight. Id. at *3-4.
Here, the ALJ did not identify any behavior or factors detracting from Swanson’s
credibility, such as evasiveness at the hearing or inconsistent statements. And, although
the ALJ proceeded to summarize the record, she did not identify any evidence therein as
the basis for her credibility finding. “It is erroneous for an ALJ to find a claimant's
statements not fully credible [simply] because those statements are inconsistent with the
ALJ's own RFC finding.” Ubiles, 2012 U.S. Dist. LEXIS 100826, at *36 (citing, inter alia,
Nelson v. Astrue, No. 09-CV-00909, 2010 U.S. Dist. LEXIS 90689, 2010 WL 3522304, at
12
*6 (N.D.N.Y. Aug. 12, 2010) (recommending remand for a proper analysis of Plaintiff's
credibility on the ground that “the propriety of the ALJ's finding that Plaintiff was credible
only to the extent that her statements were consistent with his own RFC determination is
questionable”), report and recommendation adopted, 2010 U.S. Dist. LEXIS 90686, 2010
WL 3522302 (N.D.N.Y. Sept. 1, 2010)). Thus, the ALJ erred by failing to evaluate all of the
required factors bearing on Swanson’s credibility before determining her RFC.
16.
Finally, Swanson contends the Commissioner did not meet his burden of
proof at step five of the sequential evaluation because the ALJ incorporated an erroneous
RFC determination into the hypothetical she presented to the vocational expert. Because
the step four determination may change on remand, there is no need to consider this
further alleged error.
IT HEREBY IS ORDERED, that Defendant’s Motion for Judgment on the Pleadings
(Docket No. 10) is DENIED;
FURTHER, that Plaintiff’s Motion for Judgment on the Pleadings (Docket No. 5) is
GRANTED in part and DENIED in part;
FURTHER, that the decision of the ALJ is REMANDED to the Commissioner of
Social Security for further proceedings consistent with the above;
FURTHER, that the Clerk of the Court shall close this case.
SO ORDERED.
Dated: October 15, 2013
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court
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