Thrasher v. Astrue
Filing
17
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 8 Commissioner's Motion ; granting 11 Plaintiff's Motion for Judgment on the Pleadings and remanding this matter to the Commissioner for the reasons stated in the Decision and Order for further administrative proceedings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 6/1/2015. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JACK WINFIELD THRASHER,
Plaintiff,
12-CV-0880(MAT)
DECISION
and ORDER
v.
CAROLYN W. COLVIN, Commissioner
of Social Security,1
Defendant.
INTRODUCTION
Jack
Winfield Thrasher
(“Plaintiff”),
brings
this
action
pursuant to 42 U.S.C. § 405(g) seeking review of the final decision
of the Commissioner of Social Security (“the Commissioner”) denying
his application for Disability Insurance Benefits (“DIB”).
Presently before the Court are the parties’ motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure. Dkt. ##8, 11.
BACKGROUND
Plaintiff filed a DIB application on May 13, 2008, alleging
disability beginning May 1, 2007,2 due to traumatic brain injury
(“TBI”) and vitamin B-12 deficiency. T. 28, 147-50, 163. His
initial application was denied, and a hearing was subsequently
requested before an Administrative Law Judge (“ALJ”). T. 68-72.
1
Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013. Pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure, Carolyn W. Colvin should therefore be
substituted for Michael J. Astrue as the defendant in this suit.
2
Plaintiff later amended the onset date to November 15, 2005.
Plaintiff appeared with counsel before ALJ Bruce R. Mazzarella in
Buffalo,
New
York,
on
December
7,
2010.
The
ALJ
also
heard
testimony from a vocational expert. T. 26-67.
In applying the familiar five-step sequential analysis as
contained in the administrative regulations promulgated by the
Social Security Administration, see 20 C.F.R. §§ 404.1520, 416.920;
Lynch v. Astrue, No. 07-CV-249, 2008 WL 3413899, at *2 (W.D.N.Y.
Aug.
8,
2008)
(detailing
the
five
steps),
the
ALJ
found:
(1) Plaintiff had not engaged in substantial gainful activity since
his alleged onset date of November 15, 2005; (2) he had the severe
impairments of TBI with mild cognitive loss and vitamin B-12
deficiency; (3) his impairments did not meet or equal the Listings
set forth at 20 C.F.R., Part 404, Subpart P, Appx. 1, and that he
retained the residual functional capacity (“RFC”) to perform work
at all exertional levels, except that he was limited to simple,
repetitive, and routine tasks with little in the way of changes in
work assignments, and was limited to 1 and 2-step instructions or
tasks that could be reduced to checklist form; (4) Plaintiff was
not able to return to his past relevant work; and (5) based in part
upon
the
vocational
expert
testimony
and
using
the
Medical-
Vocational Guidelines, there existed jobs in significant numbers in
the national economy that Plaintiff could perform. T. 12-20. The
ALJ then concluded that Plaintiff was not disabled as defined in
the Act. T. 20-21.
2
The ALJ’s determination became the final decision of the
Commissioner when the Appeals Council denied Plaintiff’s request
for review on July 20, 2012. T. 1-4. This action followed. Dkt.#1.
The Commissioner moves for judgment on the pleadings on the
grounds that substantial evidence supports the Commissioner’s final
decision that Plaintiff was not disabled. Comm’r Mem. (Dkt. #9) 1924. Plaintiff has filed a cross-motion alleging that the ALJ
improperly
applied
the
treating
physician
rule,
erroneously
assessed Plaintiff’s credibility, and should have found Plaintiff
disabled
at
step
five
of
the
sequential
analysis.
Pl.
Mem.
(Dkt. #11-1) 9-15.
DISCUSSION
I.
Scope of Review
A federal court should set aside an ALJ decision to deny
disability benefits only where it is based on legal error or is not
supported by substantial evidence. Balsamo v. Chater, 142 F.3d 75,
79 (2d Cir. 1998). “Substantial evidence means such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.” Green–Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.
2003) (internal quotation marks omitted).
II.
Medical Evidence
A.
Prior to November 15, 2005
Plaintiff had an auto accident in 1967 resulting in a TBI that
left him unconscious for eight weeks. T. 223, 227, 255. The
3
accident also resulted in one of his legs being shorter than the
other. T. 256.
Psychiatrist Hilary Tzetzo evaluated Plaintiff on October 27,
2005, shortly before his alleged onset date of disability, at the
request
of
his
employer.
T.
254-58.
At
work,
Plaintiff
was
described as having memory problems, disheveled appearance, and
irritable, and as a result he was sent a certified letter informing
him of these problems. T. 254. He denied, however, that these
problems had been ongoing for over a year. Id.
Plaintiff’s memory was “a concern,” but he had not seen any
mental health professional or counselor and denied psychiatric
history. T.
254.
He had
an
“excellent
academic
history”
and
excellent vocabulary. He told Dr. Tzetzo that he hoped he did not
have a mental health problem and that there was a physical reason
for his work problems. T. 255.
The mental status examination revealed that Plaintiff was
cooperative, attentive, alert, and fully oriented with adequate eye
contact. T. 256. His grooming was moderate, at best, his jeans were
not fully zipped, but he was not malodorous. Id. Plaintiff scored
29 out of 30 on a mini-mental status exam, indicating normal
cognition. Id. He recalled 7 digits forward and 5 back, but could
only recall 1 of 3 objects after 5 minutes, and was not able to
remember 2 even with prompting, nor could he recall a street
address
with
prompting.
Id.
Dr.
4
Tzetzo
noted
that
he
could
successfully recite details from a short story, suggesting decent
reading comprehension skills. Id.
Plaintiff exhibited no obvious psychomotor retardation or
agitation.
Id.
Speech
was
spontaneous,
but
there
was
an
articulation problem. Id. Thought processes were coherent and he
was at least of average intelligence. T. 257. Insight was marginal
and judgment was fair. Id. Diagnoses were cognitive disorder, not
otherwise specified with recent memory problems; traumatic brain
injury; ongoing stressors include limited social support; and a
Global Assessment of Functioning score of 58, indicating “moderate
symptoms (e.g., flat affect and circumstantial speech, occasional
panic attacks), or moderate difficulty in social, occupational, or
school functioning (e.g., few friends, conflicts with peers or
co-workers).”
Amer.
Psych.
Assoc.,
Diagnostic
and
Statistical
Manual of Mental Disorders, (“DSM”) 32, 34 (4th ed., text revision,
2000).
Dr.
Gordon
Steinagle
also
conducted
a
“fitness-for-duty”
examination on October 27, 2005. T. 259-61. Dr. Steinagle noted
reports
of
Plaintiff
having
increased
problems
following
instructions, angry outbursts at work, increasing forgetfulness,
and a somewhat unkept appearance. Plaintiff acknowledged these
issues and stated that it had been going on for an undetermined
amount of time. T. 259. He could perform activities of daily living
without problems. His physical examination was normal except that
5
his right leg was shortened approximately 3-4 inches due to a
pelvic fracture sustained in a motor vehicle accident in the 1960s.
T. 260. His neurological examination was also normal. T. 261.
Dr. Steinagle determined that Plaintiff was unfit for duty, likely
due to a central nervous system problem. Id.
On November 8, 2005, Dr. John Hargraves of the Employee Health
Service stated that Plaintiff was unfit for duty as a mental health
therapy aide based on the evaluations of Drs. Steinagle and Tzetzo.
T. 253.
B.
A
On and After November 15, 2005
magnetic
resonance
image
of
Plaintiff’s
brain
dated
November 23, 2005, showed right temporal and parietal volume loss,
right temporal arachnoid cyst, and small hyperintensities possibly
suggestive of white matter disease. T. 227, 291.
Plaintiff began seeing neurologist Dr. Peterkin Lee-Kwen in
November, 2005, for evaluation of memory difficulties. T. 344. His
diagnoses were memory loss with no evidence of Alzheimer’s disease
and decreased attention and concentration and B-12 deficiency. Id.
On December 2, 2005,
Dr. Lee-Kwen examined Plaintiff and noted
decreased attention span and concentration, but his ability to name
objects, repeat phrases, and speak spontaneously was good. T. 346.
A mini mental status exam was 29 out of 30. Id. The examination
results
showed
that
Plaintiff’s
vitamin
B-12
was
less
than
100pg/mL, MRI of the brain revealed slight atrophy, an enlarged
6
septum pellucidum, and an area of encephalomalacia on the right
temporal lobe. Id. The results of Plaintiff’s examinations were
unchanged at a follow-up appointment in December, and Plaintiff
reported that he felt better since a recent vitamin B-12 injection.
T.
247, 347.
Electroencephalogram
findings
were unremarkable.
T. 248.
From late 2005 to 2009, Plaintiff saw Physician Assistant
(“P.A.”) Nancy Lance at Tri-County Memorial Hospital for B-12
injections and routine treatment. T. 273-81, 376-97, 421-30.
On
January
24,
2006,
neurologist
Dr.
George
Kalonaros
evaluated Plaintiff based upon reports of difficulty with memory
and functioning in various capacities.
Plaintiff
was somewhat
unkempt,
but
Dr. Kalonaros noted that
not
dirty,
and
had some
difficulty with short-term memory. T. 223. He opined that Plaintiff
“ha[d]
a
clinical
picture
consistent
with
mild
cognitive
impairment, which based on his history may very well be secondary
to B-12 deficiency.” Id. Although he believed Plaintiff could
return
to
work
in
his
normal
capacity,
a
neuropsychological
evaluation would be helpful in meeting a more exact determination
regarding his ability to manage in the normal work environment.
T. 223-24.
Plaintiff received a B-12 injection on January 26, 2006, and
was noted to have some improvement in cognition since receiving the
replacements. Dr. Lee-Kwen noted some difficulty with attention and
7
concentration, and doubted Alzheimer’s or other pathological causes
of
dementia
being
present.
T.
349.
Other
findings
remained
unchanged. Id.
Neuropsychologist Michael Santa Maria, Ph.D., conducted an
independent medical examination of Plaintiff on February 6, 2006.
T. 226-32. Plaintiff reported memory problems since November, 2005,
which had improved with B-12 treatment. T. 226.
Upon examination,
Plaintiff exhibited speech of sub-par clarity, poorly enunciated
and with words running together with frequency. T. 228. He recalled
1 of 3 words after a brief delay. He told Dr. Santa Maria that he
“desperately wanted to return to work,” but did not report any
downturn in mood and the remainder of his mental examination was
normal. T. 228. The neuropsychological report indicated findings of
“impaired” or “mild deficit” in 8 of 11 areas in the category of
learning and memory, and “normal” to “borderline” results in the
remaining
categories.
T.
229.
Plaintiff’s
memory
was
notably
impaired, but he had high average overall intellectual abilities.
T. 231. Dr. Santa Maria’s assessment was mild cognitive impairment
associated with TBI, and complicated by aging, arachnoid cyst, and
B-12 deficiency. T. 228-31. Plaintiff was unlikely to regain
capacity to handle the duties of his State job, even with B-12
treatment. T. 232. Shortly thereafter, Dr. Kalonaros reviewed
Dr.
Santa
Maria’s
neuropsychological
8
report
and
opined
that
Plaintiff was not fit for duty in his usual capacity at work.
T. 225.
Dr. Santa Maria evaluated Plaintiff again in August, October,
and November of 2006. T. 265-69. His re-evaluations revealed that
he had improved in fine motor speed and coordination bilaterally,
reading
ability,
and
spelling,
but
showed
no
improvement
in
concentration or processing speed. T. 268. Dr. Santa Maria opined
that Plaintiff lacked the capacity to return to his prior work, but
may seek vocational rehabilitation to an occupation that is less
cognitively demanding. T. 269. Plaintiff again expressed a strong
desire to return to work. Id.
Plaintiff continued to see Dr. Lee-Kwen periodically. T. 29697, 299-300, 351-72. In March, 2006, Dr. Lee-Kwen prescribed Exelon
for cognition and continued B-12 injections. T. 351. Physical and
neurological examination findings were generally unchanged. He
exhibited intermittent slurred speech. Memory difficulties slightly
improved with Exelon. Id. In June, 2007, his memory loss and
arachnoid cyst were stable. T. 296, 363. His memory function was
noted to have subtly declined by December, 2007. T. 365. Subsequent
visits through 2009 indicated this his condition was stable.
T. 367-72. In January, 2010, examination findings were again
unchanged,
but
with
decreased
T. 414-15.
9
attention
and
concentration.
P.A.
Lance
completed
a
Primary
Physician’s
Statement
of
Disability form on June 20, 2008, which indicated Plaintiff had
memory
loss
and
TBI,
a
prognosis
of
fair,
and
that
he
was
permanently disabled from his State job. T. 271-72.
A June 27, 2008 Primary Physician’s Statement of Disability
form completed by Dr. Lee-Kwen indicated that Plaintiff had mild
cognitive dysfunction, a prognosis of guarded, and that he was
permanently disabled from performing the duties of his current
position. T. 416-17.
Plaintiff underwent a psychological consultative examination
on July 30, 2008 by Thomas Ryan, Ph.D. T. 307-10. He reported some
difficulty with sleep, social withdrawal and usual life stress and
worry, but denied depression, irritability, and other anxietyrelated problems. Plaintiff stated that he had a great deal of
difficulty with short-term memory, attention, and concentration,
but his long-term memory was “okay.” T. 307. He exhibited fair
grooming and his speech reflected mild stammering. His attention
and concentration and recent and remote memory skills were in tact,
with cognitive functioning the average range. He was able to take
care of his personal needs, had some friends, and spoke with his
sister. Dr. Ryan opined that Plaintiff demonstrated no significant
psychiatric condition or limitation in his ability to follow and
understand
simple
directions,
perform
simple
tasks,
maintain
attention and concentration, maintain a regular schedule, learn new
10
tasks, perform complex tasks, make adequate decisions, or generally
relate well with others. T. 309.
A consultative neurologic examination performed the same day
was unremarkable except for slight difficulty walking heel to toe.
T. 311-13.
State Agency Review psychologist Martha Totin reviewed the
record on October 8, 2008, and found that Plaintiff had a history
of mild cognitive impairment, and had only mild limitations in the
areas
of
maintaining
social
functioning
and
maintaining
concentration, persistence, or pace, with no other limitations.
T. 316-28. Dr. Totin found no episodes of decompensation, and found
Plaintiff’s impairment was found to be non-severe. T. 326, 328.
On March 23, 2009, Plaintiff was consultatively examined by
neurologist Dr. J. Maurice Hourihane. T. 418-19. Upon examination,
Plaintiff was slightly disheveled with slurred speech, but was
pleasant and scored 28 out of 30 on a mini-mental status exam.
T. 419. He had no problems with activities of daily living,
including driving, self-care, and balancing a checkbook. T. 418.
Dr. Hourihane found that Plaintiff was neurologically stable with
no history of substantial deterioration. T. 419.
On August 11, 2009, a review physician completed a Disability
Review Team Certificate finding Plaintiff disabled based on a
mental residual
functional
capacity
assessment
showing
marked
limitations in areas of understanding and memory, and maintaining
11
concentration and persistence, social interaction, and adaptation.
T. 420.
A Mental Residual Functional Capacity form completed by P.A.
Lance on
November
16,
2009,
indicated that
due
to
cognitive
dysfunction, Plaintiff had marked or extreme limitations in all but
three functional areas, with the remaining areas showing moderate
limitations. T. 373-74.
III. Non-Medical Evidence
On September 29, 2005, Treatment Team Leader Renee Szarowicz
requested an employee health examination of Plaintiff due to his
behavior at work over the past year, specifically, using foul
language, talking to himself, and being visibly upset, and needing
reminders to follow tasks that had been repeatedly explained to
him. T. 249. He could not remember or recall without numerous
prompts, had problems with focus, and had a low distress tolerance.
Id. After a training in basic computer skills and data entry, he
did not have recall, and would get confused and become upset.
T. 250.
Plaintiff was born in 1950, completed college and received a
master’s degree in counseling. T. 39, 169. Plaintiff testified that
he lived alone and worked as a mental health therapy aide for 21
years until he began having problems with his memory. T.34-35, 41.
He later applied for jobs as a bus aide and at a restaurant, but he
12
was not hired. T. 42. When asked whether he applied for disability
retirement, he stated that he could not remember. T. 37-38.
Plaintiff had a driver’s license, but his sister drove him to
the hearing. T. 34. As a teenager, Plaintiff had a brain injury,
and the majority of his problems were with short-term memory.
He
couldn’t watch much television or read often due to concentration
problems, was unable to follow-complex instructions, and slept
around five hours per night. He stated that vitamin B-12 shots
helped his memory somewhat, and that he adjusted by making notes to
himself and using a box system for his medication. T.41, 43-46, 52
With regard to daily activities, Plaintiff told the ALJ that
he could prepare simple meals, do laundry, dishes, and grocery
shopping, performed yard work, could drive a car, and was a
volunteer firefighter that directed traffic when needed. T.48, 5355. He could pay bills and maintain a checking account with
reminder notes. T. 48-49.
Plaintiff also testified that he could not stand for long
periods of time due to foot problems. T. 52.
The ALJ posed a hypothetical to vocational expert James
Phillips involving an individual of Plaintiff’s age, education, and
work experience, who was limited to simple, repetitive, and routine
tasks; little in the way of changes in work assignments, or
judgments in making work assignments; one- or two-step instructions
due to memory difficulties or tasks that could be performed in
13
checklist form. T. 62-63. Mr. Phillips responded that such a person
could
perform
the
light,
unskilled
jobs
of
line
packer
or
inspector/packer. T. 63-65.
IV.
Analysis
A.
Treating Source Opinion
Plaintiff contends that the ALJ did not properly assess the
opinions of his treating physicians. Pl. Mem. 10-13.
Under the Commissioner's regulations, a treating physician's
opinion is entitled to controlling weight, provided that 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. §§ 416.927(c)
(2), 404.1527(c)(2). However, “the less consistent that opinion is
with the record as a whole, the less weight it will be given.”
Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999), citing 20 C.F.R.
§ 404.1527(d)(4).
The Commissioner need not grant controlling weight to a
treating physician's opinion to the ultimate issue of disability,
as this decision lies exclusively with the Commissioner. See 20
C.F.R. § 404.1527(d)(1); Snell, 177 F.3d at 133 (“A treating
physician's statement that the claimant is disabled cannot itself
be determinative.”).
Here,
November
the
16,
ALJ
2009,
did
not
Mental
give
controlling
Residual
14
Functional
weight
to
Capacity
the
form
completed by P.A. Lance because she was not a doctor, and afforded
it little weight because it was inconsistent with the medical
record as a whole. T. 18. He also gave little weight to the
Disability Review Team Certificate because it was inconsistent with
the
consultative
examination
findings
and
the
opinions
of
Drs. Kalonaros, Santa Maria, and Lee-Kwen. Id. Finally, he gave
“more weight” to the opinions of Drs. Kalonaros, Santa Maria, and
Lee-Kwen, as they were consistent with one another and with the
consultative examination findings. Id.
It is true that the opinions of P.A. Lance, Dr. Lee-Kwen,
Dr. Kalonaros, Dr. Santa Maria, and the State Disability review
physician concluding that Plaintiff was unable to return to his
prior work were not entitled to special significance under the
treating physician rule. See 20 C.F.R. § 416.927(d).
The Court is also cognizant that P.A. Lance was an “other
source” under the regulations. While an “other source” opinion
generally is not treated with the same deference as a treating
physician's opinion, consideration of an opinion from someone who
is not an “acceptable medical source” is particularly important
where
that
treatment
provider
is
relationship
the
with
“sole
source
plaintiff.”
that
White
had
v.
a
regular
Comm’r,
302
F.Supp.2d 170, 176 (W.D.N.Y. 2004) (citation omitted). P.A. Lance
was
Plaintiff’s
primary
care
provider
of
several
years
who
submitted a function-by-function analysis, setting forth the nature
15
and severity of Plaintiff’s impairments, finding extreme and marked
limitations
in
previously
made
several
functional
identical
findings
areas.
in
T.
a
373-75.
Primary
She
had
Physician’s
Statement completed on June 20, 2008. T. 272.
Significantly, Lance’s Mental Residual Functional Capacity
report
was
consistent
with
the
Primary
Physician’s
Statement
completed by Dr. Lee-Kwen, Plaintiff’s treating neurologist, which
indicated that Plaintiff had a progressive neurologic condition
that disabled him from his current work and that he was not
expected to substantially improve function with treatment, and also
with the Disability Review Team Certificate, which noted that based
on multiple evaluations, including a mental residual functional
assessment,
Plaintiff
had
marked
limitations
in
areas
of
understanding and memory, sustaining concentration and persistence,
social interaction, and adaptation. T. 417, 420.
These opinions are entitled to greater weight than that of the
consultative
Plaintiff
psychologist
once,
and
found
and
no
neurologist,
significant
who
only
limitations
examined
in
any
functional area. See SSR 06–03p, 2006 WL 2329939, at *2 (“depending
on the particular facts in a case, and after applying the factors
for weighing opinion evidence, an opinion from a medical source who
is not an ‘acceptable medical source’ may outweigh the opinion of
an ‘acceptable medical source’ “such as when the “other source”
“has seen the individual more often than the treating source and
16
has provided better supporting evidence and a better explanation
for his or her opinion”).
Although the ALJ stated that he gave “more weight” to the
opinions
of
Drs.
Santa
Maria,
Kalonaros,
and
Lee-Kwen,
he
incorrectly noted that they were consistent with the consultative
examination
findings.
Rather,
the
treatment
notes
from
these
sources were in agreement with one another that Plaintiff had
notable memory loss, unkept appearance, and slurred speech, with
some
level
of
impairment
as
to
insight
and
judgment.
The
consultative examinations, on the other hand, were unremarkable and
revealed no limitations.
T. 247-48, 296-97, 300, 346, 349-72,
414-15, 419.
Finally, to the extent that the opinions of these treating
sources were inconsistent with their own examination results, which
the ALJ pointed out showed that Plaintiff was “neurologically
stable,” the ALJ was duty-bound to “seek any clarification of the
perceived inconsistences in [a treating physician's] findings about
the claimant's [ ] limitations,” and failure to do so amounts to
legal error requiring remand. Rolon v. Comm’r, 994 F.Supp.2d 496,
504 (S.D.N.Y. 2014).
The Court concludes that the ALJ erred in his consideration of
these treating physician opinions, and that this error requires
remand.
17
B.
Credibility Assessment
Plaintiff also challenges the ALJ’s credibility determination,
alleging that he used “boilerplate” language and did not properly
apply Social Security Ruling (“SSR”) 96-7p. Pl. Mem. 13-15.
To establish disability, there must be more than subjective
complaints.
There
must
impairment,
demonstrable
be
an
underlying
by medically
physical
acceptable
or
mental
clinical
and
laboratory diagnostic techniques that could reasonably be expected
to produce the symptoms alleged. 20 C.F.R. § 416.929(b); accord
Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir. 1983). When a
medically
determinable
impairment
exists,
objective
medical
evidence must be considered in determining whether disability
exists,
whenever
such
evidence
is
available.
20
C.F.R.
§ 416.929(c)(2). If the claimant's symptoms suggest a greater
restriction of function than can be demonstrated by objective
medical evidence alone, consideration is given to such factors as
the claimant's daily activities; the location, duration, frequency
and intensity of pain; precipitating and aggravating factors; the
type,
dosage,
effectiveness,
and
adverse
side-effects
of
medication; and any treatment or other measures used to relieve
pain. 20 C.F.R. § 416.929(c)(3); see SSR 96–7p, (July 2, 1996),
1996 WL 374186, at *7. It is well within the Commissioner's
discretion to evaluate the credibility of a plaintiff's testimony
and render an independent judgment in light of the medical findings
18
and other evidence regarding the true extent of symptomatology.
Mimms v. Sec’y, 750 F.2d 180, 186 (2d Cir. 1984); Gernavage v.
Shalala, 882 F.Supp. 1413, 1419 (S.D.N.Y. 1995).
In assessing Plaintiff’s credibility, the ALJ acknowledged
that he had a “good steady work record, which does raise a
favorable inference of an individual well motivated to work within
their [sic] capabilities,” but found that other evidence outweighed
this
inference.
T.
18.
Specifically,
Plaintiff’s
receipt
of
retirement benefits, the fact that his physicians stated that he
was a good candidate for vocational rehabilitation, and that “based
upon his treating sources, he would not have been eligible for
disability retirement.” Id. The ALJ concluded that Plaintiff’s
subjective complaints were not credible as they were inconsistent
with the RFC assessment. T. 14.
First, the ALJ improperly used Plaintiff’s receipt of a
retirement pension as a means to impugn his credibility. See Rinker
v. Chater, No. 95 Civ. 3923, 1997 WL 47791, at * 9 (S.D.N.Y.
Feb. 6, 1997) (noting a split in authority but opining that
claimants receiving pensions should not “be presented with a more
difficult row to hoe” in obtaining SSI). Other courts within this
Circuit have reached similar conclusions. See Goldthrite v. Astrue,
535 F.Supp.2d 329, 337–38 (W.D.N.Y. 2008) ("[T]his court finds it
problematic that a Plaintiff would be found less credible simply
because they are of limited means. The fact that the Plaintiff was
19
receiving other income from public assistance does not, by itself,
mean that she is less credible when testifying about her pain.");
Cordero v. Astrue, No. 11 Civ. 5020, 2013 WL 3879727, at *26
(S.D.N.Y. July 29, 2013) (holding that it was “clearly improper”
for the ALJ to use plaintiff's receipt of a monthly pension and her
husband's income as a means to challenge her credibility); Parikh
v. Astrue, 07–CV–3742, 2008 WL 597190, at *8 n.10 (E.D.N.Y. Mar. 2,
2008) (“The ALJ also, curiously, took the fact that Parikh had a
pending application for a state disability pension to impeach her
credibility by giving her a disincentive to work while waiting for
the pension to be approved . . . I am at a loss to understand why
Parikh's situation is different in this regard than the situation
of any claimant of Social Security disability benefits . . . .”)
This
is
not
a
case
where
Plaintiff
had
a
“financial
disincentive to his returning to work.” Rinker, 1997 WL 47791 at
*9. To the contrary, Plaintiff continued to seek work after being
advised he was unfit to perform his previous duties as a mental
health
therapy
aide.
T.
14.
It
appears
that
the
ALJ
used
Plaintiff’s desire to work against him to undermine his subjective
complaints. A claimant, such as Plaintiff, “with a good work record
is entitled to substantial credibility when claiming an inability
to work because of a disability.” Rivera v. Schweiker, 717 F.2d
719, 725 (2d Cir. 1983); accord, Horan v. Astrue, 350 Fed. Appx.
483, 485 (2d Cir. 2009).
20
Second, the ALJ’s statement that “based upon [Plaintiff’s]
treating sources, he would not have been eligible for disability
retirement,” does not find support in the record. There is nothing
in the treatment notes or in the relevant civil service records
discussing Plaintiff’s eligibility (or lack thereof) for state
disability
retirement.
T.
18;
see,
e.g.,
Andrews
v.
Colvin,
No. 12-CV-6651, 2013 WL 5878114, *12 (W.D.N.Y. 2013) ("[t]he ALJ's
recitation of the facts contained in the credibility assessment
must be accurate and contain an explanation why they undermine the
credibility of the witness").
Third, with regard to his daily activities, the ALJ noted that
Plaintiff was able to perform self-care, drove a car, maintained a
checking
account,
and
that
he
compensated
for
his
memory
difficulties by making lists and notes. T. 19. The Court points
out, however, that Plaintiff’s testimony at the administrative
hearing showed obvious signs of memory impairment.3 He could not
recall
when
or
if
he
retirement. T. 37-39.
applied
for
New
York
State
disability
Although he made adjustments by writing
himself notes, he stated that he would find the notes a week later
after washing them with the laundry. T. 45-46. Plaintiff testified
that he did not watch much television or read because if he read a
line or two he would not be able to remember what happened. T. 48.
3
It also appears that Plaintiff had articulation troubles during
the hearing, which was consistent with multiple medical evaluations
indicating slurred and stammering speech. T. 31-56.
21
Finally, he told the ALJ that he volunteered for the local fire
department
directing
traffic,
and
was
able to
do
so
because
remembering the streets in his town did not require instructions
and did not involve his short-term memory. T. 55-56. In this
regard, the ALJ did not accurately summarize Plaintiff’s hearing
testimony, and, combined with the errors above,
his credibility
finding cannot be said to be supported by substantial evidence. See
Aragon–Lemus v. Barnhart, 280 F.Supp.2d 62, 70 (W.D.N.Y. 2003)
(finding
the
ALJ's
credibility
analysis
not
supported
by
substantial evidence in part because the ALJ mischaracterized the
plaintiff's testimony).
In summary, although the ALJ provided specific reasons for
discounting Plaintiff’s credibility, at least two of the proffered
reasons do not support his determination. These factual errors
require remand. See Horan v. Astrue, 350 Fed. Appx. 483, 485
(2d Cir. 2009) (remand appropriate because the ALJ's credibility
determination was based on factual errors); accord Ferguson v.
Colvin, 12-CV-0033, 2014 WL 3894487, at *10-*11 (W.D.N.Y. Aug. 8,
2014)
(remanding
determination
and
for
factual
legal
error’s
error
in
in
failing
ALJ’s
to
credibility
give
favorable
consideration to Plaintiff’s work history); but see Sesa v. Colvin,
No. 13-CV-2670, 2014 WL 3858404, (S.D.N.Y. Aug. 06, 2014) (finding
error
in
ALJ’s
adverse
credibility
determination
based
on
plaintiff’s receipt of long-term benefits was error, but declining
22
to remand where the credibility determination was independently
supported by other substantial evidence).
Because the errors related to the credibility assessment
requires remand, the Court need not address Plaintiff’s remaining
contention
with
respect
to
the
ALJ’s
step
five
finding
that
Plaintiff could perform other work. On remand, the Commissioner
should ensure that any new decision sufficiently addresses all
issues raised by him.
CONCLUSION
For the reasons set forth above, the Commissioner’s motion for
judgment
on
the
pleadings
(Dkt.
#8)
is
denied,
Plaintiff's
cross-motion for judgment on the pleadings (Dkt. #11) is granted,
and this matter is remanded to the Commissioner for the reasons
stated above for further administrative proceedings pursuant to
42 U.S.C. § 405(g), sentence four.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:
Rochester, New York
June 1, 2015
23
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