Norward v. Colvin
Filing
11
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 8 Commissioner's Motion for Judgment on the Pleadings; granting 9 Plaintiff's Motion for Judgment on the Pleadings to the extent that the matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 10/28/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOYCE NORWARD,
Plaintiff,
-vs-
No. 1:13-CV-00747 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
I.
Introduction
Represented by counsel, Joyce Norward (“plaintiff”) brings
this action pursuant to Title II of the Social Security Act (“the
Act”), seeking review of the final decision of the Commissioner of
Social Security (“the Commissioner”) denying her application for
disability insurance benefits (“DIB”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g). Presently before
the Court are the parties’ cross-motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. For the reasons discussed below, plaintiff’s motion is
granted to the extent that this case is remanded for further
administrative proceedings consistent with this Decision and Order.
II.
Procedural History
The record reveals that in December 2007, plaintiff (d/o/b
August 23, 1964) applied for SSI, alleging disability as of May 25,
2007 due to back and neck pain resulting from disc herniations.
After her application was denied, plaintiff requested a hearing,
which was held before administrative law judge Bruce R. Mazzarella
(“the ALJ”) on March 10, 2010. The ALJ issued an unfavorable
decision on March 25, 2010.
Plaintiff appealed that decision, and the Appeals Council
remanded the case for reconsideration. In its November 5, 2010
order, the Appeals Council directed the ALJ to consult a vocational
expert (“VE”) to clarify the effects of plaintiff’s functional
limitations on her ability to do work. On remand, the ALJ held
another hearing on May 4, 2011. The ALJ issued a second unfavorable
decision on September 14, 2011. The Appeals Council denied review
of that decision. This timely action followed.
III. The ALJ’s Decision
The ALJ followed the well-established five-step sequential
evaluation
promulgated
by
the
Commissioner
for
adjudicating
disability claims. See 20 C.F.R. § 404.1520. At step one, the ALJ
determined that Plaintiff had not engaged in substantial gainful
activity since May 25, 2007, the alleged onset date. At step two,
the ALJ found that plaintiff had the following severe impairments:
chronic
neck
radiculopathy,
and
back
ulnar
discomfort
neuropathy,
with
and
evidence
tendonitis
of
mild
and
mild
degenerative changes of the right elbow. At step three, the ALJ
found that plaintiff did not have an impairment or combination of
impairments that met or medically equaled a listed impairment.
Before proceeding to step four, the ALJ determined that
plaintiff retained the residual functional capacity (“RFC”) to
2
perform the full range of sedentary work as defined in 20 C.F.R.
§ 404.1567(a), and that during the course of an eight-hour workday,
plaintiff could: sit for a total of eight hours with only normal
breaks and meal periods; stand and/or walk on an occasional basis
and for up to a total of 2 hours; lift and carry up to 10 pounds on
an occasional basis; and on a limited to occasional basis stoop,
crouch, kneel, and climb stairs.
In determining plaintiff’s RFC, the ALJ considered the record
as a whole, which established that plaintiff was involved in a onthe-job motor vehicle accident in 2005, after having served for
approximately 20 years as a police officer for the Buffalo Police
Department. Plaintiff sustained back and neck injuries in the
accident, which worsened over time. MRI studies showed disc bulging
in the cervical and lumbar spine, nerve testing studies revealed
evidence of C8-T1 radiculopathy and right ulnar neuropathy at the
elbow,
and
examination,
plaintiff
as
was
suffering
repeatedly
from
spasms
assessed,
in the
on
back
physical
and
neck.
Plaintiff pursued various treatment for her conditions, including
physical therapy, massage therapy, medication management, use of a
TENS unit, acupuncture, and injections.
In connection with his consideration of the entire record, the
ALJ gave controlling weight to the July 2009 opinion of plaintiff’s
treating physician, Dr. Pamela Reed. Dr. Reed stated that plaintiff
suffered from fibromyalgia, neck strain and lumbar strain with disc
3
protrusion on MRI of lumbar spine at L5-S1. Dr. Reed opined that
plaintiff could occasionally lift and carry up to 20 pounds; sit
for eight hours in an eight-hour workday and stand/walk for four
hours in an eight-hour workday, but could only sit and stand for
two hours at a time without interruption and could only walk for
one hour at a time without interruption (“[Plaintiff] can perform
a combination of sit/stand/walk during [eight] hour work day”
[T. 510]); frequently reach, handle, finger, and feel with the
right hand; occasionally push/pull with the right hand; frequently
handle, finger, and feel with the left hand; occasionally reach,
push, and pull with the left hand; frequently climb stairs and
ramps, balance, stoop, and kneel; and occasionally climb ladders or
scaffolds, crouch, and crawl. Dr. Reed stated that plaintiff needed
the ability
paraspinal
to
“stretch
muscle
and
spasms.”
change body
T.
510.
She
position
noted
to
prevent
environmental
limitations only with extreme cold, and opined that plaintiff could
perform all listed activities of daily living.
At step four, the ALJ determined that plaintiff could not
perform past relevant work as a police officer. At step five, with
reference to VE testimony, the ALJ determined that jobs existed in
significant numbers in the national economy that plaintiff could
perform. Accordingly, the ALJ found plaintiff not disabled.
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IV.
Discussion
A
district
court
may
set
aside
the Commissioner’s
determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhard, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
Plaintiff contends that (1) the Appeals Council erred in
failing to remand the case based on new evidence; (2) the ALJ
improperly weighed the consulting opinion of Dr. Miller; and
(3) the ALJ erroneously assessed plaintiff’s credibility.
A.
New Evidence
Plaintiff contends that new evidence, submitted to the Appeals
Council following the ALJ’s September 14, 2011 decision, required
remand. In its May 23, 2013 denial of review, the Appeals Council
stated that “the additional evidence does not provide a basis for
changing the [ALJ]’s decision.” T. 2. The new evidence consisted of
MRI imaging of plaintiff’s cervical and lumbar spines, and three
letters from plaintiff’s recent treating physician, Dr. Andrew
Cappuccino, in which he opined that conservative treatment had not
been effective and recommended surgery.
5
As plaintiff points out, the ALJ discussed plaintiff’s pursuit
of “conservative” treatment in his review of the evidence. T. 2223. This treatment “included physical therapy, massage therapy,
medication
management,
use
of
a
TENS
unit,
acupuncture,
and
injections.” T. 22. The ALJ stated that “[d]iagnostic test results
have yielded findings consistent with the [plaintiff’s] decision to
pursue only conservative care,” noting a December 2005 cervical
spine MRI which revealed no herniations or stenosis at C2-C3, C3C4, C6-C7 or C7-T1, an August 2006 lumbar MRI showing a small to
moderate-sized disc protrusion at L5-S1 superimposed on mild disc
degeneration, and January 2009 EMG/NCS studies showing evidence of
right C8-T1 radiculopathy and right ulnar neuropathy at the elbow.
T. 23. The record shows that those same studies also revealed
minimal diffuse broad based disc bulges at C4-C5 and C5-C6. T. 355.
The new MRIs, performed in August 2011, show a “new shallow
midline disc herniation” with no stenosis at C4-C5; a “new left
paracentral disc herniation abut[ting] the ventral aspect of the
exiting left C6 nerve root,” with no stenosis at C5-C6; a “broadbased posterior disc bulge, foraminal bulging but no peripheral
stenosis” at L4-L5; and a “broad-based right paracentral disc
herniation [indenting] the thecal sac and posteriorly deviat[ing]
the right S1 nerve in the lateral recess,” with mild neural
foraminal narrowing (findings described as “similar to prior MRI”)
at L5-S1. T. 696-99. Based on these studies, which were performed
6
in association with an initial consultation with Dr. Cappuccino,
Dr. Cappuccino submitted a letter stating, “[I]n light of the fact
that
[plaintiff]
conservative
has
care,
been
[he
through
and
recommended]
failed
anterior
many
forms
of
retroperitoneal
discectomy, partial corpectomy, and interbody stabilization with
the use of possible ProDisc-L [prosthesis] versus traditional
fusion.” T. 708.
Plaintiff contends that this new evidence was sufficient to
trigger review of the ALJ’s decision. “If the new evidence relates
to a period before the ALJ's decision, the Appeals Council ‘shall
evaluate the entire record including the new and material evidence
submitted . . . [and] then review the case if it finds that the
administrative law judge’s action, findings, or conclusion is
contrary to the weight of the evidence currently of record.’”•Perez
v. Chater, 77 F.3d 41, 44 (2d Cir. 1996) (citing 20 C.F.R.
§§ 404.970(b), 416.1470(b)). Evidence is “new” when it has not been
considered previously in the administrative process. See Ovitt v.
Colvin, 2014 WL 1806995, *3 (N.D.N.Y. May 7, 2014). New evidence is
“material” where it is both relevant to the plaintiff’s condition
during the relevant time period, and probative. Pollard v. Halter,
377 F.3d 183, 193 (2d Cir. 2004). “The concept of materiality
requires, in addition, a reasonable possibility that the new
evidence
would
have
influenced
the
[Commissioner]
claimant's application differently.” Id.
7
to
decide
In this case, the evidence regarding the August 2011 MRI
studies was new evidence relevant to plaintiff’s condition during
the relevant time period. Contrary to the Commissioner’s argument,
the
evidence
is
not
merely
cumulative,
because
it
contains
objective findings that plaintiff’s spinal condition had worsened
and a treating physician’s opinion that conservative treatment was
no longer effective and that surgery was required. In the Court’s
view, there is a reasonable possibility that this evidence would
have
influenced
the
ALJ
to
decide
plaintiff’s
application
differently. Most importantly, the evidence raises questions of
whether Dr. Reed’s July 2009 functional assessment, which was
completed
over two
years
prior
to
the ALJ’s
decision,
still
accurately described plaintiff’s limitations. This question is
critical because the ALJ gave Dr. Reed’s functional assessment
controlling weight and modeled his hypotheticals to the VE after
its findings.
Moreover, as plaintiff correctly argues, the Appeals Council
is required to state the weight given to treating physicians’
opinions. See Davidson v. Colvin, 2013 WL 5278670, *8-9 (“[W]here
newly submitted evidence consists of findings made by a claimant's
treating physician, the treating physician rule applies, and the
Appeals Council must give good reasons for the weight accorded to
a treating source's medical opinion. . . . Failure to provide good
reasons for not crediting the opinion of a claimant’s treating
8
physician
is
omitted).
grounds
The
for
Appeals
remand”)
Council’s
(internal
quotation
summary
treatment
marks
of
Dr. Cappuccino’s treating physician opinion, where that opinion
constituted new evidence that could have changed the outcome of the
case, constituted reversible error. See Flagg v. Colvin, 2013 WL
4504454, *6 (N.D.N.Y. Aug. 22, 2013) (“[t]he summary statement that
the additional evidence presented by [p]laintiff (including [the
doctor's] assessment) did not provide a basis for changing the
ALJ's decision is insufficient as it frustrates meaningful review
by
this Court
and
provides the
[p]laintiff
with
no
material
information to explain why his treating physician's opinion was
rejected”).
The case is therefore remanded for consideration of the new
evidence relating to the August 2011 MRI studies. On remand, the
ALJ is directed to obtain a functional assessment, from a treating
source, which
evaluates
plaintiff’s
impairments
and resulting
functional limitations, if any, regarding the time period relevant
to this claim. That opinion should take into account the new
evidence produced by plaintiff and made part of this administrative
record, as well as any additional evidence the ALJ deems necessary
in order to fully develop the record.
B.
Weight Given to Dr. Miller’s Opinion
Plaintiff contends that the ALJ erred by not incorporating
into the RFC finding certain limitations found by Dr. Donna Miller
9
in
her
consulting
examination.
In
that
January
2011
exam,
Dr. Miller found that plaintiff could occasionally lift and carry
up to 20 pounds; never reach overhead with either hand; and only
occasionally reach in other directions, handle, finger, feel, push,
and pull with either hand. As the ALJ pointed out, Dr. Miller also
stated, in a narrative summary, that plaintiff had “moderate
limitation for repetitive heavy lifting, pushing, pulling, turning,
and twisting.” T. 636.
As noted above, the ALJ gave controlling weight to Dr. Reed’s
July
2009
opinion.
That
opinion
found
that
plaintiff
could
frequently reach, handle, finger, and feel with the right hand;
occasionally push/pull with the right hand; frequently handle,
finger, and feel with the left hand; and occasionally reach, push,
and pull with the left hand. According to Dr. Reed, “neck strain
with shoulder strain on the left side prevent[ed] [plaintiff from]
reaching
with
[her]
left
arm/shoulder.”
T.
511.
Dr.
Reed’s
conclusions as to plaintiff’s limitations with her hands were thus
less restrictive than Dr. Miller’s specific findings; however,
arguably, Dr. Miller’s conclusion of “moderate” limitations with
these
extremities
was
ultimately
consistent
with
Dr.
Reed’s
opinion.
The treating physician rule provides that an ALJ must give
controlling weight to a treating physician’s opinion if that
opinion is well-supported by medically acceptable clinical and
10
diagnostic techniques and not inconsistent with other substantial
evidence in the record. See Halloran v. Barnhart, 362 F.3d 28, 32
(2d Cir. 2004); 20 C.F.R. § 404.1527(c)(2). In this case, the ALJ
gave Dr. Reed’s July 2009 opinion controlling weight. Therefore, he
was entitled to reject the portions of Dr. Miller’s opinion which
conflicted with Dr. Reed’s assessment. Contrary to plaintiff’s
contention, under these circumstances the ALJ was not required to
specifically state the weight given to Dr. Miller’s consulting
opinion. See Duell v. Astrue, 2010 WL 87298, *5 (N.D.N.Y. Jan. 5,
2010) (“The regulations further require an ALJ to ‘explain in the
decision the weight given to the opinions of a State agency medical
or psychological consultant,’ unless the ALJ has given controlling
weight to the opinions of a treating source.”) (emphasis added).
Therefore, considering the record before the ALJ when he made
his decision, he did not err in rejecting certain portions of
Dr. Miller’s opinion in favor of Dr. Reed’s controlling opinion. On
remand, however, the ALJ should reconsider Dr. Miller’s January
2011 opinion in light of any new medical source opinions received
in connection with his review of the new evidence outlined above.
Should the ALJ consider it necessary to obtain further consulting
opinions as to plaintiff’s limitations, the ALJ is directed to do
so.
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C.
Credibility
Plaintiff
contends
that
the
ALJ
improperly
evaluated
plaintiff’s credibility. The ALJ discussed plaintiff’s credibility
with reference to the two-step inquiry laid out in 20 C.F.R.
§ 416.929. The ALJ’s discussion of the evidence includes a summary
of her testimony at both administrative hearings. The ALJ noted
that plaintiff’s complaints of symptoms worsened from her first
(May 2010) hearing to her second (May 2011) hearing. Although the
ALJ did not explicitly discredit plaintiff’s later statements for
inconsistency, the ALJ’s conclusion regarding credibility, which
found
her
testimony
to
be
incredible
to
the
extent
that
it
conflicted with his RFC finding, implies that he discredited her
later statements as a result of their inconsistency with her
earlier, less severe, complaints.
Considering the record before the ALJ, his decision, which
incorporates his review of the testimony, indicates that he used
the proper standard in assessing credibility. See Britt v. Astrue,
486 F. App'x 161, 164 (2d Cir. 2012) (finding explicit mention of
20 C.F.R. § 404.1529 and SSR 96-7p as evidence that the ALJ used
the proper legal standard in assessing the claimant's credibility);
see also Judelsohn
v.
Astrue,
2012
WL
2401587,
*6
(W.D.N.Y.
June 25, 2012) ("Failure to expressly consider every factor set
forth in the regulations is not grounds for remand where the
reasons for the ALJ's determination of credibility are sufficiently
12
specific to conclude that he considered the entire evidentiary
record."). However, the Court notes that the new evidence submitted
by plaintiff after the ALJ’s decision does indicate that her
condition worsened over the time period relevant to her claim, to
such a degree that, based on studies dated three months after the
second
hearing,
a
treating
physician
recommended
surgery
and
potentially a prosthesis. This evidence may effect the ALJ’s
evaluation of her credibility upon reconsideration. Therefore, on
remand, the ALJ is directed to reconsider plaintiff’s credibility
in light of the new evidence, especially regarding any conclusions
he previously made as to inconsistencies in plaintiff’s testimony
at the two administrative hearings.
V.
Conclusion
For the foregoing reasons, the Commissioner’s motion for
judgment on the pleadings (Doc. 8) is denied, and plaintiff’s
cross-motion for judgment on the pleadings (Doc. 9) is granted to
the extent that this matter is remanded to the Commissioner for
further administrative proceedings consistent with this Decision
and Order. The Clerk of the Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
October 28, 2015
Rochester, New York.
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