Bogdan v. Colvin
Filing
17
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 15 Plaintiff's Motion for Judgment on the Pleadings and reversing and remanding this matter solely for the calculation and payment of benefits. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 4/11/16. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
FRANK P. BOGDAN,
Plaintiff,
-vs-
No. 1:13-CV-00875 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
I.
Introduction
Represented by counsel, Frank P. Bogdan (“plaintiff”) brings
this action pursuant to Title XVI of the Social Security Act (“the
Act”), seeking review of the final decision of the Commissioner of
Social Security (“the Commissioner”) denying his application for
supplemental security income (“SSI”). 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 and the matter is reversed and remanded solely for the
calculation and payment of benefits.
Procedural History
The record reveals that in March 2010, plaintiff (d/o/b
November 9, 1966) applied for SSI.1 After his application was
1
As the ALJ’s decision noted, plaintiff filed several prior applications.
In September 2002, plaintiff applied for disability insurance benefits (“DIB”)
and SSI, both of which applications were denied in November 2002 without further
appeal. A February 2007 application for DIB was dismissed on September 15, 2009
due to plaintiff’s failure to appear for a hearing. Plaintiff also filed a DIB
denied, plaintiff requested a hearing, which was held before
administrative
October 26,
law
2011.
judge
The
ALJ
Timothy
M.
McGuan
(“the
issued
an
unfavorable
ALJ”)
on
decision
on
November 18, 2011. The Appeals Council denied review of that
decision and this timely action followed.
III. The ALJ’s Decision
At step one of the five-step sequential evaluation, see
20 C.F.R. § 416.920, the ALJ determined that plaintiff had not
engaged in substantial gainful activity since March 23, 2010, the
application
date.
At
step
two,
the
ALJ
found
that
plaintiff
suffered from bipolar disorder and anxiety, impairments which he
considered severe. At step three, the ALJ found that plaintiff did
not have an impairment or combination of impairments that met or
medically equaled the severity of any listed impairment. The ALJ
found that plaintiff had mild restrictions in activities of daily
living (“ADLs”), moderate restrictions in social functioning and
concentration, persistence or pace, and no prior episodes of
decompensation.
Before proceeding to step four, the ALJ determined that,
considering all of plaintiff’s impairments, plaintiff retained the
residual functional capacity (“RFC”) to perform a full range of
work at all exertional levels but with the following nonexertional
application in March 2010, which was denied because plaintiff’s previous claim
was denied after his date last insured. Therefore, the only application pending
before the ALJ at the time of his decision was the March 2010 application for
SSI.
2
limitations: “he can occasionally interact with the public and
frequently interact with co-workers and supervisors[, and] can
occasionally
understand,
remember,
and
carry
out
complex
and
detailed tasks.” T. 26. At step four, the ALJ found that plaintiff
was unable to perform past relevant work. At step five, the ALJ
found that considering plaintiff’s age, education, work experience,
and RFC, jobs existed in significant numbers in the national
economy which plaintiff could perform. Accordingly, he found that
plaintiff was not disabled.
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. Barnhart, 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
the
ALJ
erroneously
weighed
the
medical source opinions, which included a September 2010 opinion
from plaintiff’s treating psychiatrist Dr. John Napoli; a June 2010
consulting psychiatric examination from state agency psychologist
Dr. Thomas Ryan; and a psychiatric review technique questionnaire
and mental RFC completed by reviewing state agency psychologist
3
Dr. Hillary Tzetzo. The ALJ gave no weight to Dr. Napoli’s opinion,
finding that it was “inconsistent with treatment notes provided by
his office showing that [plaintiff] was doing well on medications
and his bipolar disorder was stable.” T. 33. The ALJ gave little
weight
to
Dr.
Ryan’s
opinion
“because
[he]
only
examined
[plaintiff] on one occasion.” Id. The ALJ gave “[t]he greatest
weight . . . to the opinion of the review psychiatrist, given [her]
programmatic
expertise,
as
well
as
to
the
overall
objective
record.” T. 33.
Initially, the Court finds that the ALJ’s assignment of the
greatest weight to the opinion of the state agency reviewing
psychologist, over the opinions of both the consulting and treating
sources, constituted reversible error. See Maldonado v. Comm'r of
Soc. Sec., 2014 WL 537564, *15 (E.D.N.Y. Feb. 10, 2014) (“[I]t is
improper to rely on the opinion of a non-treating, non-examining
doctor because the inherent subjectivity of a psychiatric diagnosis
requires
the
physician
rendering
the
diagnosis
to
personally
observe the patient. Accordingly, ‘the conclusions of a physician
who merely reviews a medical file and performs no examination are
entitled to little, if any, weight.’”).
The treating physician rule “recognizes that a physician who
has a long history with a patient is better positioned to evaluate
the patient's disability than a doctor who observes the patient
once for
the
purposes
of
a
disability
4
hearing.”
Santiago
v.
Barnhart, 441 F. Supp. 2d 620, 629 (S.D.N.Y. 2006) (citing Schisler
v.
Sullivan,
3
F.3d
563,
568
(2d
Cir.
1993)
(noting
that
regulations give deference to treating physicians’ opinions because
“opinions
based
on
a
patient-physician
relationship
are
more
reliable than opinions based . . . solely on an examination for
purposes
of
the
disability
proceedings
themselves”)).
As
the
Santiago court recognized, the treating physician rule is “even
more relevant in the context of mental disabilities, which by their
nature are best diagnosed over time. Thus, while the ALJ can
consider the opinions of [consulting medical sources], absent more
compelling
evidence[,]
their
opinions
should
not
be
given
controlling weight over those of [a treating psychiatrist].” 441 F.
Supp. 2d at 629.
Dr. Napoli’s treating source opinion noted that plaintiff, who
he had treated since July 2006, carried a diagnosis of bipolar
disorder,
agitation,
which
resulted
feelings
concentrating,
of
thoughts
in
sleep
guilt
of
or
suicide,
disturbances,
psychomotor
worthlessness,
difficulty
hyperactivity,
pressured
speech, flight of ideas, inflated self-esteem, decreased need for
sleep, and easy distractibility. Dr. Napoli opined that plaintiff
was markedly limited in ADLs and extremely limited in social
functioning. According to Dr. Napoli, plaintiff had marked or
extreme limitations in a variety of areas of functioning, including
making simple work-related decisions, maintaining a normal work
5
schedule, and accepting instructions and responding appropriately
to criticism from supervisors. Dr. Napoli stated that plaintiff was
a “master plumber and loves to work”; however, he could not
“maintain normal work schedules.” T. 543.
In his June 2010 opinion, Dr. Ryan noted that on mental status
examination (“MSE”) plaintiff exhibited “somewhat poor” insight and
judgment,
but
otherwise
the
examination
was
normal.
T.
369.
Dr. Ryan opined that plaintiff could “follow and understand simple
directions,
perform
simple
tasks,
maintain
attention
and
concentration, and maintain a regular schedule.” Id. Dr. Ryan
opined that plaintiff “may have some difficulty with complex
tasks,” his “[d]ecision making [was] impaired at times,” and he had
“moderate limitation in his ability to relate adequately with
others and deal with stress.” Id.
The record reveals that plaintiff had a longitudinal history
of psychiatric treatment prior to the relevant time period, which
began on the application date of March 23, 2010. In January 2006,
plaintiff was admitted to Buffalo General Hospital for three days
in connection with suicidal ideation and depression. Hospital
records indicated that plaintiff had multiple previous hospital
admissions. Plaintiff was diagnosed with depression, not otherwise
specified (“NOS”) and polysubstance dependence. In September 2006,
treatment
notes
from
Monsignor
Carr
Institute
indicated
that
plaintiff showed signs of bipolar disorder. Throughout plaintiff’s
6
treatment prior to and during the relevant time period, plaintiff
was prescribed various dosages of Seroquel (an antipsychotic),
Depakote
(an
anticonvulsant
and
mood
stabilizer),
Klonopin
(a sedative), and Lexapro (an antidepressant), to treat symptoms of
bipolar disorder. Toward the end of the relevant time period,
plaintiff’s
primary
medications
were
Klonopin
and
Lexapro.
Treatment notes also reflect that plaintiff had difficulty with
medication compliance; for example, in July 2007 it was noted that
plaintiff stopped taking his Klonopin stating that he was “going to
try and cope on his own.” T. 340.
Plaintiff’s primary therapist at Monsignor Carr was Henry
Kahlen,
LMSW.
LMSW
Kahlen
met
with
plaintiff
regularly,
approximately once every two weeks, during the relevant time
period. LMSW Kahlen recorded that plaintiff had ongoing issues with
depression
and
anxiety,
and
he
was
managed
on
medications
prescribed by Dr. Napoli. LMSW Kahlen noted that plaintiff would
likely “always need” medication due to his primary diagnosis of
bipolar disorder. T. 240.
The Court agrees with plaintiff that the ALJ did not properly
apply the treating physician rule to Dr. Napoli’s opinion. The
regulations provide that when a treating source’s opinion is
rejected, the ALJ must consider various factors including (i) the
frequency of examination and the length, nature and extent of the
treatment
relationship;
(ii)
the
7
evidence
in
support
of
the
treating physician's opinion; (iii) the consistency of the opinion
with the record as a whole; and (iv) whether the opinion is from a
specialist. See 20 C.F.R. § 404.1527(c). The ALJ here did not
consider these factors, instead simply stating that he accorded no
weight to Dr. Napoli’s opinion “because it [was] inconsistent with
treatment notes provided by his office showing that [plaintiff] was
doing well on medications and his bipolar disorder was stable.”
T. 33.
An assessment of the factors, however, does not support the
ALJ's rejection of Dr. Napoli's opinion. Dr. Napoli had a long
treatment relationship with plaintiff, and he oversaw plaintiff’s
medication management and counseling with LMSW Kahlen at Monsignor
Carr. He was a specialist in psychiatry, and his opinion was
consistent with the record as a whole. Although the record does
indicate that plaintiff’s condition improved with treatment, the
record does not support the ALJ’s conclusion that such improvement
in treatment translated into an ability to perform work on a fulltime basis with the limited restrictions assessed in the ALJ’s RFC
finding. See SSR 96-8p (defining work on a “regular and continuing
basis" as comprising “8 hours a day, for 5 days a week, or an
equivalent work schedule”). Dr. Napoli’s opinion that plaintiff was
extremely limited in social functioning and markedly limited in
activities of daily living is supported by the record, which
establishes that throughout the time period relevant to his claim,
8
plaintiff
suffered
from
bipolar
disorder,
attended
regular
treatment, and was prescribed psychotropic medications for his
symptoms. Because Dr. Napoli’s opinion was supported by plaintiff’s
record
of
treatment,
the
ALJ
should
have
given
the
opinion
controlling weight under the treating physician rule.
Given
the
controlling
weight
to
which
it
was
entitled,
Dr. Napoli’s opinion establishes that plaintiff’s inability to
sustain full-time work renders him disabled under the regulations.
See SSR 96-8p. The Court notes that the standard for directing a
remand
for
calculation
of
benefits
is
met
when
the
record
persuasively demonstrates the claimant's disability, see Parker v.
Harris, 626 F.2d 225, 235 (2d Cir. 1980), and where there is no
reason to conclude that the additional evidence might support the
Commissioner's claim that the claimant is not disabled, see Butts
v. Barnhart, 388 F.3d 377, 385–86 (2d Cir. 2004). That standard has
been met in this case. Because additional proceedings would serve
no purpose and would lead to further delay of plaintiff’s claim
which has been pending for over six years, remand solely for the
calculation and payment of benefits is warranted. See McClain v.
Barnhart, 299 F. Supp. 2d 309, 310 (S.D.N.Y. 2004) (recognizing
“delay
as
a
factor
militating
against
a
remand
for
further
proceedings where the record contains substantial evidence of
disability”).
9
V.
Conclusion
For the foregoing reasons, the Commissioner’s cross-motion for
judgment on the pleadings (Doc. 14) is denied and plaintiff’s
motion (Doc. 15) is granted. This matter is reversed and remanded
solely for the calculation and payment of benefits. 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:
April 11, 2016
Rochester, New York.
10
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