Lottbrein v. Colvin
Filing
18
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 10 Plaintiff's Motion for Judgment on the Pleadings to the extent that this 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 8/30/16. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ERICA LOTTBREIN,
Plaintiff,
-vs-
No. 1:13-CV-01096 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
I.
Introduction
Represented by counsel, Erica Lottbrein (“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
matter
is
remanded
to
the
Commissioner for further administrative proceedings consistent with
this Decision and Order.
II.
Procedural History
The record reveals that in February 2011, plaintiff (d/o/b
January 6, 1973) applied for DIB, alleging disability as of January
2010. After her application was denied, plaintiff requested a
hearing, which was held before administrative law judge Robert T.
Harvey (“the ALJ”) on May 31, 2012. The ALJ issued an unfavorable
decision on August 16, 2012. The Appeals Council denied review of
that decision and this timely action followed.
III. Summary of the Record
The record reveals that plaintiff suffered from work-related
back injuries, which she reported resulted from the “cumulative,
repetitive trauma” of her past work as a fire and water restoration
worker. That work involved regular lifting of approximately 80 to
90 boxes per day, weighing 50 to 100 pounds each. As a result,
plaintiff suffered back pain, which is the chief complaint noted
throughout her medical record. Her medical record also indicates
diagnoses of polyarthralgia1 or fibromyalgia, for which she treated
primarily with rheumatologist Dr. Danillo Saldana. On multiple
occasions,
Dr.
Saldana
noted
trigger
point
tenderness
of
plaintiff’s upper neck, upper back, upper chest, lower back,
elbows, hips, and knees. Plaintiff also treated with Drs. Bernard
Beaupin, Carl Roth, and Thomas McTernan, primarily for back pain.
The
record
contains
records
of
mental
health
treatment,
primarily with licensed mental health counselor Valerie Nowak, at
Community Concern Mental Health Clinic. Plaintiff treated there
from approximately February through August 2010, after which point
1
Polyarthralgia is defined as aches in the joints, joint pains, arthralgia
of multiple joints, and multiple joint pain. Polyarthritis is the word usually
used to describe pain affecting five or more joints.
2
she
ceased
appearing
for
appointments
(citing
lack
of
transportation and/or insurance) and was eventually terminated from
the program. During her visits, plaintiff reported ongoing issues
with anxiety and panic attacks, and she was diagnosed with panic
disorder. Where the records note mental status examinations, those
examinations were normal with the exception of anxious or depressed
mood. None of plaintiff’s treating psychiatric sources completed a
functional assessment.
On May 19, 2011, psychologist Dr. Rachel Hill performed a
consulting psychiatric evaluation at the request of the state
agency. Mental status examination was essentially normal. Dr. Hill
opined that plaintiff could perform simple and complex tasks, and
that she could relate adequately with others and appropriately
handle stress. According to Dr. Hill, plaintiff’s psychiatric
problems did not “interfere[] with her ability to function as much
as her physical problems [did].” T. 373.
Also on May 19, 2011, Dr. Nikita Dave performed a consulting
internal medicine examination at the request of the state agency.
Dr. Dave noted loss of lordosis in the lumbar spine and slight
tenderness at the midline of L1, but otherwise an essentially
normal physical examination. According to Dr. Dave, plaintiff had
mild
to
moderate
limitations
for
sitting,
standing,
walking,
bending, twisting through the lumbar spine, lifting, carrying,
3
pushing, and pulling; and plaintiff should avoid working in cold
environments due to Raynaud’s disease.
Various
treating
providers
also
provided
functional
assessments of plaintiff. Dr. Beaupin, who completed updates for
workers compensation purposes, opined that plaintiff should avoid
bending, stooping,
reaching,
twisting,
crawling,
or
climbing;
should not lift anything greater than 20 pounds; and should avoid
sitting, standing, or walking for more than two hours at a time
without a break. See T. 275 (October 22, 2010); 277 (May 27, 2010).
Dr. Cameron Huckell provided an identical assessment on May 27,
2010.
On
March
9,
2011,
Dr.
Roth
opined
that
plaintiff
was
moderately limited in walking, standing, climbing, and working at
a consistent pace; and very limited in lifting, carrying, pushing,
pulling, and bending. He stated that these limitations could be
expected
to
last
for
four
to
six
months.
On
May
29,
2012,
Dr. McTernan opined that plaintiff was limited to lifting and
carrying 20 pounds occasionally and ten pounds frequently; could
stand or walk for less than two hours per workday; could sit for
less than six hours per workday and only one-half hour at a time;
and could push/pull up to ten to twenty pounds. He opined that she
“must be constantly changing positions throughout the course of an
[eight] hour workday.” T. 381.
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IV.
The ALJ’s Decision
Initially, the ALJ found that plaintiff met the insured status
requirements of the Social Security Act through December 31, 2013.
At step one of the five-step sequential evaluation, see 20 C.F.R.
§ 404.1520, the ALJ determined that plaintiff had not engaged in
substantial gainful activity since January 10, 2010, the alleged
onset date. At step two, the ALJ found that plaintiff suffered from
the severe impairments of back pain and Raynaud’s disease. 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.
Before proceeding to step four, the ALJ found that plaintiff
retained the residual functional capacity (“RFC”) to occasionally
lift/carry up to 20 pounds and frequently lift/carry ten pounds;
stand and/or walk for six hours in an eight-hour workday; sit two
hours
in
an
eight-hour
workday;
plaintiff
had
“occasional
limitations in bending, climbing, stooping, squatting, kneeling,
and crawling” and occasional limitations in pushing and pulling
with the upper extremities; and plaintiff could not work in areas
where she would be exposed to cold. The ALJ found that plaintiff
retained the
ability
to
perform
the
basic
mental
demands
of
unskilled work, including: understanding, remembering, and carrying
out simple instructions; responding appropriately to supervision,
5
coworkers and usual work situations; and dealing with changes in a
normal work setting.
At step four, the ALJ found that plaintiff was capable of
performing past relevant work as a housekeeper, as she actually
performed it. Accordingly, the ALJ did not proceed to step five and
determined that plaintiff was not disabled.
V.
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).
A.
Step Two Finding
Plaintiff contends that the ALJ erred in finding, at step two
of the sequential analysis, that her fibromyalgia, bilateral foot
pain,
limitations
in
the
use
of
her
hands,
and
psychiatric
diagnoses were nonsevere impairments. Although Dr. McTernan noted
on one occasion that plaintiff suffered from edema of the hands and
feet, objective findings of hand and foot impairments in the record
is sparse, and the Court thus finds that the ALJ did not err in
finding
treatment
these
notes
impairments
indicated
nonsevere.
that
he
However,
diagnosed
Dr.
Saldana’s
plaintiff
with
polyarthralgia, a condition closely associated with fibromyalgia.
6
Dr. Saldana’s notes indicated that plaintiff was positive for
trigger point tenderness in the upper neck, upper back, upper
chest, lower back, elbows, hips, and knees. Dr. Roth also noted
that plaintiff had trigger point tenderness in her back, hips, and
shoulders. Treatment notes from other providers consistently noted
plaintiff’s diagnosis of fibromyalgia.
The ALJ found that plaintiff’s fibromyalgia was not a severe
impairment,
reasoning
briefly
that
there
was
“no
persuasive
evidence that [it was a] severe impairment[].” T. 17. The Court
disagrees.
The
repeated
reference
to
plaintiff’s
fibromyalgia
throughout the record, Dr. Saldana’s findings of trigger point
tenderness, and notes from other treating providers that plaintiff
was following up in treatment for fibromyalgia symptoms with
Dr. Saldana, indicate that this condition was a severe impairment.
The
ALJ’s
conclusory
determination
that
it
was
a
nonsevere
impairment, combined with his failure to consider the effects of
plaintiff’s
fibromyalgia
on
her
overall
functional
capacity,
constituted reversible error. See Casselbury v. Colvin, 90 F. Supp.
3d 81, 94 (W.D.N.Y. 2015) (“[The ALJ’s failed to] consider the
potential
functional
limitations
as
a
result
of
Plaintiff's
fibromyalgia symptoms after discounting Plaintiff’s fibromyalgia as
a medically determinable impairment, and accordingly, remand is
warranted.”).
The ALJ also erred in finding plaintiff’s mental impairments
nonsevere
at step
plaintiff’s
two.
However,
fibromyalgia,
the
unlike
ALJ’s
7
with the
decision
analysis
indicates
of
that
plaintiff’s
mental
health
records
and
diagnoses
were
fully
considered prior to the ALJ coming to an RFC determination. “As a
general matter, an error in an ALJ's severity assessment with
regard to a given impairment is harmless . . . when it is clear
that the ALJ considered the
claimant's [impairments] and their
effect on his or her ability to work during the balance of the
sequential evaluation process.” Diakogiannis v. Astrue, 975 F.
Supp. 2d 299, 311-12 (W.D.N.Y. 2013) (internal quotation marks and
citations omitted). The Court thus finds the ALJ’s step two error
regarding plaintiff’s mental impairments to be harmless.
On remand, the ALJ is directed to reconsider plaintiff’s
diagnosis of polyarthralgia/fibromyalgia. The ALJ is directed to
specifically
within
the
explain
RFC
how
finding
the
are
functional
supported
limitations
by
the
contained
evidence,
in
a
function-by-function assessment as required by the regulations, see
20 C.F.R. § 404.1545, “with the understanding that fibromyalgia
does not always result in objective findings or diagnostic tests.”
Mnich v. Colvin, 2015 WL 7769236, *19 (N.D.N.Y. Sept. 8, 2015),
report
and
recommendation
adopted,
2015
WL
7776924
(N.D.N.Y.
Dec. 2, 2015) (remanding for compliance with SSR 12-2p, noting that
“fibromyalgia does not always result in objective findings or
diagnostic tests”).
B.
Weight Given to Medical Opinions
Plaintiff contends that the ALJ failed to give good reasons
for
rejecting
Dr.
McTernan’s
Dr.
McTernan’s
opinion
treating
little
weight,
8
opinion.
finding
The
that
ALJ
it
gave
was
inconsistent with other substantial record evidence, including
Dr. McTernan’s own treatment notes. Initially, the Court notes that
the
ALJ’s
ultimate
RFC
determination,
which
accounted
for
occasional postural limitations and lifting/carrying restrictions
of 20 pounds occasionally and ten pounds frequently, was partially
consistent
with
Dr.
McTernan’s
similar
opinions
as
to
those
functions. The ALJ’s decision to give less weight to the remainder
of Dr. McTernan’s opinion was supported by substantial record
evidence,
including
Dr.
McTernan’s
own
treatment
notes
which
reflected largely normal physical examinations. See T. 383, 386,
392. The ALJ was within his discretion to accept certain portions
of Dr. McTernan’s opinion, but reject those that were not supported
by his own treatment notes or other substantial record evidence.
See Pavia v. Colvin, 2015 WL 4644537, at *4 (W.D.N.Y. Aug. 4, 2015)
(noting that it is “within the province of the ALJ to credit
portions of a treating physician's report while declining to accept
other portions of the same report”) (citing Veino v. Barnhart, 312
F.3d 578, 588 (2d Cir. 2002)).
Plaintiff further argues that the ALJ in giving Dr. Hill’s
consulting
psychiatric
opinion
significant
weight.
Plaintiff
contends that her mental health treatment notes substantially
contradicted the functional assessment contained in Dr. Hill’s
opinion. The Court disagrees. Although plaintiff reported symptoms
of anxiety and panic attacks to her mental health treating sources,
mental status examinations from those sources were essentially
normal. Moreover, no mental health treating source provided a
9
functional
assessment
contradicting
Dr.
Hill’s
opinion
that
plaintiff could perform simple and complex tasks, adequately relate
with others, and appropriately handle normal work stress. The
record
supports
Dr.
Hill’s
conclusion
that
plaintiff’s
chief
limitations were physical, not mental, in nature. Therefore, the
ALJ
did
not
err
in
giving
significant
weight
to
Dr.
Hill’s
consulting opinion. See Petrie v. Astrue, 412 F. App'x 401, 405
(2d Cir. 2011)
(“The
constitute
.
.
.
report
of a
substantial
consultative
evidence.”)
physician may
(citing
Mongeur
v.
Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983) (per curiam)).
C.
Step Four Finding
Plaintiff contends that the ALJ erred in determining that she
could perform her past relevant work. In light of the Court’s
decision to remand this case for further consideration regarding
plaintiff’s impairment of fibromyalgia, the Court declines to reach
the
issue
of
whether
the
ALJ
erred
at
step
four
of
the
determination. On remand, after a reconsideration of the effect of
plaintiff’s fibromyalgia on her RFC, the ALJ must then reconsider
whether plaintiff can perform past relevant work. In accordance
with SSR 86-8 and 20 C.F.R. § 404.1520, the ALJ should consider
whether, given plaintiff’s RFC, plaintiff “can do past relevant
work . . ., and if not, whether . . . she can reasonably be
expected to make a vocational adjustment to other work.” SSR 86-8p.
VI.
Conclusion
For the foregoing reasons, the Commissioner’s motion for
judgment on the pleadings (Doc. 13) is denied and plaintiff’s
10
motion (Doc. 10) 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:
August 30, 2016
Rochester, New York.
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