Dennis v. Colvin
Filing
14
DECISION AND ORDER DENYING Defendant's 11 Motion for Judgment on the Pleadings; GRANTING Plaintiff's 9 Motion for Judgment on the Pleadings; REMANDING this case to the Commissioner of Social Security for further proceedings consistent with this Decision and Order; DIRECTING the Clerk of Court to CLOSE this case. Signed by William M. Skretny, United States District Judge on 7/15/2016. (MEAL) - CLERK TO FOLLOW UP -
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ALICIA B. DENNIS,
Plaintiff,
v.
DECISION AND ORDER
14-CV-691S
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.
1.
Plaintiff Alicia B. Dennis challenges an Administrative Law Judge’s (“ALJ”)
determination that she is not disabled within the meaning of the Social Security Act (“the
Act”). Plaintiff alleges that she has been disabled since December 14, 2010, due to
back pain, asthma, anxiety, depression, coronary artery disease, hypertension, obesity,
and substance abuse. Plaintiff contends that her impairments render her unable to
work. She therefore asserts that she is entitled to Disability Insurance Benefits (“DIB”)
or eligible for Supplemental Security Income (“SSI”) under the Act.
2.
On June 16, 2011, Plaintiff applied for Disability Insurance Benefits (“DIB”)
and Supplemental Security Income (“SSI”). The Commissioner denied her application
on October 18, 2011. Plaintiff requested a hearing on October 28, 2011. Pursuant to
Plaintiff’s request, ALJ Eric L. Grazer held a hearing on February 14, 2013. Plaintiff was
represented by counsel at the hearing, where she appeared in person and testified.
The ALJ considered the case de novo, and, on March 11, 2013, he issued a decision
denying Plaintiff’s application for benefits. On June 30, 2014, the Appeals Council
1
denied Plaintiff’s request for review. Plaintiff filed the current civil action on August 22,
2014, challenging Defendant’s final decision. 1
3.
On January 23, 2015, Plaintiff filed a Motion for Judgment on the
Pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. (Docket No. 9).
On March 20, 2015, Defendant filed her own Motion for Judgment on the Pleadings.
(Docket No. 11). This Court took the motions under advisement without oral argument.
For the reasons discussed below, Defendant’s motion is denied, Plaintiff’s is granted,
and this case 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,” and 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 an 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
1
The ALJ’s March 11, 2013 decision became the Commissioner’s final decision in this case when the
Appeals Council denied Plaintiff’s request for review.
2
must 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 will 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 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, and it remains the proper approach for
analyzing whether a claimant is disabled. 482 U.S. 137, 140-42, 107 S. Ct. 2287, 2291,
96 L. Ed. 2d 119 (1987).
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
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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.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam) (quotations in
original); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. §
404.1520.
8.
While the claimant has the burden of proof on 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 is
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, the ALJ made the following findings with regard to the five-
step process set forth above: (1) Plaintiff has not engaged in substantial gainful activity
since June 3, 2010 (R. at 17, 19)2; (2) Plaintiff’s back pain, asthma, anxiety, depression,
coronary artery disease, hypertension, obesity, and substance abuse constitute
“severe” impairments within the meaning of the Act 3 (R. at 19-20); (3) Plaintiff’s
impairments do not meet or medically equal any of the impairments listed in 20 C.F.R.
2
Citations to the underlying administrative record are designated as “R.”
The ALJ found that Plaintiff’s hypothyroidism and status post fracture of the right 5th metatarsal were
non-severe impairments
3
4
Part 404, Subpart P, Appendix 1 (R. 20); (4) Plaintiff retained the residual functional
capacity (“RFC”) to perform a reduced range of light level work (R. at 22); and (5)
Plaintiff was unable to perform any of her past relevant work as a laundry worker. (R. at
26). Considering Plaintiff’s status as a younger individual with a high school education;
her unskilled past relevant work; her non-exertional limitations that require her to avoid
concentrated exposure to respiratory irritants, including fumes, dust, and airborne
particles, and limit her to simple work in a low contact and low stress environment; and
her RFC for a significant range of light work, the ALJ determined that MedicalVocational Rule 201.20 directed a finding of “not disabled.” (R. at 22, 27). Ultimately,
the ALJ determined that Plaintiff was not under a disability, as defined by the Act, at any
time through the date of his decision, March 11, 2013. (R. at 28).
10.
Plaintiff raises two challenges to the ALJ’s decision, one of which requires
remand. First, Plaintiff argues that the ALJ failed to properly evaluate her coronary
artery disease in reaching his RFC finding.
Second, Plaintiff argues that the ALJ
improperly evaluated the opinion of Joshua Ball, her treating chiropractor.
For the
reasons discussed below, this Court finds that Plaintiff’s first argument requires remand.
11.
Plaintiff first argues that the ALJ failed to properly evaluate her coronary
artery disease. In particular, Plaintiff argues that the ALJ impermissibly interpreted
diagnostic evidence on his own, without supporting opinions from medical sources
regarding functional limitations, and thus the ALJ’s RFC finding is not supported by
substantial evidence.
12.
Plaintiff’s coronary artery disease appears rather significant. On
November 7, 2011, Plaintiff underwent an urgent quadruple bypass. (R. at 749). She
required urgent surgery because she had 80% stenosis in her right coronary artery,
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90% stenosis in her left coronary artery, and 80% stenosis at the takeoff of the second
obtuse marginal branch. (R. at 749). After the surgery, Plaintiff received visiting nurse
services for surgical aftercare until November 30, 2011. (R. at 664-713). An X-ray on
December 1, 2011, revealed a bilateral pleural effusion, shortness of breath and cough,
and that the transverse diameter of Plaintiff’s heart was within normal limits. (R. at 764).
13.
at 838).
On March 27, 2012, an X-ray showed no evidence of active disease. (R.
An echocardiography report of the same date showed normal systolic
functioning in the left ventricle with an estimated ejection fraction in the range of 50% to
55%, mild regurgitation in the mistral valve, and mild-moderate regurgitation in the
tricuspid valve. (R. at 837). On March 29, 2012, Brian Hill, a physician’s assistant,
noted a significant improvement. (R. at 767). Plaintiff reported feeling much better on
June 21, 2012.
(R. at 841).
But on December 6, 2012, the most recent
electrocardiogram in the record showed sinus tachycardia, possible left atrial
enlargement, left ventricular hypertrophy, an abnormal ECG, and an ST and T wave
abnormality with a need to consider inferior ischemia. (R. at 843). Plaintiff testified that
she is still under the care of cardiologists at the Erie County Medical Center Cardiology
Clinic. (R. at 171).
14.
The administrative record contains only these progress notes and raw test
results regarding Plaintiff’s coronary artery disease. (R. at 776-843). There are no
medical opinions explaining how Plaintiff’s coronary artery disease affects her ability to
perform work related exertional functions. In other words, no medical opinion supports
the ALJ’s RFC finding. Rather, the ALJ evaluated handwritten treatment notes and
abnormal diagnostic testing on his own, which he is not permitted to do. For example,
the ALJ states that Plaintiff’s “heart was noted to be within normal limits” and cites notes
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written by an X-ray technician. (R. at 24). The X-ray technician’s notes actually state,
“transverse diameter of the heart is within normal limits,” which does not necessarily
mean the heart overall is within normal limits. (R. at 764). In addition, the ALJ states
that Plaintiff had an echocardiogram that noted possible inferior ischemia. (R. at 25).
The ALJ cites the notes from the echocardiogram report, but ignores the additional
notes of an abnormal ECG, sinus tachycardia, possible left atrial enlargement, left
ventricular hypertrophy, and an ST and T wave abnormality. (R. at 843).
15.
“[I]t is not sufficient for the ALJ simply to secure raw data from the treating
physician. What is valuable about the perspective of the treating physician—what
distinguishes him from the examining physician and from the ALJ—is his opportunity to
develop an informed opinion as to the physical status of a patient.” Peed v. Sullivan,
778 F. Supp. 1241, 1246 (E.D.N.Y. 1991). The record must have more than mere
medical findings:
[A]n ALJ is not qualified to assess a claimant's RFC on the
basis of bare medical findings, and as a result an ALJ's
determination of RFC without a medical advisor's
assessment is not supported by substantial evidence. Where
the “medical findings in the record merely diagnose [the]
claimant's exertional impairments and do not relate these
diagnoses to specific residual functional capabilities such as
those set out in 20 C.F.R. § 404.1567(a) ... [the
Commissioner may not] make the connection himself.”
See Deskin v. Comm'r of Soc. Sec., 605 F.Supp.2d 908, 912 (N.D.Ohio 2008) (quoting
Rohrberg v. Apfel, 26 F. Supp. 2d 303, 311 (D. Mass. 1998)).
16.
Defendant argues that the ALJ’s RFC finding does not need to track any
single medical opinion. While this may be true, here there is no medical opinion at all
supporting the ALJ’s finding; this is not a matter of an ALJ’s RFC finding simply diverting
somewhat from the supporting medical opinion. See Matta v. Astrue, 508 Fed. Appx.
7
53, 56 (2d Cir. 2013) (although ALJ’s conclusion did not perfectly correspond with any
of the opinions of medical sources, the ALJ was entitled to weigh all evidence available
to make an RFC finding that was consistent with the record as a whole). This record
contains only handwritten treatment notes and testing reports. The Second Circuit has
long recognized that “where there are deficiencies in the record, an ALJ is under an
affirmative obligation to develop a claimant's medical history even when the claimant is
represented by counsel or . . . by a paralegal.” Rosa v. Callahan, 168 F.3d 72, 79 (2d
Cir. 1999) (internal quotation marks omitted). Further development is necessary here.
17.
Plaintiff asserts that this case is analogous to Skupien v. Colvin, where
this Court found that a similarly incomplete record required remand. See No. 13-CV403S, 2014 WL 3533425 at *5, *6 (W.D.N.Y. July 16, 2014). Plaintiff is correct. In
Skupien, the ALJ discussed diagnostic tests and nursing records without relying on a
medical opinion. Id. at *5. This Court concluded that the ALJ’s RFC assessment was
therefore unsupported by substantial evidence, because there was no medical opinion
relating the medical information to a specific RFC. Id. As a result, the ALJ improperly
evaluated raw medical data. Id.
18.
Similarly, in this case, the ALJ discussed echocardiography reports,
electrocardiogram reports, X-ray technician notes, and handwritten notes of a
physician’s assistant. (R. at 24-25). Then, without opinions from the medical
professionals concerning the impact of these results on Plaintiff’s RFC, the ALJ simply
concluded that Plaintiff was capable of performing light work. This was error. The ALJ
should have further developed the record with medical opinions relating to Plaintiff’s
coronary artery disease.
See Walker v. Astrue, No. 08–CV–0828(A)(M), 2010 WL
2629832, at *7 (W.D.N.Y. June 11, 2010) (“[w]ithout this additional medical evidence [,
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the] ALJ . . ., as a layperson, could not bridge the gap between plaintiff's [impairments]
the functional limitations that flow from these impairments”); Skupien, 2014 WL 3533425
at *6 (“[a]s a general rule, where the transcript contains only diagnostic evidence and no
[supporting] opinion from a medical source about functional limitations . . . , to fulfill the
responsibility to develop a complete record the ALJ must recontact [an acceptable
medical] source, order a consultative examination, or have a medical expert testify at
the hearing”) (quoting Deskin, 605 F. Supp. 2d at 912).
Accordingly, remand is
necessary to allow the ALJ to obtain further medical opinion evidence to consider in
making his RFC findings.
19.
In addition to challenging the ALJ’s RFC finding, Plaintiff also argues that
the ALJ failed to properly evaluate the opinion of Joshua Ball, her treating chiropractor.
This court offers no opinion on this argument at this time since the case is being
remanded. On remand, the ALJ is free to address this additional argument to the extent
that he deems appropriate.
20.
After carefully examining the administrative record, this Court finds cause
to remand this case to the ALJ for further administrative proceedings consistent with this
decision.
Plaintiff’s Motion for Judgment on the Pleadings is therefore granted.
Defendant’s motion seeking the same relief is denied.
IT HEREBY IS ORDERED, that Defendant’s Motion for Judgment on the
Pleadings (Docket No. 11) is DENIED.
FURTHER, that Plaintiff’s Motion for Judgment on the Pleadings (Docket No. 9)
is GRANTED.
FURTHER, that this case is REMANDED to the Commissioner of Social Security
for further proceedings consistent with this Decision and Order.
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FURTHER, that the Clerk of Court is directed to CLOSE this case.
SO ORDERED.
Dated: July 15, 2016
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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