Mault v. Colvin
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; denying 14 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 3/24/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DOUGLAS D. MAULT, JR.,
No. 1:14-CV-00751 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Represented by counsel, Douglas D. Mault, Jr. (“plaintiff”)
brings this action pursuant to Titles II and XVI of the Social
Security Act (“the Act”), seeking review of the final decision of
the Commissioner of Social Security (“the Commissioner”) denying
his applications for disability insurance benefits (“DIB”) and
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
Commissioner for further administrative proceedings consistent with
this Decision and Order.
The record reveals that in May 2011, plaintiff (d/o/b July 4,
1979) applied for DIB and SSI, alleging disability as of May 18,
2010. After his applications were denied, plaintiff requested a
hearing, which was held before administrative law judge Eric L.
unfavorable decision on January 14, 2013. The Appeals Council
denied review of that decision and this timely action followed.
III. Summary of the Record
The record reveals that plaintiff suffered a work-related
lower back injury on April 5, 2010. At the time, plaintiff worked
as a stock department manager at Walmart, but he was fired from his
job on approximately May 18, 2010. The record indicates that
plaintiff was fired because he was unable to perform his required
Dr. Steven Celotto, a neurologist, in the aftermath of the injury
until approximately December 2010. Dr. Celotto consistently noted
a 100% disability during his treatment of plaintiff.
Plaintiff was referred for pain management by his primary
treating physician, Dr. Juliette Nwachukwu, and began treating with
neurological pain specialist Dr. Eugene Gosy in February 2011.
Dr. Gosy consistently noted that plaintiff had an antalgic gait on
the left side. In the first few months of his treatment with
Dr. Gosy, plaintiff demonstrated mild tenderness at L5 bilaterally,
absent lumbar retroflexion, and anteflexion at 30 degrees. In
treatment through April 2012, plaintiff was consistently noted to
Specifically, a treatment note dated November 23, 2011, indicates that
plaintiff confirmed to Dr. Gosy that he “[had] been fired from his position as
he [was] not able to return to his previous duties,” which involved lifting and
carrying, activities which resulted in his original injury. See T. 376.
have negative straight leg raise (“SLR”) tests and full or nearfull strength of the upper and lower extremities. Earlier treatment
notes indicated that plaintiff struggled with daily activities,
while more recent notes stated that he was able to maintain his
activities of daily living. Plaintiff did report to Dr. Gosy,
however, that his pain levels were exacerbated quickly when he
attempted to assist his wife with household tasks.
Dr. Gosy noted that an EMG study completed December 30, 2010
showed radiculopathy at L4-L5 and L5-S1. Additionally, an MRI of
the lumbar spine performed May 3, 2010 indicated mild bulges
without stenosis at L2-3, L3-4, and L5-S1, as well as a “mild bulge
with a slight left lateral component [at L4-5" . . . [with no
obvious effacement of the left L4 nerve root” and “mild facet
arthropathy” with no stenosis. T. 187. Plaintiff underwent epidural
injections for pain, which he reported did not improve his pain. In
August 2011, Dr. Gosy noted that after plaintiff received a facet
block injection, he “developed spasms for a period of 10 days
associated with hypersensitivity.” T. 383.
Throughout his treatment of plaintiff, Dr. Gosy noted that
plaintiff’s complaints were consistent with his history of injury
Dr. Gosy’s most recent treatment note, dated April 26, 2012, stated
that plaintiff’s “pain patterns remained unchanged,” his pain was
medication] [was] helpful in reducing his pain to a level of 2-5/10
with rest.” T. 365. Dr. Gosy noted that plaintiff “ambulate[d]
slowly with a mildly antalgic gait with straight cane assist,”
lumbar lordosis was diminished and plaintiff wore a hard plastic
lumbar brace, and plaintiff’s skin demonstrated “hypersensitivity
without any skin changes of the lumbar region.” T. 367.
Also on April 26, 2012, nurse practitioner (“NP”) Christine
Moley, who worked with Dr. Gosy, completed a form indicating that
plaintiff had the following work restrictions: he could not stand
or walk for longer than 30 minutes at a time; he could not sit for
more than 30 minutes at a time; he could not lift greater than
20 pounds; and he was restricted to “[l]ite duty work only.”
T. 364. Those same restrictions were also stated in Dr. Gosy’s
treatment note of the same date, and Dr. Gosy noted that the
restrictions would be in effect “indefinitely.” T. 367.
On July 13, 2011, Dr. Samuel Balderman completed a consulting
internal medicine examination at the request of the state agency.
Dr. Balderman noted that plaintiff’s gait was normal, he appeared
to be in no acute distress, he could not walk on heels or toes “due
to pain,” squat was 10% of full, stance was normal, plaintiff used
no assistive devices, and he needed no help changing or moving on
Dr. Balderman noted limited range of motion (“ROM”) of the lumbar
spine with flexion to 20 degrees and paraspinal tenderness “to
Dr. Gosy opined that plaintiff had “mild limitation in bending and
lifting,” noting that his “MRI report should be reviewed for
clinical correlation,” and finding that plaintiff “show[ed] symptom
evaluation.” T. 315.
independent medical examination (“IME”) of plaintiff for workers
compensation purposes. Dr. Hughes noted normal strength, negative
SLR test bilaterally, and hypalgesia (decreased sensitivity to
painful stimuli due to interruption of the nerve path) of the left
foot to the mid tibia. Dr. Hughes opined that plaintiff had a
“moderate 50% partial disability,” had reached maximum medical
improvement (“MMI”) for purposes of workers compensation, and could
return to light duty with “[n]o sitting, standing, or walking for
more than 30 minutes at a time or lifting more than 20 pounds.”
T. 398. Two earlier IMEs, completed in July 2010 and January 2011
by Dr. John Ring and Dr. Melvin Brothman, respectively, found
marked temporary or partial disability. Both of these physicians
restricted plaintiff to sedentary work on a temporary basis.
The ALJ’s Decision
Initially, the ALJ found that plaintiff met the insured status
requirements of the Social Security Act through December 31, 2015.
At step one of the five-step sequential evaluation, see 20 C.F.R.
§§ 404.1520, 416.920, the ALJ determined that plaintiff had not
engaged in substantial gainful activity since May 18, 2010, the
alleged onset date. At step two, the ALJ found that plaintiff
suffered from the severe impairments of degenerative disc disease
of the lumbar and cervical spines, degenerative changes of the hip,
and chronic obstructive pulmonary disorder (“COPD”). At step three,
combination of impairments that met or medically equaled the
severity of any listed impairment.
Before proceeding to step four, the ALJ determined that,
considering all of plaintiff’s impairments, plaintiff retained the
RFC to perform the full range of light work as defined in 20 C.F.R.
§§ 404.1567(b), 416.967(b). At step four, the ALJ found that
plaintiff could perform past relevant work as a manager of a retail
store. Accordingly, the ALJ found plaintiff not disabled and did
not proceed to step five.
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).
Weight Given to Medical Source Opinions
consulting opinions of Drs. Balderman, Ring, Brothman, and Hughes.
Speifically, plaintiff contends that the ALJ erred in giving
significant weight to Dr. Balderman’s opinion while giving little
weight to each of the independent examining physicians’ opinions.
An ALJ is required to evaluate “every medical opinion [he]
§§ 404.1527(c); 416.927(c). The regulations direct ALJs to consider
the following factors in deciding the weight given to each medical
opinion: (1) examining relationship; (2) treatment relationship;
(3) supportability (i.e., the relevant evidence provided to support
an opinion, “particularly medical signs and laboratory findings”);
(4) consistency with the record as a whole; (5) specialization; and
(6) other factors brought to the attention of the ALJ “which tend
to support or contradict the opinion.” Id. §§ 404.1527(c)(3),
The ALJ gave “significant weight” to Dr. Balderman’s opinion,
claimant in his area of expertise (i.e. spine surgery).” T. 20.
Additionally, the ALJ reasoned, “he provided specific findings in
support of his opinion and his opinion [was] consistent with the
overall evidence and with the adopted [RFC].” Id. The ALJ gave
“little weight” to the opinions of Drs. Ring, Brothman, and Hughes,
because they were examining, not treating, physicians; plaintiff’s
“treatment with Dr. Gosy reveals that his condition improved; the
doctors were not experts in Social Security; they “did not have the
opportunity to review all the objective medical evidence in the
record”; “their opinions [were] inconsistent with the established
[RFC]”; and their opinions as to disability status were an issue
reserved to the Commissioner. T. 21.
Upon a review of the record in this case, the Court finds that
the ALJ did not properly apply the regulatory factors in weighing
understand the ALJ’s rationale for reaching his RFC determination,
which significantly did not include any limitation on sitting or
standing. See Mason v. Barnhart, 96 F. App’x 30, 31–32 (2d Cir.
2004) (remanding where the Court was “unable to discern ‘the ALJ's
rationale in relation to the evidence in the record without further
findings or clearer explanation for the decision’”) (quoting Pratts
v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) (internal quotation marks
omitted)). Specifically, the Court finds that the ALJ did not
Dr. Hughes, who opined in February 2012 that plaintiff could return
to light work, but only with certain limitations on sitting and
standing. The Court focuses on Dr. Hughes’ February 2012 opinion
because it was the most recent of the consulting opinions, and it
reflected improvement from an earlier examination also performed by
Dr. Hughs in June 2010, at which time he, like Drs. Ring and
Brothman, restricted plaintiff to sedentary work.
Initially, the ALJ erred in stating that Dr. Balderman was a
spinal surgeon. As plaintiff points out, a reference to public
record reveals that Dr. Balderman’s specialty is cardiology, and in
any event he performed a consulting internal medicine examination.
Dr. Hughes’ specialty, on the other hand, is neurology. Therefore,
this regulatory factor did not weigh in Dr. Balderman’s favor, but
it did weigh in Dr. Hughes’ favor. As to the second reason given by
the ALJ for giving significant weight to Dr. Balderman’s opinion,
the Court does not disagree with the ALJ that Dr. Balderman
provided specific findings for his opinion, although the Court
correlated imaging testing with his functional assessment.
The third reason that the ALJ gave for giving significant
evidence, however, indicated that plaintiff continued to treat for
“intractable mixed mechanical and neuropathic pain” even as of the
date of Dr. Gosy’s most recent treatment note. T. 365. Dr. Gosy
noted throughout plaintiff’s treatment that his claimed symptoms
were consistent with his injury, in contrast to Dr. Balderman’s
finding that plaintiff magnified his symptoms during exam.
Moreover, Dr. Gosy continued to prescribe plaintiff a variety
plaintiff told Dr. Gosy that he “found improvement in his pain”
with the medication, see T. 19, that finding does not present a
complete picture of the evidence in the record, which indicates
that even in April 2012 plaintiff reported improvement of pain to
“2-5/10 with rest.” T. 365 (emphasis added). Throughout Dr. Gosy’s
exacerbated with activity. Additionally, Dr. Gosy and his nurse
practitioner opined in April 2012 that plaintiff could return to
light work but only with a generous sit/stand option. The ALJ gave
no explanation of how or why he determined that Dr. Balderman’s
opinion was consistent with the record as a whole, and upon a
review of the record, the Court finds that it was not. Therefore,
it is apparent that the ALJ did not properly apply this factor in
weighing Dr. Balderman’s opinion.
Dr. Balderman’s opinion was that it was “consistent . . . with the
adopted [RFC].” T. 20. The ALJ cannot support a decision regarding
weight with a reference to an already-determined RFC. See Faherty
v. Astrue, 2013 WL 1290953, *14 (E.D.N.Y. Mar.28, 2013) (“The ALJ
explained the reason for giving [a physician’s] medical source
statement significant weight was that it was consistent with her
RFC. Such reasoning is circular and flawed. The ALJ should use
medical opinions to determine [p]laintiff’s RFC, and, therefore,
cannot give medical opinions weight based on their consistency with
the RFC.”) (internal citation to record omitted)).
Moreover, such circular reasoning fails where the RFC finding
is not supported by substantial evidence in the first place. Cf.
Slattery v. Colvin, 111 F. Supp. 3d 360, 374 (W.D.N.Y. 2015)
(reasoning that although the ALJ did not “explicitly state how he
consistent with the RFC finding], there [was] substantial evidence
in the record to support it”). Here, the ALJ failed to identify the
evidence in support of his RFC finding that plaintiff could perform
a full range of light work with no restrictions on sitting or
standing, while ignoring medical opinion evidence that plaintiff
needed a sit/stand option. Thus, although it is not the Court’s
position to “reweigh the evidence,” see Krull v. Colvin, 2016 WL
5417289, *1 (2d Cir. Sept. 27, 2016), in this case the RFC was not
supported by substantial evidence. See Strange v. Comm’r of Soc.
Sec., 2014 WL 4637093, *9 (N.D.N.Y. Sept. 16, 2014) (“‘Cherry
picked’ decisions do not satisfy substantial evidence standards
findings were based on evidence reasonable minds might accept as
adequate to support a conclusion.”).
The first reason given by the ALJ for rejecting the IME
consulting opinions was that they were examining, not treating,
physicians. While this is true, the record as a whole indicates
that Dr. Hughes’ February 2012 opinion was totally consistent with
plaintiff has not raised the issue of the ALJ’s failure to weigh NP
Moley’s April 26, 2012 opinion, plaintiff does argue that the
identical functional capacity assessment, issued by Dr. Hughes in
significant that NP Moley and treating physician Dr. Cosy agreed
with Dr. Hugh’s opinion, because such agreement indicates that
Dr. Hugh’s opinion was more consistent with the record as a whole,
which consisted in large part of Dr. Gosy’s treatment notes.
Dr. Balderman’s opinion, which did not assign any limitations
regarding sitting and standing, was inconsistent with every other
medical opinion in the record.
consulting opinions was that plaintiff’s “treatment with Dr. Gosy
reveals that his condition improved.” T. 21. As discussed above,
the Court finds that the record did not clearly indicate such an
Dr. Gosy’s treatment notes indicates a picking and choosing of
evidence consistent with a nondisability determination, with a
corresponding failure to consider Dr. Gosy’s notes that plaintiff’s
complaints of pain were consistent with his injury and that his
pain improved with medication but only while he was at rest. See,
e.g., Anderson v. Astrue, 2009 WL 2824584, *10 (E.D.N.Y. Aug. 28,
2009) (“It is not proper for the ALJ to simply pick and choose from
the transcript only such evidence that supports his determination,
omitted). Moreover, the ALJ failed to consider Dr. Gosy’s and his
nurse practitioner’s assessment that plaintiff could not sit,
stand, or walk for more than 30 minutes at a time. While this
assessment may have reflected an improvement from plaintiff’s
condition upon first treating with Dr. Gosy, it is not consistent
with the ALJ’s finding that plaintiff improved to the extent that
he could perform unrestricted light work.
As to the ALJ’s finding that the IME physicians did not have
the opportunity to review “all of the objective medical evidence in
the record,” the IMEs indicate that those consulting doctors did
review relevant portions of plaintiff’s medical record in coming to
their conclusions. Dr. Hughes’ February 2012 opinion, for example,
indicates that he reviewed records from July through November 2011,
including records from Dr. Gosy. It does not appear, however, that
Dr. Balderman had the benefit of plaintiff’s full record, as he
indicated that plaintiff’s “MRI report should be reviewed for
opinion does not note that he reviewed any of plaintiff’s medical
records in reaching his conclusions.
The ALJ’s remaining reasons for rejecting the IME consulting
opinions – that the doctors were not experts in Social Security,
their opinions were inconsistent with the “established [RFC], and
their opinions were on issues reserved to the Commissioner – do not
provide much support for his ultimate decision to give all of these
opinions little weight. As discussed above, the ALJ’s circular
reasoning regarding his RFC finding fails; in any event, the Court
has found that the RFC was not supported by substantial evidence.
And although it is true that determinations of disability are
reserved to the Commissioner, the consulting IME physicians not
only opined as to degree of disability for workers compensation
purposes, but also provided assessments of plaintiff’s functional
capacity that should have informed the overall RFC determination.
As for the ALJ’s reasoning that the doctors were not familiar with
the Social Security disability process, this factor alone, in the
absence of other valid reasons, is not enough to discredit the
Accordingly, the Court finds that the ALJ failed to properly
apply the regulatory factors in weighing the medical opinion
evidence, and that he instead cherry picked evidence supporting a
finding of non-disability. On remand, the ALJ is directed to weigh
all of the medical opinion evidence with specific reference to the
regulatory factors. Additionally, the ALJ must provide a functionby-function assessment explaining how his RFC finding on remand is
supported by evidence in the record. If necessary, the ALJ is
directed to consult a VE for determination of the issue of whether
plaintiff can perform past relevant or other work existing in the
Plaintiff contends that the ALJ failed to properly evaluate
plaintiff’s subjective complaints of pain, and rendered an improper
credibility determination. Specifically, plaintiff argues that the
credibility finding reflects an impermissible bias against him. For
the reasons that follow, the Court agrees.
The ALJ found that plaintiff’s “allegations undermined his
credibility,” reasoning that plaintiff’s statements regarding his
disability were internally inconsistent and inconsistent with the
evidence of record. Several examples indicate that the ALJ cherry
picked portions of the evidence that supported his credibility
finding, while ignoring evidence that did not support it. For
inconsistent with his testimony that his pain was exacerbated while
bending, walking, and driving, because in the Function Report
plaintiff reported that he “drove a car and that he could go
shopping every two weeks for up to three hours. He also reported
that he could feed by himself, use the toilet, and prepare simple
meals.” T. 17.
A review of the Function Report, however, indicates that the
ALJ’s assessment was left out critical details of plaintiff’s
reports. In the Function Report, plaintiff indicated that his wife
made all the meals and if he prepared food it was a “microwave
[meal] or sandwich”; his wife did all the house and yard work; and
he could not do any tasks around the house “[b]ecause of the pain
it cause[d].” T. 152. Moreover, while plaintiff reported that he
went shopping every two weeks, he stated that he went for “1/2 hour
to an hour sometimes almost 3 hours depending on pain.” T. 153
(emphasis added). Additionally, although plaintiff noted that he
shaved, he reported that it took him three hours to do so.
Therefore, it appears to the Court that the ALJ ignored the
evidence in support of plaintiff’s complaints of pain and misstated
plaintiff’s actual reports. The fact that plaintiff could “feed
himself” and “use the toilet” does not translate into an ability to
perform the functions of full-time work. See Snyder v. Barnhart,
212 F. Supp. 2d 172, 179 (W.D.N.Y. 2002) (“Although a plaintiff’s
daily activities are relevant in evaluating her complaints of pain,
. . . a plaintiff need not be an invalid to be found disabled under
the Social Security Act.”) (citing Balsamo v. Chater, 142 F.3d 75,
81 (2d Cir. 1998) (internal quotation marks omitted)).
The ALJ also found that plaintiff “testified that he stopped
working because of his lumbar condition; however, the progress
notes from his treating neurologist [Dr. Gosy] reveal that he was
fired.” T. 17. The ALJ cited one treatment record in support of
this finding. A review of Dr. Gosy’s full treatment notes, however,
indicates that plaintiff reported to Dr. Gosy, as he did to the ALJ
at the hearing, that he was fired from his job because he could not
perform essential job duties (i.e., lifting and carrying to the
extent necessary). The ALJ’s statement, at best, indicates that he
did not thoroughly review the record, and at worst, indicates an
impermissible bias against plaintiff.
Additionally, as plaintiff points out, certain statements by
the ALJ at plaintiff’s hearing indicate bias against granting his
application. After questioning plaintiff about his medications and
physical limitations with regard to sitting and standing, the
following exchange took place between the ALJ and plaintiff:
. . . How about walking? How long or how far could
you, can you walk?
I have a handicapped sticker that says no longer
than 20 feet, but –
How did you get [that]? . . .
Through Dr. [Gosy].
Okay. So, so he’s the pain doc.
And he, he just, he thought you couldn’t walk more
than about that, then?
One thing that bothers me, Mr. Mault, is that your,
your [imaging] is not that severe for the kind of
pain you’re claiming. I mean, I’m looking at your
MRIs and all of your things. You’re on some pretty
And I’m concerned that’s what happened is you – I
don’t really have the authority to grant benefits
if I don’t feel you’ve got enough objective
findings . . . But that bothers me, and the fact
that you’re on so much pain medication, and you
know, it’s not that evident to me that it should be
causing the degree of limitation that you’re
getting. And you are a very young individual. . . .
[Y]ou’re very young to be thinking you’re disabled
for the rest of your life. And I, I certainly want
to get a little more into your daily activities. I
mean, if you’re moving around a little, it might
even be better than moving around less, although
I’m not a doctor, I don’t hold myself out to be. .
t. 36-37. These statements by the ALJ suggest that the ALJ thought
plaintiff too young to be disabled and questioned whether he was
medications were prescribed by a pain management doctor. The ALJ
also seemed to express incredulity when plaintiff stated he used a
handicap parking permit enabling him to park within 20 feet of
businesses. In short, the Court agrees with plaintiff’s assessment
that the ALJ appeared biased at the hearing.
For these reasons, the ALJ’s credibility assessment therefore
reflected an improper bias and citation of evidence in support of
a finding of non-disability, while evidence favoring plaintiff’s
claim was ignored. Accordingly, the Court finds that the ALJ’s
credibility determination was improper. On remand, the ALJ is
directed to reassess plaintiff’s credibility according to the
proper legal standards. See 20 C.F.R. §§ 404.1529, 416.929; SSR 967p.
For the foregoing reasons, the Commissioner’s motion for
judgment on the pleadings (Doc. 14) is denied and plaintiff’s
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
March 24, 2017
Rochester, New York.
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