Buchanan v. Colvin

Filing 18

DECISION AND ORDER GRANTING Plaintiff's 8 Motion for Judgment on the Pleadings; DENYING Defendant's 16 Motion for Judgment on the Pleadings; REMANDING this case to the Commissioner of Social Security for further proceedings consistent with this decision; DIRECTING the Clerk of the Court is to close this case. Signed by William M. Skretny, United States District Judge on 5/10/2016. (MEAL) - CLERK TO FOLLOW UP -

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

PATTI JEAN BUCHANAN,
Plaintiff,
v.

DECISION AND ORDER
15-CV-88S

CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.

1.

Plaintiff Patti Jean Buchanan challenges an Administrative Law Judge’s

(“ALJ”) decision dated May 30, 2013, wherein the ALJ determined that Plaintiff was not
disabled under the Social Security Act (the “Act”).

Plaintiff now contends that this

determination is not based upon substantial evidence, and remand is warranted.
2.

Plaintiff filed an application for disability insurance benefits under Title II

and an application for supplemental security income under Title XVI of the Act on
October 27, 2011, alleging a disability beginning on December 9, 2010. The claim was
initially denied on February 9, 2012. Plaintiff thereafter requested a hearing before an
ALJ, and, on May 22, 2013, Plaintiff appeared and testified in Jamestown, NY. The ALJ
subsequently found on May 30, 2013, that Plaintiff was not disabled within the meaning
of the Social Security Act.

Plaintiff filed an administrative appeal and the Appeals

Council denied Plaintiff’s request for review on December 9, 2014, rendering the ALJ’s
determination the final decision of the Commissioner. Plaintiff filed the instant action on
January 30, 2015.

1

3.

Plaintiff and the Commissioner each filed a Motion for Judgment on the

Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket Nos.
8, 16). Judgment on the pleadings is appropriate where material facts are undisputed
and where a judgment on the merits is possible merely by considering the contents of
the pleadings. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988).
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) (internal quotation marks and citation omitted).

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), cert. denied, 459 U.S. 1212 (1983).
5.

To determine whether the 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 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

2

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].”
1992).

Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y.

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 United States Supreme Court recognized the validity of this analysis

in Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287, 2291, 96 L. Ed. 2d 119
(1987), and it remains the proper approach for analyzing whether a claimant is disabled.
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 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); see also Rosa v.
Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. § 404.1520.

3

8.

Although the claimant has the burden of proof as to 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 of this
inquiry is, in turn, 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(g); Heckler v. Campbell, 461 U.S. 458,
460-61, 103 S. Ct. 1952, 1954, 76 L. Ed. 2d 66 (1983).
9.

In this case, the ALJ determined that Plaintiff last met the insured status

requirements of the Act on December 31, 2015. (R. 13.) 1 He then made the following
findings with regard to the five-step process set forth above:

(1) Plaintiff had not

engaged in substantial gainful activity since December 9, 2010, the alleged date on
which Plaintiff became disabled (id.); (2) Plaintiff’s severe impairments include cervical
and lumbosacral disc disease, status post cervical disc surgery, and fibromyalgia 2 with
myofascial pain syndrome (R. 14); (3) Plaintiff did not have an impairment or
combination of impairments that met or medically equaled a recognized disabling
impairment under the regulations (id.); (4) Plaintiff had the residual functional capacity
(“RFC”) to perform a full range of sedentary work, and that this RFC precluded Plaintiff
from performing any past relevant work (R. 15-18); and (5) considering the Plaintiff’s

1

Citations to the underlying administrative record are designated as “R.”
“Fibromyalgia is a chronic condition causing widespread soft-tissue pain, involving particularly the neck,
shoulders, back, and hips. This disorder is also accompanied by weakness, fatigue, depression, and
sleep disturbance and is often diagnosed when there is point tenderness found in 11 of 18 specific sites.”
Solsbee v. Astrue, 737 F. Supp. 2d 102, 109 n. 4 (W.D.N.Y. 2010) (citing Stedman’s Medical Dictionary,
725 (28th ed. 2006)).
2

4

age, education, work experience, and RFC, there are jobs that exist in significant
numbers in the national economy that Plaintiff can perform (R. 19).
10.

Plaintiff is a high-school graduate who previously worked as a hair stylist

and a residential instructor at a rehab center. (R. 110-11.) She stopped working when
she began experiencing fatigue, intermittent myalgia, dizziness, nausea, vomiting, leg
weakness, and falls. (R. 271.) She advances three challenges to the ALJ’s decision.
First, Plaintiff contends that the ALJ failed to properly evaluate the medical opinions of
Dr. Christina Roosa, Plaintiff’s treating physician, and Dr. Gautam Arora, a consulting
examiner, in determining her RFC. An individual’s RFC is her “maximum remaining
ability to do sustained work activities in an ordinary work setting on a regular and
continuing basis.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96-8p,
1996 WL 374184, at *2 (July 2, 1996) (hereinafter “SSR 96-8p”)).

Here, after

considering the entire record, the ALJ determined that Plaintiff had the RFC to perform
a full range of sedentary work. Plaintiff asserts that neither Dr. Roosa nor Dr. Arora’s
opinion supports the RFC, because Dr. Roosa’s opinion dictated an RFC of “less than
sedentary work” (R. 16), and Dr. Arora found Plaintiff to have “moderate limitation of
physical activity” (R. 298). The ALJ did not specify the weight given to these opinions in
his determination.
“The SSA recognizes a ‘treating physician’ rule of deference to the views of the
physician who has engaged in the primary treatment of the claimant,” Green-Younger v.
Barnhart, 335 F.3d 99, 106 (2d Cir. 2003), according to which, “the opinion of a
claimant’s treating physician as to the nature and severity of the impairment is given
‘controlling weight’ so long as it ‘is well-supported by medically acceptable clinical and

5

laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the] case record.’” Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008)
(quoting 20 C.F.R. § 404.1527(d)(2)). “[M]edically acceptable clinical and laboratory
diagnostic techniques” include consideration of “[a] patient’s report of complaints, or
history, [a]s an essential diagnostic tool.” Green-Younger, 335 F.3d at 107 (internal
quotation marks omitted). Thus, the “the opinion of the treating physician [is] deemed
binding unless contradicted by substantial evidence, and even if contradicted [is]
entitled to ‘extra weight.’” Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998)
When a treating physician’s opinion is not given “controlling” weight, the
regulations require the ALJ to consider several factors in determining how much weight
it should receive. See 20 C.F.R. § 404.1527(d)(2). “The ALJ must consider, inter alia,
the ‘[l]ength of the treatment relationship and the frequency of examination’; the ‘[n]ature
and extent of the treatment relationship’; the ‘relevant evidence . . . , particularly medical
signs and laboratory findings,’ supporting the opinion; the consistency of the opinion
with the record as a whole; and whether the physician is a specialist in the area
covering the particular medical issues.” Burgess, 537 F.3d at 129-30 (quoting 20 C.F.R.
§§ 404.1527(d)(2)(i)-(ii), (3)-(5)).

After considering these factors, the ALJ must

“comprehensively set forth [his] reasons for the weight assigned to a treating physician’s
opinion.” Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004); see also 20 C.F.R. §
404.1527(d)(2) (stating that the agency “will always give good reasons in our notice of
determination or decision for the weight we give [the claimant’s] treating source’s
opinion”). Failure to provide such “‘good reasons’ for not crediting the opinion of a
claimant’s treating physician is a ground for remand.” Snell v. Apfel, 177 F.3d 128, 133

6

(2d Cir. 1999); see also Schaal, 134 F.3d at 505 (“the Commissioner’s failure to provide
‘good reasons’ for apparently affording no weight to the opinion of plaintiff’s treating
physician constituted legal error”).
Dr. Roosa diagnosed Plaintiff with fibromyalgia and lumbar disc disease, and
opined that Plaintiff was limited to low stress jobs because fibromyalgia symptoms were
aggravated by physical stress, that she could walk less than one block without rest or
severe pain, and could sit or stand for fifteen minutes at one time. (R. 271-73.) Further,
Plaintiff could sit for six hours and stand or walk for two hours total in an eight-hour day,
and would require eight minutes of walking every forty-five minutes, as well as the ability
to shift positions at will and take unscheduled breaks. (R. 273.) She would also need to
elevate her legs with prolonged sitting to ninety degrees, and would need to do so half
of the time in a sedentary job. (Id.) Finally, Plaintiff was likely to experience good days
and bad days, and would therefore be absent more than four days per month due to her
impairments. (R. 274.)
The ALJ acknowledged that Dr. Roosa, as Plaintiff’s treating physician,
“assessed the claimant as having exertional and nonexertional limitations as to
standing, walking, prolonged sitting, and other activities consistent with an RFC for less
than sedentary work.” (R. 16.) Although this is clearly inconsistent with the RFC of a
full range of sedentary work, the ALJ makes no attempt to address that inconsistency.
Such a failure is legal error, requiring remand. “The ALJ was required to explain to
Plaintiff in his decision why he declined to afford controlling weight to Plaintiff’s treating
physician’s” assessment, and to give good reasons as to why he rejected Dr. Roosa’s
opinion that Plaintiff was capable of “less than sedentary” work. See Tomasello v.

7

Astrue, No. 09-CV-0585, 2011 WL 2516505, at *5 (W.D.N.Y. June 23, 2011). “This is
not to say that the ALJ was not ultimately entitled to disagree with the opinion[ ] of
[Plaintiff’s treating physician], but rather that the ALJ failed to provide Plaintiff with clear,
enumerated and sufficient reasons for doing so.” Id., at *6.
Nor did the ALJ appropriately address the consistency of Dr. Arora’s opinion with
his RFC and the record as a whole.

Although Dr. Arora is not Plaintiff’s treating

physician, the ALJ was nevertheless required to consider his opinion in making an RFC
determination.

Yeomas v. Colvin, No. 13-CV-6276P, 2015 WL 1021796, at *15

(W.D.N.Y. Mar. 10, 2015) (the ALJ should consider “all medical opinions received
regarding the claimant”) (quoting Spielberg v. Barnhart, 367 F. Supp. 2d 276, 281
(E.D.N.Y. 2005)).

Dr. Arora conducted a consultative examination on Plaintiff and

diagnosed her with fibromyalgia, as well as cervicalgia, lumbar strain, restless leg, and
Barrett’s esophagus. (R. 298.) Dr. Arora noted that the prognosis for Plaintiff was
guarded and opined that Plaintiff had a “[m]oderate limitation of physical activity
secondary to multiple chronic conditions.” (Id.) This opinion, together with Dr. Arora’s
other observations of Plaintiff, might be consistent with an RFC for sedentary work.
(See R. 297 (noting that Plaintiff’s gait was normal, she had no trouble walking on heels
and toes, and needed no help getting on and off examination table and rising from a
chair).) However, because the ALJ failed to provide any reasoning behind the RFC, or
explanation as to how sedentary work is consistent with Plaintiff’s moderate physical
limitations, this Court is unable to conduct a meaningful review as to whether the RFC is
supported by substantial evidence.

8

Accordingly, the matter must be remanded. Zabala v. Astrue, 595 F.3d 402, 409
(2d Cir. 2010) (failure to satisfy treating physician rule constitutes legal error, and
“ordinarily requires remand to the ALJ for consideration of the improperly excluded
evidence”); Jeffords v. Astrue, No. 11-CV-620S, 2012 WL 3860800, at *7 (W.D.N.Y.
Sept. 5, 2012) (remanding due to ALJ’s failure to explain reasoning behind RFC
because, under such circumstances, “this Court finds that it cannot evaluate whether
the ALJ’s decision was supported by substantial evidence”).
11.

Second, Plaintiff contends that the ALJ failed to fully and properly assess

her credibility, as required under the Social Security regulations and rulings.

“The

general rule in this regard is that the ALJ is required to evaluate the credibility of
testimony or statements about the claimant’s impairments when there is conflicting
evidence about the extent of pain, limitations of function, or other symptoms alleged.”
Brown v. Colvin, 47 F. Supp. 3d 180, 186 (W.D.N.Y. 2014); see also Snell, 177 F.3d at
135 (“Where there is conflicting evidence about a claimant’s pain, the ALJ must make
credibility findings.”)).

The Commissioner has established a two-step process to

evaluate a claimant’s testimony regarding his or her symptoms:
First, the ALJ must consider whether the claimant has a medically
determinable impairment which could reasonably be expected to produce
the pain or symptoms alleged by the claimant. Second, if the ALJ
determines that the claimant is impaired, he then must evaluate the
intensity, persistence, and limiting effects of the claimant’s symptoms. If
the claimant’s statements about his symptoms are not substantiated by
objective medical evidence, the ALJ must make a finding as to the
claimant’s credibility.
Matejka v. Barnhart, 386 F. Supp. 2d 198, 205 (W.D.N.Y. 2005); see 20 C.F.R.
§ 416.929.

9

“The Regulations outline the following factors to be considered by the ALJ in
conducting the credibility inquiry: (1) the claimant’s daily activities; (2) the location,
duration, frequency, and intensity of the pain; (3) precipitating and aggravating factors;
(4) the type, dosage, effectiveness, and side effects of any medications taken to
alleviate the pain; (5) any treatment, other than medication, that the claimant has
received; (6) any other measures that the claimant employs to relieve the pain; and (7)
other factors concerning the claimant’s functional limitations and restrictions as a result
of the pain.” Brown, 47 F. Supp. 3d at 186 (citing 20 C.F.R. § 416.929(c)(3)(i)-(vii));
Meadors v. Astrue, 370 Fed. App’x 179, 184 n. 1 (2d Cir. 2010)). Although the ALJ
need not explicitly discuss all seven factors listed in 20 C.F.R. § 416.929(c)(3), see
Cichocki v. Astrue, 534 F. App'x 71, 76 (2d Cir. 2013), he still must explain his decision
to reject Plaintiff’s statements “‘with sufficient specificity to enable the [reviewing] Court
to decide whether there are legitimate reasons for the ALJ’s disbelief’ and whether his
decision is supported by substantial evidence.” Calzada v. Astrue, 753 F. Supp. 2d
250, 280 (S.D.N.Y. 2010), quoting Fox v. Astrue, 6:05-CV-1599 (NAM)(DRH), 2008 WL
828078 at *12 (N.D.N.Y. Mar. 26, 2008).
In evaluating a claimant’s credibility, the ALJ must give “[c]areful consideration . .
. to any available information about symptoms because subjective descriptions may
indicate more severe limitations or restrictions than can be shown by objective medical
evidence alone.” SSR 96-8p, at *5. “This is particularly true in cases where a claimant
suffers from fibromyalgia, because this chronic condition has been recognized as a
disorder that is not easily detected with standard clinical tests.” Solsbee, 737 F. Supp.
2d at 109 (internal footnote omitted) (citing Lisa v. Secretary of Dept. of Health &

10

Human Servs., 940 F.2d 40, 44-45 (2d Cir. 1991)); see also Davidow v. Astrue, No. 08CV-6205T, 2009 WL 2876202, at *5 (W.D.N.Y. Sept. 2, 2009) (“[W]here fibromyalgia is
the alleged disability, a claimant’s testimony, regarding her symptoms from the disorder,
should be given increased importance in the ALJ’s determination of whether the
claimant is disabled.”).
The ALJ’s discussion of Plaintiff’s credibility does not comply with the foregoing
criteria. Instead, the ALJ’s credibility analysis consists entirely of the following:
Although the claimant obviously has limitations as to more demanding
jobs, the evidence establishes [that she] retains the RFC for a full range of
sedentary work.
Among other factors, the undersigned notes the
claimant’s testimony that despite her marked limitations she has been able
to do some part time work. Although, as found above, this is not
[substantial gainful activity], this activity strongly suggests her ability to
perform [substantial gainful activity].”
(R. 16.) The ALJ was not entitled to dismiss Plaintiff’s subjective testimony solely on
the grounds that Plaintiff was able to work part-time, in a job did not constitute
substantial gainful activity, and where her employer gave significant accommodations to
allow her to work. See Jaeckel v. Colvin, No. 13-CV-4270 SJF, 2015 WL 5316335, at
*11 (E.D.N.Y. Sept. 11, 2015) (remand was appropriate where it was “not clear that the
ALJ took into account the factors listed in 20 C.F.R. § 404.1529(c)(3) other than
plaintiff’s daily activities”). A plaintiff “need not be an invalid to be found disabled” under
the Social Security Act. Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (quoting
Williams v. Bowen, 859 F.2d at 260).
To the extent that the ALJ relied on “other” factors in discounting Plaintiff’s
credibility, it is insufficient to simply state that there were “other” reasons. An ALJ who
finds that a claimant is not credible must do so “explicitly and with sufficient specificity to

11

enable the Court to decide whether there are legitimate reasons for the ALJ’s disbelief
and whether his determination is supported by substantial evidence.” Rivera v. Astrue,
No. 10–civ–4324, 2012 WL 3614323, at *14 (E.D.N.Y. Aug. 21, 2012) (internal citation
omitted).

The perfunctory evaluation of plaintiff’s credibility here is insufficient, and

requires remand. See Kane v. Astrue, 942 F. Supp. 2d 301, 314 (E.D.N.Y. 2013)
(remanding due to the “lack of specificity and failure to meet Social Security
Administration requirements for evaluating the credibility of Plaintiff's subjective
complaints”); King v. Astrue, No. 09-CV-1244 JG, 2009 WL 3300261, at *13 (E.D.N.Y.
Oct. 14, 2009) (remanding where “the ALJ did not objectively assess the credibility of
[the plaintiff], and his stated justifications for finding [the plaintiff] to be ‘not entirely
credible’ are not supported by substantial evidence and do not constitute sufficient
grounds to discount her subjective complaints of pain”).
12.

Finally, Plaintiff contends that the ALJ erred in failing to develop the

record. “Because disability determinations are ‘investigatory, or inquisitorial, rather than
adversarial . . . it is the ALJ’s duty to investigate and develop the facts and develop the
arguments both for and against the granting of benefits.’” Jones v. Colvin, No. 6:14-CV06316 MAT, 2015 WL 4628972, at *3 (W.D.N.Y. Aug. 3, 2015) (quoting Butts v.
Barnhart, 388 F.3d 377, 386 (2d Cir. 2004) (internal quotation marks and citations
omitted)). That duty intersects with the treating physician rule, as “‘an ALJ cannot reject
a treating physician’s diagnosis without first attempting to fill any clear gaps in the
administrative record.’” Burgess, 537 F.3d at 129 (quoting Rosa v. Callahan, 168 F.3d
72, 79 (2d Cir. 1999)). “[W]here an ALJ finds that a doctor’s ‘records did not give a
reason for his opinion that claimant is unable to work . . . the ALJ’s duty to seek further

12

development of the record before rejecting the opinion’ is triggered.”

McCovery v.

Astrue, No. 07-CV-800, 2009 WL 4804601, at *9 (W.D.N.Y. Dec. 8, 2009) (quoting
Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004)).
Having found remand necessary due to the ALJ’s failure to provide an
explanation as to how he arrived at his RFC assessment and his credibility assessment,
this Court need not reach Plaintiff’s argument as to failure to properly develop the
record. However, on remand, the ALJ should explicitly identify the information relied
upon in reaching his determination, supplementing the record as necessary.
13.

Upon careful examination of the administrative record, this Court finds that

it cannot evaluate whether the ALJ’s decision was supported by substantial evidence.
This Court therefore 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 granted. Defendant’s motion seeking the same relief is denied.

13

IT HEREBY IS ORDERED, that Plaintiff’s Motion for Judgment on the Pleadings
(Docket No. 8) is GRANTED;
FURTHER, that Defendant’s Motion for Judgment on the Pleadings (Docket No.
16) is DENIED;
FURTHER, that this case is REMANDED to the Commissioner of Social Security
for further proceedings consistent with this decision;
FURTHER, that the Clerk of the Court is directed to close this case.
SO ORDERED.
Dated: May 10, 2016
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

14