Dodds v. Colvin

Filing 15

DECISION AND ORDER granting 9 Plaintiff's Motion for Judgment on the Pleading to the extent that this matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order; denying 11 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/25/2017. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MELVIN J. DODDS,
Plaintiff,
-vs-

No. 1:15-CV-00228 (MAT)
DECISION AND ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

I.

Introduction
Represented

by

counsel,

plaintiff

Melvin

J.

Dodds

(“plaintiff”) brings this action pursuant to Titles II and XVI of
the Social Security Act (the “Act”), seeking review of the final
decision of defendant the Acting Commissioner of Social Security1
(the “Commissioner” or “defendant”) 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 granted to the extent that
this

case

1

is

remanded

to

the

Commissioner

for

further

Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of
Social Security on January 23, 2017. The Clerk of the Court is instructed to
amend the caption of this case pursuant to Federal Rule of Civil Procedure 25(d)
to reflect the substitution of Acting Commissioner Berryhill as the defendant in
this matter.

administrative proceedings consistent with this Decision and Order,
and the Commissioner’s motion is denied.
II.

Procedural History
Plaintiff protectively filed applications for DIB and SSI on

November

23

and

initially denied.

29,

2011,

respectively,

both

of

which

were

Administrative Transcript (“T.”) 12–25, 170-85.

At plaintiff’s request, a hearing was held before administrative
law judge (“ALJ”) William E. Straub on April 23, 2013.

T. 61-87.

On June 20, 2013, ALJ Straub issued a decision in which he found
that plaintiff was not disabled as defined in the Act.

T. 14-21.

On January 13, 2015, the Appeals Council denied plaintiff’s request
for review, rendering the ALJ’s determination the Commissioner’s
final decision.

T. 1-4

This action followed.

III. The ALJ’s Decision
Initially, the ALJ determined that plaintiff had met the
insured status requirements of the Act through December 31, 2011.
T. 16.

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 December 23,
2010, the alleged onset date.

Id.

At step two, the ALJ found that

plaintiff suffered from the severe impairments of congestive heart
failure, diabetes mellitus, and hypertension.
the

ALJ

found

that

plaintiff

did

2

not

have

Id.
an

At step three,
impairment

or

combination of impairments that met or medically equaled the
severity of any listed impairment.

Id.

Before proceeding to step four, the ALJ determined that
plaintiff retained the RFC to perform the full range of sedentary
work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a).

T. 17.

At step four, the ALJ found that plaintiff was unable to perform
any past relevant work.

T. 20.

At step five, the ALJ concluded

that, considering plaintiff’s age, education, work experience, and
RFC, there are jobs that exist in significant numbers in the
national economy that plaintiff could perform.
the ALJ found plaintiff not disabled.
IV.

Id.

Accordingly,

Id.

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) (internal quotation
omitted).
Here, plaintiff argues that the ALJ’s decision was not based
on substantial evidence because (1) the ALJ violated the treating
physician rule in rejecting the opinion of plaintiff’s treating
3

cardiologist Dr. Kenneth Gayles and (2) the ALJ relied on his own
lay opinion in determining plaintiff’s RFC.

For the reasons

discussed below, the Court agrees with plaintiff and finds that
remand of this matter for further development of the record is
required.
A.

The ALJ Violated the Treating Physician Rule

The

treating

physician

rule

requires

an

ALJ

to

give

controlling weight to a treating physician’s opinion when that
opinion is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the
other

substantial

evidence

in

[the]

record.”

20

C.F.R.

§ 404.1527(c)(2); see also Green-Younger, 335 F.3d at 106.

An ALJ

may give less than controlling weight to a treating physician's
opinion if it does not meet this standard, so long as he sets forth
the reasons for his determination.

See Halloran v. Barnhart, 362

F.3d 28, 33 (2d Cir. 2004); 20 C.F.R. § 404.1527(c)(2) (“We will
always give good reasons in our notice of determination or decision
for

the

weight

we

give
a

[the

claimant’s]

treating

treating

physician’s

source’s

opinion.”).

Where

opinion

is

uncontradicted,

there “must be overwhelmingly compelling evidence

in order to overcome it.” Giddings v. Astrue, 333 F. App’x 649, 652
(2d Cir. 2009); see also Wilson v. Colvin, 213 F. Supp. 3d 478, 483
(W.D.N.Y. 2016) (same).

4

Dr. Gayles, a cardiologist, treated plaintiff for congestive
heart failure and hypertension for a number of years.

On April 4,

2013, Dr. Gayles performed a Medical Examination for Employability
Assessment on plaintiff.

T. 826-28.

Dr. Gayles stated that

plaintiff suffered from congestive heart failure and opined that he
was very limited in walking, standing, sitting, lifting, carrying,
pushing, pulling, bending, and climbing.

T. 828.

On April 18, 2013, Dr. Gayles completed a Congestive Heart
Failure Medical Assessment Form regarding plaintiff.

T. 836-38.

Dr. Gayles stated that plaintiff suffered from congestive heart
failure and that his prognosis was fair.

T. 836.

Dr. Gayles

further stated that plaintiff’s symptoms included chest pain,
weakness, exertional dyspnea, palpations, rest dyspnea, right upper
quadrant

pain,

chronic

fatigue,

nausea,

and

dizziness.

Id.

Dr. Gayles reported that plaintiff suffered angina episodes 2-3
times per month and was required to rest for a couple of hours
after

such

an

echocardiogram

episode.
showing

Id.
moderate

Dr.
left

Gayles

identified

ventricular

an

diastolic

dysfunction and a MUGA scan showing a 44% ejection fraction as
clinical findings and test results supporting his opinion. Id. He
opined that plaintiff’s symptoms would rarely interfere with his
attention and concentration, but that plaintiff would be unable to:
perform routine, repetitive tasks at a consistent pace; perform
detailed or complicated tasks; meet strict deadlines; perform fast

5

paced tasks; be exposed to work hazards.

T. 837.

Dr. Gayles

further opined that plaintiff could walk two blocks without severe
pain or rest, could sit for twenty minutes at a time before needing
to stand and sit for thirty minutes at a time before needing to
walk, could sit stand, stand, or walk for less than two hours in a
total eight hour workday, would need more than 10 unscheduled
breaks during a normal work day, could rarely lift or carry 10
pounds or less, and could never carry more than 10 pounds.
38.

T. 837-

Dr. Gayles stated that plaintiff’s medications caused him to

be drowsy and sedated and that his condition would cause him to
miss work more than 4 days per month.

Id.

In his decision, the ALJ concluded that Dr. Gayles’ opinions
were “not persuasive.”
ALJ

explained

that

T. 19.
several

In reaching this conclusion, the
of

the

symptoms

identified

in

Dr. Gayles’ opinions are not contained in his contemporaneous
treatment notes.

Id.

The ALJ stated that “[w]hile it is remotely

possible that the doctor remembered these symptoms . . . from
examinations independent of his notes, it is more likely that these
are a recitation of the claimant’s responses to the questions on
the form, rather than the objective assessment of the doctor.” Id.
The Court agrees with plaintiff that the ALJ’s assessment of
Dr. Gayles’ opinions was plainly inadequate.

As a threshold

matter, there is no indication that the ALJ followed the process
outlined in 20 C.F.R. § 404.1572(c) for weighing the opinion of a
treating physician.

Significantly, the ALJ did not provide any

cogent

for

explanation

why

Dr.

6

Gayles’

opinion

was

not

“well-supported

by

medically

acceptable

.

.

.

techniques

or

“inconsistent with the other substantial evidence . . ., nor did he
explicitly consider any of the factors for determining the weight
given to a non-controlling opinion.”

Greek v. Colvin, 802 F.3d

370, 376 (2d Cir. 2015) (internal quotation omitted).

Indeed, the

ALJ did not identify any other medical opinion in the record
contradicting

Dr.

Gayles’

assessment.

Notably,

consultative

physician Dr. Samuel Balderman declined to assess plaintiff’s
functional limitations related to his heart condition, explaining
that it was necessary to “review[] [plaintiff’s] most recent
echocardiogram

or

cardiac

ventricular function.”

angiogram

.

.

.

to

document

left

T. 581. The ALJ did not address this issue

at all, identifying no medical opinion on which he relied for his
assessment of the functional limitations associated with patients’
congestive heart failure.
Moreover, the absence of particular symptoms from Dr. Gayles’
treatment notes does not necessarily mean plaintiff did not report
those symptoms.

As the ALJ acknowledged in his decision, it is

entirely within the realm of possibility that plaintiff reported
those symptoms to Dr. Gayles, who recalled those reports when
completing his medical source statements.

Lack of detail in

treatment notes is not, standing alone, a “good reason” to reject
a treating physician’s opinion - instead, “undetailed treatment
notes create a gap,” which the ALJ must then make reasonable
efforts to fill.

Ross v. Colvin, 2015 WL 4891054, at *5 (W.D.N.Y.

Aug. 17, 2015).

7

An ALJ’s failure to provide “‘good reasons’ for not crediting
the opinion of a claimant’s treating physician is a ground for
remand.”

Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015).

Here,

the Court finds that the ALJ did not articulate good reasons for
rejecting Dr. Gayles’ opinions and that, having determined that the
treatment

notes

lacked

necessary

information,

recontacted Dr. Gayles for clarification.

he

should

have

Accordingly, remand is

required.
B.

The ALJ Improperly Relied on his Lay Interpretation of
Plaintiff’s Cardiac Condition

Plaintiff also argues that the ALJ improperly relied on his
own

lay

opinion

in

determining

congestive heart failure.

the

severity

of

plaintiff’s

In particular, plaintiff notes that the

ALJ made the assumption that some improvement in plaintiff’s
ejection fraction, coupled with his ability to exercise to 10 METS,
translated to the ability to perform sedentary work, despite the
lack of any medical opinion to that effect.
The Court agrees with plaintiff that the ALJ improperly made
a lay assessment of the implications of plaintiff’s congestive
heart failure. “An ALJ must rely on the medical findings contained
within the

record

and

cannot

make

his own

diagnosis

substantial medical evidence to support his opinion.”
v. Astrue, 535 F. Supp. 2d 329, 339 (W.D.N.Y. 2008).

without

Goldthrite

Here, the ALJ

relied on his own interpretation of plaintiff’s cardiac testing to
reach a conclusion regarding his RFC.

This was inappropriate, and

remand is also warranted on this ground.
8

V.

Conclusion
For the foregoing reasons, plaintiff’s motion for judgment on

the pleadings (Docket No. 9) is granted to the extent that this
matter is remanded to the Commissioner for further administrative
proceedings

consistent

with

this

Decision

and

Order.

The

Commissioner’s motion for judgment on the pleadings (Docket No. 11)
is denied.

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:

September 25, 2017
Rochester, New York.

9