Cordero v. Colvin

Filing 15

-CLERK TO FOLLOW UP-DECISION AND ORDER granting 9 Plaintiff's Motion for Judgment on the Pleadings; denying 12 Defendant's Motion for Judgment on the Pleadings. The Commissioner's decision is reversed, and the matter is remanded for calculation and payment of benefits. The Clerk of Court is directed to close this case. Signed by Hon. Michael A. Telesca on 11/21/16. (AFB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANA MARIA CORDERO,
No. 1:15-cv-00845(MAT)
DECISION AND ORDER

Plaintiff,
-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

INTRODUCTION
Represented

by

counsel,

Ana

Maria

Cordero

(“Plaintiff”)

instituted this action pursuant to Titles II and XVI of the Social
Security Act (“the Act”), seeking review of the final decision of
the Acting Commissioner of Social Security (“the Commissioner”)
denying her applications for Disability Insurance Benefits (“DIB”)
and

Supplemental

Security

Income

(“SSI”).

This

Court

has

jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c).
PROCEDURAL STATUS
On March 6, 2012, and March 12, 2012, Plaintiff protectively
filed applications for SSI and DIB, respectively. Plaintiff, 48
years-old and with past work as an assistant teacher, an eldercaregiver, and a secretary, alleged disability beginning December
15, 2010, due to back pain, neck pain, migraine headaches, and

-1-

carpal tunnel syndrome. After her claims were denied on August 3,
2012,

Plaintiff

requested

a

hearing,

which

was

held

via

videoconference on October 21, 2013, before Administrative Law
Judge Curtis Axelson (“the ALJ”). Plaintiff appeared with her
attorney and testified. The ALJ did not call any expert witnesses.
On January 8, 2014, the ALJ issued an unfavorable decision. The
Appeals Council denied
2015,

making

the

Plaintiff’s request for review on July 27,

ALJ’s

decision

the

final

decision

of

the

Commissioner. Plaintiff then timely commenced this action.
The parties have cross-moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The
Court

adopts

and

incorporates

by

reference

the

comprehensive

factual summaries provided by the parties in their supporting
briefs. The medical evidence will be discussed in more detail
below, as

necessary

to

the

Court’s

resolution

of

the

issues

presented on this appeal.
For the reasons that follow, the Commissioner’s decision is
reversed, and the matter is remanded for further administrative
proceedings consistent with this opinion.
SCOPE OF REVIEW
When considering a claimant’s challenge to the Commissioner’s
decision denying benefits under the Act, a district court must
accept the Commissioner’s findings of fact, provided that such
findings are supported by “substantial evidence” in the record.

-2-

See 42 U.S.C. § 405(g) (the Commissioner’s findings “as to any
fact, if supported by substantial evidence, shall be conclusive”).
The reviewing court nevertheless must scrutinize the whole record
and examine evidence that supports or detracts from both sides.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation
omitted),

but

“defer[s]

to

the

Commissioner’s

resolution

of

conflicting evidence.” Cage v. Comm’r of Soc. Sec., 692 F.3d 118,
122 (2d Cir. 2012) (citation omitted)). “The deferential standard
of

review

for

substantial

evidence

Commissioner’s conclusions of law.”

does

not

apply

to

the

Byam v. Barnhart, 336 F.3d

172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109,
112 (2d Cir. 1984)).
DISCUSSION
I.

Step Two Error
At step two of the sequential evaluation, the ALJ found that

Plaintiff had the following “severe” impairments: lumbar disc
disease, early degenerative changes of the cervical spine, carpal
tunnel syndrome, asthma and depression. (T.35).1 Plaintiff argues
that the ALJ erred at step two in failing to mention, much less
evaluate, Plaintiff’s migraine headaches as either a severe or
non-severe impairment. The Court agrees, as discussed further
below.

1

Citations in parentheses to “T._” refer
transcript of the administrative proceeding.

-3-

to

pages

in

the

certified

The record indicates that when Plaintiff had a consultative
physical examination on July 16, 2012, with Nikita Dave, M.D., she
described suffering from headaches twice weekly that included
burring of her vision, and sensitivity to light and sound. (T.325).
“Headaches”

was

one

of

the

diagnoses

Dr.

Dave

assigned

to

Plaintiff, and she noted that Plaintiff “[m]ay have moderate
limitations for all activity during acute bout of headache, likely
to be transient over a few hours.” (T.329).
About
underwent

five
a

months

neurologic

later,

on

January

consultation

with

9,
Dr.

2013,
Laszlo

Plaintiff
Mechtler

(T.858-62), to whom she complained of left-sided hip and leg pain,
as well as constant muscle pains, neck pain and headaches, which
had been worsening over time. At present, Dr. Mechtler noted,
Plaintiff was having daily headaches, rated as 8 out of 10 in
severity, that lasted a few minutes. About 4 to 5 times a month,
Plaintiff suffered more intense headaches, rated as 10 out of 10 in
severity; these were accompanied by photophobia, nausea, neck
stiffness, and blurred vision. Headache triggers included sleep
disturbances, weather changes, menstrual cycles, and depression.
Plaintiff reported that she smoked cannabis on a daily basis for
pain relief. Dr. Mechtler diagnosed Plaintiff with migraine without
aura, with intractable migraine with status migrainosus;2 and back
2

Status migrainous refers to a a migraine that lasts for more than
72 hour; status migrainosus may require hospitalization to address dehydration
and severe pain. See, e.g..
http://www.webmd.com/migraines-headaches/guide/status-migrainosus-symptoms-cau

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pain. Plaintiff was prescribed Elavil (amitriptyline), Imitrex
(sumatriptan), and a Medrol Dosepak (methylprednisolone), and was
given an infusion of Imitrex at the appointment.
As noted above, the ALJ did not include headaches among the
“severe impairments” he found at step two. “Impairments” are
“anatomical, physiological, or psychological abnormalities . . .
demonstrable

by

medically

acceptable

clinical

and

laboratory

techniques.” 20 C.F.R. §§ 404.1508, 416.908. “Severe” impairments
are those that “significantly limit” physical or mental abilities
to

do

basic

work

activities.

See

20

C.F.R.

§§

404.1521(a),

416.921(a) (“An impairment or combination of impairments is not
severe if it does not significantly limit your physical or mental
ability to do basic work activities.”); see also Social Security
Ruling (“SSR”) 85–28, Titles II and XVI: Medical Impairments That
Are Not Severe, 1985 WL 56856, at *3–4 (S.S.A. 1985). “The phrase
‘significantly limits’ is not synonymous with ‘disability.’ Rather,
it serves to ‘screen out de minimis claims.’” Showers v. Colvin,
No. 3:13-CV-1147(GLS), 2015 WL 1383819, at *4 (N.D.N.Y. Mar. 25,
2015) (quoting Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir.
1995)). Consequently, “[a] finding of ‘not severe’ should be made
if the medical evidence establishes only a ‘slight abnormality’ .
. . [with] . . . ‘no more than a minimal effect on an individual’s
ability to work.’” Rosario v. Apfel, No. 97 CV 5759, 1999 WL

ses-treatment (last accessed Nov. 17, 2016).

-5-

294727, at *5 (E.D.N.Y. Mar. 19, 1999) (quoting Bowen v. Yuckert,
482 U.S. 137, 154 n. 12 (1987)).
The ALJ clearly erred in not finding Plaintiff’s migraine
headaches to be severe impairments at step two.

As an initial

matter, severe headaches were diagnosed by at least two “acceptable
medical sources,” treating physician Dr. Mechtler and consultative
physician Dr. Dave.

See 20 C.F.R. §§ 404.1513(a), 416.913(a) (“We

need evidence from acceptable medical sources to establish whether
you have a medically determinable impairment(s).”). Dr. Dave, whose
opinion the ALJ assigned “great weight,” specifically noted that
when

Plaintiff was experiencing an acute headache, the resultant

symptoms “may cause moderate limitations for all activity. . . .”
(T.329). In January 2013, she told Dr. Mechtler that she was having
acute headaches about 4 to 5 times a month. An impairment that
would cause “moderate limitations” on “all activity” for “a few
hours” at a time, about 4 to 5 times a month, on an unpredictable
basis, cannot reasonably be characterized as no more than a minimal
effect on a claimant’s ability to perform competitive full-time
work in the national economy. See Rosario, 1999 WL 294727, at *7
(“[F]indings of markedly and moderately limited in the ability to
carry out the kind of basic work activities that are described in
the

regulations,

20

C.F.R.

§

404.1521(b),

indicate

that

the

impairments have ‘more than a minimal effect’ on plaintiff’s
ability to work, and thus a threshold finding of ‘not severe’ is

-6-

not warranted.”). The ALJ’s step two finding that Plaintiff’s
headaches were “not severe” was not supported by substantial
evidence and was erroneous as a matter of law.

Furthermore, the

error was not cured by virtue of the fact that the ALJ proceeded
with the remaining steps of the sequential evaluation, because the
ALJ did not account for the limitations caused by Plaintiff’s acute
headaches in the RFC assessment. See Rosario, 1999 WL 294727, at
*7. Therefore, remand is required.
II.

Failure to Give Good
Physician’s Opinion

Reasons

for

Rejecting

Treating

Plaintiff argues that the ALJ, in electing to give treating
physician

Dr.

James

Lawrence’s

opinion

only

minimal

weight,

misapplied the treating physician rule.
On November 8, 2013, Dr. Lawrence completed a physical RFC
questionnaire

(T.953-54),

indicating

that

in

an

8-hour

day

Plaintiff could sit for 3 hours at a time, and could sit for a
total of 4 to 5 hours in an 8-hour day. She could stand and walk
for 1 hour at a time, and for 3 hours total in an 8-hour day. She
could frequently lift up to 25 pounds but could only occasionally
bend,

squat,

involving

crawl,

or

climb.

unprotected heights,

She

had

moderate

being around

moving

restriction
machinery,

exposure to marked changes in humidity and temperature, driving
automotive equipment and exposure to dust, fumes and gasses. Dr.
Lawrence opined that Plaintiff’s pain and side-effects from her
medications

would

only

interfere
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with

work

tasks

requiring

sustained

concentration.

Dr.

Lawrence

stated

that

Plaintiff

experienced exacerbations of pain symptoms that would make it
impossible for her to function in a work setting. Her symptoms
would cause her to miss work three days per month. She had been
limited in this way since July 17, 2012. Dr. Lawrence opined
Plaintiff could work only 4 to 6 hours a day before her pain would
prevent performance of even simple work tasks.
“[T]he treating physician rule generally requires deference to
the medical opinion of a claimant’s treating physician[.]” Halloran
v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam) (internal
and other citations omitted). A corollary to the treating physician
rule is the so-called “good reasons rule,” which is based on the
regulations specifying that “the Commissioner ‘will always give
good reasons’” for the weight given to a treating source opinion.
Halloran, 362 F.3d at 32 (quoting 20 C.F.R. § 404.1527(d)(2);
citing 20 C.F.R. § 416.927(d)(2); citation omitted). “Those good
reasons must be ‘supported by the evidence in the case record, and
must be sufficiently specific . . . .’” Blakely v. Commissioner of
Social Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting SSR 96–2p,
1996 WL 374188, at *5 (S.S.A. July 2, 1996)). The “good reasons”
rule exists to “ensur[e] that each denied claimant receives fair
process[.]” Rogers v. Commissioner of Social Sec., 486 F.3d 234,
243 (6th Cir. 2007). Accordingly, an ALJ’s “‘failure to follow the
procedural requirement of identifying the reasons for discounting

-8-

the

opinions

and

for

explaining

precisely

how

those

reasons

affected the weight’ given ‘denotes a lack of substantial evidence,
even where the conclusion of the ALJ may be justified based on the
record[,]’” Blakely, 581 F.3d at 407 (quotation omitted; emphasis
in original).
Although the ALJ gave multiple reasons for discounting Dr.
Lawrence’s opinion, the Court agrees that none of them qualify as
“good reasons.” First, the ALJ stated that Dr. Lawrence’s opinion
was “without substantial support from the other evidence of record,
which obviously renders it less persuasive.” (T.41). The ALJ did
not identify, much less allude to, which evidence of record failed
to offer “substantial support” for Dr. Lawrence’s opinion. This was
error, and it precludes the Court from conducting a meaningful
review of whether the ALJ’s decision is supported by substantial
evidence. See Ely v. Colvin, No. 14-CV-6641P, 2016 WL 315980, at *4
(W.D.N.Y. Jan. 27, 2016) (“[T]he ALJ’s statement that the rejected
opinions were ‘not supported by the record as a whole’ is too
conclusory to constitute a ‘good reason’ to reject the treating
psychiatrist’s opinions. . . . Without identifying the alleged
inconsistencies in the record, the ALJ has failed to provide any
basis for rejecting [the doctor]’s opinions.”) (citing, inter alia,
Marchetti v. Colvin, No. 13-CV-02581 KAM, 2014 WL 7359158, at *13
(E.D.N.Y. Dec. 24, 2014) (“Under the treating physician rule, an
ALJ may not reject a treating physician’s opinion based solely on

-9-

such

conclusory

assertions

of

inconsistency

with

the

medical

record.”)).
In fact, there is objective evidence in the record that
supports Dr. Lawrence’s opinion. For instance, on September 7,
2012, Dr. Lawrence reviewed Plaintiff’s low back MRI (T.844), which
revealed L5-S1 disc space narrowing and dehydration; a broad based
central disc herniation; and a separate far left lateral disc
herniation encroaching on the left foramen. At L4-5, there was a
mild disc bulge with a small left paracentral disc herniation, a
far right lateral annular tear, and a small disc herniation which
had decreased in size. At L3-4 there was a mild disc bulge.
A

subsequent

MRI

in

July

of

2013,

revealed

a

straightening/slight reversal of normal cervical lordosis which may
have been secondary to muscle spasm; multi-level loss of signal and
ventral

osteophytes

involving

mild

cervical

spine

slight

anterolisthesis of C2 over C3; and slight retrolisthesis of C5 over
C6 suspected on the lateral neutral projections. (T.867). At C2-C3,
there

was

a

mild

posterior

broad

based

disc

bulge/left

posterolateral asymmetric disc bulging/protrusion associated with
mild bilateral facet joint arthropathy and uncovertebral joint
hypertrophy more prominent on the left resulting in mild neural
foraminal narrowing on the left. At C3-4, there was a posterior
broad based disc herniation with mild indentation of the ventral
aspect of the spinal cord, and mild bilateral uncovertebral joint

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hypertrophy

resulting

in

mild

neural

foraminal

narrowing

bilaterally. At C4-5, there was a mild posterior disc bulge and
central focal disc protrusion flattening the ventral aspect of the
spinal cord. At C5-6, there was a broad based disc herniation and
posterior spurring flattening the ventral aspect of the spinal
cord, mild bilateral facet joint arthorpathy, and uncovertebral
joint hypertrophy resulting in mild bilateral neural foraminal
narrowing. At C6-7, there was a mild posterior disc bulge and mild
central focal subligamenious protrusion.

When Plaintiff consulted

with Dr. Zair Fishkin on October 24, 2013, he reviewed Plaintiff’s
MRIs and assessed her with a tentative diagnosis of C3-6 herniated
nucleus pulpous, L5-S1 herniated nucleus pulposus, left hip greater
trochanteric bursitis and left hip origin of pain. (T.949-50). He
opined that she was a “poor candidate” for discectomy to correct
the

“fairly

large

left-sided

disc

associated degenerative changes

herniation

at

L5-S1”

with

and loss of disc space height at

L5-S1. Instead, she would require a “near-complete facetectomy.”
(T.950). Dr. Fishkin cautioned that even with this surgery, there
was a risk that the disc level would continue to collapse. (Id.).
The ALJ also discounted Dr. Lawrence’s opinion because he
found Plaintiff’s treatment history with him to be “quite brief.”
(T.41). Under the Commissioner’s Regulations, a treating source is
afforded greater weight once he has examined the claimant “‘a
number of times and long enough to have obtained a longitudinal

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picture

of

[the

alleged]

impairment.’”

20

C.F.R.

§§

404.1527(c)(2)(i), 416.927(c)(2)(i). “Importantly, there is no
arbitrary, minimum period of treatment by a physician before this
standard is considered met.”

Fratello v. Colvin, No. 13-CV-4339

VSB JLC, 2014 WL 4207590, at *11 (S.D.N.Y. Aug. 20, 2014), rep. and
rec.

adopted

sub

nom.

Fratello

v.

Comm’r

of

Soc.

Sec.,

No.

13-CV-4339 VSB JLC, 2014 WL 5091949 (S.D.N.Y. Oct. 9, 2014) (citing
Schisler

v.

adjudicators

Bowen,

851

[should]

physician-treatment

F.2d

focus

43,
on

relationship,

45

the

(2d

Cir.

nature

rather

than

of

1988)
the

its

(“SSA
ongoing

length.”);

Simmons v. U.S. R.R. Ret. Bd., 982 F.2d 49, 55 (2d Cir. 1992) (“The
nature—not the length—of the [physician-patient] relationship is
controlling.”) (emphasis in original); Vargas v. Sullivan, 898 F.2d
293, 294 (2d Cir. 1990) (applying treating physician rule where
doctor saw patient for only 3 months)). For some time prior to
March 2012, when she returned to Buffalo, New York, Plaintiff had
been living in Florida and had no access to insurance. Plaintiff
began treatment with Dr. Lawrence, a physiatrist (physical medicine
and rehabilitation physician) practicing at Sports Medicine and
Rehabilitation of WNY, in July of 2012 for her low back pain and
lumbosacral degenerative disc dysfunction. (T.337). She continued
treatment with Dr. Lawrence five more times over the course of
about a year. (T.844, 845, 865, 866, 867). Dr. Lawrence completed
his

physical

RFC

questionnaire

-12-

on

November

8,

2013.

It

is

inaccurate to characterize the treating relationship between Dr.
Lawrence and Plaintiff, which involved six visits over one year, as
“quite brief,” especially since Dr. Lawrence is a specialist. On
the present record, the Court has no trouble concluding that Dr.
Lawrence qualifies as a “treating physician.” See, e.g., Mancuso v.
Comm’r of Soc. Sec., No. 14-CV-0114 MKB, 2015 WL 1469664, at *22
(E.D.N.Y. Mar. 30, 2015) (physician who saw claimant four times
over course of six months had an ongoing treatment relationship
sufficient to render him a treating source) (citing, inter alia,
Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (finding physician
who saw the claimant on three occasions over the course of six
months and opined on the claimant’s physical restrictions was a
treating physician, “having [ ] seen [the claimant] on multiple
occasions”)).
The ALJ additionally characterized Dr. Lawrence’s opinion as
speculative, stating that when Dr. Lawrence said Plaintiff was
“disabled,” it was “possible that the doctor was referring solely
to an inability to perform the claimant’s past work, which is
consistent with the conclusions reached in this decision.” (T.41).
There are at least two grounds for discarding this statement as a
“good reason.” First, as the Court and the parties are well aware,
the ultimate question as to whether a claimant is disabled is
reserved to the Commissioner. Dr. Lawrence, however, did not simply
pronounce that Plaintiff is disabled and leave it that. Instead,

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his report details the specific functional limitations attributable
to Plaintiff’s severe impairments and the resultant symptoms, and
offers his opinion as to how her capacity to perform full-time
gainful employment would be affected. Specifically, the sitting
limitations (four to five hours) Dr. Lawrence assigned would
preclude

Plaintiff

from

performing

sedentary

work,

and

the

standing/walking limitations (three hours) would exclude light work
as an option. See SSR 96-9p (sedentary work requires ability to sit
for about six hours in an 8-hour day); SSR 83-10 (light work
requires ability to stand and/or walk for six hours in an 8-hour
day). The ALJ, however, ignored this. Second, there is no ambiguity
as to the scope of Dr. Lawrence’s report; he clearly stated that,
in his opinion, Plaintiff was disabled from “full-time competitive
employment five days per week, eight hours per day on a sustained
basis.” (T.954).
Finally, the ALJ faulted Dr. Lawrence’s opinion as being
internally inconsistent because he “opined that [Plantiff] could
work 4-6 hours if limited to part time work.” (T.41). However, this
statement does not contradict Dr. Lawrence’s opinion that Plaintiff
is unable to perform “full-time competitive employment five days
per week, eight hours per day on a sustained basis,” i.e., she
could not work 40 hours a week on a “regular and continuing basis.”
See SSR 96-9p. Courts in this Circuit have found that the ability
to engage in part–time work does not preclude a finding that a

-14-

person is disabled. E.g., Mazzella v. Sec’y of U.S. Dep’t of Health
& Human Servs., 588 F. Supp. 603, 608 (S.D.N.Y. 1984) (collecting
cases, e.g., Cornett v. Califano, 590 F.2d 91, 94 (4th Cir. 1978)
(“the ability to work only a few hours a day or to work only on an
intermittent basis is not the ability to engage in ‘substantial
gainful activity’”)); see also Koseck v. Sec’y of Health & Human
Servs.,

865

F.

rehabilitation
consistently

Supp.

1000,

specialist
on

a

1014

found

sustained

(W.D.N.Y.
claimant

basis

because

1994)
“unable
of

his

(certified
to

work

physical

impairments, and . . . would not be able to work in one position
for more than one and one-half hours”; evidence did not support
ALJ’s finding that claimant not disabled).
III. Remedy
The fourth sentence of Section 405(g) of the Act provides that
a “[c]ourt shall have power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner. . ., with or without
remanding the case for a rehearing.” 42 U.S.C. § 405(g). Although
it is less typical, reversal without remand is the appropriate
disposition

when

the

record

contains

“persuasive

proof

of

disability,” Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980),
and further proceedings would be of no use because there is no
reason to conclude that additional evidence might support the
Commissioner’s claim that the claimant is not disabled, Butts v.

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Barnhart, 388 F.3d 377, 385–86 (2d Cir. 2004).
Here, that standard is met. Beginning at step two, with the
omission of Plaintiff’s medically determinable migraine headaches
as a “severe impairment,” the ALJ’s sequential evaluation was
marred by legal errors and mischaracterizations of the record. Of
particular note is the ALJ’s failure to properly apply the treating
physician rule, and the corollary “good reasons” rule,

when

weighing the medical source statement of Plaintiff’s treating
specialist, Dr. Lawrence. None of the regulatory factors support a
decision

not

to

afford

controlling

weight

to

Dr.

Lawrence’s

opinion, which is consistent with the evidence of record, as
discussed further above in this Decision. If Dr. Lawrence’s opinion
were

given

controlling

weight,

Plaintiff

would

be

unable

to

maintain competitive gainful employment. See Beck v. Colvin, No.
6:13–CV–6014(MAT), 2014 WL 1837611, at *15 (W.D.N.Y. May 8, 2014)
(“Substantial evidence exists in the record to warrant giving
deference to the opinions of Plaintiff’s treating psychiatrist, and
when that

deference

is

accorded,

a finding

of

disability is

compelled.”) (citing Spielberg v. Barnhart, 367 F. Supp.2d 276, 283
(E.D.N.Y. 2005) (“[H]ad the ALJ given more weight to the treating
sources, he would have found plaintiff disabled. . . .”)). In the
present case, the record is complete, and further administrative
proceedings would serve no purpose. Accordingly, remand for the
calculation of benefits is warranted. See Parker, 626 F.2d at 235.

-16-

CONCLUSION
For the foregoing reasons, the Commissioner’s motion for
judgment on the pleadings is denied, and Plaintiff’s motion for
judgment on the pleadings is granted. The Commissioner’s decision
is reversed, and the matter is remanded solely for the calculation
and payment of benefits. The Clerk of Court is directed to close
this case.
SO ORDERED
S/ Michael A. Telesca

HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

November 21, 2016
Rochester, New York

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