Bayles v. Colvin
DECISION AND ORDER granting 16 Plaintiff's Motion for Judgment on the Pleadings to the extent that the matter is remanded for further administrative proceedings consistent with this decision and order; and denying 22 Government's Motion for Judgment on the Pleadings. (The Clerk of Court is directed to close this case.) Signed by Hon. Michael A. Telesca on 2/12/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
WILLIAM A. BAYLES,
DECISION AND ORDER
-vsCAROLYN W. COLVIN, ACTING COMMISSIONER
OF SOCIAL SECURITY,
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 his application for Disability Insurance Benefits and
Supplemental Security Income (“SSI”). The Court has jurisdiction
over the matter pursuant to 42 U.S.C. §§ 405(g), 1383(c).
Plaintiff protectively filed applications for DIB and SSI on
September 25, 2012, alleging disability commencing January 30,
2011, with a date last insured of December 31, 2014. The claims
were initially denied on February 26, 2013, and Plaintiff timely
requested a hearing. On April 25, 2014, Administrative Law Judge
Donald T. McDougall (“the ALJ”) conducted a hearing in Buffalo,
testified, as did impartial vocational expert Dana Lessne (“the
VE”). On May 23, 2014, the ALJ issued an unfavorable decision.
Plaintiff’s request for review by the Appeals Council was denied on
September 22, 2015, making the ALJ’s decision the final decision of
the Commissioner. Plaintiff timely commenced this action.
III. The ALJ’s Decision
At step one of the sequential evaluation, the ALJ found that
Plaintiff has not engaged in substantial gainful activity since the
alleged onset date.
following “severe” impairments: herniated discs in the thoracic and
lumbar spines and cervical spine pain, status post motor vehicle
accident; depressive disorder; and generalized anxiety disorder.
The ALJ found that Plaintiff’s asthma was non-severe as it was
well-controlled with medication.
At step three, the ALJ determined that Plaintiff does not have
an impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments in 20 C.F.R.
consideration to Listings 1.04 (Disorders of the spine), 12.04
(Affective Disorders), and 12.06 (Anxiety-related disorders).
The ALJ proceeded to assess Plaintiff as having the residual
functional capacity (“RFC”) to perform light work as defined in
20 C.F.R. §§ 404.1567(b) and 416.967(b), except that he should have
no more than occasional interaction with supervisors; must be able
to change positions briefly (1 to 2 minutes) from sit to stand, or
every half-hour; cannot
involving fast-paced or assembly-line work or other production
quotas; and should not be exposed to significant levels of fumes,
dusts, gases, or other respiratory irritants.
At step four, the ALJ determined that Plaintiff has past
relevant work as a Civil Draftsman (DOT No. 005.281-001, skilled
(svp 7), sedentary), but that given his RFC, he cannot perform this
At step five, the ALJ found that Plaintiff was a younger
individual age 18-49 (31 years-old) on the onset date, with at
least a high school education (associate’s degree in computer aided
design (“CAD”)). The ALJ relied on the VE’s testimony to find that
vocational profile, and RFC, can perform the requirements of the
following representative occupations: Cleaner/Housekeeper (DOT No.
323.687-014, unskilled (svp 2)), with light, 439,278 jobs in the
national economy, 8,098 jobs in the state economy and 426 jobs in
unskilled (svp 2), light), with 802,926 jobs in the national
economy, 46,678 jobs in the state economy, and 3,605 jobs in the
regional economy. Accordingly, the ALJ entered a finding of “not
Step Three Error: Failure to Properly Consider Listing
1.04A (Plaintiff’s Point I)
Plaintiff argues the ALJ failed to properly analyze, at step
three, whether he meets or medically equals Listing 1.04A, and did
not adequately explain his step three finding. The Commissioner
argues that Plaintiff’s impairments do not meet all of the criteria
of Listing 1.04A, and that the ALJ’s rationale can be inferred from
the remainder of the decision and the undisputed record evidence.
disability [meets] ‘all of the specified medical criteria’ of a
spinal disorder.” Sullivan v. Zebley, 493 U.S. 521, 531 (1990)
(emphasis in original). “An impairment that manifests only some of
those criteria, no matter how severely, does not qualify.” Id. at
530. The “absence of an express rationale” for an ALJ’s step three
finding is not fatal, as long the Court is “able to look to other
portions of the ALJ’s decision and to clearly credible evidence” to
evidence.” Berry v. Schweiker, 675 F.2d 464, 468 (2d Cir. 1982).
The Court now turns to the question of whether the medical
evidence in the record demonstrates that Plaintiff’s impairments
meet the requirements of Listing 1.04A, which provides as follows:
1.04 Disorders of the spine (e.g., herniated nucleus
arthritis, vertebral fracture), resulting in compromise
of a nerve root (including the cauda equina) or the
spinal cord. With:
characterized by neuro-anatomic distribution
of pain, limitation of motion of the spine,
motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by
sensory or reflex loss and, if there is
involvement of the lower back, positive
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04.
The Commissioner does not offer argument with regard to the
first and second requirements of Listing 1.04A, “evidence of nerve
root compression characterized by neuro-anatomic distribution of
pain,” and a “limitation of motion of the spine,” respectively.
However, the Commissioner does challenge Plaintiff’s showing on the
third requirement, “motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or reflex
loss.” The Commissioner points out that when consultative physician
Hongbiao Liu, M.D., evaluated Plaintiff on February 12, 2013,
Plaintiff “had a normal gait and he could walk on his heels and
toes with only mild difficulty[,]” (T.24), “[h]is squat was 90% of
difficulty[.]” (T.24 (citing T.358)). Further, PA-C Amber Nocek at
Dr. Frederick Piwko’s office noted that, neurologically, Plaintiff
did not have any focal deficits and had normal reflexes (T.291,
416, 421, 428, 443); his deep tendon reflexes were intact, his
unsteadiness, and no muscle weakness (T.296, 442); he had full
range of motion throughout his musculoskeletal system and displayed
normal gait and station (T.416, 421, 428). Likewise, orthopedic
surgeon Dr. Moreland observed that Plaintiff had negative straight
leg raising bilaterally; full upper and lower extremity strength
bilaterally; intact sensation in upper and lower extremities;
normal and symmetric reflexes in upper and lower extremities and
myelopathic findings. (T.282). The ALJ did not refer to any of the
foregoing evidence in his step three discussion, however. Rather,
the ALJ’s step three analysis amounted to an enumeration of the
Listing’s the elements and a conclusion that the record does not
demonstrate these requirements. (T.20).
As evidence of motor loss, Plaintiff notes that consultative
walking. (T.258). As evidence of reflex or sensory loss, Plaintiff
cites to Dr. Liu’s observation of decreased right leg sensation
compared to the left side. (T.259). In addition, Plaintiff points
to the findings of neurologist Dr. Sobhana Narayanan, who conducted
bilateral lateral aspect of the lower legs and diminished ankle
findings, Dr. Narayanan concluded that it was “an abnormal study”
(T.485). As Plaintiff notes, the Listing contemplates that an
“[i]nability to walk on the heels or toes . . . when appropriate,
may be considered evidence of significant motor loss.” 20 C.F.R.
Part 404, Subpart P, App’x 1, § 1.00E; see also Duran v. Colvin,
No. 14 CIV. 8677(HBP), 2016 WL 5369481, at *17 (S.D.N.Y. Sept. 26,
2016) (“[T]he listings specifically state that an inability to walk
on one’s heels or toes can be considered evidence of ‘significant
motor loss.’”) (citing, inter alia, Norman v. Astrue, 912 F.
80 (S.D.N.Y. 2012) (“With respect to muscle weakness,
however, while the medical evidence is not overwhelming—it does
indicate that plaintiff may have had some difficulty with walking
on his heels or toes and/or squatting.”); Olechna v. Astrue, No.
08–CV–398, 2010 WL 786256, at *6 (N.D.N.Y. Mar. 3, 2010) (noting
While there does not appear to be a well-settled requirement
that an ALJ provide an explanation for his conclusion at step three
of the analysis, district courts in this Circuit have required an
ALJ to provide an explanation as to why the claimant failed to meet
described by the medical evidence appear to match those described
in the Listings.” Kuleszo v. Barnhart, 232 F. Supp.2d 44, 52
(W.D.N.Y. 2002). Such is the case here. As noted above, the
Commissioner only challenges Plaintiff’s showing of “motor loss,”
but Plaintiff has pointed to at least some evidence of that
requirement. While the Commissioner is correct that there is no
evidence of muscle atrophy and that there is conflicting evidence
regarding Plaintiff motor functioning, it is nevertheless the
obligation of the ALJ to explicitly reconcile this conflicting
evidence by evaluating whether Plaintiff meets or medically equals
5 F. Supp.3d 493, 508 (S.D.N.Y. 2014). As the Court is “unable to
fathom the ALJ’s rationale in relation to evidence in the record,”
the Court will “remand the case for . . . a clearer explanation for
the decision.” Berry, 675 F.2d at 469.
Failure to Properly Weigh Treating Psychiatrist’s Opinion
(Plaintiff’s Point III)
Plaintiff argues that the ALJ erred in giving “no weight” to
the mental RFC assessment issued by his treating psychologist,
Dr. Eugene Domenico. The Commissioner counters that the ALJ’s
“While the opinions of a treating physician deserve special
respect, they need not be given controlling weight where they are
contradicted by other substantial evidence in the record.” Veino v.
Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (internal citations
omitted). “An ALJ who refuses to accord controlling weight to the
medical opinion of a treating physician must consider various
‘factors’ to determine how much weight to give to the opinion.”
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam).
“Among those factors are: (i) the frequency of examination and the
length, nature and extent of the treatment relationship; (ii) the
evidence in support of the treating physician’s opinion; (iii) the
consistency of the opinion with the record as a whole; (iv) whether
the opinion is from a specialist; and (v) other factors brought to
the Social Security Administration’s attention that tend to support
§§ 404.1527(d)(2), 416.927(d)(2)). The ALJ must also “give good
reasons in [the] notice of determination or decision for the
weight” accorded to the treating physician’s opinion. Id.
Here, the ALJ noted that Dr. Domenico treated Plaintiff from
May 2007, through July 2007, but then Plaintiff ceased treatment
with him. (T.25). Plaintiff returned to Dr. Domenico in May 2012,
for therapy, at which time Dr. Domenico noted that Plaintiff had
“moderate depression.” (Id.). The ALJ correctly observed that there
were “no treatment notes” from Dr. Domenico from November 21, 2012,
through November 14, 2013. (Id. (citing Exhibit 15F). On November
14, 2013, Dr. Domenico again noted that Plaintiff “manifest[ed]
moderate symptoms of anxiety and depression.” However, no mental
status examination was completed; nor were any particular signs and
symptoms noted. (T.464).
On November 20, 2013, after apparently not seeing Plaintiff
for approximately a year, Dr. Domenico completed a mental RFC
assessment (T.466-71) that was so restrictive as to preclude
Plaintiff from any gainful employment. According to Dr. Domenico,
Plaintiff had marked to extreme limitations in activities of daily
living; moderate limitations in maintaining social functioning;
decompensation. (T.470). Dr. Domenico rated as fair to poor-or-none
Plaintiff’s abilities to interact appropriately with the general
public, maintain socially appropriate behavior, adhere to basic
standards of neatness and cleanliness, and travel in unfamiliar
places. (T.469). Dr. Domenico estimated that Plaintiff would be
absent more than three times a month due to his impairments or
The ALJ characterized this opinion as “border[ing] on the
doctor’s assignment of a Global Assessment of Functioning (“GAF”)
score of 54 undercut his opinion; and the record showed an overall
(T.25-26). Plaintiff faults the ALJ for focusing too much on the
lack of episodes of decompensation and did not address the other
limitations assigned by Dr. Domenico’s such as the inability to
concentrate for any length of time, his alleged marked to extreme
absenteeism due to psychiatric symptoms. Plaintiff contends that
the ALJ “effectively threw out Dr. Domenico’s entire opinion just
disagrees, as discussed further below.
As an initial matter, Dr. Domenico’s statement that Plaintiff
was experiencing frequent to continual episodes of decompensation
is simply devoid of supporting evidence. A treating source’s
opinion is accorded “controlling weight” only when it is “well[ ]
techniques and is not inconsistent with the other substantial
[record] evidence.” 20 C.F.R. § 404.1527(c)(2). It follows that the
lack of evidence in support of a treating source’s opinion is a
proper factor to be considered by the adjudicator in assessing the
weight to be assigned to that opinion. The ALJ’s determination on
this point was supported by substantial evidence in the record.
Plaintiff had no hospitalizations or other in-patient treatment for
his mental impairments, and his out-patient treatment for those
Dr. Domenico for three months in 2007, and then discontinued
treatment until May 2012, at which time Dr. Domenico characterized
Plaintiff’s depression as “moderate.” Dr. Domenico’s treatment
notes from 2012 consistently indicated that Plaintiff had “moderate
symptoms of depression and anxiety.” (T.331). Then, there was a
year-long gap in his treatment with Dr. Domenico between November
21, 2012, and November 14, 2013. During that one-year period,
Plaintiff’s primary care physician Dr. Frederick Piwko noted that
Plaintiff’s anxiety and depression “had improved.” (Id. (citing
Ex. 14F 15, 31)). When Plaintiff returned in 2013, Dr. Domenico
again rated his depression and anxiety as moderate, yet six days
later, on November 20, 2013, Dr. Domenico issued his extremely
November 25, 2013, Plaintiff reported to Dr. Piwko that he was
“doing well with anxiety” and was “[a]ttending counseling [every]
week with Dr. Domenico” and “[f]eels his current meds combo is
effective.” (T.426). Not only is Dr. Domenico’s opinion wholly
inconsistent with his own conclusory treatment notes, which lack
any mental status exams, it is inconsistent with notations in the
records of Plaintiff’s other treatment providers, as well as
Plaintiff’s own testimony after starting treatment, his panic
attacks had lessened to about once a month, and lasted only a few
minutes to a half hour (T.54–55). See, e.g., Cichocki v. Astrue,
534 F. App’x 71, 75 (2d Cir. 2013) (summary order) (“A careful
review of the record reveals that the ALJ properly applied the
statement conflicted with his own treatment notes, the ALJ was not
required to afford his opinion controlling weight.”); Micheli v.
Astrue, 501 F. App’x 26, 28-29 (2d Cir. 2012) (unpublished opn.)
controlling weight to treating physician’s opinion, where it was
treating physicians and treatment reports, and claimant reported to
well-controlled with medication without significant side effects).
Relatedly, Plaintiff argues that the improperly gave
significant weight to the opinion of consultative psychologist
Dr. Renee Baskin. Although Dr. Baskin stated that the “results of
the examination appear to be consistent with psychiatric problems
and this may interfere with the claimant’s ability to function on
a daily basis” (T.364), Dr. Baskin found that with regard to his
vocational functional capacities, he “would have minimal to no
limitations being able to follow and understand simple directions
and instructions, perform simple tasks independently, maintain
attention and concentration, maintain a regular schedule, learn new
decisions, and relate adequate with others. (Id.). An ALJ may
decide that a consultative examiner’s opinion outweighs that of a
conclusions are more consistent with the underlying evidence. See,
Rosier v. Colvin, 586 F. App’x 756, 758 (2d Cir. 2014)
consultative examiner to reject treating physician’s opinion where
other substantial evidence in the record was inconsistent with
treating physician’s opinion); Suarez v. Colvin, 102 F. Supp.3d
552, 577 (S.D.N.Y. 2015) (ALJ’s finding that treating source
opinion was entitled to little weight was supported by substantial
evidence; having properly rejected it, ALJ was not required to give
consultative examiner’s opinion less weight even though it more
accurately reflects claimant’s mental status examination results;
substantial evidence and was more consistent with the record as a
whole than the treating source opinion, the ALJ did not err in
assigning it great weight) (collecting cases).
Inadequate Credibility Assessment (Plaintiff’s Point II)
Plaintiff contends that the ALJ’s credibility assessment is
based on a distorted and selective view of the evidence. The
Commissioner responds that the ALJ properly considered Plaintiff’s
subjective statements regarding his pain and alleged limitations,
and found that they were partially credible and necessitated an RFC
limiting him to a range of light work with a sit-stand option every
In evaluating a claimant’s assertions of pain and other
limitations, the ALJ must first decide whether the claimant suffers
from a medically determinable impairment that could reasonably be
expected to produce the symptoms alleged. 20 C.F.R. §§ 404.1529(b),
416.929(b); see also Titles II & XVI: Evaluation of Symptoms in
Disability Claims: Assessing the Credibility of an Individual’s
Statements, SSR 96-7P, 1996 WL 374186, at *2 (S.S.A. July 2, 1996).
If so, the ALJ next must consider “the extent to which [the
claimant’s] symptoms can reasonably be accepted as consistent with
the objective medical evidence and other evidence” of record. Id.
Among the factors the ALJ must consider are “[s]tatements [the
restrictions, [his] daily activities, [his] efforts to work, or any
other relevant statements [he] make[s] to medical sources during
the course of examination or treatment, or to [the agency] during
interviews, on applications, in letters, and in testimony in [its]
416.912(b)(3); see also SSR 96-7P, 1996 WL 374186, at *3.
The ALJ here found that Plaintiff’s “allegation of total
disability is not credible to the extent alleged[,]” (T.23),
primarily because (1) the ALJ found that the medical evidence does
not support the degree of limitations alleged by Plaintiff (T.23);
and (2) Plaintiff’s work record is “not very good” (T.26).
The Second Circuit has observed that “[t]here is no suggestion
in SSA regulations that an ALJ may only consider favorable work
history in weighing the credibility of claimant testimony.” Schaal
v. Apfel, 134 F.3d 496, 502 (2d Cir. 1998), although “[l]ogically,
poor work history could support one of two conclusions.” Id.
Because “[a] claimant’s failure to work might stem from [his]
inability to work as easily as [his] unwillingness to work[,]” id.,
“consideration of work history must be undertaken with great
care[,]” id. The Second Circuit has instructed that “[a]n ALJ
should explore a claimant’s poor work history to determine whether
absence from the workplace cannot be explained adequately
(making appropriate a negative inference), or whether [his] absence
is consistent with her claim of disability.” Id.
Here, the Court
cannot say that the ALJ’s analysis of Plaintiff’s work history was
performed as contemplated by Schaal. Moreover, it is not clear that
Plaintiff had a “poor” work history. Although Plaintiff only had a
few years of work that rose to the substantial gainful activity
(“SGA”) level, his job history questionnaire indicates that he has
been employed fairly steadily since 1999. (T.179). He started
working at age 17 in unskilled jobs, then got a job as a primary
care aide in an adult care facility in 2004; while working, he
returned to school and obtained an associate’s degree and then
apparently worked until his motor vehicle accident (“MVA”) on
March 3, 2008. He attempted work subsequent to the MVA several
times (T.39), but was terminated on January 30, 2011, due to
excessive absences that he attributed to his impairments. He
testified at the hearing that he had to leave these jobs “because
of the compression on [his] spine which would result in numbness
and pain in [his] legs.” (Id.).
The only other factor on which the ALJ relied to assess
Plaintiff’s credibility was the medical evidence.
regulations note that objective medical evidence is useful to the
credibility, they do not allow an ALJ to reject statements about
the intensity and persistence of pain and other symptoms “solely
§§ 404.1529(c)(2), 416.929(c)(2). Some of the evidence cited by the
Plaintiff’s subjective complaints were not mentioned by the ALJ and
constitute impermissible post hoc rationalizations not apparent
from the face of the ALJ’s decision. E.g., Snell v. Apfel, 177 F.3d
128, 134 (2d Cir. 1999). Here, rather than considering Plaintiff’s
credibility in light of the required regulatory factors, see
20 C.F.R. §§ 404.1529(c)(3)(i)-(vii), 416.929(c)(3)(i)-(vii), the
ALJ merely summarized the medical evidence in the record without
credibility. This error warrants reversal. See, e.g., Kerr v.
Astrue, No. 09–CV–01119(GLS)(VEB), 2010 WL 3907121, at *4 (N.D.N.Y.
Sept. 7, 2010) (“[T]he ALJ’s discussion of the factors was simply
analysis of how those factors detracted from her credibility.
credible.”) (citation omitted).
For the foregoing reasons, the Commissioner’s decision is
reversed. Defendant’s motion for judgment on the pleadings is
denied, and Plaintiff’s motion for judgment on the pleadings is
reversed to the extent that the matter is remanded for further
administrative proceedings consistent with this decision and order.
The Clerk of Court is directed to close this case.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
February 12, 2018
Rochester, New York.
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