Meegan v. Colvin

Filing 22

DECISION AND ORDER granting 12 Plaintiff's Motion for Judgment on the Pleadings; denying 18 Commissioner's Motion for Judgment on the Pleadings; adopting in part Report and Recommendations re 20 Report and Recommendations. For the reasons discussed in this Decision and Order, the Court adopts the findings of the Report and Recommendations but declines the recommendation to remand this case for further consideration, and instead remands the case solely for the calculation and payment of benefits. Signed by Hon. Michael A. Telesca on 5/5/17. (Clerk to close case.) (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

TIMOTHY P. MEEGAN,
Plaintiff,
-vs-

No. 1:16-CV-00187 (MAT)
DECISION AND ORDER

NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

I.

Introduction
Represented by counsel, Timothy P. Meegan (“plaintiff”) brings

this action pursuant to Title II of the Social Security Act (“the
Act”), seeking review of the final decision of the Commissioner of
Social Security (“the Commissioner”) denying his application for
disability insurance benefits (“DIB”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g). The matter was
initially before the Court on the parties’ cross motions for
judgment on the pleadings.1 The parties’ motions were referred to
Magistrate Judge Hugh B. Scott for consideration of the factual and
legal issues presented, and to prepare and file a Report and
Recommendation (“R&R”) containing a recommended disposition of the
issues raised.

1

This case was originally assigned to Judge Lawrence J. Vilardo, who
referred it to Magistrate Judge Scott for a Report and Recommendation, which was
completed and filed on April 5, 2017. Doc. 20. The case was referred to this
Court by order dated April 27, 2017. Doc. 21.

II.

The R&R
By R&R dated April 5, 2017, Magistrate Judge Scott recommended

that the case be remanded for further consideration, including
further development of the administrative record, as described
therein. Doc. 20. Both parties were notified that they were given
14 days within which to file objections; however, neither party has
filed an objection. For the reasons set forth below, the Court
remands this

case

solely

for

the

calculation

and

payment

of

benefits pursuant to 28 U.S.C. § 636(b)(1)(C).
III. Factual Background and Administrative Proceedings2
Plaintiff, a veteran, was diagnosed with multiple sclerosis in
1998 after developing balance issues and numbness in the hands and
feet. The record reveals that he treated continuously for this
condition from 1998, up to and throughout the relevant time period.
Although

medications

controlled

his

condition

for

some

time,

various treatment records indicate that in 2012 his condition
exacerbated after he developed a hypersensitivity to Avonex, a
medication for treatment of MS symptoms. During the relevant time
period, plaintiff’s symptoms included neurogenic bladder (a lack of
bladder control due to brain, spinal cord, or nerve damage) for
which he performed self-catheterization; parenthesis (tingling or
numbness) of the hands and feet; general fatigue and generalized
upper and lower extremity weakness; visual scotoma (an area of

2

The Court incorporates by reference the comprehensive factual summary
included in the R&R. See doc. 20 at 2-8.

partially

diminished

or

degenerated

visual

acuity);

and

gait

difficulty. MRIs of plaintiff’s brain and cervical spine showed
areas of demyelination (damage to the protective sheath surrounding
nerve fibers in the brain and spinal cord).
Certified physician’s assistant (“PA”) Stacy Ann Michalski,
who treated plaintiff during the relevant time period at the VA
Medical Center in Buffalo, wrote on July 2, 2014 that plaintiff
suffered

from

“disorganization

of

motor

function,”

including

“reduced strength at baseline and . . . excessive weakness with
sustained muscle use”; “visual and mental impairment” including
“blurring

[or]

tunnel

vision

with

watching

computer

monitor,

television, or any visual stimuli” and “blurring and floaters at
peripheral vision that reduce his visual fields”; “short term
memory loss, making it difficult for him to follow commands and
finish simple tasks”; “difficulty with mental concentration for
short periods of time”; “significant upper and lower extremity
fatigue

with

motor

functioning”;

“bilateral

upper

and

lower

extremity paresthesia”; and plaintiff “frequently drop[ped] objects
and trip[ped] over uneven surfaces.” T. 562.
In a separate form, PA Michalski further opined that plaintiff
had

poor

to

no

ability

to

carry

out

very

short

and

simple

instructions; maintain attention for extended periods of 2 hour
segments;

maintain

regular

attendance

and

be

punctual

within

customary tolerances; sustain ordinary routine without special

3

supervision; make simple work-related decisions; complete a normal
workday or week without interruptions from psychologically-based
symptoms; and perform at a consistent pace without an unreasonable
number and length of rest periods. The record of PA Michalski’s
treatment supports the statements contained within her reports. See
T. 268-70, 286-88, 294-98, 462-64, 470-72, 482-84, 514-16, 560-61.
Three treatment notes appear in the record from Dr. David
Hojnacki. The first, dated December 31, 2009 (prior to the relevant
time period here) noted an essentially normal physical examination.
The second, dated March 30, 2011, again noted essentially normal
findings but recorded plaintiff’s reports that he suffered from
“severe urinary retention” for which he self-catheterized at least
four times per day, as well as complaints of “chronic fatigue and
intermittent spasms in his legs.” T. 570. The note indicated that
plaintiff was to discontinue his current medication because of a
risk

of

PML

(progressive

multifocal

leukoencephalopathy,

an

infection which damages myelin). The third treatment note, dated
January 16, 2014, noted that Dr. Hojnacki’s review of plaintiff’s
record indicated a history “of severe spinal cord MS.” T. 566.
Dr.

Hojnacki

again

found

an

essentially

normal

physical

examination, but noted that plaintiff had experienced multiple
episodes

of

exacerbation

of

symptoms

on

several

different

medications, and indicated that medication management was an active
issue going forward.

4

At his hearing on June 2, 2014, plaintiff testified that he
had worked at a trucking company, first as a driver, then as a
supervisor, and finally as a service fleet manager, for a total of
approximately eleven years. For eight years, he took medication
which controlled his MS symptoms. However, his immune system
developed antibodies to the medication, his symptoms exacerbated,
and he struggled to find a new medication. He testified that he had
to quit his job because he could not perform his job duties, “was
constantly tired,” and “couldn’t handle the responsibilities of the
fleet anymore.” T. 42. According to plaintiff, “[t]he simple tasks
that [he] had done for the 11 years that [he] had been there [he]
could no longer do.” Id. Plaintiff testified that his symptoms
included fatigue and numbness of the hands, feet, and chest. He
stated that he could no longer urinate without using a catheter,
which required him to self-catheterize five to six times per day.
During

the

hearing,

the

ALJ

raised

concerns

about

Dr. Hojnacki’s treatment notes. Plaintiff testified that he treated
with Dr. Hojnacki only for medication management, but the records
submitted by Dr. Hojnacki reflected testing which was inconsistent
with

plaintiff’s

testimony

regarding

his

symptoms.

The

ALJ

commented that, based on the discrepancies between plaintiff’s
testimony and Dr. Hojnacki’s medical records, “either that [the
examination] didn’t happen and this report is unsubstantiated or it
did happen and perhaps the doctor was wrong in his conclusions.”

5

T. 58. The ALJ went on to state that he was “very, very confused by
this record.” Id.
IV.

Standard of Review
Within fourteen days after a party has been served with a copy

of a magistrate judge's report and recommendation, the party “may
serve

and

file

specific,

written

objections

to

the

proposed

findings and recommendations.” Fed. R. Civ. P. 72(b). “If no
objections are made, . . . a district court need review. . . a
report-recommendation only for clear error.” Breinin v. Colvin,
2015 WL 7738047, *1 (N.D.N.Y. Dec. 1, 2015). “A [district] judge .
. . may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” Id.
(quoting 28 U.S.C. § 636(b)). No objections having been filed, the
Court has accordingly reviewed the R&R. However, for the reasons
discussed below, the Court declines to adopt the recommendation
that this matter be remanded for further consideration, and instead
remands the matter solely for the calculation and payment of
benefits.
V.

Discussion
The main issue in this case is whether the ALJ properly

rejected the detailed and well-supported opinion of plaintiff’s
treating physician’s assistant, PA Michalski, in favor of giving
“great weight to [the January 16, 2014] examination findings of
Dr. Hojnaki.” T. 26. As discussed above, at the hearing, the ALJ
6

expressed that this treatment note was “very, very confus[ing]” and
commented that with regard to the note, “either [the examination]
didn’t happen and this report is unsubstantiated or it did happen
and perhaps the doctor was wrong in his conclusions.” T. 58.
Although the ALJ left the record open for plaintiff’s attorney to
clarify the record, upon receiving no such clarification, the ALJ
proceeded to decide plaintiff’s application and gave great weight
to Dr. Hojnacki’s single treatment note, which note offered no
functional assessment of plaintiff’s limitations.
Upon a review of the administrative record in this case, the
Court is troubled that neither plaintiff’s attorney nor the ALJ
endeavored to clarify with Dr. Hojnacki as to why his three
treatment notes conflicted with the lengthy history of plaintiff’s
treatment

at

the

VA

Medical

Center,

which

established

that

PA Michalski’s treating opinion was well-supported. The regulations
state

that

although

a

claimant

is

generally

responsible

for

providing evidence upon which to base an RFC assessment, before the
Administration

makes

a

disability

determination,

the

ALJ

is

independently “responsible for developing [the claimant’s] complete
medical

history,

including

arranging

for

a

consultative

examination(s) if necessary, and making every reasonable effort to
help [the claimant] get medical reports from [the claimant’s] own
medical sources.” 20 C.F.R. § 404.1545 (emphasis supplied) (citing
20 C.F.R. §§ 404.1512(d) through (f)).

7

The ALJ failed to obtain clarification which he believed
necessary for interpretation of the record, and when plaintiff’s
attorney failed to submit such documentation, the ALJ penalized
plaintiff

for

this

omission

by

noting

that

“no

clarifying

information was submitted” and gave “great weight” to a single
treatment note over the opinion of PA Michalski.3 Contrary to the
ALJ’s

apparent

requested

conclusion,

documentation

did

counsel’s
not

failure

absolve

to

the

secure

the

from

his

ALJ

independent duty to develop the record in this non-adversarial
proceeding. See Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)
(“[T]he ALJ, unlike a judge in a trial, must herself affirmatively
develop the record in light of the essentially non-adversarial
nature

of

a

benefits

proceeding.

This

duty

arises

from

the

Commissioner’s regulatory obligations to develop a complete medical
record before making a disability determination, and exists even
when, as here, the claimant is represented by counsel.”) (internal
quotation and editorial marks and citations omitted).
Despite the absence of clarification with regard to Dr.
Hojnacki’s very limited (three) treatment notes, upon a review of

3

PA Michalski saw plaintiff eight times, on January 31, 2012; February 29,
2012; May 24, 2012; November 30, 2012; June 26, 2013; September 27, 2013; January
31, 2014; and June 11, 2014. See T. 268, 295, 286, 514, 482, 470, 462, 560.
Treatment notes from the VA Medical Center, where plaintiff was treated by
PA Michalski and other providers, span 335 pages of the record. By contrast,
Dr. Hojnacki saw plaintiff only three times - and only once during the relevant
time period - in treatment notes totaling only nine pages. Perhaps more
importantly, Dr. Hojnacki never issued an opinion regarding plaintiff’s
functional limitations.

8

the record, the Court finds that it presumptively establishes
plaintiff’s disability pursuant to Listing 11.09. See 20 C.F.R.
§ Pt. 404, Subpt. P, App. 1, § 11.09. That listing provides that an
individual

suffers

presumptively

from

disabled,

“[d]isorganization

of

multiple
when

motor

sclerosis,

he

function

or
in

she
two

and

is

thereby

demonstrates
extremities

a

(see

11.00D1),[4] resulting in an extreme limitation (see 11.00D2)[5] in
the ability to stand up from a seated position, balance while
standing or walking, or use the upper extremities” or has “[m]arked
limitation (see 11.00G2)[6] in physical functioning (see 11.00G3a),
and in one of the following”:
(1) Understanding, remembering, or applying information
(see 11.00G3b(i)); or
(2) Interacting with others (see 11.00G3b(ii)); or

4

This section defines “disorganization of motor function,” as relevant
here, as “interference, due to . . . neurological disorder, with movement of two
extremities; i.e., the lower extremities, or upper extremities (including
fingers, wrists, hands, arms, and shoulders). By two extremities we mean both
lower extremities, or both upper extremities, or one upper extremity and one
lower extremity.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 11.00(D)(1).
5

“Extreme limitation,” as relevant here, means an inability to “use . .
. upper extremities to independently initiate, sustain, and complete work-related
activities,” and inability to use upper extremities means loss of function of
both upper extremities such that “ability to independently initiate, sustain, and
complete work-related activities involving fine and gross movements” is
“seriously limit[ed].” Id. at § 11.00(D)(2). This includes inability to “to
pinch, manipulate, and use [one’s] fingers; or not being able to use [one’s]
hands, arms, and shoulders to perform gross motor movements, such as handling,
gripping, grasping, holding, turning, and reaching; or not being able to engage
in exertional movements such a lifting, carrying, pushing, and pulling.” Id.
6

A “marked limitation” means that “persistent and intermittent symptoms
must result in a serious limitation in [a plaintiff’s] ability to do a task or
activity on a sustained basis.” Id. at § 11.00(G)(2)(a).

9

(3) Concentrating, persisting, or maintaining pace (see
11.00G3b(iii)); or
(4) Adapting or managing oneself (see 11.00G3b(iv)).
Id.
Here, PA Michalski explicitly opined that plaintiff suffered
from

disorganization

of

motor

function,

including

several

limitations in generalized strength, along with visual and mental
impairments including blurred and tunnel vision as well as shortterm memory loss and concentration problems resulting in a poor
ability or total inability to carry out simple instructions,
maintain

attention

and

concentration,

and

perform

ordinary

functions of any job on a sustained, full-time basis. See T. 56265. PA Michalski’s opinion thus supports a finding that plaintiff
suffered a marked limitation in physical functioning, resulting in
“frequent

drop[ping]

of

objects

and

trip[ping]

over

uneven

surfaces,” T. 562, as well as marked limitations (evidenced by poor
or

no

ability

understanding,

to

function

remembering,

in
or

significant
applying

aspects

of)

in

information

and

in

concentration, persistence, or pace. Thus, at the least, plaintiff
satisfies the requirements of Listing 11.09(B).
PA Michalski’s findings are well-supported by the medical
record,

including

her

own

treatment

notes.

Her

opinion

is

additionally supported by a 2011 functional opinion of psychologist
Dr. Karen Klementowski, who stated, in an assessment for the VA,
that plaintiff’s mental symptoms associated with his MS included
10

depression, sleep disturbance, and low energy, along with moderate
impairments
functioning

in
on

immediate
a

and

daily

recent

basis,

memory

interfering

difficulty

with

concentrating,

organizational difficulties, and disorientation. Although the ALJ
was not strictly obligated to consider this evidence which was
issued prior to the relevant time period, see Williams v. Colvin,
98 F. Supp. 3d 614, 631 (W.D.N.Y. 2015), this evidence was not
irrelevant to the Commissioner’s disability determination because
it

sheds

light

on

the

progressive

symptoms

stemming

from

plaintiff’s MS, which condition dominates plaintiff’s disability
application. See, e.g., Taylor v. Berryhill, 2017 WL 586440, *3
(10th

Cir.

Feb.

14,

2017)

(noting

that

“the

ALJ

could

have

considered evidence from a time preceding the relevant period if it
shed light on the nature and severity of [plaintiff]’s condition
during the relevant time period”).
The Court recognizes that PA Michalski is not, as the ALJ
noted, an “accepted medical source.” T. 26. Rather, she is an
“other source” pursuant to the regulations. See Genier v. Astrue,
298 F. App’x 105, 108 (2d Cir. 2008). However, the ALJ erred in
rejecting her opinion for the sole reasons that she was not such an
accepted source and because her “opinion [was] contrary to the
finding of Dr. Hojnacki, which were largely normal.” Id. As the
Administration has recognized, in an appropriate case, an “other
source” opinion may be weighed more heavily than an acceptable

11

medical source

opinion.

See

SSR

06-03p,

2006

WL

2329939,

*2

(Aug. 9, 2006) (“Giving more weight to the opinion from a medical
source who is not an ‘acceptable medical source’ than to the
opinion from a treating source does not conflict with the treating
source rules in 20 CFR 404.1527(d)(2) and 416.927(d)(2) and SSR
96-2p.”).
Moreover, “[t]he evaluation of an opinion from a medical
source who is not an ‘acceptable medical source’ depends on the
particular facts in each case.” Id. at *5. Quite significantly, the
“opinion” evidence from Dr. Hojnacki which the ALJ weighed over
PA Michalski’s opinion was not actually opinion evidence at all: it
gave

no

assessment

of

plaintiff’s

functional

limitations

as

contemplated by the regulations. See 20 C.F.R. § 404.1527 (noting
that medical opinion evidence “reflect[s] judgments about the
nature and severity of [a plaintiff’s] impairment(s), including .
. . symptoms, diagnosis and prognosis, what [the plaintiff] can
still do despite impairment(s), and [the plaintiff’s] physical or
mental restrictions.”) (emphasis added). Notably, PA Michalski’s
opinion contained all of the aspects enumerated in the regulations
and was, as discussed above, supported by plaintiff’s treatment
record and by Dr. Klementowski’s opinion.
The Court is also persuaded by plaintiff’s argument that the
hypothetical

posed

to

the

vocational

expert

(“VE”)

did

not

accurately reflect his RFC determination. The RFC determination

12

stated

that

plaintiff

could

perform

sedentary

work

“except

occasional use of hands for gross or fine manipulations, and feet
for foot pedals and controls and [was] unable to perform any
activity for more than 15 minutes at a time.” T. 21 (emphasis
added). The ALJ’s hypothetical to the VE, however, assumed an
individual who could perform sedentary work and could use hands for
fine or gross manipulation and feet for pedals and controls but
could not do those activities “at any one time for greater than
fifteen minutes.” T. 74. The VE specifically clarified that “those
activities . . . could be done within fifteen minutes at a given
point in time.” T. 74-75 (emphasis added). The ALJ’s RFC, which
found that plaintiff could not perform any activities for more than
15 minutes at a time, was actually supportive of a finding of
disability, further warranting a remand for the calculation of
benefits.7
The

standard

for

directing

a

remand

for

calculation

of

benefits is met when the record persuasively demonstrates the
claimant’s disability, see Parker v. Harris, 626 F.2d 225, 235
(2d Cir. 1980), and where there is no reason to conclude that the
additional evidence might support the Commissioner’s claim that the
claimant is not disabled, see Butts v. Barnhart, 388 F.3d 377,
385–86 (2d Cir. 2004). Because the Court finds that plaintiff’s
disability is persuasively demonstrated by this record, no useful

7

As a final note, as plaintiff points out, pursuant to HALLEX I-2-1-40,
his case is “designated critical” because he “received a 100 percent permanent
and total (100% P&T) disability compensation rating from the Department of
Veterans Affairs (VA).” See T. 246.

13

purpose would be served by a remand for further consideration.
Three stray treatment notes from Dr. Hojnacki do not undermine the
well-supported opinion of this treating source who had the benefit
of observing plaintiff over a longitudinal period of treatment
within the relevant time frame. There is no reason to conclude that
clarification of these notes would alter the Court’s conclusion
that plaintiff’s longitudinal treatment, along with the opinion of
his treating source PA Michalski, establish presumptive disability
pursuant to Listing 11.09.
Moreover, the Second Circuit “has recognized delay as a factor
militating against a remand for further proceedings where the
record contains substantial evidence of disability.” McClain v.
Barnhart, 299 F. Supp. 2d 309, 310 (S.D.N.Y. 2004) (citations
omitted). Reversal for calculation of benefits is particularly
appropriate in this case because plaintiff’s benefits claim has
been pending for almost five years. Considering the significant
delay

plaintiff

has

already

experienced,

and

the

convincing

evidence of disability in this case, the Court remands this case
solely for the calculation and payment of benefits.
VI.

Conclusion
For

the

reasons

discussed

herein,

the

Court

adopts

the

findings of the R&R (Doc. 20) but declines the recommendation to
remand this case for further consideration, and instead remands the
case solely for the calculation and payment of benefits. The
Commissioner’s motion for judgment on the pleadings (Doc. 18) is
therefore denied, and plaintiff’s motion for judgment on the
14

pleadings (Doc. 12) is granted. 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:

May 5, 2017
Rochester, New York.

15