Wood v. Commissioner of Social Security

Filing 22

DECISION AND ORDER granting 10 Plaintiff's Motion for Judgment on the Pleadings; denying 17 Commissioner's Motion for Judgment on the Pleadings. This case is remanded solely for the calculation and payment of benefits. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 10/24/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK
____________________________________
CHRISTY WOOD,
Plaintiff,

1:16-cv-00570-MAT
DECISION AND ORDER

-vNANCY A. BERRYHILL,
Acting Commissioner OF Social Security,
Defendant.
____________________________________
INTRODUCTION

Christy Wood (“Plaintiff”), represented by counsel, brings
this action pursuant to Title XVI of the Social Security Act (“the
Act”),

seeking

review

of

the

final

decision

of

the

Acting

Commissioner of Social Security (“Defendant” or “the Commissioner”)
denying her application for supplemental security income (“SSI”).
The Court has jurisdiction over the matter pursuant to 42 U.S.C.
§ 1383(c). Presently before the Court are the parties’ competing
motions for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. For the reasons set forth below,
the Commissioner’s decision is reversed, Plaintiff’s motion is
granted to the extent that the matter is remanded solely for
calculation

and

payment

of

benefits.

Accordingly,

Defendant’s

motion is denied.
PROCEDURAL BACKGROUND
On January 7, 2013, Plaintiff protectively filed for SSI,
alleging disability

beginning

January

7,

2013.

Administrative

Transcript (“T.”) 67. The claim was initially denied on May 17,

2013, and Plaintiff timely requested a hearing. T. 80-84. A hearing
was

conducted

on

January

13,

2015,

in

Buffalo,

New

York

by

administrative law judge (“ALJ”) Robert T. Harvey. T. 28-55.
Plaintiff appeared with her attorney and testified. An impartial
vocational expert (“VE”) also testified.
The ALJ issued an unfavorable decision on January 29, 2015.
T. 8-23. Plaintiff timely requested review of the ALJ’s decision by
the Appeals Council. T. 64-65. On November 17, 2016, the Appeals
Council denied Plaintiff’s request for review, making the ALJ’s
decision the final decision of the Commissioner. T. 1-6. Plaintiff
then timely commenced this action.

THE ALJ’S DECISION
The

ALJ

applied

the

five-step

sequential

evaluation

promulgated by the Commissioner for adjudicating disability claims.
See

20

C.F.R.

evaluation,

the

§

416.920(a).

ALJ

found

At

that

step

one

Plaintiff

of
had

the
not

sequential
engaged

in

substantial gainful activity since the application date. T.13.
At

step

two,

the

ALJ

determined

that

Plaintiff

had

the

“severe” impairments of lumbar spondylosis and spondylolisthesis,
depression,

anxiety

and

panic

disorder.

T.

13.

The

ALJ also

determined that Plaintiff’s medically determinable impairments of
cervical cancer and Hepatitis type C did not cause significant
work-related functional limitations and thus were nonsevere. Id.

2

At step three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or medically
equals an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. The ALJ specifically considered Listings 1.03, 1.04A,
12.04, and 12.06 in making this determination. T. 14.
Before proceeding to step four, the ALJ assessed Plaintiff as
having the residual functional capacity (“RFC”) to perform light
work as

defined

in

20

C.F.R.

416.967(b), with

the following

limitations: cannot work in areas with unprotected heights; cannot
work around heavy, moving, or dangerous machinery; occasional
limitation in bending, climbing, stooping, squatting, kneeling,
balancing and crawling, and pushing and/or pulling with the upper
extremities; no climbing ropes, ladders, or scaffolds; occasional
limitation in the ability to understand, remember and carry out
detailed instructions, maintain attention and concentration for
extended periods, interact appropriately with the general public,
respond appropriately to changes in the work setting, and make
decisions; and cannot work in areas with exposure to cold. T. 16.
At step four, the ALJ determined that Plaintiff had no past
relevant work. T. 22. At step five, the ALJ relied on the VE’s
testimony to find that, taking into account Plaintiff’s age,
education, work experience, and RFC, there are jobs that exist in
significant numbers in the national economy that Plaintiff can
perform, including the representative occupations of housekeeper,

3

produce sorter, and checker. T. 22-23. The ALJ accordingly found
that Plaintiff was not disabled as defined in the Act. T. 23.
SCOPE OF REVIEW
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). The
district court must accept the Commissioner’s findings of fact,
provided that such findings are supported by “substantial evidence”
in the record. See 42 U.S.C. § 405(g) (the Commissioner’s findings
“as to any fact, if supported by substantial evidence, shall be
conclusive”). “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)
(quotation

omitted).

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). “The deferential standard of
review

for

substantial

evidence

does

not

apply

to

the

Commissioner’s conclusions of law.” Byam v. Barnhart, 336 F.3d 172,
179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109, 112
(2d Cir. 1984)).

4

DISCUSSION
Plaintiff contends that remand for calculation and payment of
benefits is warranted because the ALJ: (1) failed to give proper
weight to the disability-supporting opinion of Plaintiff’s treating
neurosurgeon, Dr. Gregory J. Bennett; and (2) improperly gave more
weight to the consultative opinion of Dr. John Schwab.
For

the

reasons

discussed

below,

the

Court

agrees

with

Plaintiff that, under the applicable regulations, the ALJ was
required to afford controlling weight to Dr. Bennett’s opinion.
Moreover, because Dr. Bennett’s opinion established that Plaintiff
suffers from disabling limitations, remand of this matter solely
for calculation and payment of benefits is warranted.
I.

The Relevant Medical Opinions of Record
A.

Opinion of Treating Neurosurgeon Dr. Bennett

Dr. Bennett, Plaintiff’s treating neurosurgeon, completed a
Medical Source Statement of Ability to Do Work-Related Activities
(Physical) on December 19, 2014. T. 347-53. In the statement,
Dr. Bennett opined Plaintiff was capable of lifting and/or carrying
up to ten pounds occasionally, and never lifting and/or carrying
more than ten pounds. T. 347. He opined Plaintiff was able to sit
and stand for up to two hours during an eight hour work day, and
walk for up to one hour during an eight hour work day. T. 348. He
further opined Plaintiff could ambulate up to fifty feet without
the use of a cane. Id. Dr. Bennett’s opinion indicates Plaintiff
5

could frequently use both her left and right hand to reach, handle,
finger, feel, push and pull. T. 349. He also opined Plaintiff could
occasionally operate foot controls with her feet. T. 350.
Dr. Bennett stated that Plaintiff was incapable of even “low
stress” jobs, that her impairments would likely produce “good days”
and “bad days” and she would need to take unscheduled breaks every
two hours during an eight hour working day. Id. He opined Plaintiff
was

never

able

to

climb

stairs

and

ramps,

climb

ladders

or

scaffolds, balance, stoop, kneel, crouch, or crawl. T. 351. He
further opined Plaintiff should never work around unprotected
heights, moving mechanical parts, or operate a motor vehicle. Id.
He also opined Plaintiff could occasionally work in an environment
with humidity and wetness, dust, odors, fumes, pulmonary irritants,
extreme cold or heat, vibrations, and moderate (office) noise. Id.
Finally,
activities

Dr.
of

Bennett
daily

opined
living,

Plaintiff
such

as

was

able

shopping,

to

perform

using

public

transportation, prepare simple meals, and care for her personal
hygiene. T. 352. However, Dr. Bennett opined Plaintiff was unable
to travel without a companion for assistance. Id.

B.

Opinion of Treating Physician’s Assistant Sister Nancy
Murphy PA-C

Physician’s Assistant (“PA”) Sister Nancy Murphy completed a
Medical Source Statement of Ability to Do Work-Related Activities
(Physical) on December 18, 2014. T. 287-93. In the statement, PA
6

Murphy opined Plaintiff was capable of lifting and/or carrying up
to ten pounds occasionally, and never lifting and/or carrying more
than ten pounds. T. 287. She opined Plaintiff would need to change
positions frequently during an eight hour work day and was not
capable of working full-time. T. 288. PA Murphy indicated Plaintiff
could frequently use both her left and right hand to reach, handle,
finger, feel, push and pull. T. 289. She also opined Plaintiff had
no limitation for operating foot controls. T. 290.
PA Murphy opined Plaintiff was able to tolerate moderate
stress

in

her

workplace

and

may

need

to

take

three-to-four

unscheduled breaks for fifteen minutes at a time during an eight
hour work day. Id. She stated Plaintiff was never able to climb
stairs and ramps, climb ladders or scaffolds, kneel, crouch, or
crawl, but could stoop occasionally. T. 291. She further opined
Plaintiff should never work around unprotected heights, humidity
and wetness, dust, odors, fumes, or pulmonary irritants; however,
Plaintiff could occasionally work around moving mechanical parts,
vibrations, and moderate (office) noise, and operate a motor
vehicle. Id. Finally, PA Murphy opined Plaintiff was able to
perform some activities of daily living, such as prepare simple
meals, care for her personal hygiene, and slowly climb a few steps
with

use

of

a

single

hand

rail,

but

was

unable

to

perform

activities such as shopping, or walk a block at a reasonable pace
on rough or uneven surfaces. T. 292.

7

C.

Opinion of Consultative Examiner Dr. Schwab

On April 4, 2013, Plaintiff underwent an internal medicine
examination by consultative examiner, Dr. Schwab. T. 219-22. On
examination, Dr. Schwab noted Plaintiff appeared in no acute
distress, had a normal gait, and was able to walk on her heels and
toes without difficulty. T. 220. He also noted Plaintiff stopped
her squat two-thirds of the way down due to perceived leg pain. Id.
Plaintiff’s cervical spine and lumbar spine showed full flexion,
extension, lateral flexion bilaterally, and full rotary movement
bilaterally. T. 221. Plaintiff had full range of motion of both her
upper and lower extremities, there was no evidence of subluxations,
contractures, ankylosis, or thickening. Id. Dr. Schwab diagnosed
Plaintiff with Hepatitis C, treated; petit mal seizures; history of
cancer of the cervix, stage one; and tobacco abuse. Id.
In his source statement, Dr. Schwab opined Plaintiff should
avoid heights or any other activity that would be dangerous due to
her history of seizures. Otherwise, there were no restrictions
based on his examination. T. 222.
II.

Evaluation of Dr. Bennett’s Opinion
Under the Commissioner’s regulations in place at the time the

ALJ

issued

generally

his

decision,

entitled

to

a

treating

“controlling

physician’s
weight”

opinion

when

it

is
is

“well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
8

substantial

evidence

in

[the]

case

record.”

20

C.F.R.

§ 404.1527(c)(2); see also Green-Younger v. Barnhart, 335 F.3d 99,
106 (2d Cir. 2003). An ALJ may give less than controlling weight to
a treating physician’s opinion if it does not meet this standard,
but

must “comprehensively set forth [his or her] reasons for the

weight assigned to a treating physician’s opinion.” Halloran v.
Barnhart, 362 F.3d 28, 33 (2d Cir. 2004).
When

determining

how

much

weight

to

afford

a

treating

physician’s opinion, the ALJ is required to consider “the length of
the treatment relationship and the frequency of examination; the
nature 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 v. Astrue,
537 F.3d 117, 129 (2d Cir. 2008) (quotation marks, alterations, and
citations omitted). However, the ALJ need not expressly discuss
each of these factors, so long as his “reasoning and adherence to
the regulation are clear.”

Atwater v. Astrue, 512 F. App’x 67, 70

(2d Cir. 2013) (citing Halloran, 362 F.3d at 31–32).
In

his

decision,

the

ALJ

accorded

little

weight

to

Dr. Bennett’s opinion because it was not supported by the April 2,
2013 assessment provided by consultative examiner, Dr. Schwab.
T. 20. To the extent PA Murphy’s opinion was strikingly similar to

9

and supportive of Dr. Bennett’s opinion, the ALJ found it was of
little weight because it was also inconsistent with Dr. Schwab’s
assessment. T. 19.
The ALJ further found that Dr. Bennett’s treatment records
and/or

imaging

reports

showed

“mild

findings

at

best”

on

November 14, 2014; September 2, 2014; August 15, 2014; April 15,
2014;

and

March

25,

2014.

T.

20,

referring

to

T.

357-70.

Specifically, the ALJ noted that in November 2014, Dr. Bennett
reported Plaintiff

had

no

tenderness

of

the

upper

and

lower

extremities, normal range of motion, and negative straight leg
raising testing. T. 21, referring to T. 359-60. The ALJ also
concluded that the evidence as a whole established that Plaintiff
required only conservative care for her back pathology and other
impairments. T. 21.
The Court finds the ALJ’s reasons for discounting the opinion
of treating neurosurgeon Dr. Bennett are unsupported by the record.
First, the ALJ relied heavily on the opinion of Dr. Schwab, which
was based on a one-time consultative examination of Plaintiff,
twenty months
necessarily

before

improper

Dr.
for

Bennett’s
an

ALJ

to

opinion.
credit

While it
the

is

opinion

not

of

a

consultative examiner over the opinion of a treating physician, the
ALJ’s decision to do so in this case was inconsistent with the
record and not supported by substantial evidence.

10

When evaluating competing medical opinions, the reports of
one-time consultative examinations are “generally given less weight
because they lack the unique perspective to the medical evidence
that a treating physician’s opinion would provide.” Goldthrite v.
Astrue,

535

F.

Supp.

2d

329,

337

(W.D.N.Y.

2008)

(internal

citations omitted). Here, Dr. Bennett, a practicing neurosurgeon,
had been treating Plaintiff for her progressive back pain for at
least eight months before completing his medical source statement.
T. 347-70. His treatment notes consistently referenced the severity
of Plaintiff’s low back pain from seven out of ten, to ten out of
ten (see T. 354, 358, 363, 368), and Plaintiff’s diminished range
of motion in her spine (see T. 355, 359, 369). Moreover, his
opinion

was

including

consistent

MRIs

of

with

the

Plaintiff’s

medical
lumbar

evidence
spine

of

showing

record,
facet

hypertrophy and a spondylolisthesis at L4-5, leading to left sided
foraminal stenosis. T. 255. In addition, Dr. Schwab’s

examination

of Plaintiff in April 2013 was before her back pain worsened to the
point that she was required to undergo epidural injections for
relief, and nearly two years before the ALJ issued his decision in
this matter. See T. 357, 363. The ALJ, as an example, concluded
that Dr. Bennett’s medical source statement was given “little
weight” that plaintiff “. . . could not perform work activity even
at a sedentary level since [this conclusion] is not supported by
Dr. Schwab’s assessment of . . . claimant’s restrictions.”

11

T. 20.

Under these circumstances, it was erroneous for the ALJ to rely on
Dr.

Schwab’s

Dr.

Bennett’s

single

examination

opinion,

based

on

in

declining

extensive

to

period

of

afford
time,

controlling weight.
Second, the ALJ improperly interpreted the medical record and
mischaracterized Plaintiff’s treatment as conservative in order to
support

his

decision.

The

ALJ’s

finding

that

Plaintiff’s

progressing course of treatment, which included pain medication
(e.g. Tramadol) (T. 297, 313, 316) and epidural injections (T. 357,
366), was “conservative” is clearly unsupported by the record. See
Hamm v. Colvin, 16cv936(DF), 2017 WL 1322203, at *24 (S.D.N.Y.
Mar. 29, 2017) (finding the plaintiff’s prescriptions for a number
of medications and injections and ablation were not properly
characterized

as

“conservative”

treatment);

Knepple-Hodyno

v.

Astrue, No. 11-cv-443(DLI), 2012 WL 3930442 at *11, (E.D.N.Y.
Sept. 10, 2012) (evidence showing the plaintiff was receiving
epidural injections to her spine called into question whether her
treatment was “conservative”).
Although

the

ALJ

claimed

Dr.

Bennett

noted

only

“mild”

limitation in Plaintiff’s range of motion, the Court’s review of
the

complete

record

clearly

reveals

that

Dr.

Bennett

found

Plaintiff to have a diminished range of motion in her spine and
that Plaintiff had pain caused by lumbosacral radiculopathy. He
began administering epidural injections in April 2014 because

12

physical therapy was ineffective in relieving Plaintiff’s disabling
pain.

T.

359-68.

Conclusions

by

an

ALJ

that

rely

on

a

mischaracterization of the record, as in this case, cannot be
considered “good reasons” for rejecting a treating physician’s
opinion. Wilson v. Colvin, 213 F. Supp. 3d 478, 485 (W.D.N.Y.
2016); see also Brennan v. Colvin, No. 13-V-6338 AJN RLE, 2015 WL
1402204, at *16 (S.D.N.Y. Mar. 25, 2015).
For all the foregoing reasons, the Court finds that the ALJ
failed to articulate good reasons for the weight he afforded
Dr. Bennett’s opinion, in violation of the treating physician rule.
The Court further finds that under the Commissioner’s regulations
in place at the time the ALJ issued his decision, Dr. Bennett’s
opinion was entitled to controlling weight, because it was wellsupported by the medical evidence of record.
III. Remedy
Under 42 U.S.C. § 405(g), the district court has the power to
affirm, modify, or reverse the ALJ’s decision with or without
remanding for a rehearing. Remand solely for calculation and
payment of benefits is appropriate where the record persuasively
demonstrates the claimant’s disability, Parker v. Harris, 626 F.2d
225, 235 (2d Cir. 1980), and there is no reason to conclude that
additional evidence exists that might support the Commissioner’s
claim that the claimant is not disabled, Butts v. Barnhart, 388
F.3d 377, 385–86 (2d Cir. 2004).
13

For the reasons set forth above, the Court finds that the
ALJ’s decision to give less than controlling weight to the opinion
of Plaintiff’s treating neurosurgeon, Dr. Bennett was legally
erroneous and unsupported by substantial evidence. Furthermore,
based on the VE’s hearing testimony, had Dr. Bennett’s opinion
properly been afforded controlling weight, a disability finding
would have necessarily followed. See T. 54.
The VE’s testimony clearly reveals the ALJ gave summaries of
two medical findings: the first, consistent with the ALJ’s ultimate
RFC finding, and an alternate hypothetical containing occasional
limitations in the ability to perform certain activities within a
schedule, and occasional limitations in the ability to complete a
normal work week due to pain symptoms. T. 53. The VE’s opinion
relying upon the first hypothetical, with no consideration of the
limitations associated with Plaintiff’s pain, supported Plaintiff’s
ability to do some types of work within the national economy.
However, the hypothetical taking Plaintiff’s symptoms of pain into
account resulted

in

the

finding

that

a

plaintiff

with

those

incapacities would not be able to perform any job and thus, be
disabled. Id. Moreover, a hypothetical presented by Plaintiff’s
attorney which relied on Dr. Bennett’s conclusions also resulted in
the finding that a plaintiff with those limitation would be unable
to perform any job in the national economy and thus, would be
disabled. T. 54.

14

Finally, the record in this case is complete, and further
development cannot reasonably be expected to support a finding that
Plaintiff is not disabled. Accordingly, the Court finds that remand
solely for the calculation and payment of benefits is warranted.
CONCLUSION
For

the

foregoing

reasons,

the

Court

finds

that

the

Commissioner’s decision was legally erroneous and is not supported
by substantial evidence. It therefore is reversed. Accordingly,
Defendant’s motion for judgment on the pleadings (Docket No. 17) is
denied, and Plaintiff’s motion for judgment on the pleadings
(Docket No. 10) is granted, and the case is remanded solely for the
calculation and payment of benefits. The Clerk of Court is directed
to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
_____________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:

October 24, 2018
Rochester, New York

15