Colton v. Colvin
Filing
22
DECISION AND ORDER granting 17 Plaintiff's Motion for Judgment on the Pleadings to the extent that this matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order, pursuant to 42 U.S.C. § 405(g), sentence four; and denying 18 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 7/25/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KELLY SUE COLTON,
Plaintiff,
16-CV-615(MAT)
DECISION
and ORDER
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
INTRODUCTION
Kelly
Sue
Colton,
(“Plaintiff”),
who
is
represented
by
counsel, brings this action pursuant to the Social Security Act
(“the
Act”),
seeking
review
of
the
final
decision
of
the
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). Presently before
the Court are the parties’ motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
Dkt.## 17-18.
BACKGROUND
I.
Procedural History
Plaintiff protectively filed applications for DIB and SSI on
January 22, 2010, alleging disability beginning June 16, 2009, due
to fibromyalgia, hypertension, arrhythmia, arthritis, migraine
headaches,
asthma,
mitochondrial
dysfunction,
chronic
fatigue
syndrome, light sensitivity, allergies, connective tissue disorder,
gastritis, blood clots, anemia, vitamin deficiency, chronic hives,
and
Sjogren’s
disease.
T.
123-34,
246,
288.1
Her
initial
applications were denied on April 14, 2010, and a hearing followed
before Administrative Law Judge (“ALJ”) William Weir on October 21,
2011. T. 77-122. After The ALJ issued a decision finding that
Plaintiff was not disabled, Plaintiff requested Appeals Council
review of the hearing decision. On July 29, 2013, the Appeals
Council remanded the case to the ALJ. T. 152-55.
Plaintiff and counsel appeared at a second hearing before ALJ
Weir on October 30, 2014, after which he issued a decision finding
Plaintiff not disabled. T. 13-36, 37-76. This determination became
the Commissioner’s final decision when the Appeals Counsel denied
Plaintiff’s request for review on June 3, 2016. T. 1-6. This action
followed. Dkt. #1.
II.
The Second Decision
In applying the familiar five-step sequential analysis, as
contained in the administrative regulations promulgated by the
Social Security Administration (“SSA”), see 20 C.F.R. §§ 404.1520,
416.920; Lynch v. Astrue, No. 07-CV-249, 2008 WL 3413899, at *2
(W.D.N.Y. Aug. 8, 2008) (detailing the five steps), the ALJ found:
(1) Plaintiff did not engage in substantial gainful activity since
her alleged onset date; (2) she had the severe impairments of
1
Citations to “T.__” refer to the pages of the administrative
transcript.
2
periodic transient dizziness, inflammatory arthritis, and asthma;
(3) her impairments did not meet or equal the Listings set forth at
20 C.F.R. § 404, Subpt. P, Appx. 1. The ALJ found that she retained
the residual functional capacity (“RFC”) to perform sedentary work
except
that
she
needed
to
avoid
dust,
fumes,
gasses,
and
temperature extremes; and (4) Plaintiff could perform her past
relevant work as a customer service manager and mortgage clerk.
Alternatively, the ALJ used Medical-Vocational Rule 201.29 as a
framework and relied on the testimony of the Vocational Expert
(“VE”) to determine that Plaintiff was not disabled. T. 18-29.
DISCUSSION
I.
Scope of Review
A federal court should set aside an ALJ decision to deny
disability benefits only where it is based on legal error or is not
supported by substantial evidence. Balsamo v. Chater, 142 F.3d 75,
79 (2d Cir. 1998). “Substantial evidence means such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.” Green–Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.
2003) (internal quotation marks omitted).
II.
Appeals Council Order
Plaintiff contends that the ALJ failed to adhere to the
Appeals Council remand order, which remanded the case to the ALJ on
the basis that the hearing decision did not contain an adequate
evaluation of a Medical Source Statement from Plaintiff’s treating
physician, Edgar Bassing, M.D. Pl. Mem. (Dkt. #17-1) at 21-22;
3
T. 153. The order further noted that there was no indication that
an attempt was made to re-contact Dr. Bassing for clarification of
his opinions and their inconsistency with Plaintiff’s medical
records.
Id. The ALJ was directed to “give further consideration
to the treating source opinions pursuant to the provisions of
20 C.F.R. 404.1527 and 416.927 and Social Security Rulings 96-2p
and 96-5p, and explain the weight given to such opinion evidence.
As appropriate, the [ALJ] may recontact the treating source to
provide
additional
evidence
and/or
clarification[;]”
and
“[c]onsider new and material evidence in accordance with 20 C.F.R.
404.1513 and 416.913.”
Id. at 154.
The Commissioner argues that the ALJ properly complied with
the July, 2013, remand order because the ALJ attempted to contact
Dr.
Bassig
incorporated
twice
his
without
previous
a
response,
decision
and
finding
because
no
the
disability
ALJ
by
reference. Comm’r Mem. (Dkt. #18-1) at 24-25.
“Regulations provide that on remand from the Appeals Council,
‘[t]he [ALJ] shall take any action that is ordered by the Appeals
Council and may take any additional action that is not inconsistent
with the Appeals Council remand order.’” Cabibi v. Colvin, 50 F.
Supp. 3d 213, 229 (E.D.N.Y. 2014) (citing 20 C.F.R. § 404.977(b))
(emphasis added). “If an ALJ fails to comply with an Appeals
Council remand order, their decision is subject to judicial review
and can form the basis for a remand to the Commissioner. Id.
(Citing 42 U.S.C. § 405(g)).
4
With respect to the Commissioner’s first contention, it is
true that an ALJ may make a disability determination based on the
evidence before
him
or
her
“when,
despite efforts
to
obtain
additional evidence, the evidence is insufficient to determine
whether [the claimant] is disabled.” 20 C.F.R. § 416.920b(d). It
also appears that the ALJ took the appropriate action to resolve
the insufficiency of the record, as permitted by the Appeals
Council. T. 153; see generally 20 C.F.R. § 416.920b(c)(1)-(4)
(stating that, if the record evidence is insufficient to make a
disability determination, the ALJ may recontact medical sources,
request additional existing records, ask the claimant to undergo a
consultative
information).
exam,
or
ask
Nonetheless,
the
claimant
if
the
or
others
rationale
for
for
more
rejecting
Dr. Bassing’s medical assessment was because he was unavailable to
clarify his opinion, the ALJ did not say that in the second
decision. T. 23.
The Commissioner also urges the Court to find that the ALJ
incorporated the medical assessment into the new decision. Comm’r
Mem. at 25; T. 22. Yet the ALJ did not evaluate Dr. Bassing’s
assessment on remand, did not discuss the weight he accorded the
opinion, and did not reference the subject exhibit in support of
his rejection of Dr. Bassing’s opinions contained elsewhere in the
record.
Thus,
any
incorporation
of
the
flawed
analysis,
as
determined by the Appeals Council, would not comply with the remand
5
order requiring the ALJ to “explain the weight given to such
opinion evidence.”
T. 154.
Finally, the ALJ's reasoning cannot be gleaned from the
decision. See Comm’r Mem. at 25. Although he included Dr. Bassing’s
opinion in the general summary of the medical record, he omitted it
from the opinion evidence and did not explain the weight he
accorded it. Rather, he appears to have rejected the remainder of
Dr. Bassig’s medical source statements contained in Exhibit 23F in
favor of the state consultative physician’s opinion based on a onetime
examination
in
2010.
T.
27,
686-690.
The
ALJ
did
not
sufficiently articulate his reasons for rejecting the October,
2011, medical source statement contained in Exhibit 21F. The ALJ’s
summary of the additional treatment notes from Dr. Bassig dated
July 10, 2012, to October 17, 2013, does not clarify his reasoning
for rejecting the opinion and does not comply with the remand order
or the applicable regulations. See Mortise v. Astrue, 08–CV–0990,
713 F. Supp.2d 111, 120–24 (N.D.N.Y. 2010) (remanding based on the
ALJ’s failure to comply with the Appeals Council’s remand order to
follow the treating physician rule); see also Selian v. Astrue, 708
F.3d 409, 418 (2d Cir. 2013) (per curiam) (“[T]o override the
opinion of the treating [source], we have held that the ALJ must
explicitly consider, inter alia: (1) the frequen[c]y, length,
nature, and extent of treatment; (2) the amount of medical evidence
supporting the opinion; (3) the consistency of the opinion with the
remaining medical evidence; and, (4) whether the [source] is a
6
specialist.”). The fact that the Appeals Council subsequently
denied review of the ALJ’s second determination, see Comm’r Mem. at
25, does not persuade the Court otherwise. See, e.g., McGann v.
Colvin, No. 14 CIV. 1585, 2015 WL 5098107, at *6, *14 (S.D.N.Y.
Aug. 31, 2015).
Under these circumstances, where it is clear that the ALJ did
not comply with the requirements of the Appeals Council order,
remand to the ALJ is appropriate.
In light of this determination
the Court need not address Plaintiff’s challenge to the ALJ’s RFC
finding.
CONCLUSION
For the foregoing reasons, the Plaintiff’s motion for judgment
on the pleadings (Dkt. #17) is granted, and the Commissioner’s
cross-motion (Dkt. #18) is denied. The Commissioner’s decision is
reversed and this matter is remanded to the Commissioner for
further administrative proceedings consistent with this opinion,
pursuant to 42 U.S.C. § 405(g), sentence four.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:
Rochester, New York
July 25, 2018
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