Kuhl v. Colvin, Acting Commissioner of Social Security
Filing
19
DECISION AND ORDER granting 11 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; denying 13 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 8/28/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK
____________________________________
WILLIAM ROBERT KUHL, JR.,
Plaintiff,
1:17-cv-00185-MAT
DECISION AND ORDER
-vNANCY A. BERRYHILL,
Acting Commissioner OF Social Security,
Defendant.
____________________________________
INTRODUCTION
William
Robert
Kuhl,
Jr.
(“Plaintiff”),
represented
by
counsel, brings this action under Title II of the Social Security
Act (“the Act”), seeking review of the final decision of the Acting
Commissioner
of
Social
Security
(“the
Commissioner”
or
“Defendant”), denying his application for disability insurance
benefits (“DIB”). The Court has jurisdiction over the matter
pursuant to 42 U.S.C. § 405(g). 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, Plaintiff’s motion is granted to the
extent that the matter is remanded to the Commissioner for further
administrative proceedings consistent with this Decision and Order.
PROCEDURAL BACKGROUND
On September 16, 2013, Plaintiff protectively filed for DIB,
alleging disability beginning December 20, 2012. Administrative
Transcript (“T.”) 75. The claim was initially denied on March 25,
2014, and Plaintiff timely requested a hearing. T. 76-83. Prior to
the hearing, Plaintiff amended his request to seek a closed period
of disability from December 20, 2012 to April 1, 2014. T. 201-205.
On February 10, 2014, a video hearing was conducted in Albany,
New York by administrative law judge (“ALJ”) Robert Wright. T. 3159. Plaintiff appeared via video conference with his attorney and
testified. An impartial vocational expert (“VE”) also testified via
telephone.
The ALJ issued an unfavorable decision on March 9, 2016.
T. 11-30. Plaintiff timely requested review of the ALJ’s decision
by
the
Appeals’
Council.
T.
8-9. The
Appeals
Council
denied
Plaintiff’s request for review on January 5, 2017, making the ALJ’s
decision the final decision of the Commissioner. T. 1-5. 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. § 404.1520(a). Initially, the ALJ determined that
Plaintiff met the insured status requirements of the Act through
December 31, 2017. T. 16.
At step one of the sequential evaluation, the ALJ found that
Plaintiff had not engaged in substantial gainful activity for a
continuous twelve-month period following the alleged onset date.
T.12.
2
At step two, the ALJ determined that for the closed period
from December 20, 2012 to April 1, 2014, Plaintiff suffered from
the “severe” impairments of degenerative disc disease of the
cervical and lumbar spine, headaches, and osteoarthritis of the
right shoulder. T. 17. The ALJ also determined that Plaintiff’s
medically determinable impairments of history of traumatic brain
injury and depressive disorder were non-severe and created no
significant work-related mental functional limitations. T. 18.
At step three, the ALJ found that for the closed period from
December 20, 2012 to April 1, 2014, Plaintiff did not have an
impairment or combination of impairments that met or medically
equaled an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. Id.
Before proceeding to step four, the ALJ assessed Plaintiff as
having the residual functional capacity (“RFC”), during the closed
period from December 20, 2012 to April 1, 2014,
to perform light
work as defined in 20 C.F.R. 404.1567(b), with the following
additional limitations: could occasionally bend, crawl, climb,
twist, and perform overhead reaching; and could sit, stand or walk
for no more than two hours at a time. Id.
At step four, the ALJ determined that Plaintiff was unable to
perform any past relevant work during the closed period from
December 20, 2012 to April 1, 2014. T. 24. At step five, the ALJ
relied on the VE’s testimony to find that, taking into account
3
Plaintiff’s age, education, work experience, and RFC, there were
jobs that exist in significant numbers in the national economy that
Plaintiff could have performed for the closed period from December
20, 2012 to April 1, 2014, including the representative occupations
of photo operator, mail clerk, and office helper. T. 25. The ALJ
accordingly found that Plaintiff was not disabled as defined in the
Act. Id.
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
4
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)).
DISCUSSION
Plaintiff contends that remand of this matter is
warranted
because the ALJ failed to include any non-exertional limitations in
the RFC assessment, without
adequate justification. For the
reasons discussed below, the Court agrees that the ALJ failed to
properly consider whether Plaintiff had non-exertional limitations,
and
therefore
finds
that
remand
of
this
matter
for
further
administrative proceedings is required.
I.
Plaintiff’s Headaches and Cognitive Impairments
On December 20, 2012, Plaintiff suffered a fall while working,
lost consciousness, and was transported to Erie County Medical
Center. T. 331; 361. Plaintiff received CT scans while in the
emergency room and was diagnosed with a head injury and a subdural
hematoma. While hospitalized, he complained of a headache and right
shoulder pain. Id. Plaintiff was discharged from the hospital on
December
23,
2012
and
directed
by
his
treating
physician,
Dr. Gregory Bennett, not to drive a car, drink alcohol, or work.
T. 362.
On January 2, 2013, Dr. Bennett examined Plaintiff and noted
Plaintiff
complained
of
headaches,
5
low
back
pain,
and
right
shoulder pain. T. 290. On January 24, 2013, Plaintiff was examined
by
his
primary
care
physician,
Dr.
Jennifer
A.
Wisnoski.
Dr. Wisnoski noted Plaintiff had been suffering headaches and
nausea since his injury, and Plaintiff reported it was difficult
for him to sleep on his right side due to his shoulder and head
pain. Plaintiff also reported he was lightheaded at times. T. 252.
Dr. Wisnoski noted she suspected Plaintiff had postconcussion
syndrome and referred Plaintiff to a neurologist for evaluation.
T. 254.
Plaintiff’s medical records demonstrate ongoing complaints of
headaches and trouble sleeping throughout 2013. See T. 344, 390,
393. These headaches occurred on a near daily basis. T. 490. The
record also shows ongoing complaints of cognitive issues associated
with these headaches. On January 9, 2014, Plaintiff was examined by
his
pain
management
doctor,
Bernard
Beaupin,
MD,
who
noted
Plaintiff reported his memory was continuing to worsen and that his
family
had
noticed
that
he
appeared
to
not
be
processing
information well. T. 377. Plaintiff reported to Dr. Beaupin that
ACCESS-VR testing indicated his reading level was at a grade level
VII, but he felt he had a hard time with comprehension since
hitting his head with his fall. Dr. Beaupin requested authorization
for neuropsychological testing. Id.
On February 6, 2014, Dr. Beaupin noted Plaintiff complained of
a significant headache lasting several days located on the right
6
side of his head. T. 371. Due to Plaintiff’s increasing headaches,
Dr. Beaupin wanted Plaintiff to try a medrol dosepak. T. 373. On
April
9,
2014,
Dr.
Beaupin
noted
that
Plaintiff’s
neuropsychological testing indicated his intellectual functioning
was within the low average range and that there appeared to be no
evidence of a severe memory impairment. T. 498.
II.
Failure to Incorporate Non-Exertional Limitations into the RFC
Finding
Plaintiff’s
primary
argument
is
that
the
ALJ
failed
to
adequately account for the non-exertional limitations associated
with
Plaintiff’s
traumatic
brain
injury
in
his
RFC
finding.
Specifically, Plaintiff contends that the ALJ erred in failing to
meaningfully incorporate his finding that Plaintiff’s headaches
were a severe limitation into the RFC evaluation. For the reasons
discussed below, the Court agrees that the ALJ’s consideration of
the
evidence
of
record
regarding
Plaintiff’s
headaches
was
inadequate.
When
finding
an
impairment
severe
at
step
two
of
the
sequential analysis, the ALJ is, by definition, finding that the
impairment significantly limits the claimant’s physical or mental
ability
to
perform
basic
work
activities.
See
20
C.F.R.
§ 404.1520(c). Moreover, when determining a claimant’s RFC at step
three, the ALJ must consider all of a claimant’s impairments,
whether severe or not. See 20 C.F.R. §§ 404.1520(e) and 404.1545;
see also Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184
7
(July 2, 1996). A claimant’s RFC is defined as “the individual’s
maximum remaining ability to do sustained work activities in an
ordinary work setting on a regular and continuing basis....”
Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 968p, at *2). The ALJ’s RFC assessment must include a discussion of
the claimant’s physical and mental abilities, pain, symptomatology,
and other limitations impacting the claimant’s ability to perform
work-related activities for “8 hours a day, for 5 days a week, or
an
equivalent
work
schedule.”
Id.;
see
also
20
C.F.R.
§ 404.1545(a). It is well-settled that “[t]he RFC assessment must
include a narrative discussion describing how the evidence supports
each conclusion, citing specific medical facts (e.g., laboratory
findings)
and
nonmedical
evidence
(e.g.,
daily
activities,
observations).” SSR 96-8p, at *7. While the ALJ is not required to
discuss every complaint raised by the claimant in the medical
record, he must specifically address limitations or conditions for
which there is substantial record evidence. Ellis v. Colvin,
29 F.Supp.3d 288, 300 (W.D.N.Y. 2014) (internal citation omitted).
Furthermore, an RFC finding that fails to incorporate all of a
claimant’s non-exertional limitations which are evidenced in the
record is unsupported by substantial evidence. See Rosario v.
Colvin, No. 1:14-CV-00191 (MAT), 2016 WL 2342008, at *2-3 (W.D.N.Y.
May 4, 2014) (remanding where ALJ failed to incorporate all of
plaintiff’s non-exertional limitations into the RFC finding).
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Here, at step two, the ALJ found that Plaintiff’s severe
impairments
included
headaches.
T.
17.
As
such,
the
ALJ
was
acknowledging that Plaintiff’s headaches impacted his capacity to
perform work-related functions. However, when completing the RFC
assessment, the ALJ included no meaningful discussion of the impact
of Plaintiff’s headaches and related cognitive issues or of any
limitations
referenced
associated
Plaintiff’s
therewith.
headaches
Instead,
in
various
the
ALJ
simply
treatment
note
summaries and, as discussed further below, inaccurately summarized
the medical evidence regarding Plaintiff’s headaches. T. 24. The
Court finds the ALJ’s failure to meaningfully consider the record
evidence regarding Plaintiff’s headaches was error.
As discussed above, when making an RFC finding, the ALJ must
provide a narrative discussion that includes evidence supporting
his
conclusions,
specifically
addressing
the
limitations
or
conditions for which there is substantial record evidence. See SSR
96-8p; see also Ellis, 29 F.Supp.3d at 300. In this case, the ALJ
failed to fulfill this requirement, instead relying on a factually
inaccurate summary of the medical evidence to reach an unsupported
conclusion.
In his decision, the ALJ indicated that “[Plaintiff] reported
headache pain; however, he does not receive regularly prescribed
treatment for intractable headache pain.” T. 24. Earlier in his
decision, when discussing Plaintiff’s various treatment notes, the
9
ALJ also stated that Dr. Beaupin indicated Plaintiff’s headaches
had improved and intellectual testing demonstrated Plaintiff’s
intellectual functioning was within the average range, with no
evidence of severe memory impairment. T. 21. However, review of the
record demonstrates that these statements by the ALJ are factually
inaccurate and they therefore fail to provide any substantial
evidence for the ALJ’s RFC finding.
In regard to the ALJ’s assertion that Plaintiff’s headaches
had improved, there is no indication
Plaintiff’s headaches had
improved by the end of the closed period from December 20, 2012 to
April 1, 2014. To the contrary, the treatment note in which
Dr. Beaupin indicated Plaintiff’s headaches were improving was
dated April 9, 2014, after the closed period had ended. T. 500. In
February 2014, during the closed period, Plaintiff complained of a
significant headache, lasting several days, and Dr. Beaupin noted
that Plaintiff was experiencing headaches on a near daily basis.
See T. 371. Also in February 2014, Plaintiff struggled to find
words while communicating with Dr. Beaupin.
T. 495.
A March 19, 2014 treatment note from Dr. Bennett indicated
Plaintiff continued to report severe intermittent headaches, which,
at that point, had been present for approximately fifteen months.
T. 485. On April 1, 2014 - the last day of the closed period Plaintiff was examined at his primary care physician’s office and
reported that he continued to get sharp intermittent pain in his
10
right posterior scalp a few times each day and was unsure if the
medrol dosepak Dr. Beaupin prescribed had helped. He also reported
lightheadedness and problems with concentration and focus. T. 465.
The ALJ failed to meaningfully consider this medical evidence in
his decision, and did not explain how a treatment note from after
the closed period had ended was evidence of improvement during the
closed period.
The ALJ also incorrectly stated that Plaintiff received no
prescribed treatment for his headaches. Contrary to the ALJ’s
statement,
the
record
clearly
shows
Plaintiff
was
receiving
prescribed treatment for his headaches, in the form of baclofen and
medrol dosepak. See T. 373, 485.
When an ALJ’s reasoning is based largely on factual errors, as
it
was
here,
it
is
consequently
unsupported
by
substantial
evidence. See Pratts v. Chater, 94 F.3d 34, 37-38 (2d Cir. 1996).
The ALJ’s inaccurate and incomplete discussion of Plaintiff’s
headaches (and associated cognitive difficulties) failed to comport
with the applicable regulations, and the ALJ’s subsequent failure
to include any non-exertional limitations in his RFC assessment was
not supported by substantial evidence. Accordingly, remand of this
matter for further administrative proceedings is necessary.
On
remand, the ALJ shall affirmatively consider the evidence of record
regarding Plaintiff’s headaches during the closed period at issue,
and shall provide a full explanation regarding his conclusion as to
11
whether that evidences warrants the inclusion of non-exertional
limitations in the RFC assessment.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on
the pleadings (Doc. 11) is granted to the extent that this matter
is
remanded
proceedings
to
the
Commissioner
consistent
with
for
this
further
Decision
administrative
and
Order.
The
Commissioner’s opposing motion for judgement on the pleadings
(Doc. 13) is denied. The Clerk of the 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:
August 28, 2018
Rochester, New York
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