Scott v. Berryhill
Filing
27
DECISION AND ORDER granting 16 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 20 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/17/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK
____________________________________
GLENN A. SCOTT,
Plaintiff,
1:17-cv-00468-MAT
DECISION AND ORDER
-v-
NANCY A. BERRYHILL,
Acting Commissioner OF Social Security,
Defendant.
____________________________________
INTRODUCTION
Glenn A. Scott (“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 and Defendant’s motion is
denied.
PROCEDURAL BACKGROUND
On February 28, 2013, Plaintiff protectively filed for DIB,
alleging
disability
beginning
April
1,
2011.
Administrative
Transcript (“T.”) 92-93. The claim was initially denied on May 31,
2013, and Plaintiff timely requested a hearing. T. 101-14. On
November 17, 2014, a hearing was conducted in Buffalo, New York by
administrative law judge (“ALJ”) Stephen Cordovani. T. 32-91.
Plaintiff appeared with his attorney and testified. An impartial
vocational expert (“VE”) also testified.
The ALJ issued an unfavorable decision on May 5, 2015. T. 720. Plaintiff timely requested review of the ALJ’s decision by the
Appeals’ Council. T. 30-31. The Appeals Council denied Plaintiff’s
request for review on April 26, 2017, 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. § 404.1520(a). Initially, the ALJ determined that
Plaintiff met the insured status requirements of the Act through
September 30, 2012. T. 12.
At step one of the sequential evaluation, the ALJ found that
Plaintiff had not engaged in substantial gainful activity from his
alleged onset date of April 1, 2011 through his date last insured
of September 30, 2012. T. 18.
At step two, the ALJ determined that Plaintiff suffered from
the “severe” impairments of spine disorder, depression, and pain in
both feet and the left knee. Id. The ALJ also determined that
Plaintiff’s medically determinable impairment of diabetes mellitus
2
was non-severe and created no significant work-related functional
limitations. Id. The ALJ further found that although there was some
evidence in the record Plaintiff suffered from insomnia, left hand,
right knee, and bilateral ankle impairments, there was not enough
evidence to find they were medically determinable impairments.
T. 12-13.
At step three, the ALJ found that, through the date last
insured, 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. T. 13.
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. 404.1567(b), with the following
additional
limitations:
no
climbing
of
ladders,
ropes,
or
scaffolds; occasional climbing of ramps and stairs, balancing,
kneeling, crouching, and crawling; no work around unprotected
heights, or around heavy, moving, or dangerous machinery; no work
in extreme heat or cold, or wet or damp conditions; no supervisory
duties;
able
to
understand,
remember,
and
carry
out
simple
instructions and tasks; able to frequently interact with coworkers, supervisors, and the public. T. 14.
At step four, the ALJ determined that Plaintiff was able to
perform his past relevant work as a bookbinder and a conveyor
feeder. T. 17. The ALJ accordingly found that Plaintiff was not
3
disabled as defined in the Act and did not proceed to step five.
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
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 of this matter is warranted
because: (1) the ALJ failed to consider his medically required use
of a cane under Social Security Regulation (“SSR”) 96-9p (S.S.A.),
1996 WL 374185 (July 2, 1996); (2) the ALJ erred in substituting
his own judgment for that of a physician; and (3) the ALJ failed to
properly evaluate the opinion of physician’s assistant Michael
Rudzinski. For the reasons discussed below, the Court finds the ALJ
failed to properly evaluate the opinion of Plaintiff’s treating
physician’s assistant and failed to consider Plaintiff’s use of a
cane in determining Plaintiff’s RFC. Accordingly, the Court finds
that remand of this matter for further administrative proceedings
is required.
I.
Failure to Properly Evaluate
Assistant Michael Rudzinski
On
June
28,
2012,
the
physician’s
Opinion
assistant
of
Physician’s
(“PA”)
Michael
Rudzinski completed a Disability Benefits Questionnaire as part of
Plaintiff’s application for disability benefits through the U. S.
Department of Veterans Affairs (“VA”). T. 268-99. The questionnaire
focused on Plaintiff’s ankle condition (T. 268-78), foot condition
(T. 278-86), and knee and lower leg condition (T. 287-99). In the
questionnaire, PA Rudzinski reported Plaintiff had limited flexion
of both the right and left ankle (T. 269) with functional loss
and/or functional impairment due to pain on movement and less than
normal movement in both ankles (T. 271). PA Rudzinski reported
5
Plaintiff’s ankles were swollen bilaterally and that he used a cane
as an assistive device for a normal mode of transportation. T. 276.
PA
Rudzinski
opined
Plaintiff’s
ankle
condition
impacted
his
ability to work by limiting his ability to perform prolonged
standing. T. 278.
Regarding
Plaintiff’s foot
condition,
PA
Rudzinski
noted
Plaintiff had the diagnoses of metatarsalgia and hammer toes
affecting both feet. T. 279-80. PA Rudzinski also noted Plaintiff
had bilateral feet calluses, tenderness of the left and right
midfoot
and
forefoot,
and
swelling
at
the
first
MTP
joint
bilaterally. T. 284. He further noted Plaintiff’s use of a cane
and that imaging studies showed degenerative or traumatic arthritis
in both of Plaintiff’s feet. T. 285-86.
Regarding
Plaintiff’s
knee
and
lower
leg
condition,
PA Rudzinski noted Plaintiff was diagnosed with knee strain of both
knees. T. 287. PA Rudzinski noted limited flexion of both knees,
with pain. T. 288-90. Plaintiff was unable to perform repetitiveuse testing with three repetitions due to pain and safety. T. 290.
Again, PA Rudzinski noted Plaintiff’s use of a cane and opined
Plaintiff’s condition caused Plaintiff to have a limited ability to
perform prolonged standing. T. 297-99.
In his decision, the ALJ gave PA Rudzinski’s questionnaire
statements little weight, noting it was “unclear who rendered these
opinions or if they are an acceptable medical source.” T. 16. The
ALJ also reasoned the opinion lacked any supporting evidence or
6
explanation. Furthermore, he found “prolonged standing” to be a
vague limitation. Finally, the ALJ found that the opinion was
entitled to little weight because it was based on VA disability
criteria rather than the standards established by the SSA. Id. He
also added that “the restriction against ‘prolonged standing’ is
arguably consistent with the ability to perform a range of light
level work”. Id. For the following, the Court finds these reasons
fail to stand up to scrutiny.
A. “Acceptable Medical Sources” and “Other Sources”
As a threshold matter, the Court notes that “[w]hile an ALJ
may
consider
evidence
from
a
PA,
such
a
source
is
not
an
‘acceptable medical source’ and therefore cannot constitute a
‘treating source.’” Evans v. Colvin, 649 F. App’x 35, 38 (2d Cir.
2016) (citing 20 C.F.R. §§ 404.1502, 404.1513(d)(1)). Accordingly,
“an ALJ is not required to defer to such a source under the source
rule, but merely consider that opinion as with any other probative
evidence.” Id. at 39 (citing Kohler v. Astrue, 546 F.3d 260, 268-69
(2d Cir. 2008)). Nonetheless, opinions from such “other” sources
must be considered by the adjudicator, as the regulations require
the Commissioner to “consider all relevant evidence in the case
record when [making] a determination or decision about wether [an]
individual is disabled.” SSR 06-03p, 2006 WL 2329939, at *4 (S.S.A.
Aug. 9, 2006). Notably, SSR 06-03p explains:
[w]ith the growth of managed health care in recent years
and the emphasis on containing medical costs, medical
sources who are not “acceptable medical sources,” such as
nurse practitioners, physician assistants, and licensed
7
clinical social workers, have increasingly assumed a
greater percentage of the treatment and evaluation
functions previously handled primarily by physicians and
psychologists. Opinions from these medical sources, who
are not technically deemed “acceptable medical sources”
under our rules, are important and should be evaluated on
key issues such as impairment severity and functional
effects, along with the other relevant evidence in the
file.
Id. at *3. This direction becomes even more relevant in cases, such
as here, where the other source’s opinion is the only substantive
opinion of record.
In
this
case,
the
ALJ
claimed
the
author
of
the
VA
questionnaire was unclear. T. 16. However, as Plaintiff points out,
a review of the questionnaire shows it was signed by PA Rudzinski
on June 29, 2012, following Plaintiff’s June 28, 2012 examination
by PA Rudzinski. T. 299. As noted above, because the opinion was
not rendered by an “acceptable medical source”, the ALJ was not
required to defer to it in the same way he would be required to
defer to the opinion of a treating physician. Evans, 649 F. App’x
at 39. Nonetheless, the ALJ was required to consider its value. See
SSR 06-03p.
B.
PA Rudzinski’s Opinion is Supported by Medical Evidence
The ALJ further determined that PA Rudzinski’s opinion had no
supporting evidence. This conclusion by the ALJ is unsupported by
the record. The questionnaire completed by PA Rudzinski contains
the results of several functional tests indicating Plaintiff had
limited flexion in his ankles and knees (see T. 269, 271, 288-90)
and referenced diagnostic imaging that showed degenerative or
8
traumatic arthritis in Plaintiff’s feet (see T. 285-86). Where an
ALJ incorrectly asserts that an opinion is unsupported by medical
evidence, remand is warranted. See Ryan v. Astrue, 5 F. Supp. 3d
493, 510
(S.D.N.Y.
2014)
(ALJ
erred
in
rejecting
opinion
of
examining source in part because he incorrectly stated that there
were no treatment notes supporting the opinion).
C. Vagueness of the Term “Prolonged Standing”
The ALJ also objected to PA Rudzinski’s use of the term
“prolonged standing” as unduly vague. Plaintiff argues this should
have prompted the ALJ to recontact PA Rudzinski for clarification,
particularly
because
PA
Rudzinski’s
opinion
was
the
only
substantiative opinion of record. The Court agrees.
“The law is clear beyond cavil that where, as here, a treating
physician’s opinion is found by the ALJ to be vague or unclear, it
is incumbent on the ALJ to recontact the treating physician for
clarification of his or her opinion.” Heidrick v. Berryhill, 312 F.
Supp. 3d 371, 374 (W.D.N.Y. 2018) (quoting Isernia v. Colvin, No.
14-CV-2528(JEB), 2015 WL 5567113 at *10 (E.D.N.Y. Sept. 22, 2015));
see also Delgado v. Berryhill, No. 3:17-CV-54(JCH) 2018 WL 1316198
at *11-12 (D. Conn. Mar. 14, 2018) (rather than rejecting a
treating physician’s opinion for vagueness, the ALJ should have
recontacted the physician). While these cases dealt with treating
physicians, rather than a treating physician’s assistant as in this
case, the same concerns that required remand therein (namely, the
ALJ’s fundamental duties to develop the record and make a decision
9
based on substantial evidence) are present here. Indeed, the
Commissioner’s regulations indicate that the ALJ may recontact any
“medical source” where the evidence of record is incomplete or
inconsistent, including where the evidence is “ambiguous.”
See
20 C.F.R. § 404.1520b(b)(2)(i)1; see also Bauer v. Comm'r of Soc.
Sec. Admin., No. 16-CV-729, 2018 WL 4181769, at *5 (W.D.N.Y. Aug.
31,
2018)
(finding
that
ALJ
erred
in
failing
to
recontact
occupational therapist where his opinion was ambiguous).
In this case, the ALJ made no attempt to obtain clarification
on PA Rudzinski’s meaning of “prolonged standing”, opting instead
to entirely omit any standing limitation from the RFC finding. This
failure to obtain clarification is critical because PA Rudzinski’s
opinion concerning limitations specifically relates to Plaintiff’s
primary complaints of foot and knee pain. Additionally, and as
noted above, PA Rudzinski’s opinion was the only substantive
medical opinion of record in this case. Under these circumstances,
the Court finds that the failure to recontact PA Rudzinski for
clarification warrants remand.
D. Disability Criteria
The ALJ also noted PA Rudzinski’s opinion was based on VA
disability criteria, and thus conclude it should not be afforded
1
The Court notes that a March 26, 2012 update to 20 C.F.R. § 404.1512
removed a mandatory requirement to recontact a treating physician under
particular circumstances. However, although this change “reduce[d] the situations
in which an ALJ must recontact medical providers,” Rolon v. Comm’r of Soc. Sec.,
994 F. Supp. 2d 496, 505 (S.D.N.Y. 2014)(internal quotation omitted), it did not
eliminate it, id. (“the modifications [to the regulation] do not substantively
change the ALJ’s obligations”) (internal quotation omitted).
10
more than limited weight. T. 16. However, it is well-established
that “[w]hile the determination of another governmental agency that
a social security disability benefits claimant is disabled is not
binding on the Secretary, it is entitled to some weight and should
be considered.” Barrett v. Astrue, No. 10-CV-618S, 2012 WL 895961,
at *5 (W.D.N.Y. Mar. 15, 2012) (remanding where the VA’s disability
determination was not clearly given some independent weight by the
ALJ). Moreover, in this case, PA Rudzinski’s opinion, while issued
in the context of a VA disability claim, did not focus on whether
Plaintiff was disabled, but rather made the well-supported finding
that Plaintiff would be limited in his ability to perform prolonged
standing due to his documented foot, ankle, and knee impairments.
Accordingly, the Court finds that the ALJ failed to provide an
appropriate, supported rationale for the weight afforded to PA
Rudzinski’s opinion, and that remand of this matter for further
administrative proceedings is therefore warranted.
E.
Prolonged Standing and the RFC Finding
Finally,
reasoned
that
in
discounting
a
“restriction
PA
Rudzinski’s
against
opinion,
‘prolonged
the
standing’
ALJ
is
arguably consistent with the ability to perform a range of light
level work as described [in the RFC finding].” T. 16. The Court
finds that this statement by the ALJ is insufficient to explain the
weight
given
to
PA
Rudzinski’s
opinion.
The
Commissioner’s
regulations describe light work as requiring “a good deal of
walking or standing, or . . . sitting most of the time with some
11
pushing and pulling of arm or leg controls.” C.F.R. § 404.1567(b).
Case law in this Circuit is not uniform concerning whether a
claimant who has difficulties in prolonged standing is capable of
performing light work. Compare Malone v. Comm’r of Soc. Sec., No.
08-CV-1249(GLS/VEB), 2011 WL 817448, at *10 (N.D.N.Y. Jan. 18,
2011)
(consultative
examiner’s
assessment
that
claimant
had
moderate limitation with respect to prolonged standing and sitting
“suggests a possibility that prolonged standing might pose a
problem;” the ALJ’s assessment that claimant could perform light
work
thus
was
not
supported
by
the
record)
report
and
recommendation adopted, 2011 WL 808378 (N.D.N.Y. Mar 2, 2011) with
Carroll v. Colvin, No. 13-CV-456S, 2014 WL 2945797, at *4 (W.D.N.Y.
June 30, 2014) (“several courts have upheld an ALJ’s decision that
the claimant could perform light or sedentary work even when there
is
evidence
that
the
claimant
had
moderate
difficulties
in
prolonged sitting or standing”) (internal citations omitted).
In this case, and as discussed above, the ALJ acknowledged
that it was not clear what PA Rudzinski meant by “prolonged
standing.” Without further clarification as to what Plaintiff’s
limitations actually are, the Court is unable to determine whether
the ALJ adequately accounted for those limitations in the RFC
finding.
See
Moe
v.
Colvin,
6379239,
at
*7
(W.D.N.Y.
No.
Dec.
1:15-cv-00347(MAT),
14,
2017)
2017
(remanding
WL
for
clarification from consultative physician on their ambiguous phrase
“prolonged walking or [sic] climbing” and advising that on remand,
12
the ALJ may need to reformulate the RFC assessment so as to include
unscheduled breaks based on the clarification). Accordingly, remand
of this matter for further administrative proceedings is warranted.
On remand, the ALJ is instructed to consider PA Rudzinski’s opinion
in
a
manner
consistent
with
the
Commissioner’s
regulations
including, if necessary, recontacting PA Rudzinski and obtaining
clarification of his use of the term “prolonged standing.”
II.
Failure to Consider Plaintiff’s Use of a Cane
Plaintiff also contends the ALJ failed to properly consider
Plaintiff’s use of a cane under SSR 96-9p and further erred when he
failed to give sufficient reasons for excluding Plaintiff’s use of
a cane in the RFC finding. For the reasons discussed below, the
Court agrees.
Pursuant to SSR 96-9p, in order to find that a hand-held
assistive device, such as a cane, is medically required, the record
must contain medical documentation establishing the need for the
device
to
aid
in
walking
or
standing.
Furthermore,
the
documentation must describe the circumstances for which it is
needed (i.e., all the time, periodically, or only in certain
situations; distance and terrain; and other relevant information).
See SSR 96-9p, 1996 WL 374185, at *7. When use of a hand-held
assistive device is medically required, the ALJ must consider its
impact on the claimant’s RFC. Failure to do so warrants remand. See
Wright v. Colvin, No. 6:13-cv-0685(MAT), 2015 WL 4600287, at *4-5
(W.D.N.Y.
July 29,
2015)
(remanding
13
where
the
ALJ
failed
to
properly consider the medical necessity of plaintiff’s use of a
cane).
At the hearing, Plaintiff testified he was prescribed a cane
by Susan Zakrzewski, his treating nurse practitioner at Veteran’s
Affairs Medical Center (“VAMC”), and he had been using it for “a
couple of years.” T. 46. In the Disability Benefits Questionnaire
discussed in detail above, PA Rudzinski confirmed Plaintiff used a
cane as a “normal mode of locomotion” for his “foot, knees, and
ankle condition.” T. 276, 299.
In his decision, the ALJ made passing mention of Plaintiff’s
use of a cane, noting the questionnaire described Plaintiff “using
a cane on an occasional basis.” T. 15 referring to T. 285. The ALJ
made no further mention of Plaintiff’s cane in the decision,
failing to include either an explicit finding as to whether the
cane was medically required or any accommodations related to
Plaintiff’s cane use in the RFC finding.
The Court finds the ALJ’s discussion of Plaintiff’s use of the
cane inadequate. See Rowe v. Berryhill, No. 1:17-CV-00208-MAT, 2018
WL 4233702, at *4 (W.D.N.Y. Sept. 6, 2018) (remanding where ALJ
failed to properly consider whether Plaintiff’s use of a cane was
medically required). On remand, the ALJ is instructed to properly
evaluate Plaintiff’s use of a cane based on the requirements set
forth in SSR 96-9p and, as necessary, incorporate any associated
limitations into the RFC finding.
14
III. Plaintiff’s Remaining Argument
Finding remand necessary for the reasons explained above, the
Court need not and does not reach Plaintiff’s remaining argument
concerning the ALJ substituting his own judgement for that of a
physician.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on
the pleadings (Doc. 16) 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. 20) 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:
September 17, 2018
Rochester, New York
15
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