Hill v. Berryhill
Filing
21
DECISION AND ORDER granting 13 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 16 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 3/14/19. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
CHRISTINE M. HILL,
Plaintiff,
1:17-CV-00672-MAT
DECISION AND ORDER
-vNANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
____________________________________
INTRODUCTION
Christine
M. Hill
(“Plaintiff”),
represented
by
counsel,
brings this action pursuant to Title II 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 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 for further administrative proceedings, and Defendant’s
motion is denied.
PROCEDURAL BACKGROUND
On July 11, 2013, Plaintiff protectively filed for DIB,
alleging disability beginning February 15, 2011. Administrative
Transcript
(“T.”)
63.
The
claim
was
initially
denied
on
November 22, 2013, and Plaintiff timely requested a hearing. T. 7083. A hearing was conducted on January 6, 2016, in Buffalo, New
York by administrative law judge (“ALJ”) Robert T. Harvey. T. 2861.
Plaintiff
appeared
with
her
attorney
and
testified.
An
impartial vocational expert (“VE”) also testified.
The ALJ issued an unfavorable decision on February 10, 2016.
T. 10-22. Plaintiff timely appealed the decision to the Appeals
Council (“AC”), which denied Plaintiff’s request for review on
May 24, 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
March 31, 2016. T. 15.
At step one of the sequential evaluation, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since her
alleged onset date of February 15, 2011. Id.
At
step
two,
the
ALJ
determined
that
Plaintiff
had
the
“severe” impairments of psoriatic arthritis and hypothyroidism. The
ALJ
also
determined
that
Plaintiff’s
medically
determinable
impairment of asthma did not create a significant limitation and
thus found it to be nonsevere. Id.
2
At step three, the ALJ found that 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.
The
(Musculoskeletal
ALJ
specifically
System),
considered
8.00
(Skin
step
four,
Listings
Disorders),
1.00
and
9.00
assessed
that
(Endocrine Disorders). Id.
Before
proceeding
to
the
ALJ
Plaintiff had the residual functional capacity (“RFC”) to perform
light work as defined in 20 C.F.R. 404.1567(b), with the following
limitations: can stand/walk up to six hours in an eight-hour
workday and sit for up to two hours in an eight-hour workday; no
climbing ropes, ladders or scaffolds; can occasionally handle
(gross
manipulation;
occasionally
feel
(skin
receptors);
occasionally push and/or pull with the upper extremities; and
cannot work in areas with exposure to cold, excessive heat or
commercial inks. T. 15-16.
At step four, the ALJ determined that Plaintiff was unable to
perform any past relevant work as an insertion machine operator.
T. 20.
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 were jobs that existed in significant
numbers in the national economy that Plaintiff could have performed
through
her
date
last
insured,
3
including
the
representative
occupations of mail room clerk, and cashier. T. 20-21. The ALJ
accordingly found that Plaintiff had not been under a disability,
as defined in the Act since the alleged onset date. T. 21.
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 is warranted because the RFC
finding is not supported by substantial evidence. In particular,
Plaintiff argues: (1) there was no medical basis for the ALJ’s RFC
assessment; (2) the ALJ’s credibility analysis does not explain why
he found that her activities of daily living were inconsistent with
her allegations of disability; and (3) the ALJ failed to provide
“good
reasons”
for
his
rejection
of
treating
medical
source
evidence, in violation of the treating physician rule. For the
reasons discussed below, the Court finds the RFC determination is
unsupported
by
substantial
evidence,
and
remand
for
further
administrative proceedings is required.
I.
The Relevant Medical Opinions of Record
Plaintiff contends the ALJ’s conclusion that Plaintiff retains
the exertional RFC for light work is unsupported by substantial
evidence. The record contains several medical opinions pertinent to
Plaintiff’s argument. These opinions are summarized below.
A.
On
Opinion of Consultative Examiner, Dr. John Schwab
October
29,
2013,
Plaintiff
received
a
consultative
examination by Dr. John Schwab at the Administration’s request.
T. 256-59. Plaintiff reported she had suffered from psoriasis and
dermatitis on her hands for the past six or seven years. Plaintiff
reported the condition was cyclical, beginning with itching, then
burning, then splitting before going dry and starting over again.
5
Plaintiff reported her pain was, at times, a 9 out of 10 on a scale
of 1 to 10. T. 256. Plaintiff reported she cooked and cleaned six
times per week, did laundry two to three times per week, and went
shopping once per week. She performed daily childcare and was able
to shower, bathe and dress herself. Id.
Upon
examination,
Plaintiff
appeared
to
be
in
no
acute
distress. She was able to walk on heels and toes without difficulty
and perform a full squat. Her right hand showed erythema on the MCP
(metacarpophalangeal) joints. Her left hand showed the same, along
with dry skin in the palmar area with some redness covering
approximately thirty percent of the palm with several fissures.
Plaintiff’s left middle finger also had a small fissure. T. 257.
Plaintiff had full grip strength, was able to button, zip, use
Velcro with each hand, and tie a bow with both hands. All other
examination
findings
were
unremarkable.
T.
258.
Dr.
Schwab
diagnosed Plaintiff with psoriasis of the hands, hypothyroidism,
and tobacco abuse. He opined Plaintiff had a mild restriction to
prolonged handling of objects with both hands. Id.
In his decision, the ALJ summarized Dr. Schwab’s findings and
gave
his
opinion
“some”
weight
without
providing
further
explanation. T. 18.
B.
Opinion of Treating Physician, Dr. Lynn A. Amarante
On December 10, 2015, Plaintiff’s treating physician, Dr. Lynn
A. Amarante, completed a medical source statement. T. 389-92.
6
Dr.
Amarante
listed
Plaintiff’s
diagnoses
as
psoriasis
and
psoriatic arthritis with a poor prognosis because Plaintiff refused
to take the suggested treatment (Humira, a biologic drug). T. 389.
In the past two years, Dr. Amarante noted Plaintiff had experienced
skin lesions on multiple body sites that interfered with two or
more joints and two extremities. Lesions appeared on the palms of
Plaintiff’s hands and the soles of both feet. Plaintiff experienced
a loss of manual dexterity, skin fissures, inflammation, skin
weeping and bleeding. Plaintiff also experienced pain, difficulty
walking, easily irritated skin, skin blisters, scaling, redness,
crusting, and cracking. Id. Dr. Amarante noted Plaintiff had shown
little improvement with topical and intramuscular steroids and that
her skin lesions had persisted for at least three months despite
ongoing treatment. T. 390.
Dr.
Amarante
opined
Plaintiff’s
condition
contributed
to
several functional limitations. She opined Plaintiff could walk
approximately one mile at one time without resting or experiencing
severe pain. She could sit for more than two hours at one time, but
could stand for only five minutes at one time before needing to
change positions. Dr. Amarante further opined Plaintiff could stand
or walk for less than two hours total in an eight-hour workday but
was able to sit for at least six hours during an eight-hour
workday. T. 390. Dr. Amarante opined Plaintiff could frequently
twist and stoop but could rarely crouch or squat. She would be able
7
to reach forward and overhead without restriction, but she could
only handle (grasp, turn and twist) objects five percent of the
time with each hand and perform fine manipulations five percent of
the time with each hand. T. 391. Dr. Amarante opined Plaintiff
should avoid concentrated exposure to high humidity, fumes, odors,
gases, dust, and sand. She opined Plaintiff should avoid all
exposure to extreme cold and heat, extreme wetness and dryness,
soldering fluxes, solvents and cleaners, metals, chemicals, glues,
wool, rubber products, synthetic fibers, and working around food.
Dr.
Amarante
also
opined
Plaintiff
should
avoid
concentrated
exposure to public contact and co-worker contact due to her skin
condition. Id. Dr. Amarante opined Plaintiff’s symptoms would
interfere with her attention and concentration, likely causing her
to be “off task” at least twenty-five percent of the time, but that
Plaintiff was capable of low stress work as long as her skin was
not affected. Finally, Dr. Amarante opined Plaintiff’s impairments
would likely cause “good days” and “bad days” and that she would be
absent from work as a result of her impairments or treatment more
than four days per month. T. 392.
In his decision, the ALJ gave Dr. Amarante’s opinion “little”
weight. He noted that Dr. Amarante’s opinion stated Plaintiff
“could sit, stand, and walk less than two hours in an eight-hour
workday.” T. 19. The ALJ reasoned that Dr. Amarante’s opinion was
entitled to only “little” weight because it reflected Plaintiff’s
8
allegations more than the medical record and that there was little
on record supporting the need to avoid stress or that Plaintiff
would have any apparent lapses in attention or concentration.
Furthermore, the ALJ noted that Dr. Amarante’s opinion was not
fully supported by the record and that it offered only partial
assistance in understanding Plaintiff’s RFC. Id.
C.
On
Opinion of Treating Physician Assistant, Colleen Vaccaro
May
21,
2015,
Registered
Physician
Assistant
(“RPA”)
Colleen Vaccaro completed an RFC Assessment. T. 348-55. RPA Vaccaro
noted Plaintiff’s diagnoses of psoriasis and psoriatic arthritis.
She opined Plaintiff could frequently lift and/or carry less than
ten pounds, stand and/or walk with normal breaks for less than two
hours total in an eight-hour workday, and had no limitation on
total time sitting during an eight-hour workday, but she must
periodically alternate between sitting and standing to relieve pain
or discomfort. RPA Vaccaro explained that Plaintiff’s psoriasis
prevented her from lifting, grasping, or holding anything for any
length of time. She also noted Plaintiff’s psoriatic arthritis
affected her joints, especially her knees, causing Plaintiff to
need to regularly alternate between sitting and standing. T. 349.
RPA Vaccaro also opined that the pain and weakness caused by
Plaintiff’s psoriatic arthritis limited her to being able to only
occasionally climb ramps and stairs, ladders, ropes and scaffolds,
and balance, and never being able to stoop, kneel, crouch, or
9
crawl. T. 350. RPA Vaccaro opined Plaintiff’s cracking and peeling
hands caused
significant
discomfort
and
strength
limitations,
including limitations in reaching in all directions, handling,
fingering, and feeling. T. 351. She further opined Plaintiff should
avoid all exposure to extreme heat and cold, wetness, vibration,
and hazards when concerning Plaintiff’s hands. T. 352.
The ALJ gave RPA Vaccaro’s opinion “little” weight, noting
that much of her opinion appeared out of proportion to the medical
record and was influenced at least to some degree by Plaintiff’s
own allegations. He further reasoned that the treating notes on
file did not justify the extensive limitations that RPA Vaccaro
identified. T. 18.
II.
The ALJ’s RFC Determination is Not Supported by Substantial
Evidence
Plaintiff contends that the ALJ’s finding that Plaintiff
retains the RFC for light work is unsupported by substantial
evidence. For the reasons set forth below, the Court agrees.
A.
The Opinion of Dr. John Schwab is Stale and Thus Cannot
Constitute Substantial Evidence
Plaintiff first argues that the opinion of Dr. Schwab is stale
and accordingly cannot amount to substantial evidence to support
the ALJ’s RFC determination. The Court agrees.
Stale medical opinions do not constitute substantial evidence
in support an ALJ’s findings. Camille v. Colvin, 104 F. Supp.3d
329, 343-44 (W.D.N.Y. 2015), aff’d, 652 F. App’x (2d Cir. 2016)
10
(summary
order).
While
the
mere
passage
of
time
does
not
necessarily render a medical opinion outdated or stale, subsequent
treatment notes indicating a claimant’s condition has deteriorated
may. Jones v. Colvin, No. 13-CV-06443, 2014 WL 256593, at *7
(W.D.N.Y. June 6, 2014) (ALJ should not have relied on a medical
opinion in part because it “was 1.5 years stale” as of the
plaintiff’s hearing date and “did not account for her deteriorating
condition”); Girolamo v. Colvin, No. 13-CV-06309(MAT), 2014 WL
2207993, at *7-8 (W.D.N.Y. May 28, 2014) (ALJ should not have
afforded
“great”
weight
to
medical
opinions
rendered
before
plaintiff’s second surgery).
Dr. Schwab’s opinion was based on a one-time consultative
examination that took place on October 29, 2013. T. 256. Although
the record contains some reference to possible psoriatic arthritis
prior
to
Dr.
Schwab’s
examination
(see
e.g.,
T.
221,
249),
Plaintiff was not definitively diagnosed with the condition until
July 14, 2015 - more than a year-and-a-half after Dr. Schwab’s
examination. T. 384. Furthermore, Dr. Schwab’s examination report
and opinion made no reference to possible psoriatic arthritis or
any joint pain at all. See T. 256-59. At the time of Dr. Schwab’s
examination, Plaintiff’s chief complaint was the psoriasis on her
hands and the itching and pain associated with that condition.
T. 256. Accordingly, Dr. Schwab’s opinion, which contained no
exertional limitations relating to joint pain or any consideration
11
of the impact of Plaintiff’s psoriatic arthritis, was indisputably
rendered stale by Plaintiff’s subsequent diagnosis. See Davis v.
Berryhill, No. 6:16-CV-06815(MAT), 2018 WL 1250019, at *3 (W.D.N.Y.
Mar. 11, 2018) (opinions of consultative examiner and state agency
reviewer were indisputably stale where they had been issued several
years prior to the ALJ’s decision and significant developments in
plaintiff’s medical history had occurred since that time); Morgan
v.
Berryhill,
No.
1:15-cv-00449(MAT)
2017
WL
6031918,
at
*4
(W.D.N.Y. Dec. 5, 2017) (treating physician’s medical assessment
was properly afforded less than controlling weight where it was
based on an incomplete record and rendered stale by plaintiff’s
subsequent surgery).
In his decision, the ALJ gave Dr. Schwab’s opinion “some”
weight - the greatest amount of weight afforded to any of the
medical
opinions
of
record.
T.
18.
The
Court
agrees
with
Plaintiff’s contention that because the ALJ’s rejected the other
medical opinions of record and instead relied on Dr. Schwab’s stale
opinion which did not take Plaintiff’s “severe” impairment of
psoriatic arthritis into consideration, the RFC is not supported by
substantial evidence. Accordingly, remand for further consideration
of the impact of Plaintiff’s psoriatic arthritis on her functional
capabilities is appropriate.
12
B.
The ALJ Failed to Properly Evaluate the Opinion of
Plaintiff’s Treating Physician, Dr. Lynn A. Amarante
Plaintiff further argues the ALJ failed to properly evaluate
Dr. Amarante’s opinion pursuant to the treating physician rule. In
particular, Plaintiff argues the ALJ failed to provide “good
reasons” for his rejection of Dr. Amarante’s opinion.
“[T]he treating physician rule generally requires deference to
the medical opinion of a claimant’s treating physician[.]” Halloran
v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (internal and other
citations omitted). Where a treating physician’s medical opinion is
“well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial
evidence
in
[the]
case
record,”
it
is
generally
entitled to controlling weight. 20 C.F.R. § 404.1527(c)(2); see
also Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). A
corollary to the treating physician rule is the “good reasons
rule,” based on the regulations specifying that “the Commissioner
‘will always give good reasons’” for the weight given to a treating
source opinion.
Halloran,
362
F.3d
at
32
(quoting
20
C.F.R.
§ 404.1527(d)(2); citing 20 C.F.R. § 416.927(d)(2);). While an ALJ
may give less than controlling weight to a treating physician’s
opinion, he or she must “comprehensively set forth [his or her]
reasons for the weight assigned to a treating physician’s opinion.”
Halloran, 362 F.3d at 33.
13
When determining the 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). 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). Nonetheless, the “good
reasons” rule exists to “ensure that each denied claimant receives
fair process.” Wilson v. Colvin, 213 F. Supp.3d 478, 482 (W.D.N.Y.
2016) (internal citation omitted). “Accordingly, an ALJ’s failure
to follow the procedural requirement of identifying the reasons for
discounting the opinions and for explaining precisely how those
reasons affected the weight given denotes a lack of substantial
evidence, even where the conclusion of the ALJ may be justified
based on the record.” Id. (internal quotation marks omitted;
emphasis in original).
In
his
decision,
the
ALJ
accorded
“little”
weight
to
Dr. Amarante’s opinion. The ALJ reasoned that Dr. Amarante’s
14
opinion seemed to reflect Plaintiff’s allegations more than it
reflected the medical record, nothing that the record provided
little support for Plaintiff’s need to avoid stress or that she
would have lapses in attention or concentration. T. 19. The ALJ
further
reasoned
that
Dr.
Amarante’s
opinion
was
not
fully
supported by the record and offered only partial assistance in
understanding Plaintiff’s RFC.
The Court finds the ALJ’s reasons for discounting the opinion
of Dr. Amarante are unsupported by the record and thus, are not
good reasons. In particular, the Court finds that Dr. Amarante’s
opinion that Plaintiff’s symptoms would likely interfere with her
attention and concentration is supported by numerous treatment
notes from other providers. The pain associated with Plaintiff’s
psoriasis and psoriatic arthritis is well-documented throughout the
record. See e.g., T. 318 (Plaintiff treated for itching, burning
and cracking rash on hands); T. 369 (Plaintiff reported pain
throughout
spinal
axis,
right
sternoclavicular
joint,
right
shoulder, left Achilles region, hands, knees, hips, feet and
ankles); T. 373 (Plaintiff assessed for chronic back pain); T. 374
(Plaintiff reported pain that is present all of the time); T. 384
(Plaintiff
reported
widespread
pain,
swollen
hands
and
feet,
trouble grasping things and opening jars). Furthermore, the record
contains several references to Plaintiff’s memory difficulty and
depression, which are associated with her hypothyroidism. See e.g.,
15
T. 277 (symptoms associated with Plaintiff’s thyroid condition
include
confusion,
difficulty
concentrating,
and
memory
difficulty); T. 326 (Plaintiff had stable fatigue and associated
depression); T. 329 (Plaintiff was assessed with sleep disturbance
and depression); T. 414 (Plaintiff reported fatigue, all over aches
and pains, sleep disturbances and depression). The Court finds
Plaintiff’s repeated reports of fatigue, depression, and widespread
pain
to
numerous
treatment
providers
give
ample
support
to
Dr. Amarante’s opinion Plaintiff’s concentration and attention
would be limited by her conditions. See Wilson, 213 F. Supp.3d 48687
(ALJ’s
discounting
of
treating
physician’s
opinion
that
plaintiff’s pain would interfere with his ability to maintain
attention and concentration because it was inconsistent with the
record
was
improper
where
plaintiff
reported
pain
to
every
reasoning
that
treatment provider during the relevant period).
The
Court
further
finds
the
ALJ’s
Dr. Amarante’s opinion reflects Plaintiff’s subjective allegations
more than the medical record does not constitute a good reason for
rejecting
her
opinion.
See
Green-Younger,
335
F.3d
at
107
(treating physician’s partial reliance on plaintiff’s subjective
complaints “hardly undermine[d] his opinion as to [plaintiff’s]
functional limitations). As Plaintiff notes, psoriatic arthritis
does not produce objective evidence in the form of imaging or a
limited range of motion. In fact, the medical record includes
16
multiple treatment records and diagnostic tests from Rheumatology
Consultants of WNY, P.C. and Southtowns Radiology Associates, LLC
that
noted
maintained
T.
normal
Plaintiff’s
369-85.
consistent
imagery,
This,
diagnosis
coupled
subjective
but
nonetheless
of
with
symptoms
established
and
arthritis.
See
psoriatic
Plaintiff’s
and
well-documented
complaints,
which
by
all
accounts seem to be fully accepted by her treating sources, support
Dr.
Amarante’s
opinion
that
Plaintiff
would
have
lapses
in
concentration and attention. Accordingly, the Court finds the ALJ
failed to provide good reasons for rejecting Dr. Amarante’s opinion
and remand is therefore required.
To the extent the Commissioner provides additional reasons
Dr. Amarante’s opinion was not entitled to controlling weight, the
Court does not accept these after-the-fact justifications for
rejecting the opinion. See McCray v. Berryhill, No. 6:17-cv-06478MAT, 2018 WL 3386338, at *5 (W.D.N.Y. July 12, 2018) (rejecting the
Commissioner’s post hoc justifications for the weight applied to
the opinion of plaintiff’s treating physician). The Commissioner
specifically argues it was RPA Vaccaro, who is not an “acceptable
medical source,” and not Dr. Amarante who actually completed the
opinion in question, and that Dr. Amarante had only seen Plaintiff
once before stamping her name to the opinion. However, the ALJ made
no
note
of
these
reasons
in
his
decision,
and
it
would
inappropriate for the Court to uphold the determination based upon
17
them. See, e.g., Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999)
(“A reviewing court may not accept . . . counsel’s post hoc
rationalizations for agency action.”). Furthermore, opinions and
treatment notes drafted by nurse practitioners or physician’s
assistants
and
co-signed
by
a
treating
physician
should
be
evaluated in accordance with the treating physician rule. See
Beckers v. Colvin, 38 F. Supp.3d 362, 372 (W.D.N.Y. 2014); Keith v.
Astrue, 553 F. Supp.2d 291, 301 (W.D.N.Y. 2008). Additionally, the
Court notes that contrary to the Commissioner’s assertion, the
record shows Dr. Amarante saw Plaintiff on May 15, 2014, and
July 30, 2014. T. 318-19. The record also shows Dr. Amarante was
copied in on rheumatology treatment notes (see e.g., T. 384-85) and
requested
additional
services
on
Plaintiff’s
behalf.
T.
388.
Accordingly, the Court finds that the Commissioner’s post hoc
justifications are without merit.
The Court also notes that it appears the ALJ misread a portion
of Dr. Amarante’s medical opinion, which further supports remand.
See Casselbury v. Colvin, 90 F. Supp.3d 81, 95 (W.D.N.Y. 2015)
(remanding where ALJ improperly discredited consultative examiner’s
opinion
based
on
his
misinterpretation
of
the
opinion);
Wojciechowski v. Colvin, 967 F. Supp.2d 602, 610 (N.D.N.Y. 2013)
(remanding in part for reconsideration of treating physician’s
opinion in light of the ALJ’s misreading of a treatment note).
18
On December 10, 2015, Dr. Amarante opined Plaintiff could sit
for at least six hours during an eight-hour workday. T. 390. In his
decision, the ALJ summarized Dr. Amarante’s opinion to include that
Plaintiff “could sit, stand, and walk less than two hours in an
eight-hour
workday.”
T.
19.
This
is
a
clear
misreading
of
Dr. Amarante’s opinion. Moreover, the ALJ appears to have relied on
this misreading for support of his RFC finding, which included the
limitation of “sit[ting] for up to 2 hours in an eight-hour
workday.” T. 16. Where “an ALJ misreads a critical piece of
evidence in the record, and then relies on his error in reaching
his opinion, the decision cannot be said to be supported by
‘substantial evidence.’” McHugh v. Astrue, No. 11-CV-00578(MAT),
2013 WL 4015093 at *9 (W.D.N.Y. Aug. 6, 2013). Accordingly, the
Court finds remand is further warranted on this basis.
For all the foregoing reasons, the Court finds that the ALJ
failed to properly evaluate the opinion of Plaintiff’s treating
physician, Dr. Amarante. Accordingly, the Court finds that remand
is appropriate.
III. The ALJ Erred by Applying
Credibility Analysis
an
Incorrect Standard
to
the
Plaintiff also argues the ALJ’s failed to evaluate Plaintiff’s
credibility pursuant to the correct regulatory standard and further
erred by failing to fully explain why Plaintiff’s activities of
daily living supported the RFC finding. The Court finds the ALJ’s
19
credibility analysis is based on an inappropriate application of
the regulatory standard, further warranting remand.
The
Commissioner
has
established
a
two-step
process
to
evaluate a claimant’s testimony regarding his or her symptoms. See
20 C.F.R. § 404.1529.1 The ALJ must first consider whether the
claimant
has
a
medically
determinable
impairment
that
could
reasonably be expected to cause the alleged symptoms. If the ALJ
determines the claimant has an impairment, he or she must then
evaluate the intensity, persistence, and limiting effects of the
claimant’s symptoms. If those statements are not substantiated by
objective medical evidence, the ALJ must make a finding on the
claimant’s credibility, considering the details of the record as a
whole. See id.; Acevedo v. Colvin, 20 F. Supp.3d 377, 390 (W.D.N.Y.
2014).
The
ALJ
subjective
found
Plaintiff
complaints
were
lacked
not
credibility
substantiated
by
because
the
her
medical
evidence. See T. 17 (stating that “the medical record does not
justify finding more erosions in functioning than those indicated
above”). However, “[t]o require plaintiff to fully substantiate her
symptoms with medical evidence would be both in abrogation of the
regulations and against their stated purpose.” Hogan v. Astrue, 491
1
The Social Security Administration updated its guidance on evaluating symptoms
in disability claims, effective March 27, 2017. The prior version of 20 C.F.R.
§ 404.1529, effective June 13, 2011, to March 26, 2017, is the version discussed
above and the version applicable to the present case.
20
F. Supp.2d 347, 353 (W.D.N.Y. 2007) (citing Castillo v. Apfel,
No. 98 CIV. 0792, 1999 WL 147748, at *7 (S.D.N.Y. Mar. 18, 1999)
(“[I]t is improper for an ALJ to reject a claimant’s allegations of
disabling pain on the ground that objective, clinical findings do
not
establish
omitted)).
a
Thus,
cause
to
the
for
such
extent
intense
the
ALJ
pain.”)
analyzed
(citations
Plaintiff’s
credibility based on the assumption that her subjective complaints
must be fully supported by the medical record in order to be
accepted, the ALJ applied an inappropriate regulatory standard.
Accordingly,
the
Court
finds
remand
is
warranted
for
proper
application of the standard.
The ALJ also relied on Plaintiff’s ability to perform certain
activities of daily living to discredit the alleged severity of her
symptoms. See T. 20 (noting she was able to cook, clean, launder,
shower, bathe, dress, and perform childcare). While this is an
appropriate consideration when evaluating a claimant’s subjective
complaints, the ability to engage in simple daily activities does
not warrant discrediting her allegations of pain or disabling
symptoms unless there is some indication that the activities
themselves speak to an ability to perform substantial gainful
employment on a regular and continuing basis. See Hilsdorf v.
Commissioner of Social Sec., 724 F. Supp.2d 330, 352 (E.D.N.Y.
2010) (finding that there was nothing to suggest that plaintiff
“engaged in any of these [daily] activities for sustained periods
21
comparable to those required to hold [even] a sedentary job . . .
The mere fact that [the] [p]laintiff engaged in these activities,
standing alone, is meaningless”) (citing Balsamo v. Chater, 142
F.3d 75, 81 (2d Cir. 1998)). Furthermore, Plaintiff provided
substantial context at the hearing regarding her ability to perform
certain daily activities that the ALJ failed to note in his
decision. In particular, Plaintiff testified that when she has
blisters and burning in her hands, she is unable to do many of her
typical activities of daily living and depends on her boyfriend and
son to complete them. T. 49. Accordingly, the Court further finds
the
ALJ’s
credibility
finding
is
unsupported
by
substantial
evidence.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on
the pleadings (Doc. 13) is granted to the extent that this matter
is
remanded
proceedings
to
the
Commissioner
consistent
with
this
for
further
Decision
administrative
and
Order.
The
Commissioner’s opposing motion for judgement on the pleadings
(Doc. 16) is denied. The Clerk of the Court is directed to close
this case.
ALL OF THE ABOVE IS SO ORDERED.
Honorable Michael A. Telesca
_____________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
March 14, 2019
Rochester, New York
22
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?