Nau v. Berryhill
Filing
19
DECISION AND ORDER granting in part and denying in part 11 Motion for Judgment on the Pleadings; denying 16 Motion for Judgment on the Pleadings. Signed by Hon. Jeremiah J. McCarthy on 11/15/18. (DAZ)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
KENDYSUE A. NAU,
DECISION AND
ORDER
Plaintiff,
v.
1:17-CV-00703(JJM)
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION
Defendant.
This is an action brought pursuant to 42 U.S.C. §§405(g) and 1383(c)(3) to review
the final determination of defendant Nancy A. Berryhill, the Acting Commissioner of Social
Security, that plaintiff was not entitled to Disability Insurance Benefits (“DIB”) or Supplemental
Security Income (“SSI”). Before the court are the parties’ cross-motions for judgment on the
pleadings [11, 16], 1 which the parties have consented to be addressed by me [17]. Having
reviewed the parties’ submissions [11, 16, 18], plaintiff’s motion is granted and the Acting
Commissioner’s motion is denied.
BACKGROUND
In July of 2013 plaintiff, who was 49 years old, filed applications for DIB and
SSI, alleging a disability onset date of January 1, 2006 (later amended to September 29, 2013),
due to a cyst on her wrist, high blood pressure, hepatitis C, and a right foot injury.
Administrative record [7], pp. 9, 146, 153, 202
1
Bracketed references are to the CM/ECF docket entries. Unless otherwise indicated, page
references are to numbers reflected on the documents themselves rather than to the CM/ECF pagination.
After plaintiff’s claims were initially denied (id., pp. 71-76), an administrative
hearing was held on February 10, 2016 before Administrative Law Judge (“ALJ”) Robert T.
Harvey, at which plaintiff, who was represented by counsel, and a vocational expert testified.
Id., pp. 34-55. In his March 14, 2016 decision, ALJ Harvey determined that plaintiff’s severe
impairments were “post excision of the right volar radial wrist ganglion and mild right foot
osteoarthritis” (id., p. 11), and assessed plaintiff with the residual functional capacity (“RFC”) to
perform medium work with the following limitations: “cannot work in areas with unprotected
heights or around heavy, moving or dangerous machinery[, or] . . . . in areas where she would be
exposed to cold or dampness”, unable to “climb ropes, ladders or scaffolds”, and “has occasional
limitations in the repetitive use of the right wrist”. Id., p. 12.
In reaching that RFC, ALJ Harvey afforded “some weight” to the September 11,
2013 consultative opinion of Donna Miller, D.O., who concluded that plaintiff had a “mild
limitation for repetitive motion of her right wrist”. Id., pp. 14, 353. An x-ray was taken of
plaintiff’s right foot in connection with her consultative examination, but Dr. Miller found “no
significant abnormality”. Id., p. 353. ALJ Harvey also detailed the March 25, 2015 physical
RFC Questionnaire completed by Michael D. Calabrese, M.D., who began treating plaintiff in
January 2015. Id., p. 15. Dr. Calabrese diagnosed plaintiff with lumbar spine “disc disease” and
with arthritis in both hands. Id., p. 411 He also identified plaintiff’s symptoms as chronic pain
and fatigue, and noted that the Tramadol and Cyclobenzapine she was taking caused drowsiness,
dizziness and gastrointestinal upset. Id.
As a result of her impairments, Dr. Calabrese assessed plaintiff with a variety of
limitations, including that she sit three hours or less in an eight-hour workday, stand and walk for
less than two hours in an eight-hour workday, stand for no more than 15 minutes before needing
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to sit, and use her right hand and fingers “to grasp, turn and twist objects and her fingers for
manipulative activities” for less than 10% of a workday. Although ALJ Harvey did not
expressly assign a weight to that opinion, he did not adopt any of its findings, and in explaining
that there was “scant evidence” of plaintiff’s “alleged lumbar spine disease”, he noted that Dr.
Calabrese’s functional assessment was “based largely on lumbosacral disc disease”, but that
there was “no imaging of the lumbar spine in the record”, “no physical therapy notes”, “no
evidence of any significant treatment for back pain, and . . . only [a] few complaints”. Id., p. 16.
Based on plaintiff’s RFC and the vocational expert’s testimony, ALJ Harvey
concluded that there were sufficient jobs in the national economy that plaintiff could perform,
and therefore was not disabled. Id., pp. 16-18. The Appeals Council denied plaintiff’s request
for review (id., pp. 1-4), and thereafter plaintiff commenced this action.
ANALYSIS
A.
Standard 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.” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (quoting 42
U.S.C. §405(g)). Substantial evidence is that which a “reasonable mind might accept as
adequate to support a conclusion”. Consolidated Edison Co. of New York. Inc. v. NLRB, 305
U.S. 197, 229 (1938).
It is well settled that an adjudicator determining a claim for Social Security
benefits employs a five-step sequential process. Shaw, 221 F.3d at 132; 20 C.F.R. §§404.1520,
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416.920. The plaintiff bears the burden with respect to steps one through four, while the Acting
Commissioner has the burden at step five. Talavera v. Astrue, 697 F.3d 145, 151 (2d. Cir. 2012).
Plaintiff moves for the action to be remanded for further administrative
proceedings by arguing that ALJ Harvey improperly relied on the stale opinion of Dr. Miller, the
consultative examiner, resulting in a finding not supported by substantial evidence. Plaintiff’s
Memorandum of Law [11-1], pp. 13-17. She also argues that ALJ Harvey erred by “fail[ing] to
indicate what weight, if any, he accorded [Dr. Calabrese’s] opinion or provide any rationale for
why he did or did not believe the opinions”, and that by rejecting that opinion, he was left only
with his lay interpretation of the evidence to support his RFC finding Id., pp. 17-19. In
response, the Acting Commissioner argues that Dr. Miller’s opinion was not outdated, that ALJ
Harvey sufficiently explained why he discredited Dr. Calabrese’s opinion, and that ALJ
Harvey’s opinion was otherwise supported by substantial evidence. Acting Commissioner’s
Brief [16-1], pp. 14-25.
B.
Did ALJ Harvey Improperly Rely on Dr. Miller’s Opinion?
“The mere passage of time does not render an opinion stale. Instead, a medical
opinion may be stale if subsequent treatment notes indicate a claimant’s condition has
deteriorated.” Whitehurst v. Berryhill, 2018 WL 3868721, *4 (W.D.N.Y. 2018). Here, in
connection with plaintiff’s 2013 consultative examination, Dr. Miller had an x-ray conducted of
her right foot, which revealed “[n]o significant bony abnormality”. [7], pp. 353, 354.
However, plaintiff’s complaints of foot pain continued. For example, on February 26, 2014
podiatrist James Burruano, DPM,2 diagnosed plaintiff with fasciitis and a stress fracture in the
2
Although not indicated in his treatment note, the Acting Commissioner identifies him as a
podiatrist. Acting Commissioner’s Brief [16-1], p. 7.
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heel. Id., p. 380-383. An August 2015 MRI of her right foot revealed a 9 mm plantar calcaneal
spur (id., p. 364), demonstrating that plaintiff’s condition had progressed from the x-ray
conducted at the time of her consultative examination approximately two years earlier. Dr.
Calabrese similarly noted in February 2016 that plaintiff had a right foot spur confirmed by a
positive x-ray. Id., p. 422.
Thereafter, plaintiff’s lumbosacral disc disease became symptomatic (id., pp. 374,
384, 422), further showing the staleness of Dr. Miller’s consultative examination. See Hawkins
v. Colvin, 2016 WL 6246424, *3 (W.D.N.Y. 2016) (“the consultative medical examination
report was ‘stale’ at the time of the ALJ's decision, insofar as the report was issued prior to
Plaintiff's degenerative disc disease becoming symptomatic”). A stale opinion such as this does
“not constitute substantial evidence to support an ALJ’s findings”, and remand is required for an
updated assessment. Majdandzic v. Commissioner of Social Security, 2018 WL 5112273, *3
(W.D.N.Y. 2018).
C.
Did ALJ Harvey Properly Evaluate Dr. Calabrese’s Opinion?
“Although the conclusions of a consultative examiner may override those of a
treating source . . . an ALJ should use care before relying too heavily on the findings of a onetime consultant”. Morales v. Berryhill, 2018 WL 679566, *16 (S.D.N.Y.), adopted, 2018 WL
679492 (S.D.N.Y. 2018); Selian v. Astrue, 708 F.3d 409, 419 (2d Cir. 2013) (“caution[ing] that
ALJs should not rely heavily on the findings of consultative physicians after a single
examination”). Nevertheless, “internal inconsistencies, and the conflicting opinions of other
examining physicians, where supported by evidence in the record, can constitute substantial
evidence to support not according the treating physician's opinion controlling weight, as well as
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good reasons to attribute only limited weight to that opinion.” Tricarico v. Colvin, 681 Fed.
App'x 98, 101 (2d Cir. 2017) (Summary Order); Caruso v. Colvin, 2016 WL 1170909, *2 (D.
Conn. 2016) (“an ALJ is not inextricably bound to the opinion of a treating physician and may
deviate from such opinion - and accord more weight to a non-treating physician - if, among other
things, the opinion is not consistent with other, substantial evidence of record”).
Where an ALJ declines to give controlling weight to a treating physician's
opinion, he must provide “good reasons” for doing so, and must consider the following factors in
determining the weight to afford to the opinion: the nature of the examining relationship;
whether or not the medical opinion was made by a treating source; the length of treatment
relationship and the frequency of examination; supportability; consistency; specialization; and
any other factors “which tend to support or contradict the opinion”. 20 C.F.R. §404.1527(c).
Here, ALJ Harvey made no express assessment of the weight he afforded to Dr.
Calabrese’s functional assessment. Nor is it evident that he properly evaluated that opinion.
Though ALJ Harvey did appear to assess that portion of Dr. Calabrese’s functional assessment
that related to plaintiff’s lumbar spine, Dr. Calabrese also assessed plaintiff with the capacity to
use her right hand and fingers in certain respects less than 10% of a workday ([7], p. 413) – an
opinion that ALJ Harvey ignored.
Moreover, among the reasons for why he rejected any limitations associated with
plaintiff’s lumbar spine disease, ALJ Harvey explained that “[t]here is no imaging of the lumbar
spine in the record”. Id., p. 16. However, Dr. Calabrese stated that plaintiff’s lumbar spine “disc
disease” was supported by a positive x-ray. (id., p. 422), and although the x-ray does not appear
to be part of the record, ALJ Harvey should have attempted to obtain that record before rejecting
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the treating physician’s opinion on that basis. Therefore, on remand, the ALJ should also
properly evaluate the February 4, 2016 opinion of Dr. Calabrese.
CONCLUSION
For these reasons, plaintiff’s motion for judgment on the pleadings [11] is granted
to the extent that this case is remanded to the Acting Commissioner for further proceedings
consistent with this Decision and Order but is otherwise denied, and the Acting Commissioner’s
motion [16] is denied.
SO ORDERED.
Dated: November 15, 2018
/s/ Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge
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