Canzoneri v. Berryhill

Filing 22

DECISION AND ORDER: For the reasons set forth in the attached Decision and Order, the Plaintiff's motion for judgment on the pleadings 15 is granted, and this matter is remanded for further administrative proceedings. The Defendant Commissioner's motion for similar relief 18 is denied. The Clerk of Court shall take all steps necessary to close the case. SO ORDERED. Signed by Hon. Richard J. Arcara on 5/29/2019. (LAS)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

LEANN MARGARET CANZONERI,
Plaintiff,
DECISION AND ORDER
1:17-CV-00808-RJA

v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

INTRODUCTION
Plaintiff Leann M. Canzoneri (“Plaintiff”) brings this action pursuant to the Social
Security Act (“the Act”) seeking review of a final decision of the Acting Commissioner of
Social Security (“the Commissioner”) that denied her application for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the
Act. (Dkt. 1). The Court has jurisdiction over this action under 42 U.S.C. §§ 405(g) and
1383(c)(3). Both parties moved for judgment on the pleadings pursuant to Federal Rule
of Civil Procedure 12(c). (Dkts. 15 and 18). The Court assumes the parties’ close
familiarity with the procedural history, administrative record, and all issues before the
Court. The Court has carefully considered the entire record, and for the reasons set forth
below, the Court GRANTS Plaintiff’s motion for remand and DENIES the Commissioner’s
motion for judgment on the pleadings.
DISCUSSION
This Court reviews the record to determine whether the Commissioner applied the
correct legal standard and whether substantial evidence supports the Commissioner’s
final decision. 42 U.S.C. § 405(g). Plaintiff argues the ALJ did not properly weigh the
medical opinion evidence; that the residual functional capacity (“RFC”) 1 did not
adequately incorporate Plaintiff’s impairments; and that the ALJ did not properly evaluate
The RFC is the most a plaintiff can still do despite his or her mental and/or physical limitations. 20 C.F.R.
§416.945(a)(1).
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Plaintiff’s subjective complaints. The Court agrees and will remand this matter to the ALJ
for the reasons stated herein.
At the age of 10, Plaintiff underwent brain surgery to remove a benign tumor that
was causing her to have seizures. (Tr. 392). During the operation, part of her amygdala
was removed as planned; however, she suffered a stroke during the procedure which “left
her with right hemiparesis and required months of rehabilitative speech therapy, physical
therapy, and occupational therapy.” (Tr. 280, 392). Plaintiff, now 31 years old, was able
to complete high school and one year of college. (Tr. 97, 100). Her most recent
employment was working as a live-in child caretaker. (Tr. 58). Plaintiff alleges disability
since November 9, 2012 due to severe anxiety, panic attacks, and depression. (Tr. 207).
The ALJ found Plaintiff to have the severe impairments of anxiety disorder and
depressive disorder. (Tr. 19). The ALJ assessed that Plaintiff had the following RFC:
[Plaintiff can] perform a full range of work at all exertion levels
consistent with the broad world of work. ‘Broad world of work’
is defined in Social Security Ruling 83-10 as work, which
exists at all exertional levels. It may include skilled and semiskilled work as well as unskilled work. The claimant cannot
work in areas with unprotected heights or work around heavy,
moving or dangerous machinery. She cannot climb ropes,
ladders, or scaffolds. She has occasional limitations in the
ability to understand, remember and carry out detailed
instructions and occasional limitations in the ability to maintain
attention and concentration for extended periods.
(Tr. 21).
Plaintiff first argues that the ALJ failed to properly evaluate the opinions of the
treating psychiatrists, the neuropsychologist, and the consultative examiner. (Dkt. 15 at
21).
If a treating physician is afforded less than controlling weight, the ALJ must
“comprehensively set forth [his] reasons for the weight assigned to a treating physician’s
opinion.” Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004); see also 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2) (“We will always give good reasons in our . . . decision for
the weight we give [the claimant’s] treating source’s opinion.”). The factors the ALJ must
consider when assessing a treating physician are: the examining relationship, the
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treatment relationship, the length of the treatment relationship, and nature and extent of
the treatment relationship, the clinical and diagnostic supportability of an opinion, the
consistency of that opinion with the record as a whole, the physician’s specialization, and
other factors. 20 C.F.R. § 404.1527(c)(1)-(6).
Here, the ALJ did not adequately apply the treating physician rule to Drs. Willinsky
and Joseph. The ALJ assigned a weight to two consultative examiners, Drs. Santarpia
and Totin, but discounted the treating physicians because they provided GAF2 scores.
(Tr. 34). Multiple physicians assigned Plaintiff GAF scores over their treatment periods,
but the ALJ concluded that “GAF ratings are only a snapshot opinion about the level of
functioning and it can include factors other than a claimant’s mental functioning such as
employment or societal factors other than a claimant’s mental functioning such as
employment or societal factors. They therefore, do not provide a reliable longitudinal
picture of the claimant’s mental functioning for a disability analysis. Accordingly, such
scores are given little weight.” Id. This statement was the only analysis of the medical
opinion evidence in the record. Categorically dismissing the opinions of all Plaintiff’s
physicians who provided GAF scores—some of whom are treating physicians—falls well
below the standard of analysis required under the treating physician rule. There is no
indication that the ALJ considered any of the required factors set forth in 20 C.F.R. §
404.1527(c).
Treating physicians Drs. Willinsky and Joseph, among other physicians, were
discussed extensively throughout the ALJ’s decision. See (Tr. 24-33) (Dr. Willinsky and
Dr. Joseph’s findings on examination were mentioned or discussed a total of 10 times).
But the Court cannot discern from the ALJ’s decision what portions of Drs. Willinsky and
Joseph’s opinions and treatment notes, apart from the assigned GAF scores, were relied
on to help form the basis for Plaintiff’s RFC, if at all. The Court notes that the ALJ’s
discussion of the opinion evidence is merely three sentences out of the decision’s 20
pages. If the ALJ found that the only available opinion evidence from treating physicians

“The GAF scale . . . is the scale used in the multiaxial evaluation system endorsed by the American
Psychiatric Association. It does not have a direct correlation to the severity requirements in our mental
disorders listings.” 65 FR 50746-01, 2000 WL 1173632, at *50764 (Aug. 21, 2000).

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was in the form of GAF scores—and those scores were all given little weight—then it was
incumbent on the ALJ to further develop the record. See Covey v. Colvin, 204 F.Supp.3d
497, 507 (W.D.N.Y. 2016) (the ALJ’s rejection of a treating physician’s opinion created a
“significant and obvious gap in the evidentiary record” because “the record contained no
competent medical opinion regarding Plaintiff’s RFC during the relevant time period”)
(emphasis in original); see also Martin v. Berryhill, No. 16-CV-6184-FPG, 2017 WL
1313837 (W.D.N.Y. Apr. 10, 2017). The Court therefore directs the ALJ on remand to
reevaluate the opinions of all physicians, both treating and non-treating, as well as the
consultative examiner, and assign weight to treating physicians Drs. Willinsky and Joseph
and others, if appropriate. The Court further directs the ALJ to supplement the record if
the ALJ finds that little weight should be given to the treating physicians.
Plaintiff also argues that the ALJ failed to properly consider whether Plaintiff’s
statements regarding her impairments and limitations are consistent with the medical
evidence in the record. (Dkt. 15 at 27-29).
The Evaluation of Symptoms in Disability Claims policy guidance states that the
ALJ must consider a plaintiff’s “persistent attempts to obtain relief of symptoms, such as
increasing dosages and changing medications, trying a variety of treatments, referrals to
specialists, or changing treatment sources may be an indication that an individual's
symptoms are a source of distress and may show that they are intense and persistent.”
SSR 16-3p, 2016 WL 1119029, at *8 (Mar. 16, 2016); see 20 C.F.R. §§ 404.1529(c),
416.929(c). At the same time, the ALJ must also consider reasons why a plaintiff might
not have pursued certain treatment. See SSR 16-3p, at *8-*9 (indicating the ALJ must
also consider, for example, an individual’s reason for not agreeing to take prescription
medications is because the side effects are less tolerable than the symptoms).
Here, the ALJ had found that Plaintiff’s statements regarding the intensity,
persistence, and limiting effects of her symptoms were not consistent with the record. (Tr.
28-29). However, the ALJ provided no explanation as to what testimony or other
statements specifically provided by Plaintiff were inconsistent with the medical evidence.
The ALJ additionally never questioned Plaintiff during testimony as to why she never
pursued more intensive treatment or why she failed to consistently show up to her mental
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health-related appointments. The Court notes that Plaintiff’s mental health counselor had
recommended a partial hospitalization program, as she needed a higher level of care than
therapy sessions; additionally, Ms. Mulligan, P.A. of Dent Neurological had recommended
Plaintiff undergo either transcranial magnetic stimulation or electroconvulsive therapy—
historically referred to as electroshock therapy. (Tr. 633-35). These therapies certainly
are not conservative treatment and it is understandable why Plaintiff may not have agreed
to this course of treatment, given her documented nightmares and flashbacks to when
she had brain surgery at the age of 10. (Tr. 52-55, 635-38). Plaintiff’s medications were
also constantly readjusted and were the source of great distress to her if she believed
she would run out of her medication before her next appointment. (Tr. 387, 389-90, 57072, 587-89, 597-99, 607). Because the ALJ does not discuss the reasons for discounting
Plaintiff’s statements, the Court cannot discern whether the ALJ’s credibility determination
is based on substantial evidence.
Plaintiff additionally argues that the ALJ failed to properly consider her RFC. (Dkt.
15 at 25-27). The Court notes that though the ALJ extensively discussed the medical
opinions and other evidence in the record, the ALJ does not explain which evidence he
relies on as the basis for each functional limitation of the RFC. Notably, as discussed
above, the fact that the ALJ discounted the opinion evidence of all treating physicians
creates a “significant and obvious gap in the evidentiary record[.]” Covey, 204 F.Supp.3d
at 507. Additionally, the ALJ does not address or mention any of Plaintiff’s PHQ-9 3 scores,
which consistently indicated severe depression. (Tr. 579, 583, 587, 590, 597, 601, 641,
633, 635, 638). This evidence, if it was not considered, may impact the ALJ’s decision
regarding the assessment of “occasional limitations in the ability to understand, remember
and carry out detailed instructions and occasional limitations in the ability to maintain
attention and concentration for extended periods.” (Tr. 21).
In light of this, the Court cannot discern whether the RFC was based on substantial
evidence. On remand, the ALJ should reevaluate all evidence and the medical opinions

“PHQ–9 refers to a self-administered patient health questionnaire that is used to assess and monitor the
severity of a patient's depression and/or anxiety.” Polanco v. Comm’r of Soc. Sec., 304 F.Supp.3d 345, 360
n.6 (S.D.N.Y. 2018).

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in the record and assign weights to the treating physicians and if applicable,
comprehensively set forth good reasons for affording less than controlling weight. The
ALJ should also discuss which portions of the evidence form the basis for the ALJ’s
decision to provide specific functional limitations incorporated in the RFC.
CONCLUSION
For the reasons discussed above, Plaintiff’s motion for remand (Dkt. 15) is granted.
The Commissioner’s motion for judgment on the pleadings (Dkt. 18) is denied.

IT IS SO ORDERED.
__s/Richard J. Arcara___ _____
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: May 29, 2019

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