Patrick v. Commissioner of Social Security
Filing
20
DECISION AND ORDER GRANTING Plaintiff's 14 Motion for Judgment on the Pleadings; DENYING Defendant's 18 Motion for Judgment on the Pleadings; REMANDING this case to the Commissioner of Social Security for further proceedings consistent with this decision; DIRECTING that the Clerk of Court CLOSE this case. SO ORDERED. Issued by William M. Skretny, United States District Judge on 6/12/2019. (MEAL) - CLERK TO FOLLOW UP -
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LAURA E. PATRICK,
Plaintiff,
v.
DECISION AND ORDER
17-CV-896S
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
1.
Plaintiff Laura E. Patrick challenges the determination of an Administrative
Law Judge (“ALJ”) that she is not disabled within the meaning of the Social Security Act
(“the Act”). Plaintiff alleges that she has been disabled since September 2, 2013,1 due to
bipolar disorder, manic depressive disorder, post-traumatic stress disorder, an eating
disorder, and incidents of self-harm. Plaintiff contends that her impairments render her
unable to work, and thus, she is entitled to disability benefits under the Act.
2.
Plaintiff filed an application for disability insurance benefits on September
2, 2013, which the Commissioner denied on November 13, 2013. Plaintiff thereafter
requested a hearing before an ALJ. On March 30, 2016, ALJ Robert T. Harvey held a
hearing in Buffalo, New York, at which Plaintiff appeared with counsel and testified. A
vocational expert also appeared and testified. After considering the case de novo, the
ALJ denied Plaintiff’s application for benefits in a written decision on June 23, 2016. The
1
Initially, Plaintiff listed her disability onset date as August 10, 2009, but later amended that to September
2, 2013 in her brief to the ALJ prior to the merits hearing.
1
Appeals Council denied Plaintiff’s request for review on July 7, 2017. Plaintiff filed the
instant action on September 11, 2017, challenging the Commissioner’s final decision.2
3.
On July 23, 2018, Plaintiff filed a Motion for Judgment on the Pleadings
under Rule 12(c) of the Federal Rules of Civil Procedure. (Docket No. 14). On September
20, 2018, the Commissioner filed a Motion for Judgment on the Pleadings. (Docket No.
18). Plaintiff filed a reply on October 12, 2018 (Docket No. 19), at which time this Court
took the matter under advisement without oral argument. For the following reasons,
Plaintiff’s motion is granted, Defendant’s motion is denied, and this case will be
remanded.
4.
A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec’y
of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s
determination will be reversed only if it is not supported by substantial evidence or there
has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v.
Califano, 615 F.2d 23, 27 (2d Cir. 1979). Substantial evidence is that which amounts to
“more than a mere scintilla,” and it has been defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971). Where
evidence is deemed susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60,
62 (2d Cir. 1982).
The ALJ’s June 23, 2016, decision became the Commissioner’s final decision in this case when the
Appeals Council denied Plaintiff’s request for review.
2
2
5.
“To determine on appeal whether an ALJ’s findings are supported by
substantial evidence, a reviewing court considers the whole record, examining the
evidence from both sides, because an analysis of the substantiality of the evidence must
also include that which detracts from its weight.” Williams on Behalf of Williams v. Bowen,
859 F.2d 255, 258 (2d Cir. 1988).
If supported by substantial evidence, the
Commissioner’s finding must be sustained “even where substantial evidence may support
the plaintiff's position and despite that the court's independent analysis of the evidence
may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153
(S.D.N.Y. 1992). In other words, this Court must afford the Commissioner’s determination
considerable deference and will not substitute “its own judgment for that of the
[Commissioner], even if it might justifiably have reached a different result upon a de novo
review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
6.
The Commissioner has established a five-step sequential evaluation
process to determine whether an individual is disabled under the Act. See 20 C.F.R.
§§ 404.1520, 416.920. The Supreme Court of the United States recognized the validity
of this analysis in Bowen v. Yuckert, and it remains the proper approach for analyzing
whether a claimant is disabled. 482 U.S. 137, 140-42, 107 S. Ct. 2287, 2291, 96 L. Ed.
2d 119 (1987).
7.
The five-step process is as follows:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is not,
the [Commissioner] next considers whether the claimant has
a “severe impairment” which significantly limits his physical or
mental ability to do basic work activities. If the claimant
suffers such an impairment, the third inquiry is whether, based
solely on medical evidence, the claimant has an impairment
which is listed in Appendix 1 of the regulations. If the claimant
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has such an impairment, the [Commissioner] will consider him
disabled without considering vocational factors such as age,
education, and work experience; the [Commissioner]
presumes that a claimant who is afflicted with a “listed”
impairment is unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant’s severe
impairment, he has the residual functional capacity to perform
his past work. Finally, if the claimant is unable to perform his
past work, the [Commissioner] then determines whether there
is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam) (quotations in original);
see also 20 C.F.R. § 404.1520; Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
8.
Although the claimant has the burden of proof on the first four steps, the
Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S.
at 146 n.5; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984). The final step is divided
into two parts. First, the Commissioner must assess the claimant’s job qualifications by
considering his physical ability, age, education, and work experience.
Second, the
Commissioner must determine whether jobs exist in the national economy that a person
having the claimant's qualifications could perform. See 42 U.S.C. § 423(d)(2)(A); 20
C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S. Ct. 1952, 1954, 76
L. Ed. 2d 66 (1983).
9.
In this case, the ALJ made the following findings with regard to the five-step
process set forth above: (1) Plaintiff has not engaged in substantial gainful activity since
August 10, 2009,3 the alleged onset date (R. at 12);4 (2) Plaintiff’s bipolar disorder and
post-traumatic stress disorder are severe impairments within the meaning of the Act (R.
3
As discussed previously, Plaintiff amended her onset date to September 2, 2013.
discrepancy does not alter the Court’s decision to remand, it will not be addressed further.
4 Citations to the underlying administrative record are designated as “R.”
4
Because this
at 12); (3) Plaintiff does not have an impairment or combination of impairments that meet
or medically equal any of the impairments listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (R. at 13); (4) Plaintiff retained the residual functional capacity (“RFC”) to
perform a full range of work at all exertional levels, with certain non-exertional limitations5
(R. at 14); (5) Plaintiff has no past relevant work (R. at 19); (6) Plaintiff could perform jobs
that exist in significant number in the national economy (R. at 19). Accordingly, the ALJ
determined that Plaintiff was not under a disability as defined by the Act during the
relevant period. (R. at 20).
10.
“The scope of review of a disability determination involves two levels of
inquiry.” Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). The court “must first
decide whether [Social Security Administration (“SSA”)] applied the correct legal
principles in making the determination.” Id. This includes ensuring “that the claimant has
had a full hearing under the . . . regulations and in accordance with the beneficent
purposes of the Social Security Act.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)
(quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)). Then, the court “decide[s]
whether the determination is supported by ‘substantial evidence.’” Johnson, 817 F.2d at
985 (quoting 42 U.S.C. § 405(g)). “Substantial evidence” means “more than a mere
scintilla.
It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 28 L. Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
5
The ALJ found the following non-exertional limitations: cannot work in area with unprotected heights,
cannot work around heavy, moving or dangerous machinery, no climbing ropes, ladders, or scaffolds, has
occasional limitations in the ability to understand/remember and carry out detailed instructions, has
occasional limitations in the ability to maintain attention and concentration for extended period, has
occasional limitations in the ability to interact appropriately with the general public, has occasional
limitations in dealing with stress, and has occasional limits in the ability to make decisions. (R. at 14).
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229, 59 S. Ct. 206, 83 L. Ed. 126 (1938)). “Where there is a reasonable basis for doubt
whether the ALJ applied correct legal principles, application of the substantial evidence
standard to uphold a finding of no disability creates an unacceptable risk that a claimant
will be deprived of the right to have her disability determination made according to correct
legal principles.” Johnson, 817 F.2d at 986.
11.
Plaintiff challenges the ALJ’s handling of the joint opinion of Dr. Mark Fisher,
her treating psychiatrist, and Licensed Mental Health Counselor (“LMHC”) Tiffany
Montemage. (Docket No. 14-1 at 21-26). Having reviewed the ALJ’s decision in light of
Plaintiff’s arguments, the Court finds reversible error.
12.
“Social Security Administration regulations, as well as [Second Circuit]
precedent, mandate specific procedures that an ALJ must follow in determining the
appropriate weight to assign a treating physician’s opinion.” Estrella v. Berryhill, ---F.3d--, ---, 2019 WL 2273574, at *2 (2d Cir. 2019) (emphasis added).
13.
“First, the ALJ must decide whether the opinion is entitled to controlling
weight.” Id. “‘[T]he opinion of a claimant’s treating physician as to the nature and severity
of the impairment is given “controlling weight” so long as it “is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in [the] case record.”’” Id. (quoting Burgess v. Astrue, 537
F.3d 117, 128 (2d Cir. 2008) and 20 C.F.R. § 404.1527(d)(2)).
14.
“Second, if the ALJ decides the opinion is not entitled to controlling weight,
it must determine how much weight, if any, to give it. In doing so, it must ‘explicitly
consider’ the following, nonexclusive ‘Burgess factors’: ‘(1) the frequen[cy], length,
nature, and extent of treatment; (2) the amount of medical evidence supporting the
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opinion; (3) the consistency of the opinion with the remaining medical evidence; and
(4) whether the physician is a specialist.’” Id. (quoting Selian v. Astrue, 708 F.3d 409,
418 (2d Cir. 2013) (per curiam) and citing Burgess, 537 F.3d at 129; 20 C.F.R.
§ 404.1527(c)(2)).
15.
“At both steps, the ALJ must ‘give good reasons in [its] notice of
determination or decision for the weight [it gives the] treating source’s [medical]
opinion.” Id. (quoting Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004); 20 C.F.R.
§ 404.1527(c)(2)).
“An ALJ’s failure to ‘explicitly’ apply the Burgess factors when
assigning weight at step two is a procedural error.” Id. at *3 (quoting Selian, 708 F.3d at
419-20). “If ‘the Commissioner has not [otherwise] provided “good reasons” [for its weight
assignment],’ [the Court is] unable to conclude that the error was harmless and
consequently remand for the ALJ to ‘comprehensively set forth [its] reasons.’” Id. (quoting
Halloran, 362 F.3d at 33). “If, however, a ‘searching review of the record’ assures [the
Court] ‘that the substance of the treating physician rule was not traversed,’ [the Court] will
affirm.” Id. (quoting Halloran, 362 F.3d at 33).
16.
Here, the ALJ faltered at both steps of this analysis. To begin, nowhere in
his opinion does the ALJ determine whether Dr. Fisher’s opinion is entitled to controlling
weight. Id. at *3 (“First, the ALJ must decide whether the opinion is entitled to controlling
weight.”) (emphasis added). The ALJ therefore erred at step one.
17.
Step two requires the ALJ to determine how much weight to afford Dr.
Fischer’s opinion by explicitly considering the Burgess factors. See id. Here, the ALJ
assigned “little weight” to Dr. Fisher’s opinion which included treating counselor
Montemage’s assertions of the claimant’s inability to meet competitive standards in
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multiple mental abilities and aptitudes to perform unskilled work “because of the relatively
high GAF score assigned, and the conflicting evidence that disclosed multiple mental
health examinations within normal limits.” (R. at 16). The ALJ provided no additional
reasoning. “It thus failed to ‘explicitly consider’ the first Burgess factor—‘the frequen[cy],
length, nature, and extent of [Dr. Fisher’s] treatment’—before weighing the value of the
opinion.” Estrella, 2019 WL 2273574, at *3 (citing Selian, 708 F.3d at 418).
18.
Although “[a]n ALJ’s failure to ‘explicitly’ apply the Burgess factors when
assigning weight at step two is a procedural error” requiring remand, id., the Court’s
inquiry does not end there. Before remanding, the Court conducts “a searching review of
the record” to assure itself “that the substance of the treating physician rule was not
traversed.” Halloran, 362 F.3d at 33. In other words, the Court must look to “whether the
record otherwise provides ‘good reasons’ for assigning ‘little weight’ to” the treating
physician’s opinion. Estrella, --F.3d at--, 2019 WL 2273574, at *3 (quoting Halloran, 362
F.3d at 32). Having reviewed the record, the Court concludes that it does not.
19.
First, a review of the Mental Residual Functional Capacity Questionnaire
dated March 12, 2015 (when LMHC Montemage evaluated Plaintiff) and March 17, 2015
(when Dr. Fisher signed off on the evaluation) reflects far more serious impairments than
the ALJ’s opinion suggests (R. 395-400). It states that Plaintiff was treated beginning on
May 9, 2014 and was seen weekly for individual counseling sessions and that she was
required to attend two group sessions per week. (R. at 395). Based on examination of
Plaintiff’s mental status, Dr. Fischer concluded that Plaintiff has “cognition impairment of
attention/concentration, [and a] preoccupation or obsession with thinking at times.” (R.
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at 395). Dr. Fisher also concluded that while medications help, he has “not noticed much
change since [Plaintiff] start[ed] [his] program in May 2014.” (R. at 395).
20.
Dr. Fisher drew the following conclusions with respect to an assessment of
Plaintiff’s ability to do work-related activities on a day-to-day basis in a regular work
setting: (1) Plaintiff is “unable to meet competitive standards” (one step shy of “no useful
ability to function”) when it comes to “maintain[ing] regular attendance and be[ing]
punctual within customary, usually strict tolerances”; “work[ing] in coordination with or
proximity to others without being unduly distracted”; “complet[ing] a normal workday and
workweek without interruptions from psychologically based symptoms”; “accept[ing]
instructions and respond[ing] appropriately to criticism from supervisors”; “get[ting] along
with co-workers or peers without unduly directing them or exhibiting behavioral extremes”;
“respond[ing] appropriately to changes in a routine work setting”; and “deal[ing] with
normal work stress”; and (2) Plaintiff is “seriously limited but not precluded” in
“understand[ing] and remember[ing] very short and simple instructions”; “maintain[ing]
attention for two-hour segment[s]”; and “sustain[ing] an ordinary routine without special
supervision.” (R. at 397). The assessment also concluded that Plaintiff’s impairments or
treatment would result in Plaintiff’s absence from work “about three days per month.” (R.
at 399).
21.
In assigning “little weight” to this assessment, the ALJ did not discuss any
of Dr. Fisher’s and Ms. Montemage’s above findings. Instead, the ALJ simply concluded
that Plaintiff’s Global Assessment of Functioning (“GAF”) score of 65 was “relatively high”
and “reflects [Plaintiff’s] overall improvement with treatment.” (R. at 16). In Estrella, the
Second Circuit reiterated the Social Security Administration’s cautioning against relying
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on GAF scores because “‘it does not provide a reliable longitudinal picture of the
claimant’s mental functioning for a disability analysis.’” Estrella, ---F.3d---, 2019 WL
2273574, at *4 (quoting U.S. Soc. Sec. Admin., Office of Disability Programs, AM-13066,
Global Assessment of Functioning (GAF) Evidence in Disability Adjudication (Oct. 14,
2014)).
22.
In addition to his stated reliance on the “relatively high GAF score,” the ALJ
concluded that Dr. Fisher’s and Ms. Montemage’s evaluation deserved “little weight” for
a second reason: it conflicted with other record evidence disclosing “multiple mental
health examinations within normal limits.”
(R. at 16).
That evidence included
examinations from physicians whose opinions are not otherwise discussed in the ALJ’s
decision, and reflect Plaintiff’s conditions as varying (R. at 409-10), for example, that
Plaintiff’s mood and symptoms fluctuate “dramatically” (R. at 412-13), among other things.
See, e.g., (R. at 404-05) (October 2015 evaluation reflecting that Plaintiff has high energy
levels, “presents mildly manic”); (R. at 421-22) (September 2014 evaluation reflecting
substantial improvement in mood and stability). As the Second Circuit observed in
Estrella, an ALJ’s failure to attempt to reconcile or grapple with “apparent longitudinal
inconsistencies” in a Plaintiff’s mental health “is of heightened importance” in the context
of impairments of mental health. Estrella, ---F.3d---, 2019 WL 2273574, at *4; Garrison
v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (“Cycles of improvement and debilitating
symptoms [of mental illness] are a common occurrence, and in such circumstances it is
error for an ALJ to pick out a few isolated instances of improvement over a period of
months or years and to treat them as a basis for concluding a claimant is capable of
working.”).
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23.
The other medical evidence of record that the ALJ concluded conflicted with
Dr. Fisher’s and Ms. Montemage’s evaluation was the psychiatric consultative evaluation
of Dr. Susan Santarpia, whose opinion the ALJ afforded “great weight.” (R. at 16-17).
Dr. Santarpia’s one-time evaluation concluded that Plaintiff’s symptoms “appear to be
consistent with psychiatric [sic] and history of substance abuse problems”; but she
concluded that standing alone, Plaintiff’s symptoms “do[] not appear to be significant
enough to interfere with [Plaintiff’s] ability to function on a daily basis.” (R. at 476). The
Second Circuit has long cautioned against heavy reliance on the findings of “consultative
physicians after a single examination,” Selian, 708 F.3d at 419, a caution that becomes
amplified “in the context of mental illness where, as discussed above, a one-time
snapshot of a [Plaintiff’s] status may not be indicative of her longitudinal mental health,”
Estrella, ---F.3d---, 2019 WL 2273574, at *5.
24.
Because “‘a searching review of the record’” has not “assure[d]” the Court
“‘that the substance of the treating physician rule was not traversed,’” id. at *3 (quoting
Halloran, 362 F.3d at 32), the Court must remand to the ALJ for reconsideration of
Patrick’s claims consistent with the procedural mandates of the SSA and the Second
Circuit. Plaintiff’s brief identifies a number of other challenges to the ALJ’s determination,
(see Docket No. 14-1), but the Court need not address them at this time. Because
Patrick’s “case must return to the agency either way for the reasons already given, the
Commissioner will have the opportunity on remand to obviate th[ese] dispute[s] altogether
by” addressing these arguments on remand. Lockwood v. Comm'r of Soc. Sec. Admin.,
914 F.3d 87, 94 (2d Cir. 2019).
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25.
After carefully examining the administrative record, for all of the above
reasons, this Court finds cause to remand this case to the ALJ for further administrative
proceedings consistent with this decision.
Plaintiff’s Motion for Judgment on the
Pleadings is therefore granted. Defendant’s motion seeking the same relief is denied.
IT HEREBY IS ORDERED, that Plaintiff’s Motion for Judgment on the Pleadings
(Docket No. 14) is GRANTED.
FURTHER, that Defendant’s Motion for Judgment on the Pleadings (Docket No.
18) is DENIED.
FURTHER, that this case is REMANDED to the Commissioner of Social Security
for further proceedings consistent with this decision.
FURTHER, that the Clerk of Court is directed to CLOSE this case.
SO ORDERED.
Dated:
June 12, 2019
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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