Savino v. Commissioner of Social Security

Filing 19

DECISION AND ORDER granting in part and denying in part 11 Motion for Judgment on the Pleadings; denying 15 Motion for Judgment on the Pleadings.Case remanded for further proceedings. Clerk to close case.(GAI)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
John Savino,
Plaintiff,

Decision and Order
17-CV-915 HBS
(Consent)

v.
Commissioner of Social Security,
Defendant.

I.

INTRODUCTION
The parties have consented to this Court’s jurisdiction under 28 U.S.C. § 636(c). The Court
has reviewed the Certified Administrative Record in this case (Dkt. No. 7, pages hereafter cited in
brackets), and familiarity is presumed. This case comes before the Court on cross-motions for
judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. (Dkt. Nos. 11,
15.) In short, plaintiff is challenging the final decision of the Commissioner of Social Security (the
“Commissioner”) that he was not entitled to Disability Insurance Benefits under Title II, or
Supplemental Security Income under Title XVI, of the Social Security Act. The Court has deemed
the motions submitted on papers under Rule 78(b).

II.

DISCUSSION
“The scope of review of a disability determination . . . involves two levels of inquiry. We

must first decide whether HHS applied the correct legal principles in making the determination. We
must then decide whether the determination is supported by substantial evidence.” Johnson v. Bowen,
817 F.2d 983, 985 (2d Cir. 1987) (internal quotation marks and citations omitted). When a district
court reviews a denial of benefits, the Commissioner’s findings as to any fact, if supported by
substantial evidence, shall be conclusive. 42 U.S.C. § 405(g). Substantial evidence is defined as

“‘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 (1971) (quoting Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Tejada v. Apfel, 167 F.3d 770, 773-74 (2d Cir.
1999).
The substantial evidence standard applies to both findings on basic evidentiary facts, and to
inferences and conclusions drawn from the facts. Stupakevich v. Chater, 907 F. Supp. 632, 637
(E.D.N.Y. 1995); Smith v. Shalala, 856 F. Supp. 118, 121 (E.D.N.Y. 1994). When reviewing a
Commissioner’s decision, the court must determine whether “the record, read as a whole, yields
such evidence as would allow a reasonable mind to accept the conclusions reached” by the
Commissioner. Winkelsas v. Apfel, No. 99-CV-0098H, 2000 WL 575513, at *2 (W.D.N.Y. Feb. 14,
2000). In assessing the substantiality of evidence, the Court must consider evidence that detracts
from the Commissioner’s decision, as well as evidence that supports it. Briggs v. Callahan, 139 F.3d
606, 608 (8th Cir. 1998). The Court may not reverse the Commissioner merely because substantial
evidence would have supported the opposite conclusion. Id.
For purposes of Social Security disability insurance benefits, a person is disabled when
unable “to engage in any substantial gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A) &
1382c(a)(3)(A).
Such a disability will be found to exist only if an individual’s “physical or mental impairment
or impairments are of such severity that [he or she] is not only unable to do [his or her] previous
work but cannot, considering [his or her] age, education, and work experience, engage in any other

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kind of substantial gainful work which exists in the national economy. . . .” 42 U.S.C. §§ 423(d)
(2)(A) & 1382c(a)(3)(B).
Plaintiff bears the initial burden of showing that the claimed impairments will prevent a
return to any previous type of employment. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
Once this burden has been met, “the burden shifts to the [Commissioner] to prove the existence of
alternative substantial gainful work which exists in the national economy and which the plaintiff
could perform.” Id.; see also Dumas v. Schweiker, 712 F.2d 1545, 1551 (2d Cir. 1983); Parker v. Harris,
626 F.2d 225, 231 (2d Cir. 1980).
To determine whether any plaintiff is suffering from a disability, the Administrative Law
Judge (“ALJ”) must employ a five-step inquiry:
(1) whether the plaintiff is currently working;
(2) whether the plaintiff suffers from a severe impairment;
(3) whether the impairment is listed in Appendix 1 of the relevant regulations;
(4) whether the impairment prevents the plaintiff from continuing past relevant
work; and
(5) whether the impairment prevents the plaintiff from continuing past relevant
work; and whether the impairment prevents the plaintiff from doing any kind of
work.
20 C.F.R. §§ 404.1520 & 416.920; Berry, supra, 675 F.2d at 467. If a plaintiff is found to be either
disabled or not disabled at any step in this sequential inquiry then the ALJ’s review ends. 20 C.F.R.
§§ 404.1520(a) & 416.920(a); Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). However,
the ALJ has an affirmative duty to develop the record. Gold v. Secretary, 463 F.2d 38, 43 (2d Cir.
1972).
To determine whether an admitted impairment prevents a plaintiff from performing past
work, the ALJ is required to review the plaintiff’s residual functional capacity (“RFC”) and the
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physical and mental demands of the work done in the past. 20 C.F.R. §§ 404.1520(e) & 416.920(e).
The ALJ must then determine the individual’s ability to return to past relevant work given the RFC.
Washington v. Shalala, 37 F.3d 1437, 1442 (10th Cir. 1994).
Of the issues that plaintiff has raised, the issue that draws the Court’s immediate attention is
the way in which the ALJ weighed plaintiff’s treating psychiatrist, Dr. McAveley, as compared to an
agency review psychiatrist, Dr. Hoffman. Dr. McAveley examined plaintiff nearly on a monthly
basis between 2013 and 2015, for the psychiatric severe impairments that the ALJ found: adjustment
disorder with depressed mood; panic disorder without agoraphobia; and “Asperger-like” personality
disorder. [See generally 277–98, 369–479.] Of the medical opinions that Dr. McAveley offered over
the course of treatment, the ALJ never explained how much overall weight any one of them
received. The ALJ decided only that, relative to Dr. McAveley’s other opinions, the first one
received the greatest weight. [33–34.] Additionally, the ALJ did not explain why any other opinions
from Dr. McAveley apparently received little to no weight, except to suggest in one sentence that
they were inconsistent with the overall record and that plaintiff might have been malingering
because he wanted “to get Social Security disability as a goal.” [34.] In contrast, Dr. Hoffman
offered a single review for the Disability Determination Explanation at the initial level. [95–96.]
The ALJ nonetheless gave partial weight to Dr. Hoffman’s opinion regarding activities of daily living
and gave “great weight to Dr. Hoffman’s opinion with regard to moderate limitations in social
functioning, mild limitations with concentration, persistence and pace and no episodes of
decompensation, as it is consistent with the record as a whole.” [34.]
The ALJ’s treatment of the above two psychiatrists is problematic for two reasons. Nonexamining psychiatric consultants are not permitted to receive great weight in a disability
determination, especially where they could wind up overriding other treatment sources in the record.
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See Simmons v. U.S. R.R. Ret. Bd., 982 F.2d 49, 56 (2d Cir. 1992) (citations omitted); Velazquez v.
Barnhart, 518 F. Supp. 2d 520, 524 (W.D.N.Y. 2007) (“In the context of a psychiatric disability
diagnosis, it is improper to rely on the opinion of a non-treating, non-examining doctor because the
inherent subjectivity of a psychiatric diagnosis requires the physician rendering the diagnosis to
personally observe the patient.”); Minsky v. Apfel, 65 F. Supp. 2d 124, 139 (E.D.N.Y. 1999) (citations
omitted). The Second Circuit revisited this principle just in the last week or so. “We have
frequently cautioned that ALJs should not rely heavily on the findings of consultative physicians
after a single examination. This concern is even more pronounced in the context of mental illness
where, as discussed above, a one-time snapshot of a claimant’s status may not be indicative of her
longitudinal mental health.” Estrella v. Berryhill, ___ F.3d ___, No. 17-3247, 2019 WL 2273574, at *5
(2d Cir. May 29, 2019) (citation omitted).
Additionally, the conclusory way in which the ALJ assigned weight to Dr. McAveley is legally
inadequate. “In order to override the opinion of the treating physician, we have held that the ALJ
must explicitly consider, inter alia: (1) the frequently, length, nature, and extent of treatment; (2) the
amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the
remaining medical evidence; and (4) whether the physician is a specialist.” Selian v. Astrue, 708 F.3d
409, 418 (2d Cir. 2013) (per curiam) (citation omitted); accord Estrella, 2019 WL 2273574, at *3 (“An
ALJ’s failure to ‘explicitly’ apply the Burgess factors when assigning weight at step two is a procedural
error.”) (citing Selian). Here, the ALJ’s decision does contain some detail when reciting clinical notes
from a plaintiff’s visits to Dr. McAveley. [28–30.] The part of the decision, however, that assigns
weight to Dr. McAveley’s opinions runs only four sentences and barely addresses some of the Burgess
factors in conclusory fashion. The Commissioner’s citations in response do not offset the
deficiencies in the ALJ’s decision. For example, the Commissioner has cited to 20 C.F.R.
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§§ 404.1519a and 404.1527(e) for the proposition that “State agency psychological consultants are
‘highly qualified . . . experts in Social Security disability evaluation,’ and ALJs ‘must consider’ their
findings as medical opinion evidence.” (Dkt. No. 15-1 at 29.) Section 404.1519a(b) is titled,
“Situations that may require a consultative examination” (emphasis added). Dr. Hoffman never
examined plaintiff. Section 404.1527(e) refers back to 20 C.F.R. § 404.1513a, which contains a
general rule that ALJs must at least consider evidence from consultants “because our Federal or
State agency medical or psychological consultants are highly qualified and experts in Social Security
disability evaluation.” 20 C.F.R. § 404.1513a(b)(1). The entirety of Section 404.1527(e), though, is
one sentence: “The rules in § 404.1513a apply except that when an administrative law judge gives
controlling weight to a treating source’s medical opinion, the administrative law judge is not required
to explain in the decision the weight he or she gave to the prior administrative medical findings in
the claim.” The ALJ here did not give controlling weight to Dr. McAveley and was required to
explain why a non-examining consultant would receive “great weight.” The problem of assigning
great weight to a non-examining consultant brings the Court back to the prohibition against such an
assignment that is identified above.
Upon remand, the Commissioner will address the Burgess factors explicitly when assigning
weight to any opinions from Dr. McAveley. The Commissioner also will reconsider Dr. Hoffman’s
non-consultative review in a more appropriate fashion. The Court takes no position on any other
issues that plaintiff has raised or on what the ultimate disability determination should be.

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III.

CONCLUSION
For the above reasons, the Court denies the Commissioner’s motion (Dkt. No. 15). The

Court grants plaintiff’s cross-motion (Dkt. No. 11) in part to vacate the Commissioner’s final
decision and to remand the matter for further proceedings consistent with this Decision and Order.
The Court denies plaintiff’s cross-motion to the extent that it seeks any other relief.
The Clerk of the Court is directed to close the case.
SO ORDERED.

__/s Hugh B. Scott________
Hon. Hugh B. Scott
United States Magistrate Judge
DATED: June 7, 2019

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