Keska, Jr. v. Commissioner of Social Security
Filing
17
ORDER granting in part Keska's 11 Motion for Judgment on the Pleadings and denying the Commissioner's 15 Motion for Judgment on the Pleadings. The decision of the Commissioner is vacated and the matter is remanded for further administrative proceedings consistent with this decision. Signed by Hon. Lawrence J. Vilardo on 2/5/2019. (AMD)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
THOMAS KESKA JR.,
Plaintiff,
v.
17-CV-1010
DECISION & ORDER
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
On October 6, 2017, the plaintiff, Thomas Keska Jr., brought this action under
the Social Security Act ("the Act"). He seeks review of the determination by the
Commissioner of Social Security ("Commissioner") that he was not disabled. Docket
Item 1. On July 25, 2018, Keska moved for judgment on the pleadings, Docket Item 11;
on September 21, 2018, the Commissioner responded and cross-moved for judgment
on the pleadings, Docket Item 15; and on October 15, 2018, Keska replied, Docket Item
16.
For the reasons stated below, this Court grants Keska’s motion in part and
denies the Commissioner’s cross-motion.
BACKGROUND
I.
PROCEDURAL HISTORY
On February 6, 2014, Keska applied for Supplemental Security Income benefits
(“SSI”). Docket Item 7 at 14. He claimed that he had been disabled since January 1,
2014, due to herniated discs; inability to stand, sit, or bend; inability to lift more than 5
pounds; sciatica; anxiety; heart disease; and sleep apnea. Id. at 65.
On April 14, 2014, Keska received notice that his application was denied
because he was not disabled under the Act. Id. at 85. He requested a hearing before
an administrative law judge ("ALJ"), id. at 100, which was held on May 9, 2016, id. at
14. The ALJ then issued a decision on May 25, 2016, confirming the finding that Keska
was not disabled. Id. Keska appealed the ALJ’s decision, but his appeal was denied,
and the decision then became final. Id. at 5. On October 6, 2017, Keska filed this
action, asking this Court to review the ALJ’s decision. Docket Item 1.
II.
RELEVANT MEDICAL EVIDENCE
The following summarizes the medical evidence most relevant to Keska’s
objection. Keska was examined by several different providers but five—Paula Callahan,
L.C.S.W.; Tulio Ortega, M.D.; Gregory Fabiano, Ph.D.; H. Tzetzo1; and Edgar Bassig,
M.D.—are of most significance to the claim of disability here.
A.
Paula Callahan, L.C.S.W.
Paula Callahan, L.C.S.W., is a social worker who provided therapy for Keska at
Orleans County Clinic on several occasions between 2014 and 2016. Docket Item 7 at
248, 263, 482, 495. After she first saw Keska, Ms. Callahan diagnosed generalized
anxiety disorder, moderate major depressive disorder, and obsessive-compulsive
personality features. Id. at 259. Two years later, Ms. Callahan completed a mental
residual functional capacity evaluation of Keska. Id. at 516-20. In that evaluation, Ms.
1
Neither Tzetzo’s full name nor his or her credentials are clear from the record.
2
Callahan noted that Keska struggled with standards of attendance, routine, working with
others, and performing at a consistent pace. Id. She also noted that Keska gets
overstimulated by people, noise, or deadlines and that he would miss four days of work
per month. Id.
B.
Tulio Ortega, M.D.
Tulio Ortega, M.D., a psychiatrist, evaluated Keska at the Orleans County Clinic
and saw him for medication management on several occasions. Id. at 260, 266, 269,
480, 487, 493. Dr. Ortega has maintained Keska on Prozac and Xanax to treat his
anxiety and obsessive-compulsive disorder. Id. Dr. Ortega opined that Keska seemed
to be improving with treatment, “seem[ed] to be maintaining stability,” and is “happy and
content with the way he is feeling.” Id. at 491.
C.
Gregory Fabiano, Ph.D.
Gregory Fabiano, Ph.D., saw Keska for a consultative psychological examination
on March 31, 2014. Id. at 375. Dr. Fabiano found Keska’s mental status to be entirely
normal. Id. Keska demonstrated a cooperative attitude, adequate social skills, normal
speech, coherent and goal-directed thought processes, no evidence of hallucinations or
paranoia, euthymic mood, intact attention and concentration, intact recent and remote
memory, and good insight and judgment. Id. at 377.
D.
H. Tzetzo
H. Tzetzo saw Keska for a psychological assessment on April 3, 2014. Id. at
373. Tzetzo is a medical consultant at the New York State Office of Temporary and
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Disability Assistance, Division of Disability Determinations. Id. Tzetzo determined that
Keska’s impairments are “non severe.” Id.
E.
Edgar Bassig, M.D.
Edward Bassig, M.D., is Keska’s primary care physician. Id. at 19. Dr. Bassig
saw Keska on several occasions and for a variety of ailments. Id. at 304, 311. Dr.
Bassig found that Keska had limited cervical and lumbar motion and cervical spasm, but
no lumbar spasm and normal motor strength, intact sensation, and normal deep tendon
reflexes. Id. at 274, 278, 287, 288, 290. In March 2014, Dr. Bassig completed a
medical source statement in which he opined that Keska was limited to standing and
walking for less than 2 hours a day; to sitting less than 6 hours a day; and in his ability
to lift, carry, push, and pull heavy objects. Id. at 383.
III.
THE ALJ’S DECISION
In denying Keska’s application, the ALJ evaluated Keska’s claim under the Social
Security Administration’s five-step evaluation process for disability determinations. See
20 C.F.R. § 404.1520. At the first step, the ALJ must determine whether the claimant is
currently engaged in substantial gainful employment. § 404.1520(a)(4)(i). If so, the
claimant is not disabled. Id. If not, the ALJ proceeds to step two. § 404.1520(a)(4).
At step two, the ALJ decides whether the claimant is suffering from any severe
impairments. § 404.1520(a)(4)(ii). If there are no severe impairments, the claimant is
not disabled. Id. If there are any severe impairments, the ALJ proceeds to step three.
§ 404.1520(a)(4).
At step three, the ALJ determines whether any severe impairment or impairments
meet or equal an impairment listed in the regulations. § 404.1520(a)(4)(iii). If the
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claimant’s severe impairment or impairments meet or equal one listed in the regulations,
the claimant is disabled. Id. But if the ALJ finds that none of the severe impairments
meet any of the regulations, the ALJ proceeds to step four. § 404.1520(a)(4).
As part of step four, the ALJ first determines the claimant’s residual functional
capacity (“RFC”). See §§ 404.1520(a)(4)(iv); 404.1520(d)-(e). The RFC is a holistic
assessment of the claimant—addressing both severe and nonsevere medical
impairments—that evaluates whether the claimant can perform past relevant work or
other work in the national economy. See 20 C.F.R. § 404.1545.
After determining the claimant's RFC, the ALJ completes step four. 20 C.F.R.
§ 404.1520(e). If a claimant can perform past relevant work, he or she is not disabled
and the analysis ends. § 404.1520(f). But if the claimant cannot, the ALJ proceeds to
step five. 20 C.F.R. §§ 404.1520(a)(4)(iv); 404.1520(f).
In the fifth and final step, the Commissioner must present evidence showing that
the claimant is not disabled because the claimant is physically and mentally capable of
adjusting to an alternative job. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987);
20 C.F.R. § 404.1520(a)(v), (g). More specifically, the Commissioner bears the burden
of proving that a claimant "retains a residual functional capacity to perform alternative
substantial gainful work which exists in the national economy." Rosa v. Callahan, 168
F.3d 72, 77 (2d Cir. 1999).
Here, the ALJ determined at step one that Keska was not engaged in substantial
gainful employment. Docket Item 7 at 16. At step two, the ALJ determined that Keska
had the severe impairments of degenerative disc disease of the lumbar and cervical
spine, ischemic heart disease and coronary artery disease, chronic obstructive
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pulmonary disease, obstructive sleep apnea, obsessive compulsive disorder,
depression, and anxiety disorder. Id. The ALJ further found at step three that none of
these severe impairments themselves or in combination met or medically equaled the
severity of the listed impairments in 20 C.F.R. part 404, Subpart P, Appendix 1. Id.
Then, at step four, the ALJ determined that Keska had the RFC to lift or carry 20
pounds occasionally and 10 pounds frequently, to stand or walk 6 hours in a typical 8hour workday, and to sit 6 hours in a typical 8-hour work day. Id. at 18. The ALJ found
Keska could never climb ladders, ropes, or scaffolds; could occasionally balance, stoop,
kneel, crouch, crawl, or climb ramps and stairs; and had to avoid exposure to hazards,
machinery, heights, extreme temperatures, wetness, vibration, fumes, odors, dust,
gases, and poor ventilation. Id. The ALJ limited Keska’s RFC to simple, repetitive,
routine tasks with no production rate of pace or quota and only occasional interaction
with coworkers, supervisors, and the public. Id. The ALJ then found that Keska could
not perform any past relevant work but could perform jobs that exist in the national
economy, such as collator operator or power screwdriver operator. Id. at 22, 23.
LEGAL STANDARDS
I. DISTRICT COURT REVIEW
When evaluating a decision by the Commissioner, district courts have a narrow
scope of review: they are to determine whether the Commissioner's conclusions are
supported by substantial evidence in the record and whether the Commissioner applied
the appropriate legal standards. Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012).
Indeed, a district court must accept the Commissioner's findings of fact if they are
supported by substantial evidence in the record. 42 U.S.C. § 405(g). Substantial
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evidence is more than a scintilla and includes "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Moran v. Astrue, 569 F.3d
108, 112 (2d Cir. 2009). In other words, a district court does not review a disability
determination de novo. See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998).
DISCUSSION
I.
KESKA’S CLAIMS
Keska objects to the ALJ’s decision for three reasons, each of which Keska
argues requires remand. First, Keska argues that the ALJ erred in rejecting Ms.
Callahan’s opinion about Keska’s mental RFC. Docket Item 11-1 at 11-13. Second,
Keska argues that by assigning little weight to Ms. Callahan’s opinion—while also
rejecting the opinions of other sources regarding Keska’s mental limitations —the ALJ
created a gap in the record that the ALJ was obligated to fill. Id. at 13. Finally, Keska
argues that the ALJ was obligated to recontact Dr. Bassig, a treating source physician,
to seek clarification before rejecting his opinion. Id. at 16.
II.
ANALYSIS
A.
Weight Assigned to Treating Source Opinions
When determining a plaintiff’s RFC, the ALJ must evaluate every medical opinion
received. 20 C.F.R. § 416.927(c). “[O]nly ‘acceptable medical sources' can be
considered treating sources . . . whose medical opinions may be entitled to controlling
weight. ‘Acceptable medical sources’ are further defined (by regulation) as licensed
physicians, psychologists, optometrists, podiatrists, and qualified speech-language
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pathologists.” Genier v. Astrue, 298 F. App'x 105, 108 (2d Cir. 2008) (citing 20 C.F.R.
§ 416.913(a) and SSR 06-03P, 2006 WL 2329939 (Aug. 9, 2009)).
The ALJ may consider the opinions of “other sources”—e.g., social workers—but
the ALJ is not obliged to assign weight or give deference to such sources. Id. Even so,
the ALJ “should explain the weight given to opinions from these ‘other sources,’ or
otherwise ensure that the discussion of the evidence in the determination or decision
allows a claimant or subsequent reviewer to follow the adjudicator's reasoning, when
such opinions may have an effect on the outcome of the case.” SSR 06-03P, at *6.
When there is conflicting evidence in the claimant’s record, the consistency of the
opinion with the other evidence in the record is a proper factor for an ALJ to consider
when weighing an opinion from an other source. See 20 C.F.R. § 404.1527(c)(4).
Other factors include the length and nature of the relationship between the opinion
source and the claimant, whether evidence supports the opinion, whether the source of
the opinion has a relevant specialization, and other factors the claimant brings to the
Commissioner’s attention. 20 C.F.R. § 404.1527(c)(1)-(6).
Here, Keska argues that the ALJ erred by assigning little weight to Ms.
Callahan’s opinion despite their treatment relationship. Docket Item 11-1 at 13. But the
ALJ addressed the factors outlined in 20 C.F.R. § 404.1527(c) in deciding to discount
Ms. Callahan’s opinion.2 He considered the length and nature of this treatment
relationship, noting that the findings of Ms. Callahan’s several mental status
examinations were “consistently normal” and noting improvement over time. Docket
2
The only factor that the ALJ does not explicitly mention is whether Ms. Callahan
has any specialty. Docket Item 7 19-21.
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Item 7 at 21. The ALJ referred to Ms. Callahan as “[t]he claimant’s therapist.” Id. In
addition, the ALJ found that relevant evidence did not support Ms. Callahan’s opinion
because the consistently normal findings of Ms. Callahan’s mental status examinations
were necessarily inconsistent with her opinion that Keska was “unable to meet
competitive standards” in most mental functional areas. Id. And the ALJ noted that
other objective evidence—in particular, Dr. Ortega’s findings that Keska experienced
consistent improvement with treatment—was consistent with Ms. Callahan’s treatment
record but inconsistent with her opinion. Id.
In assigning little weight to Ms. Callahan’s opinion, the ALJ noted that her
examination findings did not support her conclusion, evaluated the consistency of her
findings in light of other evidence in the record, and acknowledged her treatment
relationship with Keska. That is exactly what 20 C.F.R. § 404.1527(c) prescribes. The
ALJ therefore appropriately decided the weight to be given to Ms. Callahan’s “other
source” opinion, and substantial evidence supports the ALJ’s decision in this regard.
B.
Gaps in the Record
In evaluating a claim of disability, the Commissioner “will consider all evidence in
[the claimant’s] case record.” 20 C.F.R. § 404.1520(a)(3) (emphasis added). Relevant
evidence includes objective medical evidence, such as laboratory results or observable
abnormalities; medical opinions; other medical evidence; nonmedical evidence; and
prior administrative findings. 20 C.F.R. § 404.1513. The ALJ fulfills his or her
“‘responsibility’ of ‘assessing [a claimant’s] residual functional capacity’ by reviewing ‘all
the relevant evidence’ which includes ‘objective medical evidence.’” DoughertyNoteboom v. Berryhill, 2018 WL 3866671, at *10 (W.D.N.Y. Aug. 15, 2018) (quoting
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relevant regulations). “Although the ALJ’s conclusion may not perfectly correspond
with any of the opinions of medical sources cited in his decision, he [is] entitled to weigh
all of the evidence available to make an RFC finding that [is] consistent with the record
as a whole.” Matta v. Astrue, 508 Fed.Appx. 53, 56 (2d Cir. 2013).
Keska argues that the ALJ reached a mental RFC determination unsupported by
substantial evidence because he assigned little weight to the medical opinions of Ms.
Callahan, Dr. Fabiano, and H. Tzetzo, which Keska claims constitute all the medical
opinions pertaining to his mental impairments. Keska’s argument is unpersuasive for
two reasons.
First, the treatment notes from Ms. Callahan and Dr. Ortega both provided
objective medical evidence in support of the ALJ’s decision. In fact, those very
treatment notes led the ALJ to assign little weight to the opinions that were inconsistent
with them. See Monroe v. Comm’r of Soc. Sec., 676 Fed. Appx. 5 (2d Cir. 2017) (“[T]he
ALJ’s decision not to give controlling weight to [treating physician] was proper
considering the substantial evidence contradicting [the physician’s] assessment. . . .
[H]is treatment notes contradicted his RFC assessment.”).
Second, Keska’s case is not one in which the record includes no medical
opinions at all. See Manso-Pizarro v. Sec’y of Health and Human Servs., 76 F.3d 15,
17 (1st Cir. 1996) (“an expert’s RFC evaluation is ordinarily essential unless the extent
of functional loss, and its effect on job performance, would be apparent even to a lay
person.”) (internal citation omitted). Here, the ALJ discussed each of the medical
opinions pertaining to Keska’s mental impairments. Docket Item 7 at 21 (discussing
opinions from Dr. Fabiano, Ms. Callahan, and H. Tzetzo). And even though the ALJ did
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not expressly assign a particular weight to it, Dr. Ortega’s opinion supports the ALJ’s
RFC assessment. Dr. Ortega opined that Keska’s “[c]ognitive functioning seemed to be
grossly intact” and he had “no problems with attention or concentration.” Id. at 480.
And the ALJ specifically referred to Dr. Ortega’s note that Keska “was medically stable
and seemed to be improved.” Id. at 20. So medical opinions pertaining to Keska’s
mental impairments were “incorporated into the ALJ’s RFC assessment” even though
the ALJ found that substantial evidence did not warrant assigning any particular opinion
great weight. Dougherty-Noteboom, 2018 WL 3866671, at *9.
In sum, by discounting medical opinions because they were inconsistent with
underlying objective medical evidence, the ALJ did not create a gap in the record. He
simply weighed the available evidence—as he should have. See Veino v. Barnhart, 312
F.3d 578, 588 (2d Cir. 2002) (“Genuine conflicts in the medical evidence are for the
Commissioner to resolve.”).
C.
Recontacting a Treating Source
When an ALJ finds that a treating source opinion is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in [the claimant’s] case record,” the opinion is given
controlling weight. 20 C.F.R. § 404.1527(c)(2). Conversely, when an ALJ does not give
a treating source opinion controlling weight, he or she must consider the length, nature,
and extent of the treatment relationship, as well as support for the opinion and its
consistency with the rest of the record. Id. Here, Keska argues that because the ALJ
found Dr. Bassig’s opinion about functional capacity to be inconsistent with his other
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records, the ALJ was required to “seek clarification . . . before rejecting the doctor’s
opinion.” Urena-Perez v. Astrue, 2009 WL 1726217, at *29 (S.D.N.Y. 2009).
Keska cites several cases in this district where the court remanded the case
because of the ALJ’s duty to develop the record when the record was incomplete. See
Tumpower v. Colvin, 2015 WL 162991, at *14 (W.D.N.Y. Jan. 13, 2015) (remanding
“where the ALJ rejected Dr. Newman’s opinion in large part because the ALJ found that
it was incomplete [and] the ALJ had a duty to develop the record by re-contacting Dr.
Newman for clarification regarding [the] foundation for [the] opinion.”) (citations omitted);
Mecklenburg v. Astrue, 2009 WL 4042939, at *6 (W.D.N.Y. 2009) (when doctor “opined
that the plaintiff was totally disabled [but] the ALJ stated that [the treating physician] did
not identify specific and objective clinical findings that supported his finding of disability,”
the ALJ had a duty to develop the record) (quotations of the administrative record
omitted). On the other hand, “the particular treating physician’s opinion that is at issue
is unsupported by any medical evidence and where the medical record is otherwise
complete, there is no duty to recontact the treating physician for clarification.” Jasen v.
Comm’r of Soc. Sec., 2017 WL 3722454, at *12 (W.D.N.Y. Aug. 29, 2017) (quoting
Ayers v. Astrue, 2009 WL 4571840, at *2 (W.D.N.Y. Dec. 7, 2009)).
Here, the medical record is incomplete in a way that triggered the ALJ’s duty to
develop the record. The ALJ gave little weight to Dr. Bassig’s opinion that Keska could
not stand and walk for more than two hours in a work day because the ALJ believed
that opinion to be inconsistent with Dr. Bassig’s findings and with the clinical findings of
two other care providers. Docket Item 7 at 21. But Dr. Bassig’s examination findings do
not include any objective evidence regarding Keska’s ability to stand and walk—or
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anything else that is necessarily inconsistent with Dr. Bassig’s opinion about how long
Keska could stand and walk. Id. at 304-321. If Dr. Bassig’s examination findings are, in
fact, inconsistent with his medical opinion, that determination must come from a medical
source interpreting how those findings relate to Keska’s ability to stand and walk. See
McBrayer v. Sec’y. of Health and Human Servs., 712 F.2d 795, 799 (2d Cir. 1983)
(“[T]he ALJ cannot arbitrarily substitute his own judgment for competent medical
opinion.”); Fuller v. Astrue, 2010 WL 3516935, at *5 (W.D.N.Y. Sep. 7, 2010) (“[A]n ALJ
is not free to substitute his own lay opinion for opinions from treating sources.”). In
other words, there is nothing inherent in the examination findings of Dr. Bassig—or any
other provider, for that matter—that necessarily leads to the conclusion that Keska
could stand or walk more than two hours in a work day. So if the ALJ suspected an
inconsistency between Dr. Bassig’s opinion and examination findings, the ALJ was
required at the very least to contact Dr. Bassig in this regard. See Burgess v. Astrue,
537 F.3d 117, 129 (2d Cir. 2008) (“In light of the ALJ’s affirmative duty to develop the
administrative record, ‘an ALJ cannot reject a treating physician’s diagnosis without first
attempting to fill any clear gaps in the administrative record.’”).
Along the same lines, there is nothing in the record to support the RFC
assessment that the ALJ ultimately reached: that Keska could stand and walk for six
hours in a work day. Id. at 18; 304-321; 368-371; 463-469. For that reason, there is a
clear gap in the record between the medical evidence and the ALJ’s conclusion, and in
reaching that conclusion the ALJ substituted “his own judgment for competent medical
opinion.” McBrayer, 712 F.2d at 799. A specific finding that a plaintiff can stand and
walk for a certain number of hours each day must have some medical support beyond
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the ALJ’s lay estimate. Again, the ALJ was required to ask medical providers to weigh
in on that issue before reaching such a precise medical conclusion.
Because of the gap in the record, and because the ALJ substituted his lay
judgment that Keska could stand and walk six hours each day for the treating
physician’s limit of two hours, the case is remanded so that the ALJ can develop the
record. See McBrayer, 712 F.2d at 799.
CONCLUSION
For the reasons stated above, the Commissioner's motion for judgment on the
pleadings, Docket Item 15, is DENIED, and Keska’s motion for judgment on the
pleadings, Docket Item 11, is GRANTED in part. The decision of the Commissioner is
VACATED and the matter is REMANDED for further administrative proceedings
consistent with this decision.
SO ORDERED.
Dated:
February 5, 2019
Buffalo, New York
s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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