Vanice v. Commissioner of Social Security

Filing 15

DECISION AND ORDER granting in part and denying in part Vanice's 6 motion for judgment on the pleadings and denying the Commissioner's 12 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. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 6/12/2019. (LCH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

HELGA VANICE,
Plaintiff,
v.

17-CV-1263
DECISION AND ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

On December 5, 2017, the plaintiff, Helga Vanice, brought this action under the
Social Security Act ("the Act"). She seeks review of the determination by the
Commissioner of Social Security ("Commissioner") that she was not disabled. Docket
Item 1. On April 26, 2018, Vanice moved for judgment on the pleadings, Docket Item 6;
on July 18, 2018, the Commissioner responded and cross-moved for judgment on the
pleadings, Docket Item 12; and on July 27, 2018, Vanice replied, Docket Item 14.
For the reasons stated below, this Court grants Vanice’s motion in part and
denies the Commissioner’s cross-motion.
BACKGROUND
I.

PROCEDURAL HISTORY
On September 19, 2013, Vanice applied for Supplemental Security Income and

disability insurance benefits. Docket Item 4 at 16, 155. She claimed that she had been
disabled since April 15, 2013, due to chronic obstructive pulmonary disease,
fibromyalgia, esophageal reflux issues, anxiety, and tension headaches. Id. at 155.

On December 3, 2013, Vanice received notice that her application was denied
because she was not disabled under the Act. Id. at 186-200. She requested a hearing
before an administrative law judge ("ALJ"), id. at 202-09, which was held on December
15, 2015, id. at 89. The ALJ then issued a decision on August 3, 2016, confirming the
finding that Vanice was not disabled. Id. at 20. Vanice appealed the ALJ’s decision, but
her appeal was denied, and the decision then became final. Id. at 7-9.
II.

RELEVANT MEDICAL EVIDENCE
The following summarizes the medical evidence most relevant to Vanice’s

objection. Vanice was examined by several different providers but only two—David
Thomas, M.D., a primary care physician, and Donna Miller, D.O., a consulting family
practice physician—are of significance to this Court’s review of Vanice’s claims.
A.

David Thomas, M.D., Primary Care

David Thomas, M.D., is Vanice’s primary care provider who wrote several notes
about his treatment of Vanice—and, in particular, her fibromyalgia—throughout her
alleged period of disability. See, e.g., Docket Item 4 at 620-38, 692-96, 735-40, 789-95,
801-05, 812-53, 1193-1273. For example, on April 2, 2015, Dr. Thomas completed a
“fibromyalgia residual functional capacity questionnaire,” id. at 1014-17, opining that
Vanice met “the American College of Rheumatology criteria for fibromyalgia.” Id. at
1014. He also diagnosed Vanice with cervicalgia and shoulder dysfunction and noted
that Vanice’s impairments had lasted or could be expected to last at least twelve
months. Id. And he listed Vanice’s symptoms as including multiple tender points,
nonrestorative sleep, chronic fatigue, morning stiffness, muscle weakness, subjective

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swelling, irritable bowel syndrome, frequent severe headaches, anxiety, panic attacks,
depression, and chronic fatigue syndrome. Id.
Dr. Thomas wrote that Vanice’s pain was constant and a nine out of ten in
severity. Id. at 1015. He noted that changing weather, stress, fatigue,
movement/overuse, static position, and cold precipitated her pain. Id. And he opined
that Vanice’s “experience of pain or other symptoms” was “severe enough to interfere
with attention and concentration needed to perform even simple work tasks,” so much
so that she was “[i]ncapable of even ‘low stress’ jobs.” Id.
Dr. Thomas found that Vanice could walk no more than one city block “without
rest or severe pain.” Id. at 1016. He opined that she could sit for only ten minutes at
one time before needing to get up and that she could stand for only ten minutes before
needing to sit down or walk around. Id. He also opined that Vanice could sit for no
more than two hours and stand for no more than two hours in an eight-hour workday.
Id.
Dr. Thomas also noted that Vanice needed “periods of walking around during an
8-hour working day.” Id. Breaks for a walk must occur at least every thirty minutes and
must last for at least five minutes each. Id. And Vanice could work only in a job that
allowed her to shift her position at will from sitting, standing, or walking. Id.
According to Dr. Thomas, while Vanice did not need a cane or other assistive
device, she did require unscheduled breaks during an eight-hour workday. Id. Dr.
Thomas opined that those breaks must occur every thirty minutes, must last for at least
five minutes, and must include the opportunity for Vanice to lie down. Id. When she sits
for prolonged periods of time, Vanice’s feet must be elevated to chest level. Id. In fact,

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Dr. Thomas opined that Vanice’s legs must be elevated to chest level during seventyfive percent of an eight-hour workday. Id.
Dr. Thomas noted that Vanice could only rarely carry up to ten pounds as part of
her work and could never carry more than that. Id. at 1017. She could rarely twist or
stoop and never crouch, squat, climb ladders, or climb stairs. Id.
Dr. Thomas opined also that Vanice had significant limitations with reaching,
handling or fingering. Id. Specifically, he noted that she could grasp, turn or twist
objects with her hands; finely manipulate her fingers; or reach with her arms no more
than ten percent of each working day. Id.
Based on his experience with Vanice over the years, Dr. Thomas noted that her
“impairments are likely to produce ‘good days’ and ‘bad days.’” Id.
B.

Donna Miller, D.O., Consulting Family Practice Physician

Dr. Miller, a family practice physician, saw Vanice only once on November 12,
2013. Docket Item 4 at 741-44. Dr. Miller noted that Vanice “appeared to be in no
acute distress” during her examination. Id. at 742. Her notes indicate that Vanice’s
physical examination was consistent with normal functioning. Id. at 742-43. She
diagnosed Vanice with chronic obstructive pulmonary disease, fibromyalgia, and
gastroesophageal reflux disease. Id. at 743. Dr. Miller opined that Vance “should avoid
dust, irritants, and tobacco exposure which may exacerbate her” chronic obstructive
pulmonary disease. Id. at 744.
III.

THE ALJ’S DECISION
In denying Vanice’s application, the ALJ evaluated Vanice’s claim under the

Social Security Administration’s five-step evaluation process for disability
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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
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 in 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 the 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).

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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 the 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).
In this case, the ALJ determined at step one that Vanice had not engaged in
“substantial gainful activity” since April 15, 2013, the alleged onset date. Docket Item 4
at 18. At step two, the ALJ found that Vanice had the following severe impairments:
fibromyalgia, chronic obstructive pulmonary disease, affective disorder, posttraumatic
stress disorder, anxiety disorder, headaches, and esophageal reflux disease. Id. At
step three, the ALJ determined that Vanice did “not have an impairment or combination
of impairments that meets or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Id. at 19.
In assessing Vanice’s RFC, the ALJ determined that Vanice could perform
sedentary work as defined in 20 C.F.R. § 404.1567(a), 1 but with the following
limitations:
the individual is limited to lifting and carrying 10 pounds on occasion, and
up to 5 pounds frequently. She can sit for up to 6 hours in an 8 hour day,
and stand or walk up to 2 hours in an 8 hour day. The claimant would
1

“Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools.
Although a sedentary job is defined as one which involves sitting, a certain amount of
walking and standing is often necessary in carrying out job duties. Jobs are sedentary if
walking and standing are required occasionally and other sedentary criteria are met.”
20 C.F.R. § 404.1567(a).
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require a sit/stand option allowing her to stand or walk up to 5 minutes after
30 minutes of sitting, and sit up to 20 minutes after 30 minutes of standing
or walking, all while remaining on task. She is limited to frequent climbing
of ramps and stairs, stooping, and kneeling; occasional crouching, and no
climbing of no ladders, ropes or scaffolds, scaffolds [sic], and no crawling.
She is limited to environments in which there is no exposure to pulmonary
irritants such as odors, dusts, gasses, and poor ventilation, and no exposure
to hazards such as unprotected heights or moving machinery. She is limited
to simple routine tasks with no production rate or pace work, and no more
than superficial interaction with the public and only occasional interaction
with coworkers.
Id. at 20. In formulating Vanice’s RFC, the ALJ “assigned great weight with respect to
pulmonary irritants” to Dr. Miller’s opinion. Id. at 23. On the other hand, the ALJ
“assigned little weight” to Dr. Thomas’s opinion. Id. at 23-24.
At step four, the ALJ determined that Vanice “is unable to perform any past
relevant work. Id. at 24. But at step five, the ALJ determined that the Commissioner
sustained her burden of establishing that Vanice had the RFC to perform “jobs that exist
in significant numbers in the national economy.” Id. Specifically, the ALJ determined
that Vanice could work as a document preparer, mailroom clerk, or marking clerk. Id. at
25.
STANDARD OF REVIEW
“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)).
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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 (1971)
(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (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
a 986.
DISCUSSION
Vanice makes several arguments that the ALJ erred. First, she argues that the
decision is not supported by substantial evidence because it is premised on erroneous
findings of fact. Docket Item 6-1 at 2-3. Second, she argues that the ALJ failed to
comply with the mandates of the treating physician rule with respect to her treating
source opinions, including Dr. Thomas’s opinion. Id. at 3-6. Finally, she argues that the
ALJ erred in concluding that she could perform work as a document preparer or as a
mailroom clerk. Id. at 6.
“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). “First, the ALJ must decide
whether the opinion is entitled to controlling weight.” Id. “The opinion of a claimant’s
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treating physician as to the nature and severity of an 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)).
“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 frequency, 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.’” Id. (quoting Selian v. Astrue, 708 F.3d 409, 418 (2d Cir.
2013)). “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)).
“An ALJ’s failure to ‘explicitly’ apply the Burgess factors when assigning weight
. . . 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,’ [a
court is] unable to conclude that the error was harmless and consequently [must]
remand for the ALJ to ‘comprehensively set forth its reasons.’” Id. (quoting Halloran,
362 F.3d at 33).

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Here, the ALJ considered Dr. Thomas’s opinion but assigned it “little weight”
because
[t]he extreme limitations are not well explained or supported by the medical
evidence of record. For example it is not clear that the claimant could need
to elevate her legs to chest level 75% of the day or how that relates to any
of her medical issues.
Docket Item 4 at 23.
The ALJ “fail[ed] to ‘explicitly’ apply the Burgess factors when assigning weight”
to Dr. Thomas’s opinion. Estrella, 2019 WL 2273574, at *3. He failed to consider “the
first Burgess factor—‘the frequency, length, nature and extent of [Dr. Thomas’s]
treatment’ before weighing the value of the opinion.” Id. (quoting Selian, 708 F.3d at
418). Nowhere in the ALJ’s decision, for example, is the fact that Dr. Thomas treated
Vanice throughout her alleged period of disability. The ALJ also insufficiently addressed
the second and third factors—the amount of medical evidence supporting the opinion
and the consistency of the opinion with the remaining medical evidence. Although the
ALJ said that Dr. Thomas’s opinion was “not . . . supported by the medical evidence of
record,” Docket Item 4 at 23, he leaves the reviewing court to guess as to what
evidence he refers. 2
What is more, “a searching review of the record” fails to “assure” this Court “that
the substance of the treating physician rule was not traversed.” Estrella, 2019 WL

2

Moreover, under Second Circuit precedent, a “perceived lack of objective
evidence” is not a “good reason” for rejecting a treating physician’s opinion regarding
the nature and severity of fibromyalgia because that impairment is one for which “‘there
are no objective tests which can conclusively confirm the disease.’” Green-Younger v.
Barnhart, 335 F.3d 99, 108 (2d Cir. 2003) (quoting Preston v. Sec. of Health and
Human Servs., 854 F.2d 815, 818 (6th Cir. 1988)).

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2273574, at *3 (quoiting Halloran, 362 F.3d at 32). For example, the ALJ’s failure to
address the first Burgess factor is “especially relevant here because [that] factor, and
therefore evidence supporting its satisfaction, is of heightened importance in the context
of [Vanice’s] claimed impairment” that Dr. Thomas addresses: fibromyalgia. Id. at *4.
And the ALJ’s conclusory discounting of Dr. Thomas’s opinion does not otherwise
evidence the careful consideration to which a treating source opinion is entitled.
Even more to the point, Dr. Thomas explained that Vanice’s fibromyalgia is “likely
to produce ‘good days’ and ‘bad days,’” Docket Item 4 at 1017, so the ALJ’s reliance on
the one-time evaluation of Dr. Miller cannot justify the ALJ’s decision. Indeed, a Social
Security Administration Ruling confirms that “symptoms and signs of [fibromyalgia] may
vary in severity over time and may even be absent on some days.” SSR 12-2P, 2012
WL 3104869, at *5. 3 Thus, when viewed in light of the cyclical nature of Vanice’s
fibromyalgia, the opinion of the one-time consultative physician—Dr. Miller—does not
provide a good reason to discount Dr. Thomas’s contrary opinion. 4
Finally, the ALJ’s determination that Dr. Thomas’s opinion was “not well
explained” is not a “good reason” for assigning it little weight. That is because “[t]o
extent [the] record is unclear, the Commissioner has an affirmative duty to ‘fill any clear

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For that reason, the Ruling explains that “it is important that the medical source
who conducts the [consultative examination] has access to longitudinal information
about the” claimant and that the agency should only “rely on the [consultative
examination] report [without] longitudinal evidence if [the agency] determine[s] that the
[consultative examination] is the most probative evidence in the case record.” SSR 122P, 2012 WL 3104869, at *5.
4

Furthermore, other than Dr. Miller’s note that Vanice “appeared to be in no
acute distress” and other aspects of her general appearance during the examination, it
is far from clear how Dr. Miller’s opinion addressed Vanice’s fibromyalgia at all.
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gaps in the administrative record’ before rejecting a treating physician’s diagnosis.”
Selian, 708 F.3d at 420 (quoting Burgess, 537 F.3d at 129). “In fact, where there are
deficiencies in the record, an ALJ is under an affirmative obligation to develop a
claimant’s medical history ‘even when the claimant is represented by counsel or by a
paralegal.’” Rosa, 168 F.3d at 79 (quoting Perez v. Chater, 77 F.3d 41, 47 (2d Cir.
1996)).
Here, the ALJ explicitly found a deficiency in Dr. Thomas’s medical records: he
said that Dr. Thomas’s opinion was “not well explained” and did not permit him to
determine, for example, the relationship between Vanice’s need to elevate her legs for
three-quarters of each day and Vanice’s medical issues. That acknowledged a gap in
the record, triggering the ALJ’s duty to recontact Dr. Thomas so that he could clarify his
opinion.
Accordingly, Vanice’s claim for disability benefits is remanded for reconsideration
consistent with the procedural mandates of the SSA and Second Circuit precedent. 5

5

Vanice also argues that the decision is not supported by substantial evidence
because (1) it is premised on erroneous findings of fact, (2) it failed to apply the treating
physician rule also with respect to her treating psychiatrist, and (3) it erroneously
concluded that she could perform work as a document preparer or as a mailroom clerk.
Docket Item 6-1 at 2-6. Because Vanice’s “case must return to the agency either way
for the reasons already given, the Commissioner will have the opportunity on remand to
obviate [these] dispute[s] altogether by,” if necessary, clarifying Vanice’s claims of
disputed facts, applying the Burgess factors to Vanice’s treating psychiatrist’s opinions,
and addressing Vanice’s objections about her ability to work as a document preparer or
a mailroom clerk. Lockwood v. Comm’r of Soc. Sec. Admin., 914 F.3d 87, 94 (2d Cir.
2019).
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CONCLUSION
For the reasons stated above, the Commissioner's motion for judgment on the
pleadings, Docket Item 12, is DENIED, and Vanice’s motion for judgment on the
pleadings, Docket Item 6, is GRANTED in part and DENIED 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:

June 12, 2019
Buffalo, New York

s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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