Lamarca v. Commissioner of Social Security

Filing 16

DECISION AND ORDER: For the reasons set forth in this Decision and Order, Plaintiff's 12 motion for judgment on the pleadings is granted, and the case is remanded for further administrative proceedings. Defendant Commissioner's 14 motion for similar relief is denied. The Clerk of Court shall take all steps necessary to close the case. SO ORDERED. Signed by Hon. Richard J. Arcara on 10/11/2019. (LAS)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DANA M. LAMARCA,
Plaintiff,
DECISION AND ORDER
18-CV-325-A

v.
ANDREW M. SAUL, COMMISSIONER
OF SOCIAL SECURITY 1,
Defendant.

Plaintiff Dana M. Lamarca brings this action pursuant to the Social Security Act
for review of a final decision of the Acting Commissioner of Social Security (the
“Commissioner”) that denied her applications for Disability Insurance Benefits and
Supplemental Security Income under Titles II and XVI of the Social Security Act for a
closed period from November 5, 2009, to November 11, 2013. Dkt. No. 1. The Court
has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).
The parties each moved for judgment on the pleadings pursuant to Federal Rule
of Civil Procedure 12(c). Dkt. Nos. 12 and 14. Upon consideration of the record, and
for the reasons set forth below, the Court grants plaintiff’s motion for remand and denies
the Commissioner’s motion.
The action is before the Court after an earlier stipulated remand to the
Commissioner, Lamarca v. Colvin, 14-cv-137-A (Dkt. Nos. 10, 12), and the Court

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Commissioner of Social Security,
Andrew M. Saul, is substituted for Nancy A. Berryhill, who was the Acting Commissioner when this action
was filed.

1

reviews the record after remand to determine only whether the Commissioner applied
the correct legal standards and whether substantial evidence supports the
Commissioner’s final decision. 42 U.S.C. § 405(g). The Court assumes the parties’
familiarity with the prior proceedings, the evidence, and the issues before the Court.
DISCUSSION
Plaintiff Lamarca, who suffers from chronic partial epilepsy, among other
conditions, argues that the ALJ erred: (1) by rejecting a treating neurologist’s opinions
without applying the so-called Burgess 2 factors; and (2) in giving significant weight to a
consultative examiner’s opinion even though that opinion was inconsistent with the
ALJ’s residual functional capacity (“RFC”) determination, including the ALJ’s failure to
reconcile the consultative examiner’s opinion of moderate fine and gross wrist
movement limitations with the ALJ’s determination that the plaintiff could frequently use
her hands and wrists. The administrative record contains conflicting evidence, but the
Court agrees with plaintiff and remands the action because the ALJ discounted the
opinions of treating neurologist Dr. Kenneth Murray, M.D., without explicitly applying the
Burgess factors.
It is well-settled that if an ALJ does not afford controlling weight to a treating
physician’s opinion, the ALJ must “comprehensively set forth [his] reasons for the
weight assigned” to that opinion. Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004);

The Burgess factors are four factors referenced in Burgess v. Astrue, 537 F.3d 117 (2d Cir. 2008) that an ALJ must
ordinarily “explicitly consider” before giving less than controlling weight to a treating physician’s opinion. See
Estrella v. Berryhill, 925 F.3d 90, 95-96 (2d Cir. 2019). The four factors are “(1) the frequen[cy], 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.” 925 F.3d at 95-96 (citation
omitted).

2

2

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.”).

If the opinion is given less than controlling weight, the ALJ shall consider various factors
in assessing that opinion, such as the examining relationship, the extent of the
relationship, medical support for the opinion, its consistency, the physician’s
specialization, and other relevant factors. 20 C.F.R. § 404.1527(c); see Estrella v.
Berryhill, 925 F.3d 90, 95-96 (2d Cir. 2019).
Additionally, “[i]f a physician's finding in a report is believed to be insufficiently
explained, lacking in support, or inconsistent with the physician's other reports, the ALJ
must seek clarification and additional information from the physician.” Calzada v.
Astrue, 753 F.Supp.2d 250, 269 (S.D.N.Y. 2010). The Court recognizes that the ALJ
may accept portions of a treating physician’s report while declining to accept other
portions of the same report. See Pavia v. Colvin, No. 6:14–cv–06379 (MAT), 2015 WL
4644537, at *4 (W.D.N.Y. Aug. 4, 2015) (citing Veino v. Barnhart, 312 F.3d 578, 588
(2d. Cir. 2002)). Further, the Court also recognizes “[t]he mere fact that medical
evidence is conflicting or internally inconsistent does not mean that an ALJ is required
to re-contact a treating physician. Rather, because it is the sole responsibility of the
ALJ to weigh all medical evidence and resolve any material conflicts in the record where
the record provides sufficient evidence for such a resolution, the ALJ will weigh all of the
evidence and see whether it can decide whether a claimant is disabled based on the
evidence he has, even when that evidence is internally inconsistent.” Allen v. Comm’r
of Soc. Sec., 17-CV-06629 EAW, 2018 WL 6844369, *9 n.2 (W.D.N.Y. Dec. 28, 2018)
(citing Micheli v. Astrue, 501 F. App'x 26, 29-30 (2d Cir. 2012)).
3

Here, the Court finds that the ALJ failed to properly assess opinions of treating
neurologist Dr. Murray, For example, the ALJ discounted Dr. Murray’s treatment notes
about “significant difficulties with thought processing, attention span, concentration,
[and] distractability” as “somewhat broad and non-specific” Tr. 559, but that assessment
is itself too conclusory in light of the long treating relationship Dr. Murray had with the
plaintiff. In addition, the ALJ did not explicitly address why the ALJ considered certain
neuropsychological test results obtained by a psychologist, Dr. Gunther, on referral from
Dr. Murray, to be inconsistent with Dr. Murray’s assessments, including specifically a
February 7, 2017 letter from Dr. Murray stating that plaintiff is likely to be off-task for
50% of an eight-hour work day. Compare Tr. 559-60 with Tr. 6 (Dr. Murray’s specific
comments on the psychometric test results obtained by Dr. Gunther) and with Tr. 145255 (the test results).
According to the ALJ, the February 7, 2017 letter-opinion (Tr. 1525) was given
less weight partly because an option in the form letter to insert the information called
into question whether Dr. Murray actually completed or caused to be completed a typed
portion of the letter. Tr. 560. But because Dr. Murray signed the letter, it is construed
as his opinion. See Fritty v. Berryhill, No. 17-CV-00769F, 2019 WL 289779, at *4
(W.D.N.Y. Jan. 23, 2019) (citing Gandino v. Comm’r of Soc. Sec., 5:17-CV-0042(WBC),
2018 WL 1033287, at *7 (N.D.N.Y. Feb. 22, 2018) (additional citation omitted). This
holds true even if plaintiff’s representative solicited the opinion. See McCarthy v. Colvin,
66 F.Supp.3d 315, 323 (W.D.N.Y. 2014) (“[t]he Court finds that even where relevant
evidence has been solicited by the claimant or her representative, that is not reason
enough to warrant ignoring such evidence”).

4

When the ALJ otherwise explained that she gave “very little weight” to Dr.
Murray’s treatment notes, certain of his letters, and his medical opinions because “they
are essentially sole opinions, in a file with many medical opinions, indicating that the
claimant is disabled or unable to sustain full-time unskilled work,” Tr. 560, the ALJ
failed sufficiently to recognize that Dr. Murray’s opinions as a treating provider are
ordinarily to be afforded controlling weight unless explicit consideration of the Burgess
factors supports giving them lesser weight. Estrella v. Berryhill, 925 F.3d 90, 95-96 (2d
Cir. 2019). Here, after searching review, while the Court finds that while the ALJ did
give some legitimate reasons to discount Dr. Murray’s opinions, the Court is unable to
find that the ALJ’s procedural error in failing to explicitly consider the Burgess factors
was harmless error. The ALJ failed explicitly to address that Dr. Murray had treated
plaintiff’s seizures for approximately ten years, see Tr. 466, 1525; that Dr. Murray’s
treatment notes, with some exceptions, appear consistent with his opinions, see, e.g.,
Tr. 420-23, 464-97, 1413-37; and that Dr. Murray is a specialist whose opinion as a
neurologist on the effects of plaintiff’s chronic partial epilepsy must ordinarily to be given
more weight than those of consultants and others from outside the neurology specialty.
925 F.3d at 95-96.
The Court expresses no opinion on the weight that the ALJ on remand should
ultimately give Dr. Murray’s opinions once the Burgess factors are explicitly considered.
Plaintiff has put forth additional arguments why she contends the ALJ's decision was not
supported by substantial evidence. “However, because the Court has already
determined, for the reasons previously discussed, that remand of this matter for further
administrative proceedings is necessary, the Court declines to reach [these issues]. Will

5

o/b/o C.M.K. v. Comm’r of Soc. Sec., 366 F.Supp.3d 419 (W.D.N.Y. 2019) (citing Bell v.
Colvin, No. 5:15-CV-01160 (LEK), 2016 WL 7017395, at *10 (N.D.N.Y. Dec. 1, 2016))
(“declining to reach arguments ‘devoted to the question whether substantial evidence
supports various determinations made by [the] ALJ’ where the court had already
determined remand was warranted”).
CONCLUSION
Based on the foregoing, Plaintiff Dana M. Lamarca’s motion pursuant to Fed. R.
Civ. P. for judgment on the pleadings (Dkt. No. 12) is granted and the case is
remanded. The Commissioner’s cross-motion for judgment on the pleadings (Dkt. No.
14) is denied. The Clerk shall enter judgment for the plaintiff and shall close the case.
IT IS SO ORDERED.
__s/Richard J. Arcara______________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: October 11, 2019

6