Mojbel v. Commissioner of Social Security

Filing 16

DECISION AND ORDER granting 12 Motion for Judgment on the Pleadings; denying 14 Motion for Judgment on the Pleadings. Signed by Hon. Elizabeth A. Wolford on 06/10/2019. (CDH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT

JUN 1 0 2019

WESTERN DISTRICT OF NEW YORK

DISTRlCl^^^
AIDA MOJBEL,
Plaintiff,

DECISION AND ORDER

V.

I:I8-CV-00400EAW

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

INTRODUCTION

Represented by counsel, Plaintiff Aida Mojbel ("Plaintiff) brings this action
pursuant to Title XVI of the Social Security Act (the "Act"), seeking review of the final
decision of the Commissioner of Social Security (the "Commissioner," or "Defendant")
denying her application for supplemental security income ("SSI"). (Dkt. I). This Court
has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). Presently before the Court
are the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(e) of the
Federal Rules of Civil Procedure (Dkt. 12; Dkt. 14). For the reasons discussed below.
Plaintiffs motion (Dkt. 12) is granted in part, the Commissioner's motion (Dkt. 14) is
denied, and the matter is remanded to the Commissioner for further proceedings consistent
with this Decision and Order.

- 1-

BACKGROUND

Plaintiff protectively filed her application for SSI on March 10,2014, (Dkt.7 at 20,

50).' In her application. Plaintiff alleged disability due to back problems. {Id. at 50).
Plaintiffs applications were initially denied on May 14,2014. {Id. at 20,57). At Plaintiffs
request, a hearing was held before administrative law judge ("ALJ") Eric L. Glazer in
Buffalo, New York, on August 17, 2016. {Id. at 20, 32-48). On November 3, 2016, the
ALJ issued an unfavorable decision. {Id. at 17-31). Plaintiff requested Appeals Council
review; her request was denied on January 26, 2018, making the ALJ's determination the
Commissioner's final decision. {Id. at 4-8). This action followed.
LEGAL STANDARD
1.

District Court Review

"In reviewing a final decision ofthe [Social Security Administration ("SSA")],this

Court is limited to determining whether the SSA's conclusions were supported by
substantial evidence in the record and were based on a correct legal standard." Talavera
V. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quotation omitted); see also 42 U.S.C.
§ 405(g). The Act holds that a decision by the Commissioner is "conclusive" if it is

supported by substantial evidence. 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." Moran v. Astrue, 569 F.3d 108, 112(2d Cir. 2009)

'
When referencing the page number(s)ofdocket citations in this Decision and Order,
the Court will cite to the CM/ECF-generated page numbers that appear in the upper
righthand comer of each document.
-2-

(quotation omitted). It is not the Court's function to "determine de novo whether [the

claimant] is disabled." Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quotation
omitted); see also Wagner v. Sec'y ofHealth & Human Servs., 906 F.2d 856, 860(2d Cir.
1990) (holding that review of the Secretary's decision is not de novo and that the

Secretary's findings are conclusive ifsupported by substantial evidence). However,"[t]he

deferential standard of review for substantial evidence does not apply to the
Commissioner's conclusions oflaw." Byam v. Barnhart, 336 F.3d 172, 179(2d Cir. 2003)
(citing Townleyv. Heckler, 748 F.2d 109, 112(2d Cir. 1984)).
II.

Disability Determination

An ALJ follows a five-step sequential evaluation to determine whether a claimant

is disabled within the meaning ofthe Act. See Parker v. City ofNew York, 476 U.S. 467,
470-71 (1986). At step one, the ALJ determines whether the claimant is engaged in
substantial gainful work activity. See 20 C.F.R. § 416.920(b). If so, the claimant is not
disabled. If not, the ALJ proceeds to step two and determines whether the claimant has an

impairment, or combination ofimpairments,that is "severe" within the meaning ofthe Act,
in that it imposes significant restrictions on the claimant's ability to perform basic work
activities. Id. § 416.920(c). If the claimant does not have a severe impairment or
combination of impairments, the analysis concludes with a finding of"not disabled." If

the claimant does have at least one severe impairment,the ALJ continues to step three.
At step three, the ALJ examines whether a claimant's impairment meets or

medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of

Regulation No.4(the "Listings"). Id. § 416.920(d). Ifthe impairment meets or medically

equals the criteria of a Listing and meets the durational requirement {id. § 416.909), the

claimant is disabled. If not,the ALJ determines the claimant's residual functional capacity
("RFC"), which is the ability to perform physical or mental work activities on a sustained

basis, notwithstanding limitations for the collective impairments. See id. § 416.920(e).
The ALJ then proceeds to step four and determines whether the claimant's RFC

permits the claimant to perform the requirements of his or her past relevant work. Id.
§ 416.920(f). Ifthe claimant can perform such requirements,then he or she is not disabled.

If he or she cannot, the analysis proceeds to the fifth and final step, wherein the burden
shifts to the Commissioner to show that the claimant is not disabled. Id. § 416.920(g). To
do so, the Commissioner must present evidence to demonstrate that the claimant "retains a

residual functional capacity to perform alternative substantial gainful work which exists in
the national economy"in light ofthe claimant's age, education, and work experience. Rosa
V. Callahan, 168 F.3d 72, 77(2d Cir. 1999)(quotation omitted).
DISCUSSION
I.

The ALJ's Decision

In determining whether Plaintiff was disabled, the ALJ applied the five-step
sequential evaluation set forth in 20 C.F.R. § 416.920. At step one, the ALJ determined
that Plaintiff had not engaged in substantial gainful work activity since March 10, 2014,
the date of her application. (Dkt. 7 at 19).

At step two, the ALJ found that Plaintiff suffered from the severe impairment of

spine disorder. (Id.). At step three, the ALJ found that Plaintiff did not have an impairment
or combination of impairments that met or medically equaled the severity of any Listing.

{Id.). The ALJ particularly considered the criteria of Listings 1.00(B)(2)(b) and 1.04 in
reaching his conclusion. {Id. at 19-20).

Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC

to perform light work as defined in 20 C.F.R. § 416.967(b), with the additional limitations

that Plaintiff "has unlimited ability to balance," "can occasionally climb ramps, stairs,
ladders, ropes and scaffolds," and "can occasionally kneel, crouch and crawl." {Id. at 23).
At step four, the ALJ found that Plaintiff had no past relevant work. {Id. at 26).
At step five, the ALJ relied on the Medical-Vocational Guidelines to conclude that,

considering Plaintiffs age,education, work experience, and RFC,there werejobs that exist
in significant numbers in the national economy that Plaintiffcould perform. {Id. at 25-26).
Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. {Id. at
27).
II.

Remand of this Matter for Further Proceedings is Necessary

Plaintiff asks the Court to reverse or, in the alterative, remand this matter to the

Commissioner, arguing:(1)the ALJ failed to properly weigh and consider the opinion of

treating physician Dr. Myron Click; (2) the ALJ's RFC finding is not supported by
substantial evidence because he failed to properly take into account Plaintiffs inability to
communicate in English; and(3)the ALJ erred as a matter oflaw in not eliciting testimony
from a vocational expert. (Dkt. 12-1 at 9-15). For the reasons set forth below, the Court

finds that the ALJ failed to properly weight Dr. Click's opinion and that this error
necessitates remand for further proceedings.
A.

Assessment of Dr. Glick's Opinion

Because Plaintiffs claim was filed before March 27,2017,the ALJ was required to
apply the treating physician rule, under which a treating physician's opinion is entitled to
"controlling weight" when 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[.]" 20 C.F.R. § 404.1527(c)(2). Under the treating physician rule, if
the ALJ declines to afford controlling weight to a treating physician's medical opinion, he

or she "must consider various factors to determine how much weight to give to the
opinion." Halloran v. Barnhart, 362 F.3d 28, 32(2d Cir. 2004)(internal quotation marks
omitted). These factors include:

(i) the frequency of examination and the length, nature and extent of the
treatment relationship;(ii)the evidence in support ofthe treating physician's
opinion; (iii) the consistency of the opinion with the record as a whole;
(iv) whether the opinion is from a specialist; and(v)other factors brought to
the Social Security Administration's attention that tend to support or
contradict the opinion.

Id. "An ALJ does not have to explicitly walk through these factors, so long as the Court
can conclude that the ALJ applied the substance ofthe treating physician rule[.]" Scitney
V. Colvin, 41 F. Supp. 3d 289, 301 (W.D.N.Y. 2014)(internal quotation omitted).

Whatever weight the ALJ assigns to the treating physician's opinion, he must "give

good reasons in [his] notice of determination or decision for the weight [he gives to the]
treating source's medical opinion." 20 C.F.R. § 404.1527(c)(2); see also Harris v. Colvin,

149 F. Supp. 3d 435, 441 (W.D.N.Y. 2016)("A corollary to the treating physician rule is
-6-

the so-called 'good reasons rule,' which is based on the regulations specifying that 'the
Commissioner "will always give good reasons'" for the weight given to a treating source
opinion."(quoting Halloran,362 F.Sd at 32)). "Those good reasons must be supported by
the evidence in the case record, and must be sufficiently specific

" Harris, 149 F. Supp.

3d at 441 (internal quotation marks omitted). The Second Circuit "[does] not hesitate to

remand when the Commissioner's decision has not provided 'good reasons' for the weight
given to a [treating physician's] opinion and [it] will continue remanding when [it]
encounter[s] opinions from [ALJs] that do not comprehensively set forth reasons for the
weight assigned to a treating physician's opinion." Halloran, 362 F.3d at 33.

In this case. Dr. Glick, Plaintiffs primary care physician, began treating Plaintiffin
2011. (Dkt. 7 at 551). On August 6,2016,Dr. Glick completed a Physical Medical Source
Statement in which he opined that Plaintiffsuffered from lumbar disc disease and "multiple
hemiated lumbar discs." (Jd.). Dr. Glick further opined that Plaintiff could walk only one
city block "without rest or severe pain," that she could sit for 15 minutes and stand for 10

minutes before needing to change position, that she was"100% disabled" and incapable of
work, that she could rarely lift less than 10 pounds and could never lift more than 10

pounds, that she could never twist, stoop, or climb ladders and could occasionally climb
stairs, that she was likely to be off-task for 25% or more ofthe workday, and that she was
incapable of even low stress work. {Id. at 551-54).

In his opinion, the ALJ afforded Dr. Glick's opinion "little weight," stating that it
"contrastfed] sharply with the other evidence of record, including Dr. Glick's own

treatment notes reflecting that [Plaintiff] had a full range of motion, decreased pain, and

medical improvement with physical therapy," and that Dr. Glick "appear[ed]to have relied
to a great extent on the subjective report of symptoms and limitations provided by
[Plaintiff]." (Mat25-26).

The Court agrees with Plaintiff that the ALJ did not provide good reasons for the
weight given to Dr. Click's opinion. With respect to the ALJ's one-sentence assertion that

Dr. Click's opinion "contrasts sharply with the other evidence of record" {id. at 25),

"[ujnder the treating physician rule, an ALJ may not reject a treating physician's opinion
based solely on such conclusory assertions of inconsistency with the medical record."
Marchetti v. Colvin, No. 13-CV-02581 KAM,2014 WL 7359158, at *13 (E.D.N.Y. Dec.
24, 2014). The ALJ did not cite to any specific medical findings in making this assertion,

but instead merely cited generally to more than three years' worth of treatment records.
{See Dkt. 7 at 26). This does not constitute a "good reason" to reject a treating physician's
opinion. See, e.g., Lopez-Tiru v. Astrue, No.09-CV-1638 ARR,2011 WL 1748515, at *4

(E.D.N.Y. May 5, 2011) (finding violation of the treating physician rule where ALJ
rejected treating physician's opinion "after making several conclusory statements," such
as that the treating physician's opinion "was based on subjective complaints," "not
supported by clinical findings," and "not confirmed to the extent claimed by the other
treating physicians").

The Court further notes that the ALJ's general characterization of Dr. Click's
treatment notes greatly oversimplifies his findings. For example, while the ALJ asserts

with elaboration that Dr. Click's treatment notes show "a full range of motion," a review

of those treatment notes reveals Dr. Click repeatedly recorded issues during physical
-8-

examinations such as "neck and trapezius tenderness pain with ROM of neck," "lumbar
and paravertebral tenderness,""lumbar tenderness,""pain with flexion ofback," and "pain
with flexion." (Dkt. 7 at 375, 400, 408, 415). Additionally, as Dr. Click noted in his
medical source statement, MRIs performed in May 2013 and March 2015 showed that

Plaintiff suffered from multiple disc hemiations with stenosis and impingement of the
nerve root. (Dkt. 7 at 278-282).

Turning to the ALJ's contention that Dr. Click "appears to have relied to a great
extent on the subjective report ofsymptoms and limitations provided by [Plaintiff],"(Dkt.
7 at 26), the ALJ provided no explanation for how he reached that conclusion. Dr. Click's

medical source statement specifically sets forth the clinical findings that informed his
opinion, including the MRIs of Plaintiffs lumbar spine that showed multiple hemiated
discs and physical examinations showing positive straight leg raising tests on the left,
lumbar tenderness, and decreased range of motion. {Id. at 551). Moreover, the Second

Circuit has held that "[t]he fact that [a treating physician] also relied on [a plaintiffs]
subjective complaints hardly undermines his opinion as to her flinctional limitations, as [a]

patient's report of complaints, or history, is an essential diagnostic tool." Green-Younger
V. Barnhart, 335 F.3d 99, 107(2d Cir. 2003)(quotation omitted).
In sum, the Court finds that the ALJ failed to give good reasons for affording only

little weight to Dr. Click's opinion, in violation of the treating physician rule. This is

particularly true in light ofthe fact that Dr. Click's medical source statement was the only
competent medical opinion in the record. This error by the ALJ warrants remand for further
proceedings.
-9-

B.

PlaintifTs Remaining Arguments

As set forth above, Plaintiff has identified additional reasons why she contends
reversal or remand is warranted. 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. See, e.g., 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); Morales v. Colvin, No. 13 CIV. 06844 LGS DF, 2015 WL 2137776, at *28

(S.D.N.Y. May 4, 2015)(the court need not reach additional arguments regarding the
ALJ's factual determinations "given that the ALJ's analysis may change on these points
upon remand").
CONCLUSION

For the foregoing reasons. Plaintiffs motion for judgment on the pleadings (Dkt.
12) is granted to the extent that the matter is remanded for further administrative

proceedings. Defendant's motion for judgment on the pleadings (Dkt. 14) is denied. The
Clerk of Court is directed to enter judgment and close this case.
SO ORDERED.

ELIZABE

rict Judge
Dated: June 10, 2019
Rochester, New York
- 10-