Gipp v. Commissioner of Social Security

Filing 20

DECISION AND ORDER granting 11 Motion for Summary Judgment; denying 17 Motion for Judgment on the Pleadings. The Clerk of the Court is directed to close this case. SO ORDERED. Signed by Hon. H. Kenneth Schroeder Jr. on 10/04/2019. (HKG)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PAUL E. GIPP,
Plaintiff,
v.
18-CV-464-HKS
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

DECISION AND ORDER
Plaintiff Paul Gipp brings this action pursuant to the Social Security Act
(“the Act”) seeking review of the final decision of Acting Commissioner of Social
Security (the “Commissioner”), which denied his applications for disability insurance
benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of the
Act. Dkt. No. 1. This Court has jurisdiction over this action under 42 U.S.C. § 405(g)
and the parties have consented to the disposition of this case by a United States
magistrate judge pursuant to 28 U.S.C. § 636(c). Dkt. No. 19.

Both parties have moved for judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c). Dkt. Nos. 11, 17. For the reasons set forth
below, Plaintiff’s motion is granted, and the defendant’s motion is denied.

BACKGROUND
On October 9, 2014, the plaintiff protectively filed applications for DIB and
SSI with the Social Security Administration (“SSA”) alleging disability since January 1,
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2014, due to Bipolar Disorder; Arthritis; Spinal Stenosis; Hypothyroidism; Borderline
Personality Disorder; Attention Deficit Hyperactive Disorder; and High Cholesterol. Tr. 1
269. On May 13, 2015, the SSA denied Plaintiff’s claims at the initial level. Tr. 127-28.
On April 3, 2017, the plaintiff appeared and testified before Administrative Law Judge,
Stephen Cordovani (“the ALJ”). Tr. 38-91. A vocational expert (“VE”) also testified
during the hearing. Id. During the hearing the plaintiff amended the onset date to
August 5, 2014. Tr. 42. On May 16, 2017, the ALJ issued a decision finding the plaintiff
was not disabled within the meaning of the Act. Tr. 12-31. Plaintiff timely requested
review of the ALJ’s decision, which the Appeals Council denied on March 22, 2018. Tr.
1-3. Thereafter, the plaintiff commenced this action seeking review of the
Commissioner’s final decision. Dkt. No. 1.

LEGAL STANDARD
I.

District Court Review
“In reviewing a final decision of the 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 marks 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)

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References to “Tr.” are to the administrative record in this matter. Dkt No. 8.

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(quotation marks 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
marks omitted); see also Wagner v. Sec’y of Health & 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 if supported by substantial evidence).

II.

Disability Determination
An ALJ must follow a five-step process to determine whether an individual

is disabled under the Act. See Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). At
step one, the ALJ must determine whether the claimant is engaged in substantial gainful
work activity. See 20 C.F.R. § 404.1520(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 of impairments, that is “severe” within the meaning of the Act, meaning
that it imposes significant restrictions on the claimant’s ability to perform basic work
activities. 20 C.F.R. § 404.1520(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, 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”). 20 C.F.R. § 404.1520(d). If the impairment meets or
medically equals the criteria of a Listing and meets the durational requirement (20
C.F.R. § 404.1509), the claimant is disabled. If not, the ALJ determines the claimant’s

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residual functional capacity (“RFC”), which is the ability to perform physical or mental
work activities on a sustained basis, notwithstanding limitations for collective
impairments. See 20 C.F.R. § 404.1520(e)-(f).

The ALJ then proceeds to step four and determines whether the
claimant’s RFC permits him or her to perform the requirements of his or her past
relevant work. 20 C.F.R. § 404.1520(f). If the 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 demonstrate that the
claimant “retains a residual functional capacity to perform the alternative substantial
gainful work which exists in the national economy” in light of his or her age, education,
and work experience. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation
marks omitted); see also 20 C.F.R. § 404.1560(c).

DISCUSSION
I.

The ALJ’s Decision
The ALJ’s decision analyzed the plaintiff’s claim for benefits under the

process described above. First, the ALJ found the plaintiff met insured status
requirements of the SSA through September 30, 2016. Tr. 17. At step one, the ALJ
found that the plaintiff had not engaged in substantial gainful activity since August 5,
2014, the alleged onset date. Id. At step two, the ALJ found the plaintiff has the
following severe impairments: obesity; bipolar disorder; attention deficit/hyperactivity
disorder (ADHD) and mild degenerative changes at L4-5 and L5-S1 of the lumbar spine.

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Id. The ALJ also found the plaintiff has the following non-severe impairments:
obstructive sleep apnea; hypothyroidism; dyslipidemia; and left knee pain. Tr. 18. At
step three, the ALJ found that the plaintiff’s impairments, alone or in combination, did
not meet or medically equal any listings impairment. Id.

Next, the ALJ determined the plaintiff retained the RFC to perform medium
work with additional limitations Tr. 20. Specifically, he can only occasionally climb
ramps and stairs, kneel and crawl, but cannot climb ladders, ropes, or scaffolds. Id. He
can understand, remember and carry out simple and routine instructions and tasks. He
cannot perform jobs with supervisory duties or jobs requiring independent decision
making. Id. He can perform jobs with no strict production quotas and minimal changes
in work routine and processes. Id. He can have frequent contact with supervisors, and
occasional interaction with coworkers and the general public. Id.

At step four, the ALJ relied on the VE’s testimony and found that the
plaintiff was unable to perform his past relevant work as a “Collections Clerk” (DOT
#241.357-010: Specific Vocational Preparation (“SVP”) level of 5, with a sedentary level
of exertion. Tr. 29. At step five, the ALJ considered the plaintiff’s age (48 on the
alleged disability onset date); high school education; ability to communicate in English;
work experience; RFC; and concluded based on the VE’s testimony that the plaintiff
was capable of performing other work that existed in significant numbers in the national
economy. Tr. 30. Specifically, the ALJ found the plaintiff could perform the following
jobs: “Sweeper/Cleaner-Industrial” (DOT #389.683-010) SVP 2 (unskilled) requiring a

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medium level of exertion; and “Linen Room Attendant” (DOT #222.387-030) SVP 2
(unskilled) requiring a medium level of exertion; and “Cart Attendant” (DOT #920.678014 SVP 2 (unskilled) requiring a medium level of exertion. Id. Accordingly, the ALJ
found the plaintiff was not disabled from August 5, 2014 through May 16, 2017. Tr. 31.

II.

Analysis
Plaintiff argues that remand is warranted because the ALJ erred in

evaluating his RFC, by failing to give controlling weight to the opinions rendered by his
treating mental health clinician, Jeffrey Kashin, MD (“Dr. Kashin”) in violation of the
treating physician rule. Dkt No. 11 at 22. The Commissioner contends the ALJ
reasonably weighed Dr. Kashin’s opinions and provided good reasons in support of his
determination to accord them less-than-controlling weight. Dkt. No. 17 at 6. This Court
finds that remand is required because the reasons provided by the ALJ are not
supported by substantial evidence. 2

Treating Physician Rule
The treating physician rule requires the ALJ to give “deference to the
views of the physician who has engaged in the primary treatment of the claimant.”
Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d. Cir 2003). The treating physician’s
opinion “is given controlling weight if it is well supported by medical findings and not
inconsistent with other substantial evidence.” Rosa v. Callahan, 168 F.3d 72, 78 (2d

2

Plaintiff also argues remand is warranted because the ALJ erred in evaluating the consultative
examiner’s opinion and in evaluating his subjective complaints. The Court declines to consider
these arguments having already found the ALJ’s decision reversible for violating the treating
physician rule.

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Cir. 1999) (citations omitted). 3 An ALJ who declines to give controlling weight to the
medical opinion of a treating physician must consider: (i) the frequency of examination
and length, nature and extent of the treatment relationship; (ii) evidence in support of
the 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
SSA’s attention that tend to support or contradict the opinion. 20 C.F.R. § 404.1527
(d)(2). The ALJ “must ‘comprehensively set forth [his] reasons for the weight assigned
to a treating physician’s opinion.’” Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008).
“Failure to provide ‘good reasons’ for not crediting the opinion of a claimant’s treating
physician is a ground for remand.” Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999)
(citation omitted). However, failure “to refer explicitly to each regulatory factor in
determining the weight to assign to a treating physician’s opinion” does not warrant
remand where the decision, in its entirety, supports the conclusion that the ALJ
“conscientiously applied the substance of the treating physician rule.” Jasen v. Comm’r
of Soc. Sec., No. 16-CV-6153P, 2017 WL 3722454, *11 (W.D.N.Y. Aug. 27, 2017);
Halloran v. Barnhart, 362 F. 3d 28, 32 (2d Cir. 2004) (per curiam) (If, “a searching
review of the record” assures us “that the substance of the treating physician rule was
not traversed,” we will affirm).

Dr. Kashin authored a psychiatric evaluation of Plaintiff on June 3, 2016,
finding he suffers from a severe, persistent mental illness; struggled with symptoms of

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As of March 27, 2017, new regulations were effectuated regarding the treating physician rule,
however, the rule remains applicable to claims filed prior to March 27, 2017. See 20 CFR
§416.927; Smith v. Comm’r of Soc. Sec., 731 F.App’x. 28, 30 n.1 (2d Cir. 2018) (summary
order).

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ADHD and Depression; and had been sober for 16 months. Tr. 649-664. Dr. Kashin
also authored a Medical Examination for Employability Assessment, Disability
Screening, and Alcoholism/Drug Addiction Determination, diagnosing Plaintiff with
Bipolar I Disorder; Alcohol Use in Remission; Hypothyroidism; Dyslipidemia; and
Degenerative Joint Disease. Tr. 748-49. Dr. Kashin opined Plaintiff would be
moderately limited in his ability to walk, stand, sit, lift, carry, push, pull, bend, climb and
in his ability to carry out simple instructions. Tr. 749. The doctor also found Plaintiff
would be very limited in his ability to understand and remember instructions, maintain
attention and concentration, make simple decisions, and function at a consistent pace
within a work setting. Id.

Dr. Kashin completed a Mental Residual Functional Capacity
Questionnaire on March 30, 2017, concluding that due to Plaintiff’s mental impairments,
he would be unable to meet competitive standards for completing a normal workday and
workweek without interruptions from psychologically based symptoms. Tr. 752. He
also found Plaintiff would be seriously limited, but not precluded from: remembering
work-like procedures; sustaining an ordinary routine without special supervision;
working in coordination with or in close proximity to others without being unduly
distracted; making simple work-related decisions; performing at a consistent pace
without an unreasonable number and length of rest periods; accepting instructions and
responding appropriately to criticism from supervisors; getting along with co-workers or
peers without unduly distracting them or exhibiting behavioral extremes; responding
appropriately to changes in a routine work setting; dealing with normal work stress; and

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being aware of normal hazards and taking appropriate precautions. Additionally, Dr.
Kashin opined that Plaintiff’s impairments and treatments would cause him to be absent
more than four days per month. Tr. 754.

This Court finds that the reasons provided by the ALJ in support of his
decision to afford less-than-controlling weight to Dr. Kashin’s opinions, unsupported by
substantial evidence. Chance v. Comm’r of Soc. Sec., NO. 18-CV-342P, 2019 WL
4564116, *6 (W.D.N.Y. Sept. 20, 2019) (citing Estrella v. Berryhill, 925 F.3d 90, 96 (2d
Cir. 2019). Specifically, the ALJ reasoned, “there is no basis for [Dr. Kashin’s] opinion
that the plaintiff would likely miss four days of work per month due to his impairment, as
the records indicate that the claimant was doing well on his medications, which
remained the same for a period of time.” Tr. 29 (referencing Tr. 754). Here, the ALJ
failed to cite to any record evidence in support of his claim, nor to any record evidence
that contradicts Dr. Kashin’s opinion. The ALJ also reasoned that Dr. Kashin’s first
opinion on Plaintiff’s mental limitations was inconsistent with medical evidence “showing
rather benign mental status examinations” and that the second opinion was “somewhat
consistent with the medical evidence of record as a whole,” again failing to cite to any
medical evidence in support of his finding. See Cordero v. Colvin, No. 1:15-CV00345(MAT), 2016 WL 6829646, at *3 (W.D.N.Y. Nov. 21, 2016) (“[T]he ALJ stated that
[the treating physician’s] opinion was ‘without substantial support from the other
evidence of record, which obviously renders it less persuasive.’ The ALJ did not
identify, much less allude to, which evidence of record failed to offer ‘substantial
support’ for [the treating physician’s] opinion. This was error, and it precludes the Court

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from conducting a meaningful review of whether the ALJ’s decision is supported by
substantial evidence.”) (internal citations omitted).

The ALJ also improperly generalized Plaintiff’s periods of stabilization and
improvement as a basis for negating Dr. Kashin’s opinion. “Cycles of improvement and
debilitating symptoms [of mental illness] are a common occurrence, and in such
circumstances it is error for an ALJ to pick out a few isolated instances of improvement
over a period of months or years and to treat them as a basis for concluding the
claimant is capable of working.” Estrella, 925 F.3d at *97 (quoting Garrison v. Colvin,
759 F.3d 995, 1017 (9th Cir. 2014) (citation omitted). Although the ALJ acknowledged
that Dr. Kashin was Plaintiff’s treating psychiatrist for a year, he did not discuss the
frequency of Plaintiff’s treatment, which supports Dr. Kashin’s opinion where Plaintiff
attends bi-weekly appointments for counseling and psychiatric appointments every
three months. Further, the ALJ failed to reconcile Dr. Kashin’s opinion that Plaintiff
would be unable to meet competitive standards for completing a normal workday and
workweek without interruptions from psychologically based symptoms. Tr. 752.
Notably, Dr. Kashin’s opinions are not inconsistent with the consultative psychiatric
examiner’s opinion, Janine Ippolito, PsyD. (“Dr. Ippolito”), that “[Plaintiff’s] mental health
condition may affect his abilities on a daily basis,” which the ALJ accorded “great
weight.” Tr. 28 (citing Exhibit B11F). Finally, this error is not harmless because if
credited, according to the VE’s testimony Plaintiff would be unemployable if he missed
more than two days per month repetitively. Tr. 90.

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Accordingly, this matter is remanded for the ALJ to re-evaluate Dr.
Kashin’s opinions and if the ALJ decides to afford less-than-controlling weight to the
treating physician’s opinion again, the ALJ should cite specifically to relevant medical
and non-medical evidence in this case that contradicts the opinion. See Damiano v.
Comm’r of Soc. Sec., No. 15-CV-1074 (WFK), 2019 WL 2330853, at *9 (E.D.N.Y.
2019).

CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Judgment on the
Pleadings (Dkt. No. 11) is GRANTED to the extent that this matter is remanded for
further proceedings consistent with this Decision and Order. Defendant’s Motion for
Judgement on the Pleadings (Dkt. No. 17) is DENIED.

The Clerk of Court is directed

to close this case.

SO ORDERED.
DATED:

Buffalo, New York
October 4, 2019

S/ H. Kenneth Schroeder, Jr.__
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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