Bouton v. Commissioner of Social Security

Filing 14

DECISION AND ORDERIT HEREBY IS ORDERED, that Plaintiff's Motion for Judgment on the Pleadings (Docket No. 10) is GRANTED.FURTHER, that Defendant's Motion for Judgment on the Pleadings (Docket No. 11) is DENIED.FURT HER, that this case is REMANDED to the Commissioner of Social Security for further proceedings consistent with this decision.FURTHER, that the Clerk of Court is directed to CLOSE this case.SO ORDERED.Signed by William M. Skretny, United States District Judge on 3/27/2024. (JCM)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
CAROL B.,
Plaintiff,
v.

DECISION AND ORDER

COMMISSIONER OF SOCIAL SECURITY,

22-CV-996S

Defendant.
______________________________________
1.

Plaintiff Carol B. 1 brings this action, pursuant to the Social Security Act (“the

Act”), seeking review of the final decision of the Commissioner of Social Security that
denied her applications for disability insurance benefits and supplemental security income
under Titles II and XVI of the Act. (Docket No. 1.) This Court has jurisdiction over this
action under 42 U.S.C. § 405(g).
2.

Plaintiff protectively filed her applications with the Social Security

Administration on July 1, 2016. Plaintiff alleged disability beginning on January 15, 2016,
initially due to anxiety, depression, obesity, asthma, bilateral hearing loss, and
osteoarthritis of the left knee. Plaintiff’s applications were denied, and she thereafter
requested a hearing before an administrative law judge (“ALJ”).
3.

On December 12, 2018, ALJ Mary Mattimore held a hearing at which

Plaintiff was represented by a non-attorney representative and Vocational Expert

1 In accordance with this Court’s Standing Order of November 18, 2020, and consistent with
guidance from the Committee on Court Administration and Case Management of the Judicial Conference
of the United States, this Decision and Order will identify Plaintiff by first name and last initial.

Roxanne Benoit appeared and testified. (R. 2 at 16, 687, 133-77.) At the time of the
hearing, Plaintiff was a 50-year-old woman with a high school education and past work
experience as a counter attendant, coffee-shop/lunchroom worker (R. at 24, 695).
4.

This ALJ considered the case de novo and, on January 29, 2019, issued a

written decision denying Plaintiff’s applications for benefits, finding that Plaintiff could
perform light work (R. at 16, 687, 620). After the Appeals Council denied Plaintiff’s
request to review the ALJ’s decision, she filed her first action challenging the
Commissioner’s decision.

This action resulted in a Decision and Order issued by

Hon. Jeremiah J. McCarthy on August 17, 2021, that remanded the matter for further
proceedings because the Appeals Council refused to consider treatment notes of Lydia
Lutkoff, ANP, and Bridget Vaccaro, FNP, issued after the ALJ’s decision. Carol S. B. v.
Comm’r, No. 1:20-CV-690-JJM, 2021 WL 3629397, at *2-3 (W.D.N.Y. Aug. 17, 2021) (R.
at 702, 711-14).
5.
2019

Thereafter, on January 18, 2022, the Appeals Council vacated the ALJ’s

decision

and

directed

further

proceedings

consistent

with

Magistrate

Judge McCarthy’s Decision (R. at 720). ALJ Paul Georger conducted a second hearing
on June 24, 2022, by teleconference due to the COVID-19 pandemic where Plaintiff was
represented by counsel and vocational expert Edmond Calandra appeared and testified
(R. at 620, 642-83). On August 29, 2022, ALJ Georger issued his decision denying
Plaintiff’s claims for benefits (R. at 620).

2

Citations to the underlying administrative record are designated as “R.”

2

6.

Following the ALJ’s decision, Plaintiff filed the current action, challenging

the Commissioner’s final decision. 3 (Docket No. 1.)
7.

Both parties moved for judgment on the pleadings under Rule 12(c) of the

Federal Rules of Civil Procedure. (Docket Nos. 10, 11.) Plaintiff filed her Response on
May 30, 2023 (Docket No. 12), declaring that a reply was not necessary (id. at 1), at which
time this Court took the Motions under advisement without oral argument. For the
reasons that follow, Plaintiff’s motion will be granted and Defendant’s motion will be
denied.
8.

A court reviewing a denial of disability benefits may not determine de novo

whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec’y
of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s
determination will be reversed only if it is not supported by substantial evidence or there
has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v.
Califano, 615 F.2d 23, 27 (2d Cir. 1979). Substantial evidence is that which amounts to
“more than a mere scintilla,” and it has been defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 26 L. Ed. 2d 842 (1971). Where evidence is
deemed susceptible to more than one rational interpretation, the Commissioner’s
conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
9.

“To determine on appeal whether an ALJ’s findings are supported by

substantial evidence, a reviewing court considers the whole record, examining the
evidence from both sides, because an analysis of the substantiality of the evidence must
The ALJ’s August 29, 2022, decision became the Commissioner’s final decision on this matter by
operation of 42 U.S.C. §§ 405(g), 1383(c)(3).
3

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also include that which detracts from its weight.” Williams ex rel. Williams v. Bowen,
859 F.2d 255, 258 (2d Cir. 1988).

If supported by substantial evidence, the

Commissioner’s finding must be sustained “even where substantial evidence may support
the plaintiff’s position and despite that the court’s independent analysis of the evidence
may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153
(S.D.N.Y. 1992). In other words, this Court must afford the Commissioner’s determination
considerable deference and will not substitute “its own judgment for that of the
[Commissioner], even if it might justifiably have reached a different result upon a de novo
review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
10.

The Commissioner has established a five-step sequential evaluation

process to determine whether an individual is disabled under the Act. See 20 C.F.R.
§§ 404.1520, 416.920. The Supreme Court of the United States recognized the validity
of this analysis in Bowen v. Yuckert and it remains the proper approach for analyzing
whether a claimant is disabled. 482 U.S. 137, 140-42, 107 S. Ct. 2287, 96 L. Ed. 2d 119
(1987).
11.

The five-step process is as follows:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If [s]he is not,
the [Commissioner] next considers whether the claimant has
a “severe impairment” which significantly limits [her] physical
or mental ability to do basic work activities. If the claimant
suffers such an impairment, the third inquiry is whether, based
solely on medical evidence, the claimant has an impairment
which is listed in Appendix 1 of the regulations. If the claimant
has such an impairment, the [Commissioner] will consider
[her] disabled without considering vocational factors such as
age, education, and work experience; the [Commissioner]
presumes that a claimant who is afflicted with a “listed”
impairment is unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the
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fourth inquiry is whether, despite the claimant's severe
impairment, [s]he has the residual functional capacity to
perform [her] past work. Finally, if the claimant is unable to
perform [her] past work, the [Commissioner] then determines
whether there is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam) (quotations in original);
see also 20 C.F.R. § 404.1520; Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
12.

Although the claimant has the burden of proof at the first four steps, the

Commissioner has the burden of proof at the fifth and final step. See Yuckert, supra,
482 U.S. at 146 n.5; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984). The final step
is divided into two parts.

First, the Commissioner must assess the claimant’s job

qualifications by considering her physical ability, age, education, and work experience.
Second, the Commissioner must determine whether jobs exist in the national economy
that a person having the claimant’s qualifications could perform.

See 42 U.S.C.

§ 423(d)(2)(A); 20 C.F.R. §§ 404.1520(f), 416.920(f); see also Heckler v. Campbell,
461 U.S. 458, 460, 103 S. Ct. 1952, 76 L. Ed. 2d 66 (1983).
13.

The ALJ analyzed Plaintiff’s claim for benefits under the process set forth

above. At Step One, the ALJ found that Plaintiff has not engaged in substantial gainful
activity since January 15, 2016, the onset date. (R. at 622, 18.) At Step Two, the ALJ
found that Plaintiff had the following severe impairments: degenerative disc disease of
cervical and thoracic spine, obesity, degenerative joint disease of the right hallux, major
depressive disorder, unspecified anxiety disorder, asthma, and osteoarthritis of the left
knee. (R. at 623.) At Step Three, the ALJ found that Plaintiff did not have an impairment
or combination of impairments that meets or medically equals any impairment(s) listed in
20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 623.)

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14.

Next, the ALJ found that Plaintiff retained the residual functional capacity

(“RFC”) to perform light work, except that she could occasionally climb ramps, stairs,
ladders, ropes, or scaffolds; and occasionally balance, stoop, kneel, crouch, and crawl.
The ALJ further found that Plaintiff could face occasional exposure to moving mechanical
parts, pulmonary irritants such as dusts, odors, and fumes. The ALJ also found that
Plaintiff must have no exposure to extreme heat or extreme cold, and she can have
exposure to moderate noise (such as a vacuum cleaner). Further, the ALJ concluded
that Plaintiff could perform simple, routine, and repetitive tasks but not at a production
rate pace (e.g., assembly line work); that she could perform simple work-related
decisions; and that she may have occasional interaction with supervisors. (R. at 625.)
15.

At Step Four, the ALJ found Plaintiff could perform her past relevant work

as a cafeteria worker. (R. at 632.) Accordingly, the ALJ found that Plaintiff was not
disabled. (R. at 632, 633.)
16.

Plaintiff now argues that the RFC determination is not supported by

substantial evidence for several reasons. First, she claims the ALJ improperly gave great
weight to the one-time alleged stale October 2016 opinion of consultative examiner
Dr. David Brauer, particularly given her right hallux (great toe) surgery performed in
December 2019.
17.

Second, she contends that the ALJ failed to reconcile the RFC with the more

restrictive portions of the opinions of ANP Lydia Lutkoff and LMSW Megan Swanson.
18.

Third, Plaintiff argues that the ALJ improperly rejected the medical findings

of ANP Lutkoff and FNP Vaccaro by disregarding medical treatment by these
practitioners.

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19.

For the reasons articulated below, this Court need only address Plaintiff’s

third argument that the ALJ improperly rejected the physical findings made by ANP Lutkoff
and FNP Vaccaro. Plaintiff’s other arguments, however, are unavailing.
20.

In that third argument, Plaintiff contends that the ALJ improperly rejected

the opinions of ANP Lutkoff and FNP Vaccaro relative to her physical limitations (R. at
43-44, 51-52). This Court agrees.
21.

Pursuant to the remand ordered by Magistrate Judge McCarthy, Carol S.

B., supra, 2021 WL 3629397, at *3 n.5 (R. at 713), the ALJ considered these opinions but
afforded the physical assessments therein little weight despite assigning great weight to
ANP Lutkoff’s psychiatric assessments (R. at 631-32). In doing so the ALJ noted that
ANP Lutkoff and FNP Vaccaro only treated Plaintiff for her mental health and not her
physical conditions (R. at 631, 632).
22.

On April 28, 2017, ANP Lutkoff did report that Plaintiff had anxiety as well

as arthritis in her left knee. ANP Lutkoff found that Plaintiff had moderate limitations in
walking, standing, lifting, pushing, pulling, bending, and climbing due to arthritis and
chronic left knee pain. (R. at 43-44, 857, 632.)
23.

On April 24, 2018, FNP Vaccaro examined Plaintiff and noted that Plaintiff

had degenerative joint disease, bipolar disorder, and depression, finding that Plaintiff had
moderate physical limitations in walking, standing, sitting, lifting, carrying, pushing,
pulling, bending, and climbing. (R. at 51-52.)
24.

A non-medical source such as a nurse practitioner remains qualified to

present evidence regarding the severity of a claimant’s impairments, 20 C.F.R.
§§ 404.1527(f)(1), 416.927(f)(1).

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25.

This Court holds that the ALJ erred on two grounds. First, FNP Vaccaro’s

report was cosigned by Dr. Jon Kucera, an acceptable medical source under the preMarch 27, 2017, regulations. 20 C.F.R. §§ 404.1502(a)(1), 416.902(a)(1). By giving this
report little weight, the ALJ violated the treating physician rule. Id. §§ 404.1527(c),
416.927(c).
26.

The ALJ errs when he rejects a report by a non-physician that is also signed

by the treating physician. See Ford v. Astrue, No. 09-CV-6280 CJS, 2010 WL 4365836,
at *13 n.14 (W.D.N.Y. Nov. 3, 2010) (citing cases). By the doctor signing the report
authored by the non-physician, the opinions stated therein are those of the physician.
Riechl v. Barnhart, No. 02-CV-6169 CJS, 2003 WL 21730126, at *11 (W.D.N.Y. June 3,
2003). By the doctor so signing that report, it “should be evaluated under the treating
physician rule unless evidence indicates that the report does not reflect the doctor’s
views.” Djuzo v. Comm’r, No. 5:13-CV-272 (GLS/ESH), 2014 WL 5823104, at *4 & n.10
(N.D.N.Y. Nov. 7, 2014).
27.

Here, Dr. Kucera cosigned FNP Vaccaro’s April 24, 2018, report (R. at 52).

The ALJ erred in rejecting this report despite Dr. Kucera’s signature.
28.

Moreover, this Court finds that there is no evidence that FNP Vacarro’s

report did not reflect the views of Dr. Kucera. Absent any evidence of the doctor’s contrary
opinion, the ALJ should have accepted Dr. Kucera and FNP Vaccaro’s April 2018 report
under the treating physician rule. This Court concludes that the ALJ erred in affording
this report little weight. On remand, the ALJ shall reconsider this report and recognize
that it was from an acceptable medical source.

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29.

Second, the ALJ also erred in finding that ANP Lutkoff and FNP Vaccaro

never treated Plaintiff’s physical ailments, thereby affording little weight to their medical
diagnoses and findings. (R. at 631.) The ALJ inappropriately disregarded medical
evidence in this record of treatment by ANP Lutkoff and FNP Vaccaro.
30.

The record, however, shows that ANP Lutkoff and FNP Vaccaro treated

Plaintiff for her physical condition. (E.g., R. at 1811-13, 2103-09.) ANP Lutkoff’s and
FNP Vaccaro’s reports listed Plaintiff’s left knee arthritis and noted limitations arising from
her severe chronic knee pain as well as her psychological conditions. (R. at 43, 44, 51,
52.)
31.

This Court holds that the ALJ erred in overlooking the physical treatment by

ANP Lutkoff and FNP Vaccaro, thus erroneously focused exclusively on their mental
health assessments (R. at 631-32). As a result, Plaintiff’s Motion for Judgment on this
ground is granted, Defendant’s motion is denied, and the case is remanded for
consideration of the medical assessments by ANP Lutkoff and FNP Vaccaro.
32.

Accordingly, having reviewed the ALJ’s decision and having considered

Plaintiff’s arguments, this Court finds that the ALJ erred in disregarding the medical
treatment by ANP Lutkoff and FNP Vaccaro and hence inappropriately weighing their
opinions. This error warrants remand. Plaintiff’s other arguments are rejected. Plaintiff’s
Motion for Judgment on the Pleadings is therefore granted and Defendant’s Motion for
Judgment on the Pleadings is denied.

IT HEREBY IS ORDERED, that Plaintiff’s Motion for Judgment on the Pleadings
(Docket No. 10) is GRANTED.

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FURTHER, that Defendant’s Motion for Judgment on the Pleadings (Docket
No. 11) is DENIED.
FURTHER, that this case is REMANDED to the Commissioner of Social Security
for further proceedings consistent with this decision.
FURTHER, that the Clerk of Court is directed to CLOSE this case.
SO ORDERED.

Dated:

March 27, 2024
Buffalo, New York
s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

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