Minor v. Astrue
Filing
8
ORDER denying 4 Commissioner's Motion for Judgment on the Pleadings; granting 5 Plaintiff's Motion for Judgment on the Pleadings; and remanding the case solely for calculation of benefits for the period of time from August 1, 2005 through February 11, 2009. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 11/28/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
SHARON M. MINOR,
No. 11-CV-06556-MAT
Plaintiff,
DECISION and ORDER
v.
MICHAEL ASTRUE, Commissioner
of Social Security,
Defendant.
___________________________________
INTRODUCTION
Sharon M. Minor (“Plaintiff”), represented by counsel, brings
this action pursuant to Title II of the Social Security Act (“the
Act”), seeking review of the final decision of the Commissioner of
Social Security (“the Commissioner”), denying her application for
Disability Insurance Benefits (“DIB”).
Specifically, Plaintiff
alleges that the Administrative Law Judge (“ALJ”) did not give
proper weight to Plaintiff’s treating physician’s opinion and
failed to properly evaluate her credibility.
The Commissioner moves for judgment on the pleadings pursuant
to Fed. R. Civ. P. 12(c) on the grounds that the decision of the
ALJ was supported by substantial evidence in the record and that
Plaintiff was not disabled during the relevant period under review.
Plaintiff opposes the Commissioner’s motion, and cross-moves for
judgment on the pleadings. The Court finds that the decision of the
Commissioner is not supported by substantial evidence in the record
and contains several legal errors.
Therefore, the Commissioner’s
motion for judgment on the pleadings is denied, and Plaintiff’s
motion for judgment on the pleadings is granted. The case is
reversed and remanded for payment of benefits.
PROCEDURAL BACKGROUND
Plaintiff filed an application for DIB under Title II of the
Act on June 16, 2008, alleging disability since August 1, 2005.1
(T.84-85).2
After the application was denied on October 20, 2008,
Plaintiff filed a request for a hearing before an ALJ. Represented
by counsel, Plaintiff appeared and testified at the hearing before
ALJ Michael Friedman on March 10, 2010. (T.13-23).
In a decision dated March 26, 2010, the ALJ found that the
Plaintiff was not disabled within the meaning of the Act during the
full period under review.
(T.18-28).
In this case, the period
under review ran from Plaintiff’s alleged onset disability date of
August 1, 2005 (T.84), through her date last insured, June 30,
2009. (T.18). Thus, to qualify for benefits, Plaintiff’s disability
must have begun on or before June 30, 2009. The ALJ found Plaintiff
became disabled as of February 12, 2009, her fiftieth birthday.
(T.18).
1
In his decision, the ALJ stated that Plaintiff alleged
disability beginning December 31, 2005. (T.18). However, Plaintiff’s
application for benefits alleged disability since August 1, 2005.
(T.84).
2
Numbers in parentheses preceded by “T.” refer to pages
from the transcript of the administrative record.
Page -2-
Plaintiff requested review of the ALJ’s denial of benefits
prior to February 12, 2009. The Appeals Council denied review, and
the ALJ’s decision became the final decision of the Commissioner on
September 8, 2011.
(T.1-7).
Plaintiff then filed this action.
FACTUAL BACKGROUND
A.
Non-Medical Evidence
Plaintiff, born in 1959, was forty-six years-old as of the
date she alleged onset of disability. She had past relevant work as
an assembly line worker and bus driver. (T.111, 114). Plaintiff’s
testimony regarding her symptoms and limitations is discussed
further infra in Section II.B.
B.
Relevant Medical Evidence
1.
Treating Physician Tedana Wibberley, M.D.
Dr. Wibberley began treating Plaintiff in February 2001.
(T.159,
165,
177).
At
an
October
7,
2005
visit,
Plaintiff
described experiencing intermittent back pain nearly every day.
(T.177).
Straight-leg
raising
was
positive
at
45
degrees
bilaterally and Plaintiff walked with a wide-based gait.
Dr.
Wibberley diagnosed chronic pain with a recent flare-up, and
prescribed Vicoprofen, Amitriptyline, and Flexeril. (Id.).
On February 23, 2006, Plaintiff reported that she was no
longer working because of pain in her low back and right foot.
(T.188). Dr. Wibberley’s examination revealed straight-leg raising
to 45 degrees bilaterally, a wide-based gait, and limited right
Page -3-
ankle motion. (Id.). Plaintiff’s medications were renewed. (Id.).
At a follow-up on August 23, 2006, Plaintiff reported ongoing
discomfort in her back with limited capacity to stand and bend, as
well as difficulties with her right ankle. (T.175). She also
reported straight-leg raising was “uncomfortable” at 60 degrees
bilaterally. (Id.). Plaintiff walked with a wide-based gait and had
limited motion in her right ankle. (Id.). Dr. Wibberley diagnosed
chronic
moderate
low
back
pain,
and
persistent
sequellae
in
Plaintiff’s right ankle as the result of a previous fracture.
(Id.). Dr. Wibberley renewed Plaintiff’s pain medications. (Id.).
In a report dated March 26, 2008, Dr. Wibberley noted that
Plaintiff continued to have pain in her right foot and ankle, with
reduced motion in the right ankle, ongoing numbness and weakness in
her legs, and pain in her low back.
(T.169).
She had a limping
gate even with use of a cane, and she wore a back brace most of the
time.
(Id.).
Her
back
spasm
and
low
back
pain
continued
to
necessitate medication. (Id.) Dr. Wibberley opined that Plaintiff
remained totally disabled from any kind of work. (Id.).
Dr. Wibberley completed a Multiple Impairment Questionnaire
(“MIQ”) dated August 15, 2008 (T.191-98), and diagnosed constant
lower back pain, right foot/ankle pain, and numbness of the right
leg with a mild limp.
(T.191).
Clinical and diagnostic findings
included plantar flexion of the right ankle to 20 degrees and
dorsiflexion to 0 degrees, and consistently reduced straight-leg
Page -4-
raising to 30 to 40 degrees.
(T.191-92).
Plaintiff’s primary
symptoms were back pain and spasms, right foot pain, reduced range
of motion in the right ankle, and numbness and weakness of the
legs. (T.192).
Her pain ranged from moderately severe to severe,
7 to 10 on a 10-point scale. (T.193).
As a result of Plaintiff’s symptoms, Dr. Wibberley opined that
Plaintiff could only sit for up to an hour and stand or walk for up
to an hour in an 8-hour workday. (T.193).
Plaintiff also needed to
stand up and move around frequently even when sitting for short
periods of time. (T.193-94). Plaintiff could occasionally lift up
to 5 pounds, but she could never carry any weight. (T.194).
Dr. Wibberley found Plaintiff had significant limitations with
repetitive reaching and lifting, which caused increased pain.
(T. 194). In addition, her medications caused drowsiness. (T.195).
Dr. Wibberly determined that Plaintiff’s pain, fatigue, and other
symptoms
“constantly”
concentration.
(T.196).
interfered
In
with
particular,
her
attention
Plaintiff
and
required
unscheduled rest breaks of at least two hours every 30 to 60
minutes during an 8-hour work day. (T.196). Although Plaintiff had
some good days, Dr. Wibberley estimated that Plaintiff would be
absent from work, on average, more than three times per month.
(T.197).
Dr. Wibberley completed a second MIQ on September 14, 2009,
noting that she had most recently seen Plaintiff on September 2,
Page -5-
2009.
(T.212).
unchanged
from
Dr. Wibberley’s findings remained essentially
the
previous
MIQ.
Plaintiff
remained
severely
limited, and Dr. Wibberley opined that Plaintiff remained unable to
work.
(T.218).
2.
Consultative Physician George Sirotenko, M.D.
Dr. Sirotenko evaluated Plaintiff at the Commissioner’s behest
on August 26, 2008. (T.199-202). At that time, Plaintiff complained
of constant back pain made worse by sitting, standing, or walking
more than 30 minutes at a time.
(T.199). Plaintiff’s ability to
squat was limited to 50%; she used a cane for ambulation and
support, and she had an increased antalgic gait when she did not
use of the cane. Dr. Sirotenko found that Plaintiff had limited
motion in her lumbar spine, paralumbar tenderness, weakness in her
upper and lower extremities, and tenderness over her right foot.
(T.200-01).
Dr. Sirotenko diagnosed musculoskeletal ligamentous
low back pain and chronic musculoskeletal ligamentous foot pain.
(T.202).
According to Dr. Sirotenko, Plaintiff had “moderate”
limitations in lumbar spine motion and “mild” limitations in
prolonged standing, walking, using stairs, inclines, and ladders.
(Id.).
Dr. Sirotenko opined that Plaintiff should elevate her
right leg when sedentary and should avoid overhead lifting. (Id.).
X-rays taken in connection with the examination, but not reviewed
by Dr. Sirotenko, revealed small anterior osteophytes (projections
of bone) in the lower lumbar spine.
Page -6-
(T.203).
DISCUSSION
I.
Jurisdiction and Scope of Review
Title 42 U.S.C., § 405(g) grants jurisdiction to district
courts to hear claims based on the denial of Social Security
benefits and limits the scope of review to determining whether the
Commissioner’s findings are supported by substantial evidence and
whether the Commissioner employed the proper legal standards. See
Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1982) (“It is not
the function of the reviewing court to try the case de novo but,
assuming the Secretary has applied the correct legal standards, to
decide whether the Secretary’s decision is supported by substantial
evidence.”).
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 217 (1938).
The
court must “scrutinize the record in its entirety to determine the
reasonableness of the decision reached.” Simmons v. Harris, 602
F.2d 1233, 1236 (5th Cir. 1979) (citation omitted).
II.
The Commissioner’s decision to deny the Plaintiff benefits is
not supported by substantial evidence in the record and
contains errors of law.
The ALJ found Plaintiff disabled only since February 12, 2009,
her fiftieth birthday. (T.22-23). On that date, her age category
“changed to an individual closely approaching advanced age” under
20 C.F.R. § 404.1563.
(T.22).
The ALJ found that, since February
Page -7-
12, 2009, Plaintiff has had the residual functional capacity
(“RFC”) to perform less than sedentary work as defined in 20 C.F.R.
§ 404.1567(a) due to extreme limitations from pain in her lower
back and legs. (Id.). Considering Plaintiff’s age, education, work
experience, and RFC, there are no jobs that exist in significant
numbers in the national economy that Plaintiff has been able to
perform beginning February 12, 2009. (T.23).
Prior to that date, however, the ALJ found that Plaintiff
retained the RFC to perform sedentary work, despite her severe
impairments of chronic moderate low back pain; chronic back spasms;
and pain and reduced motion in her right ankle post-fracture.
(T.20-22). Based on this RFC, the ALJ conceded that Plaintiff could
not perform her past work but found that she could perform other
work. Therefore, pursuant to the Medical-Vocational Guidelines
Rule 201.18, the ALJ entered a finding of not disabled for the
period up until February 12, 2009. (T.22-23).
A.
The ALJ Failed to Follow the Treating Physician Rule.
“The opinion of a treating physician is afforded controlling
weight
if
it
is
well-supported
by
medical
inconsistent with other substantial evidence.”
168
F.3d
72,
78-79
§ 404.1527(d)(2)).
(2d
Cir.
1999)
findings
and
not
Rosa v. Callahan,
(citing
20
C.F.R.
An ALJ must provide “good reasons” to afford
the opinions of treating physicians other than controlling weight.
Halloran v. Barnhart, 362 F.3d 28, 32-33 (2d Cir. 2004) (citation
Page -8-
omitted). The following factors must be considered when determining
the weight given to a physician’s medical opinion: (1) whether a
treatment relationship existed; (2) the length and frequency of the
treatment
opinion
relationship;
is
supported
(3)
by
whether
the
clinical
and
treating
physician’s
laboratory
findings;
(4) whether the treating physician’s opinion is consistent with the
record
as
a
whole;
(5)
whether
the
treating
physician
is
a
specialist in the field at issue; and (6) other factors that
support
or
contradict
the
medical
opinion
of
the
treating
physician. 20 C.F.R. §§ 416.927(d)(3)-(6), 416.1527(d)(3)-(6). As
Plaintiff argues, all of these factors weigh in favor of giving
deference
to
Dr.
Wibberley’s
opinion.
Dr.
Wibberley
treated
Plaintiff on a regular basis over a lengthy period of time; was the
source most familiar with her medical history and conditions; and
provided detailed medical findings that are consistent with the
record as a whole.
Although the ALJ mentioned the opinions issued by Plaintiff’s
treating physician, Dr. Wibberley, and the examining consultant,
Dr. Sirotenko, he did not explain what weight he afforded to either
opinion.
(T.21).
Instead, the ALJ simply found Plaintiff limited
to sedentary work prior to February 12, 2009, without citing
evidence to support this conclusion.
(T.20).
The ALJ found that
since February 12, 2009, Plaintiff has had the RFC to perform less
than a full range of sedentary work, and therefore a finding of
Page -9-
disability was required.
(T.22).
However, the ALJ failed to
discuss why this RFC did not apply to the period before February
12, 2009.
Dr. Wibberley determined, on several occasions, that Plaintiff
could not perform even sedentary work activities. (T.193, 214).
These findings are consistent with clinical examination findings of
limited motion of the spine and right ankle, as well as positive
straight-leg raising tests. (T.191-92, 212-13). They also are
consistent with diagnostic findings, namely, x-rays of the lumbar
spine and right ankle/foot indicating degenerative changes. (T.203,
213). Although consultative examiner Dr. Sirotenko gave the opinion
that Plaintiff had only “moderate” limitations in her lumbar spine
mobility and “mild” limitations in prolonged standing, walking, and
using
stairs,
inclines
and
ladders,
these
opinions
do
not
constitute “substantial evidence”. See Curry v. Apfel, 209 F.3d
117, 123 (2d Cir. 2000) (holding that opinions from consultative
examiner that a claimant has “mild” or “moderate” limitations,
“without additional information”, are “so vague as to render [the
opinions] useless”); see also Burgess v. Astrue, 537 F.3d 117, 129
(2d Cir. 2008) (opinions expressed by consultative examiners in the
types of vague terms described in Curry, 209 F.3d at 123, are not
“substantial evidence”). In contrast, Dr. Wibberley’s opinions were
based on clinical and diagnostic findings, as detailed above.
Moreover,
they
were
not
inconsistent
Page -10-
with
other
substantial
evidence in the record. Accordingly, Dr. Wibberley’s opinions
should have been given controlling weight for the entire period at
issue. See 20 C.F.R. § 404.1527(d)(2); Social Security Ruling
(“SSR”) 96-2p, 1996 WL 374188.
The Commissioner maintains that the ALJ reached an appropriate
finding by relying on the substantial evidence in the record. (See
Def. Mem. of Law, Dkt. No. 4-1 at 17).
The Commissioner states
that the ALJ “considered the opinions of Plaintiff’s treating
physician, Dr. Wibberley, but did not find that these opinions
compelled a finding of disability on or before February [12th]
2009.”
(Id. at 18).
required
Dr.
to
adopt
Wibberley’s
Impairment
The Commissioner asserts that the ALJ was not
Dr.
Wibberley’s
assessment
Questionnaire
in
the
opinion
August
inconsistent
because
15,
with
2008
Dr.
he
found
Multiple
Sirotenko’s
examination, which occurred just a few days later on August 26,
2008.
(Id. at 19).
The Commissioner’s argument misses the mark.
Although the ALJ mentioned the opinions of Dr. Wibberley and
Dr. Sirotenko, he did not weigh any inconsistencies among the
opinions,
nor did
opinion.
(T.21).
he
discuss
what
weight he
afforded
either
He simply limited Plaintiff to sedentary work
prior to February 12, 2009, without citing evidence to support this
conclusion.
(T.20).
Thus, the Commissioner’s argument relies on
reasoning not found in the ALJ’s opinion and not supported by the
record. This Court may not “create post-hoc rationalizations to
Page -11-
explain
the
Commissioner’s
treatment
of
evidence
when
that
treatment is not apparent from the Commissioner’s decision itself.”
Grogan v. Barnhart, 399 F.3d 1257, 1263 (10th Cir. 2005); see also
Snell
v.
Apfel,
177
F.3d
128,
134
(2d
Cir.
1999)
(quoting
Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168
(1962)).
The Commissioner goes on to say that although Dr. Wibberley’s
August 15, 2008 assessment did not persuade the ALJ, the doctor’s
opinions in the 20093 MIQ “were consistent with the ALJ’s findings
that Plaintiff was disabled since February 12, 2009.”
of Law, Dkt. No. 4-1 at 19-20).
opinions
in
Dr.
Wibberley’s
(Def. Mem.
However, as discussed above, the
September
14,
2009
MIQ
remained
essentially unchanged from the opinions in her August 15, 2008 MIQ.
The ALJ failed to explain why he valued one of the substantially
similar opinions more than the other. Given the similarity between
the opinions in the two MIQs completed by Dr. Wibberley, the Court
finds that the ALJ acted arbitrarily.
It is noteworthy that the ALJ stated that even if Plaintiff
had the RFC for the full range of sedentary work, considering her
age, education, and work experience, “a finding of ‘disabled’ would
3
The Commissioner’s Brief refers to the date of Dr. Wibberley’s
2009 Questionnaire as “April 9, 2009.” (Def. Mem. of Law, Dkt. No.
4-1 at 19.)
The record shows that the Questionnaire is dated
“9/14/2009.” (Tr. at 211-219). The ALJ’s opinion also referred to
the “September 2009" Questionnaire. (Tr. at 21.) As such, this
Court will apply the September 14, 2009 date when discussing the
Commissioner’s argument concerning the 2009 Questionnaire.
Page -12-
be directed by Medical-Vocational Rule 201.09 after February 12,
2009.” The ALJ’s decision is devoid of any explanation of the
significance he apparently accorded to the change in Plaintiff’s
age bracket that occurred on her fiftieth birthday.
The ALJ failed to give any reason why Plaintiff’s fiftieth
birthday was selected as the date she became disabled, and entirely
disregarded the treating physician’s opinion that Plaintiff could
not perform sedentary activities since at least August 2008, six
months earlier. (T.191-98). SSR 83-20, 1983 WL 31249, states that
for disabilities of non-traumatic origin, such as Plaintiff’s the
determination of onset involves consideration of the claimant’s
allegations, work history, if any, and the medical and other
evidence concerning impairment severity.” Id. at *2. The claimant’s
alleged onset date is the “starting point” for the analysis and
should be utilized if it is “consistent with all the other evidence
available.” Id.
A number of courts have held that ALJs generally should defer
to an earlier onset date where the evidence of the claimant’s
impairments is consistent going back to the alleged onset date and
at the time the claimant is found disabled. See, e.g., Spellman v.
Shalala,
1
F.3d
357,
363
(5th
Cir.
1993)
(finding
that
the
Administration failed to comply with SSR 83-20 when it arbitrarily
found the onset date to be six months prior to an opinion from a
consultative examiner that claimant was disabled); Lichter v.
Page -13-
Bowen, 814 F.3d 430, 434-36 (7th Cir. 1987) (vacating the ALJ’s
decision to reject plaintiff’s alleged onset date because it was
“not clearly inconsistent with the other available evidence”);
McCall v. Astrue, No. 05-CV-2042, 2008 WL 5378121, at *18-19
(S.D.N.Y. Dec. 23, 2008) (remanding solely for calculation of
benefits where ALJ failed to apply SSR 83-20, finding that even if
additional evidence were required, it was the ALJ, not plaintiff,
who was “required to take additional steps to procure it”). There
is
no
evidence
in
the
record
that
Plaintiff’s
condition
significantly worsened after her fiftieth birthday. Therefore, the
ALJ should have given deference to the onset date alleged by
Plaintiff, which was consistent with the longitudinal medical
record and the opinions of her treating physician.
B.
The ALJ Failed
Credibility.
to
Properly
Evaluate
Plaintiff’s
Although the ALJ is free to accept or reject the testimony of
any witness, a “finding that the witness is not credible must
nevertheless be set forth with sufficient specificity to permit
intelligible plenary review of the record.” Williams ex rel.
Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988) (citation
omitted). The ALJ’s credibility findings also must be consistent
with the other evidence in the record, id. at 261, and may not be
based on an intangible or intuitive notion about an individual’s
veracity, see SSR 96-7p, 1996 WL 374186.
Page -14-
Plaintiff
testified
that
she
experienced
increased
back
problems at the time she stopped working and that she has in her
lower back and right foot.
Although medications ameliorated the
pain somewhat, she can stand no more than 30 minutes and sit no
longer than 30 minutes.
(T.34).
Plaintiff stated that although
she tries going grocery shopping on her own, she only can lift a
light grocery bag.
(T.35).
She can cook but only if she sits down
in front of the stove, and her daughters assist her with household
chores. (T.35). Plaintiff watches television, reads occasionally,
and visits with her best friend.
The
ALJ
found
that
(T.35-36).
Plaintiff’s
medically
determinable
impairments “could reasonably be expected to produce the alleged
symptoms,”
and
that
her
statements
concerning
the
intensity,
persistence, and limiting effects of her symptoms were generally
credible.
any
of
(T.21).
Despite this, the ALJ did not actually credit
Plaintiff’s
Dr. Wibberley’s
testimony
opinions
that
that
was
is
unable
she
consistent
with
to
even
perform
sedentary work activities. In particular, as noted above, Plaintiff
testified that she can stand for no more than 30 minutes at a time,
sit no more than 30 minutes at a time, and lift no more than a
light grocery bag. (T.34-35).
The
finding
ALJ’s
her
failure
credible
to
and
credit
Plaintiff’s
finding
that
her
testimony
after
conditions
could
reasonably cause the limitations alleged is unexplained.
Page -15-
As noted
above, the ALJ must set forth specific reasons to support his
credibility finding, supported by evidence in the record, and he
must be sufficiently specific to make his rationale clear to
subsequent reviewers.
See, e.g., Tornatore v. Barnhart, 2006 WL
3714649, at *6, 2006 U.S. Dist. LEXIS 90397, at *19 (S.D.N.Y. Dec.
12, 2006)(citing Mason v. Barnhart, 05 Civ. 8421 (DLC), 2006 WL
3497761, at *4, 2006 U.S. Dist. LEXIS 87528, at *4 (S.D.N.Y.
Dec. 5, 2006); SSR 96-7p, 1996 WL 374186, at *1). The Court finds
that the ALJ failed to provide clear and specific reasons to
support his findings, and therefore that his decision was not
supported by substantial evidence in the record.
CONCLUSION
For the reasons set forth above, this Court finds that the
Commissioner’s decision to deny the Plaintiff benefits was not
supported by substantial evidence in the record and was marred by
several legal errors. Where “the record provides persuasive proof
of disability and a remand for further evidentiary proceedings
would serve no purpose,” the proper remedy is remand solely for
calculation of benefits.” Parker v. Harris, 626 F.2d 225, 235
(2d Cir. 1980). After reviewing the record in its entirety, the
Court finds that substantial evidence establishes that during the
challenged
period,
namely,
August
1,
2005
(the
date
of
her
application), through February 11, 2009, Plaintiff could not engage
Page -16-
in substantial gainful activity and therefore was disabled within
the meaning of the Act.
Accordingly, the Commissioner's decision is vacated and the
case is remanded solely for calculation of benefits for the period
of time from August 1, 2005, through February 11, 2009.
Plaintiff’s motion for judgment on the pleadings is granted.
The Commissioner’s motion for judgment on the pleadings is denied.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
___________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
November 28, 2012
Rochester, New York
Page -17-
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