Cozan Pierce v. Commissioner of Social Security
Filing
9
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 6 Motion for Summary Judgment; reversing and remanding the case to the Commissioner for calculation and payment of benefits for the relevant period. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 5/17/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PATRICIA M. COZAN PIERCE,
No. 6:12-CV-6191(MAT)
DECISION AND ORDER
Plaintiff,
-vsMICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
I.
Introduction
Represented
by
counsel,
Patricia
M.
Cozan-Pierce
(“Plaintiff”), 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”). This Court has jurisdiction over the matter
pursuant to 42 U.S.C. §§ 405(g), 1383(c).
Presently before the Court is Defendant’s motion pursuant to
Federal Rule of Civil Procedure (“F.R.C.P.”) 12(c) for judgment on
the pleadings, which Plaintiff has opposed. Because the ALJ made a
significant error of fact in making the severity determination at
step two,
substantial
his
decision
evidence.
As
denying
benefits
discussed
is
further
not
supported
by
below, Defendant’s
motion for judgment on the pleadings is denied, and the matter is
remanded for further administrative proceedings.
II.
Procedural History
On
December
15,
2008,
Plaintiff
protectively
filed
an
application for Title II benefits, alleging disability commencing
January 1, 2002, due to carpal tunnel syndrome (“CTS”), colitis,
and arthritic pain. After the claim was denied on March 27, 2009,
Plaintiff requested a hearing, which was held on June 24, 2010,
before Administrative Law Judge James E. Dombeck (“the ALJ”). The
ALJ was unable to find 12 months of continuous disability from
March 4, 2009, back to May 29, 2002, the time-frame covered by the
treatment
record
of
Plaintiff’s
primary
care
physicians.
Accordingly, the ALJ entered a finding of not disabled on August
19, 2010. (T.5-14).1 The Appeals Council declined Plaintiff’s
request for review on February 14, 2012, making the ALJ’s decision
the final decision of the Commissioner. (T.1-4).
III. The Administrative Record
A.
Plaintiff’s Testimony
Plaintiff testified that she had worked for the Center for
Disability from October 2007, to May 2008. Her client was a
200-pound paralyzed man. (T.23). She ensured that he had meals and
a clean place to live in her home, and her children assisted with
his personal care. (T.23-24). She also drove the client to his
doctor’s appointments.(T.23).
1
Numbers in parentheses preceded by “T.” refer to pages from
the transcript of the administrative record.
-2-
Prior to that, she had worked at Kodak as a buyer, but she
left in 1995. According to Plaintiff, she had taken time off work
because of her medical conditions, and when she returned, they had
given her buyer position to someone else. Kodak attempted to find
something else for her (e.g., assembly-line work), but there were
no positions that met her physical restrictions (no lifting,
pushing, pulling, carrying, or handling anything over ten pounds,
and nor repetitive tasks with her hands). (T.25).
After leaving Kodak in 1995, she did odd jobs, including
working as a buyer at a different company, off and on, until 1999.
Plaintiff indicated that she would have continued to work as a
buyer at Kodak if the position had been available. (T.27).
Plaintiff
explained
that
after
1995,
her
health
began
deteriorating, especially her back. (T.28). She testified she had
at least two surgeries on her hands, in 1993 and 2009. (T.29, 30).
Plaintiff stated that she could not work after 2001 because she
could not even hold a coffee cup for any length of time without
losing her grip on it. (T.29). She also testified that she could
not drive for long periods or her hands would hurt and swell.
(T.29).
Due to a lack of insurance coverage, Plaintiff had only
intermittent medical treatment between 2001 and 2007. (T.30–31).
Plaintiff testified that she had seen her primary care doctors
(Dr. Richard and eventually his replacement Dr. Steele) at least
every other month between 2001 and 2007 (T.31). When questioned by
-3-
the ALJ about a statement that Dr. Steele purportedly had made in
a March 4, 2009 treatment note, to the effect that Plaintiff was
returning after not having been seen for seven years, Plaintiff
stated that it was a “mega error.”2 (T. 33–34, 487). She testified
that the longest that she had gone without treatment was a year,
due to a lapse in insurance coverage, but that she did not believe
it was even that long (T.34).
Plaintiff
testified
that
she
suffered
from
colitis;
osteoporosis; and arthritis in her neck, shoulder, hands, back, and
left leg (T.36). She stated she could not work because she could
not do anything repetitive with her hands. (T.36). Since her onset
of colitis sometime in 2003, she testified that she has been
prevented her from completing daily activities because she does not
know when she will have to use the bathroom. (T.39). Plaintiff
testified that her colitis was somewhat stable with medication, but
that she had taken the medication for only a month. (T.39).
Plaintiff testified that she could not perform normal tasks of
daily life because of her medical conditions. (T.40). For instance,
she had to get somebody to lift heavy things such as laundry
detergent, or to reach anything that was above a certain level on
the shelf. (T.40). She required assistance with shopping because
she could not push clothes on a rack or carry bags. (T.40). She
2
In fact, the ALJ erred because the note in question was
written by Dr. Mitten, a hand surgeon. Dr. Steele only was copied
on the note. (T.368).
-4-
also stated that she could not drive for more than 30 minutes.
(T.41).
Plaintiff’s husband, son, or daughter did the cooking because
she dropped the pans and utensils. (T.41). She could usually take
care of her personal hygiene unless her back was bothering her, and
generally needed help with personal care (e.g., shampooing her
hair) about three to four days a week. (T.42). Plaintiff also
testified that she did not go on walks or take walks with her dogs,
because if she fell, she would not be able to get up without
assistance. She did play with the dogs a little bit in her yard.
(T.42).
Plaintiff testified that her hand was healing and improved
after surgery in March 2009. (T.43). The doctors wanted her to
continue physical therapy, but she was unable to do so because she
did not have sufficient health insurance. (T.44–45). Plaintiff
testified she attended two months or less of physical therapy after
the hand surgery because she did not have health insurance. (T.45).
She also stated that she never regained total use of her hand after
surgery and was unable to hold a pound of weight over a long period
of time. (T.44). Plaintiff stated that she had not had any recent
treatment other than pain medications for her back, neck, and
shoulder. (T.45). Plaintiff also testified that she had had ulcers
since she was 25-years-old, but was not being treated for them at
the time of the hearing. (T.46).
-5-
B.
Medical Evidence
1.
Plaintiff
1990 to the Onset Date (January 1, 2002)
received
treatment
for
arthritis
in
her
neck,
shoulders, back, and hands from at least May 1990, to September
2001. (T.249-84). During this time period, her pain-management
consisted of Tylenol #3 (Tylenol with codeine), Naprosyn, and
Flexeril.
(T.249).
On
September
14,
2001,
her
primary
care
physician, Dr. Eric Richard, noted that apart from her arthritis,
she is
“feeling
fine.”
(T.249).
He
observed
that
Tylenol
#3
“help[ed] her function.” (T.249). Plaintiff was directed to return
in a few months for follow-up.
2.
The Period Relevant to a Finding of Disability
(January 1, 2002, to March 31, 2007)
a.
On
January
2002
4,
2002,
Plaintiff
returned
to
Dr.
Richard
complaining of increasing arthritis pain as well as skin lesions on
her chin, neck, and left shoulder. (T.245). Physical examination
revealed full range of motion, with no tenderness, swelling, or
erythema in her joints. (Id.). Dr. Richard ordered blood work and
x-rays
to
rule
out
rheumatoid
arthritis
and
systemic
lupus
erythematosus (“SLE”). (Id.). An x-ray of both hands, ordered by
Dr. Richard, showed no bony erosions, but did show small soft
tissue calcifications adjacent to the right and left ulnar styloid
process which could represent residual prior trauma. (T.246, 468).
-6-
On
January
22,
2002,
Plaintiff
had
a
dual-energy
x-ray
absorptiometry (“DEXA”) test, which showed osteopenia in the right
hip. (T.240–41, 473). The bone density of Plaintiff’s spine and
left hip were normal (T.21, 474).
Plaintiff saw Dr. Richard on February 26, 2002, complaining of
pain in her stomach. (T.237, repeated at T.238, 396). Dr. Richard
diagnosed
possible
peptic
ulcer
disease
with
some
dyspepsia,
osteopenia, and bilateral hand arthritis. (T.237).
On April 27, 2002, Plaintiff returned to Dr. Richard, with
complaints
of
pain
in
her
hands
and
depression.
(T.235).
Plaintiff’s joints were somewhat swollen, and she had mildly
decreased range of motion. (T.235). Dr. Richard diagnosed arthritis
and gave her samples of Vioxx for her pain. (T.235).
On May 15, 2002, Plaintiff was referred to Dr. Berchman Vaz,
in the Rheumatology Clinic of the University of Rochester Medical
Center, due to ongoing pain in her hands. (T.464). Radiographic
studies were negative for erosions on her hands, although she had
strongly positive results for Tinel and Phalen signs on the right
hand and was moderately positive on the left. (T.464). Plaintiff
showed pain with movement of the right shoulder and on palpation of
the back, especially the lower back. (T.464). Dr. Vaz diagnosed her
with chronic pain syndrome involving the back, shoulder, and wrist,
and also indicated that Plaintiff probably had CTS. In Dr. Vaz’s
opinion,
she
had
oseteoarthritis,
rather
than
inflammatory
arthritis, in her hands. (T.465). At Dr. Vaz’s recommendation, a
-7-
nerve conduction
study
was
performed
on
May
29,
2002,
which
revealed mild to moderately severe CTS. (T.461–62).
b.
2003
On March 23, 2003, Plaintiff presented to her primary care
physician, Dr. Richard, with bilateral ear pain and tinnitus.
(T.393). Dr. Richard noted that Plaintiff had continuing peptic
ulcer disease with dyspepsia every time she discontinued Prevacid.
He stated that her arthritis “appear[ed] stable” on Tylenol #3 and
Flexeril, and recommended follow-up in a few months. (T.393).
A
repeat
DEXA
scan
on
September
5,
2003,
again
showed
osteopenia. (T.457).
On February 23, 2003, Plaintiff had a digestive disease
consultation at Strong Memorial Hospital, and was diagnosed with
ischemic colitis and intermittent diarrhea. (T.408).
On October 7, 2003, Plaintiff presented at the Strong Memorial
Hospital
emergency
department
with
gastrointestinal
bleeding.
(T.342–57). A colonoscopy performed by Dr. Asad Ullah and Dr. Seth
Wheeler on October 8, 2003, confirmed the diagnosis of ischemic
colitis. (T.441). Plaintiff was discharged on October 11, 2003.
(T.439–40, 442).
On
October
13,
2003,
during
a
follow-up
examination,
Dr. Richard noted Plaintiff had not had further bloody bowel
movements
and
examination
was
not
findings
in
were
acute
normal
tenderness. (T.392).
-8-
distress.
except
(T.392).
for
some
Physical
abdominal
On November 24, 2003, Plaintiff had a follow-up visit with
gastroenterologist Dr. Ullah. (T.436–37). She had lost weight, and
Dr. Ullah was unsure of the cause. On December 5, 2003, Plaintiff
underwent
an
upper
endoscopy
to
determine
the
cause
of
her
abdominal pain and significant weight loss, but the test was
inconclusive. (T.438). On December 11, 2003, Dr. Ullah attempted to
perform another colonoscopy, but was unable to do so because of a
poorly prepped colon. (T.435). However, Plaintiff’s visualized
rectosigmoid mucosa was normal. (T.435).
c.
2004
On November 29, 2004, Plaintiff saw Dr. Richard and complained
of
epigastric
discomfort.
(T.389).
Dr.
Richard
diagnosed
gastroesophageal reflux disease (“GERD”) with likely esophageal
spasm, for which he prescribed Prevacid. Plaintiff was to continue
on Tylenol #3 for her arthritis pain. (Id.).
d.
2005
On December 14, 2005, Plaintiff saw her new PCP, Dr. Brian
Steele, who had taken over from Dr. Richard. (T.387). Dr. Steele
noted that Plaintiff had a mild upper respiratory infection;
idiopathic thrombocytopenic purpura (“ITP”) secondary to Bactrim;
as
well as
reported
no
neck,
shoulder
increase
in
and
her
hand
pain.
arthritis
(T.387). Plaintiff
symptoms.
Dr.
Steele
encouraged her to limit the intake of the Tylenol #3 and start
using glucosamine and chondroitin to help with her arthritis.
Plaintiff’s physical examination was unremarkable. (T.387).
-9-
e.
2006
On May 8, 2006, Plaintiff underwent a repeat DEXA scan, which
showed normal bone density with an improvement in density compared
to the 2003 examination. (T.445–46).
3.
Medical Evidence After Relevant Period
a.
2007
On December 6, 2007, Plaintiff presented to Dr. Steele to have
a form completed for work. Dr. Steele examined Plaintiff and found
that she was healthy and in no acute distress. (T.340). Her
physical examination was normal except for deep tendon reflexes,
which were 2+/4. (T.340). Straight-leg-raising was full without
crossover tenderness, and there were no focal motor or sensory
deficits. Plaintiff had full range of motion in her lumbar spine.
Dr.
Steele
recommended
that
she
follow-up
for
complete
physical at her convenience, as she was without insurance at that
time. (T.340). Plaintiff stated she would inform Dr. Steele once
she had insurance so that they could further discuss her general
health maintenance recommendations. (T.340).
b.
2008
There do not appear to be any records or treatment notes from
2008 in the administrative record. However, gastroenterologist
Dr. Ullah stated in an April 27, 2009 note that Plaintiff had an
episode of rectal bleeding a year previously, for which she was
treated successfully with antibiotics. (T.492).
-10-
c.
2009
Plaintiff saw Dr. Steele on January 27, 2009, complaining of
arthritis pain in her neck, shoulders, hands, and left leg with
locking of her left third and fourth fingers. (T.382). She was not
presently having any gastrointestinal symptoms. Upon examination,
Dr. Steele found no edema in her extremities, and intact deep
tendon reflexes. (T.383). She had “slight prominence” in her
interphalangeal
joints
but
no
joint
erythema,
and
no
ulnar
deviation of her metacarpal joints. (T.383). In her shoulders she
had
a
slightly
decreased
range
of
motion
but
no
crepitance
(crackling). In her knees she had light crepitance with range of
motion but no effusion or popliteal fullness (fullness behind the
knee). (T.383).
Due to the “severity of her ongoing symptoms[,]” Dr. Steele
was considering a rheumatologic evaluation to determine if she had
inflammatory arthritis and to discuss other treatment options since
she had “been refractory to anti-inflammatories with considerable
disability and inability to work due to her symptoms.” (T.383).
Dr. Steele referred Plaintiff to have x-rays taken of her
hands, wrists, and shoulders on January 30, 2009.
(T.421-22). On
February 10, 2009, Plaintiff had an appointment with radiologist
Peter Rosella, M.D. of the University of Rochester Medical Center’s
Olsan Group to review her x-ray results. (T.373). Dr. Rosella noted
that Plaintiff had been having polyarthralgia and right shoulder
pain at the acromovicular joint, as well as decreased range of
-11-
motion and pain in her left hip. Dr. Rosella’s impressions of the
radiographic studies were mild bilateral periarticular osteopenia
in her hands; and mild degenerative changes at both basal joints,
and
both
first
degenerative
metacarpal
changes
at
the
phalangeal
left
joints.
He
found
mild
scaphoid/trapezoid/trapezium
joint. (T.374). With regard to her wrists, Dr. Rosella saw ossific
denisties at the distal tip of the ulnar styloid in both wrists,
likely related to a prior, remote trauma. With regard to her hips,
Dr. Rosella’s impression was oseteopenia with mild degeneratve
changes in the left hip. (T.374).
On February 23, 2009, Plaintiff saw Dr. Ullah at the Olsan
Medical Group, for gastrointestinal issues. She had last been seen
in 2003, when she underwent a colonoscopy and was diagnosed with
ischemic colitis. (T.371). She stated that for the past one and
one-half to two years she had been having irregular bowel movements
(constipation for four to five days followed by two days of
diarrhea). (T.371). Dr. Ullah prescribed a regimen of Metamucil and
scheduled a colonoscopy to rule out the possibility of ischemic
colitis or another pathology. (T.372).
Plaintiff saw hand specialist David Mitten, M.D. at the Olsan
Medical Group on March 4, 2009, with new complaints of pain around
the base of both thumbs and multiple locking trigger digits.
(T.368). Dr. Mitten indicated that Plaintiff had last been seen at
his practice seven years ago when she presented with CTS. (T.368).
Plaintiff’s worst symptoms at the present time were locking and
-12-
pain
in
the
left
long,
right,
and
small
fingers.
She
was
experiencing significant pain and having difficulty even manually
extending her fingers. (T.368). This had been occurring over the
past three to four months, without any detectable precipitating
event. In addition to the locking trigger digits, Plaintiff also
had
early
bilateral
basal
joint
arthritis.
Because
steroid
injections had not helped in the past, Plaintiff elected to undergo
surgical release of her trigger digits and to continue to monitor
her basal joint symptoms. (T.369).
Based upon a referral from Dr. Steele, Plaintiff saw Allen
Anandarajah,
M.D.
at
the
Rheumatology
Clinic at
the
URMC
on
March 9, 2009. (T.365-67). Dr. Anandarajah noted that over the past
20 years, Plaintiff had seen multiple physicians, including spine
specialists and hand surgeons, for her pain in the small joints of
her hands and in her back; and had had multiple hand surgeries,
with no relief. (T.365). Because she “had no insurance, . . . [she]
had not been following up with her physicians for a period of
approximately 2 years.” (T.365). Plaintiff informed Dr. Anandarajah
that she only could tolerate Tylenol #3 for pain relief.
Dr.
Anandarajah
examination
findings
concluded
were
that
consistent
Plaintiff’s
with
a
history
and
diagnosis
of
osteoarthritis at multiple sites. The detection of mild Heberden’s
nodes and the x-ray findings suggested she had “nodal/possible
inflammatory osteoarthritis” in her hands. (T.366). Plaintiff’s
long-standing
history
of
back
-13-
pain
was
in
keeping
with
degenerative joint disease, which commonly afflicts patients with
nodal osteoarthritis. (T.366). Although Plaintiff had a positive
ANA (antinuclear antibodies) level, Dr. Anandarajah ruled out SLE
because she had no clinical features to support such a diagnosis.
(T.367). Dr Anandarajah suggested that she try Aleve or Advil, as
well
as
physical
therapy,
aquatic
therapy,
and
acupuncture.
(T.367).
Dr.
Mitten,
the
hand
surgeon,
performed
trigger
release
surgery on Plaintiff’s left long, ring, and small fingers on
March 23, 2009. Plaintiff did well post-operatively. (T.483-89).
On April 27, 2009, at a follow-up with gastroenterologist
Dr.
Ullah,
Plaintiff
noted
she
was
experiencing
chronic
constipation, and that previously recommended treatments (Colace
and Metamucil)
did
not
work
or were
not
palatable.
(T.492).
Dr. Ulla recommended increasing dietary fiber and fluid intake, and
to continue taking Ex-Lax as needed. (T.493).
d.
2010
Dr. Steele completed a Crohn’s & Colitis Residual Functional
Capacity Questionnaire on July 2, 2010, in support of Plaintiff’s
application for DIB. (T.514-18). Dr. Steele noted that Plaintiff’s
diagnoses were ischemic colitis, gastritis, arthritis, and ITP, and
described her prognosis as “fair”. (T.514). Her symptoms were
chronic
intermittent
diarrhea,
peripheral
arthritis,
malaise,
fatigue, and mucous in her stool. Asked to describe Plaintiff’s
pain, Dr. Steel indicated that she had sharp abdominal pain which
-14-
was unpredictable but occasionally associated with diet, and 610/10
in
severity;
“sharp”
hand
pain
which
manifested
as
“stiffness” and “tingling” on a daily basis with activity, 6-9/10
in severity; shoulder pain that was similar to her hand pain; and
neck pain which was “sharp” and “daily” with activity, 7-8/10.
(T.514).
Dr. Steele opined that Plaintiff was “[i]ncapable of even ‘low
stress’ jobs” because of her “pain & functional impairment.”
(T.515). He estimated that she could walk half a block without
resting; could sit 20 minutes at a time before needing to get up;
could stand 30 minutes at a time before needing to get up; and
could sit and stand/walk for a total of about two hours in an
eight-hour working day with normal breaks. (T.515). Plaintiff
needed a job that permitted shifting positions at will and had
ready access to a restroom. (T.516). Plaintiff would “frequently”
need to take unscheduled breaks on an “unpredictable” basis.
(T.516). Restroom breaks, “depending on severity of release &
intensity of symptoms” could last from “5 min [to] hours.” She had
no
advance
notice
of
when
she
would
need
a
restroom
break.
Dr. Steele opined that Plaintiff would need to lie down and rest
one to two times per day for about 15 minutes. (T.516).
With regard to her abilities to lift, Plaintiff could not lift
10 pounds or anything heavier, and could only “[r]arely” lift less
than 10 pounds. She could only “[r]arely” twist and could “[n]ever”
stoop, bend, crouch, or climb ladders and stairs. (T.516).
-15-
Dr. Steele stated that Plaintiff’s orthopedic symptoms were
“daily & [increased] by activity”; her gastrointestinal symptoms
were “daily w/occasional severe exacerbation brought on by stress,
diet, activities & unpredictable [sic].” (T.517).
Plaintiff’s
cyclobenzaprine
medications
(an
were
anti-anxiety
listed
as
Tylenol
medication),
#3
which
and
caused
“fatigue/drowsiness”. (T.517). Dr. Steele opined that Plaintiff’s
impairments
were
reasonably
consistent
with
the
symptoms
and
functional limitations he described in the report. Dr. Steele noted
that on a scale from “never” to “constantly”, Plaintiff’s pain and
other symptoms were “frequently” severe enough to interfere with
attention and concentration. (T.517). Her impairments were likely
to produce good days and bad days, and she would be absent due to
her ailments about four days per month. (T.518).
The ALJ held the record open until July 16, 2010, to allow
Plaintiff
to
submit
additional
medical
evidence.
Plaintiff
submitted one record–Exhibit 24F, the Crohn’s & Colitis Residual
Functional Capacity Questionnaire dated July 2, 2010 (T.368),
completed by Dr. Steele, her primary care physician. (T.13).
V.
Determining Disability and the Five-Step Sequential Evaluation
A claimant is disabled under the Act when unable “to engage in
any
substantial
gainful
activity
by
reason
of
any
medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a
continuous
period
of
not
less
-16-
than
12
months.”
42
U.S.C.
§ 423(d)(1)(A). The impairment must be of “such severity” that the
claimant is “not only unable to do [her] previous work but cannot,
considering [her] age, education and work experience, engage in any
other kind
of
substantial
gainful
work
[that] exists
in
the
national economy.” 42 U.S.C. § 423(d)(2)(A).
The Social Security Administration (“SSA”) has promulgated a
five-step sequential analysis: “In essence, if the Commissioner
determines (1) that the claimant is not working, (2) that he has a
‘severe impairment,’ (3) that the impairment is not one [listed in
Appendix
1
of
the
regulations]
that
conclusively
requires
a
determination of disability, and (4) that the claimant is not
capable of continuing in his prior type of work, the Commissioner
must find him disabled if (5) there is not another type of work the
claimant can do.” Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir.
2002) (citing 20 C.F.R. § 404.1520(b)-(f); § 404.1520, Part 404,
Subpt. P, App. 2). During this five-step process, the Commissioner
must
“consider
the
combined
effect
of
all
[the
claimant's]
impairments without regard to whether any such impairment, if
considered separately, would be of sufficient severity to establish
eligibility for Social Security benefits.” Burgin v. Astrue, 348 F.
App’x 646, 647 (2d Cir. 2009) (citing 20 C.F.R. § 404.1523)
(internal citations omitted and alteration in original)).
VI.
The ALJ’s Decision
The ALJ determined that Plaintiff last met the insured status
requirements of the Act on March 31, 2007, and did not engage in
-17-
substantial gainful activity during the period from her alleged
onset date of January 1, 2002, through her date last insured of
March 31, 2007. (T.10).
Through the date last insured, the ALJ found, Plaintiff had
the following medically determinable impairments:
CTS, ischemic
colitis, and arthritic pain. (T.10). The ALJ determined, however,
that Plaintiff’s impairments, either singly or in combination, did
not significantly limit her ability to perform basic work-related
activities for 12 consecutive months. (T.10-11). Therefore, the ALJ
was
unable
to
find
that
she
had
a
“severe”
impairment
or
combination of impairments as defined in 20 C.F.R. § 1521 et seq.
(T.11). In other words, the ALJ’s decision essentially stopped at
step two of the sequential evaluation.
The
ALJ
based
his
severity
finding
on
his
rejection
of
Plaintiff’s subjective complaints, which in turn was premised
solely upon what he perceived to be a seven-year gap in her medical
treatment. The ALJ incorrectly noted3 that “[t]he treatment notes
of Brian Steele, D.O., indicate that on March 4, 2009, the claimant
was seen after not having been seen for seven years (Ex. 17F,
p. 10).” (T.13; emphasis in original). The ALJ also pointed out
that Plaintiff’s counsel’s chronological summary of her medical
history indicates a gap in treatment of about five years between
3
Plaintiff’s counsel never noticed this clear error by the ALJ.
Defendant’s counsel likewise has never alerted the Commissioner or
this the Court to the ALJ’s mistake.
-18-
December 14, 2005, when she was treated by her primary care
physician for symptoms of pneumonia, and January 31, 2009, when she
underwent magnetic resonance imaging at a radiologist’s office.4
(T.13). According to the ALJ, “[t]here is no evidence [of] any
disability symptoms or opinion of disability during the interim
period, or any ongoing treatment until the beginning of 2009.”
(T.13).
Because Plaintiff’s attorney did not notice the ALJ’s mistake
at the hearing or on appeal, Plaintiff testified that Dr. Steele
had made a mistake and stated that the longest she may have been
without treatment was “maybe a year”. (T.13). The ALJ did not
credit her testimony and found that what he perceived to be
unexplained
gaps
allegations
of
in
treatment
debilitating
significantly
symptoms.
undermined
(T.12-13).
The
her
ALJ
accordingly found that Plaintiff was not under a disability, as
defined in the Act, at any time from January 1, 2002, through March
31, 2007.
VII. General Legal Principles
The Commissioner’s decision that a claimant is not disabled
must be affirmed if it is supported by substantial evidence, and if
the ALJ applied the correct legal standards. 42 U.S.C. § 405(g);
see also, e.g., Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.
2002).
“Where
the
Commissioner’s
decision
rests
on
adequate
4
It is unclear to the Court how this alleged five-year gap
establishes the existence of a seven-year gap.
-19-
findings supported by evidence having rational probative force,
[the district court] will not substitute [its] judgment for that of
the Commissioner.” Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.
2002).
This deferential standard is not applied to the Commissioner’s
conclusions of law, however. Townley v. Heckler, 748 F.2d 109, 112
(2d Cir. 1984). This Court must independently determine whether the
Commissioner’s decision applied the correct legal standards in
determining that the claimant was not disabled. “Failure to apply
the correct legal standards is grounds for reversal.” Townley, 748
F.2d at 112. Therefore, this Court firsts reviews whether the
applicable legal standards were correctly applied, and, if so, then
considers the substantiality of the evidence. Johnson v. Bowen, 817
F.2d 983, 985 (2d Cir. 1987).
VIII.
Discussion
Plaintiff’s counsel, in a sparse brief that cites only one
case, mentions four grounds for remand. The Court considers these
contentions in turn below.
A.
Failure to Make a Finding as to Whether Plaintiff Had a
Disability Arising After the Date Last Insured
Plaintiff asserts that the ALJ did not make a finding as to
whether she had a disability that arose after March 31, 2007, the
date
last
insured.
Plaintiff’s
counsel
did
not
raise
this
particular argument at the administrative level. In his brief to
the Appeals Council, he asserted that 2005 “could plausibly be an
-20-
amended onset date since she would have then been characterized at
[sic] advanced age.” (T.512). However, 2005 was during the relevant
period, not after the date last insured. Although it appears that
the Second Circuit has not yet ruled on this precise issue, several
district courts in this Circuit have held that “[t]he failure to
present an argument to the ALJ constitutes waiver of the right to
raise it on appeal.” Carvey v. Astrue, No. 06–CV–0737 (NAM/DEP),
2009 WL 3199215, at *15 (N.D.N.Y. Sept. 30, 2009) (citing, inter
alia, Union Tank Car Co., Inc. v. Occupational Safety and Health
Admin., 192 F.3d 701, 707 (7th Cir. 1999)); see also Mills v.
Apfel, 244 F.3d 1, 8 (1st Cir. 2001) (rejecting claimant’s attempt
to raise an issue on appeal that had not been raised at the hearing
before the ALJ because to allow the issue to be raised “could . .
. severely undermin[e] the administrative process”).
In any event, Plaintiff’s counsel only mentions this argument
in the Preliminary Statement of his brief but does not expand upon
it in the Argument section of his brief. For these reasons, the
Court declines to consider it.
B.
Errors in the Severity Determination at Step Two: Failure
to Consider Medical Evidence of an Onset Date as Early as
2003 and Failure to Apply the Treating Physician Rule
After examining Plaintiff’s testimony in light of the medical
evidence of record, the ALJ found that her “medically determinable
impairments could not [sic] have been reasonably expected to
produce all her alleged symptoms; however [sic], the claimant’s
statements
concerning
the
intensity,
-21-
persistence
and
limiting
effects of these symptoms are not credible to the extent they are
unsupported by the medical record, and therefore [are] inconsistent
with finding that the claimant has no [sic] severe impairment or
combination of impairments for the reasons explained below.” (T.1213; emphases supplied). As discussed further below, the ALJ made a
significant error in interpreting the medical record, and this
error formed the main reason for concluding that Plaintiff’s
subjective complaints were inconsistent with a finding of nonseverity at step two.
1. Factual Errors in Interpreting the Record
The crux of the ALJ’s decision, and the basis for rejecting
the only treating physician’s report (the July 2, 2010 Crohn’s &
Colitis Residual Functional Capacity Questionnaire completed by
Dr.
Steele),
was
a
purported
seven-year
gap
in
Plaintiff’s
treatment notes from Dr. Steele. The ALJ pointed to a March 4, 2009
treatment note, which he identified as being written by Dr. Steele.
For this reference, the ALJ cites page 10 of Exhibit 17F, which is
page 368 of the administrative transcript. This is a treatment note
authored by hand specialist/surgeon, Dr. Mitten. The only place
Dr. Steele’s name appears on the record in question is after the
“cc:” on page 369, indicating that he was to receive a copy of
Dr. Mitten’s note–not that he had written the note.
The
ALJ’s
finding
that
there
was
a
seven-year
gap
in
Dr. Steele’s treatment of Plaintiff is inconsistent with the
medical records, which indicate that Plaintiff saw her primary care
-22-
physician (either Dr. Richard or Dr. Steele) regularly from 2002
through 2005. In particular, the record indicates visits with
Dr. Richard on September 14, 2001; January 4, 2002; February 26,
2002; April 27, 2002; March 23, 2003; October 13, 2003; and
November 29, 2004; and a visit with Dr. Steele on December 14,
2005. The record does not contain treatment notes from Dr. Steele
for 2006, 2007, and 2008, although Plaintiff did contact Dr. Steele
in December 2007 (after the date last insured), to have him fill
out a form for her job.5 This is consistent with Plaintiff’s
explanation that she did not have health insurance and could not
pay for appointments with Dr. Steele, and it is also consistent
with her testimony that she kept in touch with Dr. Steele in order
to obtain her necessary prescriptions. The fact that Dr. Steele
examined her at one point, even though she did not have insurance,
lends credence to her testimony that she was able to maintain a
treating relationship with him.
The ALJ also mischaracterized aspects of Plaintiff’s medical
history. In particular, he asserted that “[o]nset on or before
March 31, 2007, the date last insured, does not appear anywhere
supported in this medical record. . . .” (T.13). However, the
impairments
on
which
Plaintiff’s
application
is
based–osteoarthritis, CTS, and ischemic colitis–all were diagnosed
before March 31, 2007. For instance, Plaintiff was experiencing
5
At that time, Plaintiff was employed with the Center For
Disability and provided a residence for a disabled man.
-23-
increased arthritis pain beginning in January 2002. Complaints of
worsening pain appear in the treatment notes from Dr. Richard and
Dr. Steele, up until the time she ceased visits with them due to
her lapse in insurance. Also of note is the May 2002 referral to
Dr.
Vaz
due
to
ongoing
pain
in
her
hands
caused
by
CTS.
Dr. Richard, in March 2003, indicated that Plaintiff continued to
have peptic ulcer disease with dyspepsia and that her arthritis
pain necessitated prescription painkillers. In addition, on October
2003, Plaintiff was hospitalized due to gastrointestinal bleeding
and was
diagnosed
with
ischemic
colitis.
Thus,
the
onset of
Plaintiff’s allegedly disabling impairments occurred before the
date last insured.
2.
Improper Drawing
Plaintiff
of
Adverse
Inference
Against
In finding that the medical evidence of record did not support
an onset-date prior to March 31, 2007, the ALJ stated, “[i]f[,] as
indicated in Dr. Steele’s residual functional capacity assessment
dated July 2, 2010 (Ex. 24F), the claimant was seen every two to
six months for five years[,] it is not apparent in his treatment
records. . . .” (T.13). Although there is a gap between 2006 and
2008 in Plaintiff’s attendance at office visits with Dr. Steele,
this was due to her loss of insurance coverage, not because she did
not require medical attention or because her symptoms ameliorated.
See Plaintiff’s Memorandum of Law at 6 (Dkt #7).
Dr. Steele and Dr. Anandarajah both stated that Plaintiff had
lost her insurance coverage. When Plaintiff apparently regained
-24-
insurance coverage in 2009, she began seeing Dr. Steele on a
regular basis again. The Court is cognizant, however, that the
relevant period for purposes of this appeal is January 2002, to
March 2007. The Court simply points this out because it supports
Plaintiff’s testimony that she would have made appointments to see
Dr. Steele, had she been able to afford it.
Furthermore, a claimant should not be penalized for failing to
seek medical treatment that she could not afford because she did
not have insurance coverage. Given the remedial purpose of Social
Security, Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990), courts
generally take the view that “‘[i]t flies in the face of the patent
purpose of the Social Security Act to deny benefits to someone
because he is too poor to obtain treatment that may help him.’”
Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986) (quoting
Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984)); see also
Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir. 1987) (“To a poor
person, a medicine that he cannot afford to buy does not exist”).
“[I]t is as erroneous to consider the claimant’s failure to seek
treatment as a factor in the determination that her impairment is
not severe as it would be to reach the ultimate conclusion that the
claimant is not disabled because she failed to follow prescribed
treatment
when that
failure
Lovejoy, 790 F.2d at 1117
is
justified
by
lack
of
funds.”
(citing Preston v. Heckler, 769 F.2d 988
(4th Cir. 1985)).
3.
Error in Applying the Treating Physician Rule
-25-
The “treating physician rule” instructs the ALJ to give
controlling
weight
to
the
opinions
of
a
claimant’s
treating
physician, as long as the opinion is well-supported by medical
findings and is not inconsistent with the other evidence in the
record. 20 C.F.R. § 404.1527(c)(2). The ALJ cannot discount a
treating physician’s opinion unless it “lack[s] support or [is]
internally inconsistent.”
(2d
Cir.
1999).
Snell v. Apfel, 177 F.3d 128, 133
Furthermore,
the
ALJ
may
not
“arbitrarily
substitute his own judgment for competent medical opinion.” Balasmo
v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (citation omitted).
Despite the fact that the disability determination is reserved
for
the
Commissioner,
the
Second
Circuit
has
held
that
administrative law judges are not exempt “from their obligation,
under Schaal [v. Apfel, 134 F.3d 296 (2d Cir.)] and [20 C.F.R.]
§ 404.1527(d)(2), to explain why a treating physician’s opinions
are not being credited.” Snell, 177 F.3d at 134; see also 20 C.F.R.
§ 404.1527(d)(2) (the SSA “will always give good reasons in [its]
notice of determination or decision for the weight [given to the
claimant’s]
treating
source’s
opinion”).
Where
a
treating
physician’s opinion on the nature and severity of a claimant’s
disability is not afforded “controlling” weight, the ALJ must
“comprehensively set forth [his] reasons for the weight assigned to
a treating physician’s opinion.” Burgess, 537 F.3d at 129 (quoting
Halloran, 362 F.3d at 33) (internal quotation marks omitted). See
20 C.F.R. §§ 404.1527(d)(2)-(6), 416.927(d) (2)-(6).
-26-
There is no doubt that Dr. Steele, who has been Plaintiff’s
primary care doctor since 2005, qualifies as a treating physician.
See Arnone v. Bowen, 882 F.2d 34, 41 (2d Cir. 1989) (“Whether the
‘treating physician’ rule is appropriately applied depends on ‘the
nature of the ongoing physician-treatment relationship.”) (quoting
Schisler v. Heckler, 851 F.2d 43, 45 (2d Cir. 1988)). As discussed
above, the ALJ determined that Dr. Steele had stated, in a note
dated March 4, 2009, that Plaintiff returned after not having been
seen for seven years. (T.13) (citing Ex. 17F, p. 10, i.e., T.368).
The note in
question, however,
was
authored
by
hand
surgeon
Dr. Mitten, with a “cc” (carbon copy) to Dr. Steele as Plaintiff’s
primary care physician. (T.368). The ALJ went on to assert that
“the
treatment
record
is
consistent
with
Dr.
Steele’s
[sic]
indication[,]” (T.13), citing notes dated May 15, 2002 (Dr. Vaz
diagnosing
Plaintiff
with
probable
CTS);
May
29,
2002
(electromyelography showing CTS); May 8, 2006 (a DEXA scan); and
December 6, 2007 (examination by Dr. Steele in connection with her
employment with the Center for Disability). If, as the decision
implies, the ALJ agrees that Dr. Steele was involved in her care in
May 2006, and December 2007, then there was not a gap of seven
years in Dr. Steele’s treatment of Plaintiff.
Although
the
ALJ
here
provided
“specific”
reasons
for
rejecting Dr. Steele’s opinion, they were not “legitimate” inasmuch
as they were based on a misinterpretation of the medical record. An
ALJ's failure to explicitly state “good reasons” for declining to
-27-
adopt
a
treating
source’s
opinion,
even
on
issues
that
are
determined by the Commissioner, is a ground for remand. Snell, 177
F.3d at 133–34 (remanding for a statement of the reasons why a
treating source's finding of disability was rejected by the ALJ).
C.
Failure to Consider Whether a Period of Disability Arose
at a Time that Predated the Date Last Insured But During
a Time When Plaintiff Was of “Advanced Age”
Plaintiff argues that the ALJ erred in failing to consider an
onset date of Plaintiff’s birthday in 2005, which “could plausibly
be
an
amended
onset
date
since
she
would
have
then
been
characterized at [sic] advanced age.” (T.512). Plaintiff provided
little
argument
to
support
this
contention,
commenting
that
Plaintiff’s ischemic colitis, “superimposed over . . . [her] other
limitations including her osteoarthritis, inflammatory arthritis,
and depression would have placed her at a sedentary RFC as of 2003
or at least in the ‘light’ category as of her 55th birthday [in
2005] making her entitled to a favorable decision with either of
these proposed amended onset dates.” (T.512). Plaintiff provides no
further explanation as to how a “sedentary” or “light” RFC would
amount to a determination of disability. The Court is not persuaded
that this argument has merit.
D.
Failure to Make an RFC Assessment
Plaintiff asserts that the ALJ failed to make factual findings
in connection with assessing Plaintiff’s RFC. The RFC determination
is made at the fifth step of the sequential evaluation. See 20
C.F.R. § 404.1520(a) (“At the fifth and last step, we consider our
-28-
assessment of your residual functional capacity and your age,
education, and work experience to see if you can make an adjustment
to other work.”). The SSA’s model for determining disability is
“sequential” in the sense that when a decision can be made at an
earlier step,
later
steps
are
not
considered. See
20
C.F.R.
§§ 404.1520(a), 416.920. Thus, because the ALJ terminated his
analysis at step two (albeit based upon erroneous fact-finding), he
was
not
required
to
proceed
any
further
in
the
sequential
evaluation.
IX.
Remedy
A reviewing court has the authority to reverse with or without
remand. 42 U.S.C. §§ 405(g), 1383(c)(3) (2003). As discussed above,
the ALJ made significant errors of fact and misapplied the law at
step
two,
finding
impairments
were
that
not
Plaintiff’s
“severe”,
when
medically
considered
determinable
singly
or
in
combination. Where the ALJ has made errors at step two, courts in
this
Circuit
have
generally
remanded
for
a
renewed
severity
determination. E.g., Spears v. Heckler, 625 F. Supp. 208, 212-13
(S.D.N.Y. 1985); see also Taylor v. Astrue, No. 6:11–cv–588(GLS),
2012 WL 1415410, at *2 (N.D.N.Y. Apr. 24, 2012). Here, however, if
the ALJ had properly applied the treating physician rule and had
not misstated the record, a severity finding in Plaintiff’s favor
was required.
As an initial matter, the Court notes that the Second Circuit
has strongly cautioned that the severity standard at step two is to
-29-
be applied “solely to screen out de minimis claims.” Dixon v.
Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995) (citation omitted). In
addition,
if
a
claimant
has
multiple
impairments,
as
does
Plaintiff, these impairments must be considered in combination. 20
C.F.R. § 404.1523 (“In determining whether [a claimant’s] physical
or mental impairment or impairments are of a sufficient medical
severity that such impairment or impairments could be the basis of
eligibility under the law,” the Commissioner must “consider the
combined effect of all of [the claimant’s] impairments without
regard to whether any such impairment, if considered separately,
would be of sufficient severity.”); see also, e.g., Dixon, 54 F.3d
at 1031 (citing DeLeon v. Secretary of HHS, 734 F.2d 930, 937 (2d
Cir. 1984); Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d Cir.
1975); other citations omitted)). As Dr. Anandarajah noted, over
the past 20 years, Plaintiff had seen multiple physicians and
surgeons, for her pain in the small joints of her hands and in her
back. Despite trying various treatment modalities and medications
and undergoing two surgeries, she still had significant pain and
limitations in her daily activities due to her arthritis and CTS.
In addition, the unpredictability of her bouts of ischemic colitis
made it difficult for her to complete daily activities without
interruption. Thus, there is clearly substantial evidence in the
record to support a finding that Plaintiff’s combined impairments
of chronic arthritis pain, CTS (which has required two surgeries to
date), and ischemic colitis significantly limit her ability to
-30-
engage in “the abilities and activities6 necessary to do most
jobs.”
20 C.F.R. § 404.1521(b).
Furthermore, substantial evidence exists in the record to
warrant giving deference to the opinion of Plaintiff’s treating
physician and compels a finding of disability.
See Burgess v.
Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (“[T]he SSA recognizes a
‘treating
physician’
physician
who
has
rule
engaged
of
deference
in
the
to
primary
the
views
of
the
treatment
of
the
claimant.”) (internal quotation marks omitted). As discussed above,
Dr. Steele undoubtedly qualifies as a treating physician, given his
ability to provide a “detailed, longitudinal picture,” 20 C.F.R.
§
404.1527(c)(2),
of
Plaintiff’s
impairments
and
resultant
limitations. The fact that Dr. Steele rendered his functional
capacity report in 2009, after the end of the relevant period for
Plaintiff’s
disability
application,
does
not
undermine
its
significance as a treating source opinion. “Even if rendered
retrospectively,
an
uncontradicted
opinion
by
the
treating
physician is binding where it is the only medical evidence as to
disability in the record.” Malave v. Sullivan, 777 F. Supp. 247,
6
Basic work activities that are relevant for evaluating the
severity of an impairment include: (1) physical activities such as
walking, standing, lifting, pushing, pulling, reaching, carrying,
or handling; (2) the capacities for seeing, hearing, and speaking;
(3)
understanding,
carrying
out,
and
remembering
simple
instructions; (4) use of judgment; (5) responding appropriately to
supervision, co-workers and usual work situations; and (6) dealing
with changes in a routine work setting. 20 C.F.R. § 404.1521(b).
-31-
252 (S.D.N.Y. 1991) (citing Rivera v. Sullivan, 923 F.2d 964, 968
(2d Cir. 1991) (“[C]laimants have won reversal of adverse decisions
by the Secretary even where their condition is degenerative, making
retrospective
speculative,
evaluation
and
even
of
where
their
some
ability
to
non-physician
work
somewhat
testimony
or
evidence suggests a possible ability to work at the relevant
time.”) (citation omitted); Dousewicz v. Harris, 646 F.2d 771,
774–75 (2d Cir. 1981) (“[A] diagnosis of a claimant’s condition may
properly be made even several years after the actual onset of the
impairment.”) (quotation omitted; alteration in original)). As the
Second Circuit has observed, “the fact that a condition is more
disabling today than it was yesterday does not mean that the
condition was not disabling yesterday.” Dousewicz, 646 F.2d at 775
Here, Dr. Steele’s residual functional capacity report, which
is recounted in detail above in this Decision and Order, was the
only medical evidence in the record regarding disability. No
consultative
examination
of
Plaintiff
was
performed.
Where
a
treating physician’s retrospective opinion is the only medical
evidence in the record regarding disability, “a circumstantial
critique by non-physicians, however thorough or responsible, must
be
overwhelmingly
compelling
in
order
to
overcome
a
medical
opinion.” Wagner v. Secretary of HHS, 906 F.2d 856, 862 (2d Cir.
1990). As discussed above, the ALJ misapprehended the pertinent
facts, and his conclusion that Dr. Steele’s opinion did not warrant
controlling weight is not supported by “overwhelmingly compelling”
-32-
Wagner, 906 F.2d at 862, reasoning or analysis.
See Malave, 777 F.
Supp. at 253 (“It is clear from the rest of the ALJ’s opinion that
he misunderstood the ‘facts known here,’ since, as noted above, the
ALJ mistakenly stated that the ‘claimant did not have a condition
likely to cause pain (at least there was no evidence of it).’ Thus
the ALJ’s conclusion that the treating physician’s opinion was
‘logically improbable’ is not backed by ‘overwhelmingly compelling’
reasoning[.]”). Accordingly, the ALJ cannot provide on the present
record a sufficient basis to overcome Dr. Steele’s opinion, as
treating physician, that Plaintiff is disabled. See Malave, 777 F.
Supp. at 253.
X.
Conclusion
For the foregoing reasons, Defendant’s Motion for Judgment on
the Pleadings (Dkt #6) is denied, and the matter is reversed and
remanded
to
the
Commissioner
for
calculation
and
payment
of
benefits for the relevant period (January 1, 2002, to March 31,
2007). The Clerk of the Court is requested to close this case.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
May 17, 2013
Rochester, New York
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