Beck v. Astrue
Filing
12
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 7 Plaintiff's Motion for Judgment on the Pleadings; denying 9 Commissioner's Motion for Judgment on the Pleadings; and remanding this case to the Commissioner for calculation and payment of benefits. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 10/7/13. (JMC) Modified on 10/7/2013 (TA).
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
STEPHANIE BECK,
No. 6:12-CV-06495(MAT)
DECISION AND ORDER
Plaintiff,
-vsCAROLYN W. COLVIN, Commissioner of
Social Security,
Defendant.
________________________________________
INTRODUCTION
Represented by counsel, Stephanie Beck (“Plaintiff”) brought
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”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g).
PROCEDURAL HISTORY
On
October
6,
2009,
Plaintiff
filed
an
application
for
disability insurance benefits alleging disability with an onset
date of December 12, 2008, due to multiple sclerosis (“MS”),
fibromyalgia,
psoriasis,
obesity, depression,
pain,
and
side-
effects caused by her various medications. T.74, 76.1 After the
claim was denied initially and upon reconsideration, Plaintiff
requested a hearing before an administrative law judge (“ALJ”).
1
Citations to “T.__” refer to pages from the administrative transcript
submitted by the Commissioner in connection with her answer to the complaint.
The hearing was conducted via videoconference on November 19, 2010,
by ALJ Jennifer Whang. Plaintiff was assisted by a non-attorney
representative at the hearing.
In a decision dated January 10, 2011, the ALJ found that
Plaintiff
was
not
disabled
within
the
meaning
of
the
Act.
Specifically, the ALJ found that Plaintiff (1) met the insured
status requirement through December 31, 2013; (2) had not engaged
in substantial gainful activity since December 12, 2008; (3)
suffers from the following severe ailments: MS, fibromyalgia,
psoriasis, asthma, and obesity; (4) does not have an impairment or
combination of impairments that meets or medically equals a listed
impairment; (5) has the residual functional capacity (“RFC”) to
perform sedentary work with various environmental limitations, as
well as a sit/stand option and the ability to alternate between
sitting and standing every thirty minutes; (6) is capable of her
performing past relevant work as a claims examiner and clinical
therapist as well as other jobs that exist in significant numbers
in the national economy; and (7) therefore does not meet the Act’s
definition of disabled.
In April 2012, Plaintiff retained an attorney, who obtained
updated treating source questionnaires from three of Plaintiff’s
treating physicians, see T. 490, 494, 487, which were submitted as
additional evidence to the Appeals Council. T.5.
On August 24,
2012, the Appeals Council accepted this additional evidence into
-2-
the record, but denied Plaintiff’s request for review, making the
ALJ’s decision the final decision of the Commissioner.
T.1-5.
Plaintiff instituted this action on December 4, 2012, arguing
that the ALJ’s decision was not supported by substantial evidence
in the record and was based on erroneous legal standards.
Plaintiff has moved for judgment on the pleadings pursuant to
Rule 12(c) of the Federal Rule of Civil Procedure seeking to
reverse
the
calculation
judgement
of
of
the
benefits,
or
administrative proceedings.
Commissioner
and
alternatively,
remand
for
for
further
The Commissioner has opposed the
motion and has cross-moved for judgment on the pleadings.
For the
reasons set forth below, this Court finds that the Appeals Council
erred
in
denying
review
of
the
ALJ’s
determination
without
explaining why additional evidence submitted by Plaintiff to the
Appeals Council was rejected. Further, after considering the whole
record including the additional evidence, this Court finds that the
record overwhelmingly supports a finding of disability. Therefore,
this matter is remanded to the Commissioner for calculation and
payment of benefits.
FACTUAL BACKGROUND
Plaintiff was born on August 1, 1970, and was forty years-old
as of the date of the administrative hearing.
From February 2008,
through September 2010, while living in North Carolina, she was
under the care of Dr. Elliott L. Semble who diagnosed her with
-3-
fibromyalgia, MS, and psoriasis. T.323. Plaintiff was also treated
for psoriasis by dermatologist Dr. Dori Hunt in North Carolina.
T.392, 385.
On December 12, 2008, Plaintiff left her position as a mobile
crisis counselor for the Easter Seals due to her health issues.
T.34.
Prior to leaving the position, Plaintiff had missed three
months of work in 2008 and two months in 2007 due to MS flare-ups.
Plaintiff has not been employed since December 2008. Plaintiff
moved to New York in the autumn of 2010.
Plaintiff’s
MS
is
“longstanding”
and
she
experiences
“recurrent flares” every three to four months which cause weakness
in her arms and legs, muscle spasms, fatigue, and pain.
T.252,
311, 323. Laboratory tests show that her inflammatory markers are
“thru [sic] the roof.” T.357. Her MS causes fatigue, interferes
with her ability to sleep, and causes pain.
Plaintiff’s psoriasis has been described by her physicians as
“severe.” T.385, 392.
Approximately five times per year, she
experiences flares so severe that she is unable to wear clothing
because fabric irritates her skin.
T.29.
Despite many attempted
treatments, there has been no long-term remission of the psoriasis
which has affected Plaintiff’s toenails so badly that she has
required surgery and is limited to wearing certain types of shoes.
Sometimes, she is unable to wear shoes at all. T.30, 450. Plaintiff
-4-
also suffers from psoriatic arthritis in her toes and other joints.
T.301.
Plaintiff also has been diagnosed with fibromyalgia, and
experiences
“[t]ender
points
noted
in
a
typical
fibromyalgia
distribution.” T.304. The fibromyalgia causes severe pain. T.297,
299, 301, 304, 305, 306, 309, 310, 320, 322. Related problems are
weak
joint
ligaments
in
her
feet
and
joint
stiffness.
The
consultative physician concluded that Plaintiff “has episodes of
significant
symptoms”
related
to
her
MS
and
probably
to
her
fibromyalgia. T.253.
The MS, fibromyalgia, and psoriasis all cause Plaintiff to
experience
severe
pain
on
a
routine
basis.
Plaintiff
has
consistently reported intractable pain to her treating physician
levels, including pain levels as high as 10 out of 10. T.297, 299,
301, 303, 304, 305, 306, 309, 310, 320, 322.
Plaintiff takes many medications, including Zanaflex, Vicodin,
Methotrexate, Cymbalta, Ambien, Neurontin, and Provigil. T.27, 28,
32.
These cause numerous side-effects, including fatigue and
flu-like symptoms. Some of the medications used to treat her
psoriasis can cause MS flare-ups and some of the MS medications can
cause psoriasis flare-ups.
T.308, 310.
-5-
DISCUSSION
I. Standard of Review
A 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 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).
The district court must independently determine whether the
Commissioner’s decision applied the correct legal standards in
determining that the claimant was not disabled. Townley v. Heckler,
748 F.2d 109, 112 (2d Cir. 1984).
This Court first 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).
The Commissioner’s
determination will not be upheld if it is based on an erroneous
view of the law that fails to consider highly probative evidence.
Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). In such cases,
the reviewing court has the authority to reverse with or without
remand. See 42 U.S.C. §§ 405(g), 1383(c)(3).
-6-
II. Plaintiff’s Arguments
A.
Failure of the Appeals Council to Consider Properly
Submitted Additional Evidence
Plaintiff asserts that the Appeals Council failed to properly
consider statements from three treating physicians submitted as
supplemental evidence.
Social
Security
regulations
allow
a
claimant
to
submit
additional evidence to the Appeals Council in support of the
Request for Review.
See 20 C.F.R. § 404.970(b).
The Appeals
Council must accept the evidence so long as it is new, material,
and relates to the period on or before the date of the ALJ’s
decision.
See id.
Additional evidence may relate to the relevant
time period even if it concerns events after the ALJ’s decision, so
long as the evidence pertains to the same condition previously
complained of.
Cf. Brown v. Apfel, 174 F.3d 59, 64-65 (2d Cir.
1999) (considering evidence of symptoms that occurred six months
after the ALJ’s decision).
Three new items were accepted by the Appeals Council.
The
first item was a Medical Source Statement by Thomas Mitchell, M.D.,
dated May 4, 2012, opining that Plaintiff would need one ten-minute
rest period per hour or less at any job she retained.
Additionally,
condition
Dr.
would
Mitchell
mildly
indicated
effect
her
that
Plaintiff’s
ability
to
T.487.
medical
concentrate,
moderately effect her ability to sustain work pace, and that five
of
her
medications
cause
fatigue.
-7-
T.487-88.
Dr.
Mitchell
determined that if Plaintiff were to work five days per week for a
total of forty hours, she would be expected to have substantial
absences (defined as four or more per month).
T.487.
The second item of additional evidence was a Medical Source
Statement by James Freeman, M.D., dated May 15, 2012, stating that
Plaintiff’s medical limitations had been present since at least
October 2010, when he began treating her.
reported
that
Plaintiff
would
need
T.495.
complete
Dr. Freeman
freedom
to
frequently, without restriction, at any job she obtained.
Additionally,
Dr.
Freeman
indicated
that
Plaintiff’s
rest
T.494.
medical
condition would severely affect her abilities to concentrate and to
sustain work pace. He noted that two of her medications cause
drowsiness
and
disturb
concentration.
T.494-95.
Lastly,
Dr. Freeman determined that if Plaintiff were to work five days per
week
equaling
forty
hours,
she
would
be
expected
to
substantial absences (defined as four or more per month).
have
T.494.
The third item of additional evidence was a Medical Source
Statement by David Halpert, M.D. and Physician’s Assistant (“P.A.”)
Erica Mendelson dated April 27, 2012. Dr. Halpert opined that
Plaintiff’s current medical limitations existed before December
2008.
T.491.
He also stated that Plaintiff would need complete
freedom to rest frequently without restriction at any job she
retained. T.490.
Dr. Halpert indicated that Plaintiff’s medical
condition would severely affect her ability to concentrate and
-8-
severely affect her ability to sustain work pace, and also that
several of her medications cause fatigue.
T.490-91.
Finally,
Dr. Halpert opined that if Plaintiff were to work five days per
week
equaling
forty
hours,
she
would
be
expected
to
substantial absences (defined as four or more per month).
have
T.490.
Since the doctors’ statements indicate they began treating
Plaintiff
after
the
ALJ’s
decision,
the
Appeals
Council
had
discretion to exclude the evidence as outside the relevant time
period. See 20 C.F.R. § 404.970(b). However, the Notice of Appeals
Council Action states that “we considered . . . the additional
evidence and found that this information does not provide a basis
for changing the [ALJ’s] decision.”
T.1-2. As discussed further
below, the Appeals Council committed legal error when it considered
the supplemental evidence and rejected it without setting forth its
reasons for doing so.
B.
Failure To Properly Assess Plaintiff’s RFC.
The ALJ concluded that Plaintiff has the RFC to perform
sedentary work, subject to certain postural and environmental
limitations, and that she can perform her past relevant work or
other jobs available in the national economy. T.78. The Court
agrees with Plaintiff that these conclusions are legally and
factually erroneous.
-9-
1.
Failure to Consider Absenteeism and Inability to
Work on a Regular and Consistent Basis
As the ALJ found, Plaintiff suffers from impairments and
related symptoms (both from her impairments and the medications she
takes to treat those conditions) that cause physical and mental
limitations, which in turn limit her ability to perform in a work
setting. See 29 C.F.R. § 414.1545(a)(1). In assessing a claimant’s
physical and
mental limitations, the ALJ must take into account
the claimant’s ability to engage in “work activity on a regular and
continuing basis.” 29 C.F.R. § 404.1545(b); § 404.1545(c). The ALJ,
however, erroneously failed to consider Plaintiff’s actual or
likely absenteeism due to her various ailments. See, e.g., McArthur
v. Commissioner of Social Sec., No. 3:06-CV-860(LEK/DRH), 2008 WL
4866049, at *16 (N.D.N.Y. Nov. 7, 2008).
To be disabled within the meaning of the Act, a claimant must
be unable to engage in substantial gainful activity, which means
“the performance of substantial services with reasonable regularity
. . . .” DiRienzis v. Heckler, 748 F.2d 352, 353 (2d Cir. 1984);
see also Moore v. Secretary of Dept. of Health and Human Servs.,
778 F.2d 127, 132 (2d Cir. 1985).
“[A]n ability to work ‘only on
an intermittent basis is not the ability to engage in substantial
gainful activity.’” (quoting Koseck v. Secretary of Health and
Human Servs., 865 F. Supp. 1000, 1014 (W.D.N.Y. 1994)). “The extent
to which a disability may prevent regular work attendance is a
relevant factor in determining whether a claimant is able to engage
-10-
in substantial gainful activity[.]” Chiapa v. Secretary of Dept. of
Health, Educ., and Welfare, 497 F. Supp. 356, 360-61 (S.D.N.Y.
1980) (quotation and citations omitted) (finding error where the
ALJ
“conducted
the
hearing
as
though
work
attendance
was
irrelevant” and “specifically refused to allow plaintiff to ask the
vocational expert at the hearing whether absenteeism would affect
employability”).
The record indicates that Plaintiff suffers from multiple
conditions that have lasted for more than twelve months, are
expected to last for more than twelve months, and preclude her from
working on a sustained basis. Indeed, her work history demonstrates
that these medical conditions have in fact precluded her from
working at times. Due to various flares and related treatments,
there have been periods when she had to miss time from work ranging
from
two
to
fourth
months
at
a
time.
T.34.
Her
treating
rheumatologist has kept her out of work for significant periods of
time (over one month). T.304, 305, 306, 310, 311.
As
far
undisputed
as
her
that
her
prospective
medical
level
conditions
of
absenteeism,
will
be
of
it
is
lifelong
duration. Sometimes the effects of her medical conditions are more
severe than others. With regard to her MS, Plaintiff experiences
“recurrent flares”, T.252, “on average . . .
every three to four
months.” T.28. Her MS causes pain and fatigue, and also interferes
with her ability to sleep. T.357. Plaintiff’s MS is progressively
-11-
worsening, and during recent relapses, she has experienced weakness
in her right leg, facial numbness, and constant tingling and
burning sensations in her right toes. T.162, T. 311. Because of the
weakness in her leg, her doctors prescribed her a cane, which she
has used approximately three days a week for over five years. T.22.
During some relapses, Plaintiff is unable to walk even with the
cane and requires a walker. T.22-23. As a result of the weakness in
her legs, Plaintiff must use hand controls to drive. T.34. She has
weakness in her arms and hands as well as generalized weakness
throughout her body. T.323. Additionally, she experiences frequent
muscle spasms. T.303-311, 322.
With
regard
to
her
psoriasis,
she
experiences
flares
approximately five times per year; some are so severe that she is
very limited to the type of clothing she can wear because clothing
seriously irritates her skin. Indeed, she can wear “no clothing at
times because of the degree of the flare.” T.29. These episodes can
last up to two weeks. T.31.
The fibromyalgia, and resulting pain and joint problems are
constant, as are the serious side effects of her medication, which
include drowsiness, dizziness, and fatigue.
In light of these well-documented, serious medical conditions
and the many side-effects of her medications, Plaintiff’s treating
physicians all concluded that she is likely to have a substantial
number of absences from work each month. T.487-95. These opinions
-12-
are consistent with her work history and with the objective medical
evidence indicating that Plaintiff’s MS is worsening and becoming
more difficult to treat; that her psoriasis is severe and has been
described by her doctors as intractable; and that in addition to
the pain caused by her MS, she suffers from pain due to psoriatic
arthritis and fibromyalgia. Moreover, these opinions are supported
by the independent medical examiner who concluded that Plaintiff
“is not capable of tolerating normal stresses, pressures and
physical demands associated with a full-time work routine.” T.259.
Notably,
specifically
at
the
hearing,
addressing
there
Plaintiff’s
substantial gainful activity.
was
no
ability
medical
to
evidence
engage
in
Thus, the ALJ relied heavily on the
testimony of the vocational expert (“VE”) when determining that
Plaintiff was not disabled.
T.81-82.
When asked by the ALJ if any
jobs would be available if Plaintiff were to be off task more than
30 percent of the day, require unscheduled breaks, or be absent
more than three times per month, the VE responded that there would
be no jobs available. T.42.
The limitations posed in the foregoing hypothetical were amply
supported
However,
even prior
the
new
to
Plaintiff’s
evidence
submitted
supplemental
to
the
submissions.
Appeals
Council
establishes more conclusively that the ALJ’s RFC determination
cannot stand. In particular, Plaintiff’s treating physicians opine
that Plaintiff would miss at least four or more days of work per
-13-
month. T.487, 490, 494. Vocational experts in Social Security cases
have testified that missing three or more days of work per month
renders a claimant unemployable, as that level of absenteeism is
beyond the bounds of reasonable employer tolerance. See, e.g.,
Montalvo v. Barnhart, 457 F. Supp.2d 150, 163-64 (W.D.N.Y. 2006)
(vocational expert testified that absenteeism of two to three
missed days per month generally would not be tolerated by an
employer and would likely lead to the employee’s dismissal).
Likewise, Dr. Freeman, Dr. Halpert, and P.A. Mendelson, all
agreed
that
Plaintiff
would
need
“complete
freedom
to
rest
frequently without restriction” in addition to having a 30-minute
break.
T.490, 494.
ability
to
sustain
They also found that her concentration and
work
pace
would
be
33 percent or more) by her impairments.
severely
T.490.
limited
(by
Therefore, in
light of the new evidence, it is clear that Plaintiff would be
unable to
engage
disability.
2.
The
ALJ
in substantial
gainful
activity
due
to
her
T.42.
Error in Concluding that Episodic Conditions
Preclude a Finding of Continuous Disability
concluded
that
“[w]hile
the
record
demonstrates
relatively severe and persistent limitation arising from several
impairments, they do not indicate that the claimant has suffered
complete loss of capacity to work for a continuous period of
12 months.” T.80. The ALJ accordingly found that Plaintiff is able
to perform substantial gainful employment.
-14-
Contrary
to
the
Commissioner’s
finding,
the
fact
that
Plaintiff suffers from episodic conditions does not preclude the
award of disability benefits. See Totten v. Califano, 624 F.2d 10,
11-12
(4th
Cir.
1980)
(“The
‘continuous
period’
language
of
§ 423(d)(1)(A) does not require a claimant to show an inability to
engage in
any
substantial
gainful
activity
every
day
of
his
existence. An individual does not have to be totally helpless or
bedridden in order to be found disabled under the Social Security
Act, otherwise, the ability to perform substantial gainful activity
even one day each month or each year would disqualify an individual
for benefits.”) (internal citations omitted); see also Gold v.
Secretary of Health, Educ., & Welfare, 463 F.2d 38, 41 n. 6 (2d
Cir. 1972) (“To receive benefits under the Social Security Act, one
need not be completely helpless or unable to function . . . .”).
It bears emphasizing that MS is an “incurable, progressive
disease subject to periods of remission and exacerbation.” Vesely
v. Commissioner of Soc. Sec., No. 3:08cv258, 2009 WL 3199084, at *7
(S.D. Oh. 2009) (reversing determination that person with MS was
not disabled) Thus, the duration and frequency of the flare-ups and
remissions should be considered when determining if an individual
is disabled. Id. (citing Wilcox v. Sullivan, 917 F.2d 272, 277 (6th
Cir. 1990)); see also Parish v. Califano, 642 F.2d 188, 193 (6th
Cir. 1981) (“ Because the . . . period wherein plaintiff attempted
to work and attend school was unquestionably a period of remission,
-15-
we believe the ALJ erred in placing undue reliance on this brief
and temporary interruption of plaintiff’s progressively disabling
condition [i.e., MS].”). Plaintiff has a history of missing months
of work due to her various flare-ups, and Dr. Halpert notes in his
Medical Source Statement that her symptoms have not improved over
time.
T.34, 490.
Further, Dr. Halpert notes that Plaintiff has
had these symptoms for “many, many years prior to 2008.”
Thus, for
the purposes of 42 U.S.C. § 423(d)(1)(A), Plaintiff satisfied the
requirements of a continuous impairment.
C.
Failure of the ALJ
Physicians’ Opinions
The
ALJ
physicians
evidence
discounted
because
of
she
continuing
the
to
Properly
opinions
believed
of
that
treatment
Weigh
the
Treating
Plaintiff’s
treating
there
through
was
the
insufficient
date
of
her
decision.·T.80. This also constituted factual and legal error.
First, the record evidence shows continuous treatment over the
course
of
years.
Plaintiff
treated
with
her
rheumatologist,
Dr. Semble, through at least September 2010. T.453. Thereafter, she
moved to New York and has continued treatment here. T.12. Second,
as the ALJ should have been aware, Plaintiff moved from North
Carolina to New York in October 2010, just a few weeks before the
administrative hearing. It was unrealistic for the ALJ to expect
Plaintiff to continue to see Dr. Semble after moving to New York.
Similarly, it is understandable that it would take Plaintiff time
-16-
to find new health care providers in New York and establish a
treating relationship with them.
The ALJ ignored the record evidence that, having moved to
upstate New York, she was being treated by Dr. Halpert for her MS
symptoms and that Dr. Halpert referred her to the MS Center in
Buffalo, New York for an appointment on April 25, 2011. T.12.
Knowing that Plaintiff had this appointment, the Commissioner
should have held the record open and exercised her duty to develop
the record and asked for more recent treatment notes. DeChirico v.
Callahan, 134 F.3d 1177, 1184 (2d Cir. 1998) (“The statutory duty
of an ALJ to issue subpoenas or take other actions sua sponte as
necessary
to
develop
claimants,
see
42
§
U.S.C.
42
the
U.S.C.
record
§
applies,
423(d)(5)(B)
1382c(a)(3)(G));
20
C.F.R.
of
(as
§§
course,
to
all
incorporated
416.912(d),
by
416.
1450(d)(1), and not just to those who appear pro se.”).
D.
Failure of the Appeals Council to Properly Apply the
Treating Physician Rule
Plaintiff argues that the Appeal Council committed legal error
in denying review without addressing why it rejected evidence from
a treating medical source.
When reviewing the record, the Appeals
Council must follow the same rules as must an ALJ for considering
opinion evidence.
See 20 C.F.R. § 416.927(e)(3). 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
-17-
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.” Snell v. Apfel,
177
F.3d
at
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).
Controlling weight is given to a “treating source’s opinion on
the
issue(s)
of
impairment(s)
if
the
the
nature
and
opinion
is
severity”
of
“well-supported
a
by
claimant’s
medically
acceptable clinical and laboratory diagnostic techniques and is not
inconsistent
with
the
other
substantial
evidence.”
20
C.F.R.
§ 404.1527(d)(2); see also Rosa v. Callahan, 168 F.3d 72, 78–79
(2d Cir. 1999). A treating source is a claimant’s “own physician,
psychologist, or other acceptable medical source” who provides or
has provided “medical treatment or evaluation and who has, or has
had,
an
ongoing
treatment
relationship”
with
the
claimant.
20 C.F.R. § 404.1502. Pursuant to the regulations, an “ongoing
treatment relationship” is generally found where an acceptable
medical source treats a claimant “with a frequency consistent with
accepted
medical
practice
for
the
type
of
treatment
and/or
evaluation required for [the claimant’s] medical condition(s).” Id.
The Appeals Council must give “good reasons” for the weight given
-18-
to
the
opinion
of
a
treating
medical
source.
20
C.F.R.
§ 416.927(c)(2).
Here, the Appeals Council accepted additional information from
treating physicians Dr. Freeman and Dr. Halpern. Dr. Freeman had
treated Plaintiff for psoriatic arthritis and fibromyalgia since
October 2010, and thus had a treating relationship with Plaintiff
for over one year prior to completing his Medical Source Statement.
T.494. Dr. Halpern and P.A. Mendelson had treated Plaintiff for MS
since June 2011, ten months before completing their Medical Source
Statement.
T.489, 491. Both Dr. Freeman and Dr. Halpern clearly
qualified as treating physicians, and the Appeals Council was
obligated to give specific reasons why their statements were
rejected in its denial of review. The Appeals Council’s failure to
do so was plainly erroneous. See Stadler v. Barnhart, 464 F. Supp.
2d 183, 187 (W.D.N.Y. 2006) (finding that Appeals Council erred in
failing to discuss contents of report by claimant’s treating
psychiatrist, submitted after ALJ issued his decision and during
pendency of appeal from denial of his application for benefits;
Appeals Council summarily concluded, without stating any “good
reasons”, that the new evidence was insufficient to disturb ALJ’s
determination).
E. Erroneous Credibility Determination
The ALJ found that Plaintiff’s “allegation that side effects
of [her] medications have kept her from working is not entirely
-19-
consistent with the fact that she successfully completed college
course work and earned a Bachelor’s degree in 2009 . . . .” T.81.
This finding is not supported by substantial evidence.
In light of the particular circumstances of Plaintiff’s case,
the fact that she continued her education does not undermine her
credibility concerning the side-effects of her medication. In
contrast to full-time work, which requires an ability to work
consecutive days for eight hours per day, school does not. The
evidence in the record indicates that Plaintiff only attended class
two nights a week for no more than four hours per night. T.163.
Furthermore, some of Plaintiff’s schooling was accomplished online,
allowing her to avoid the difficulties attendant to commuting and
the discomfort of a classroom. Notably, Plaintiff did miss class
because of her symptoms, and her professors accommodated her bouts
of illness. Inasmuch as Plaintiff’s earning of a degree was the
only basis for discounting her testimony concerning the side
effects of her medication, the ALJ’s credibility finding was not
supported by substantial evidence.
Plaintiff also argues that the ALJ failed to take into account
the combined side-effects of her various medications. The record
establishes that Plaintiff takes multiple medications, each having
several serious
side-effects.
Plaintiff
requires
Cymbalta,
an
antidepressant which has been found to be successful in alleviating
the pain of fibromyalgia. T.27. Side-effects of Cymbalta include
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nausea and sleepiness.2 Plaintiff takes Zanaflex for muscle spasms
caused by her MS. This drug causes, among other things, drowsiness.
T.27. Plaintiff testified, “[Zanaflex] makes me very sleepy to the
point I go to sleep.” T.28. In addition, Plaintiff takes the pain
reliever Vicodin, which contains hydrocodone, a narcotic that
causes drowsiness. T.27.3 Plaintiff testified that the Vicodin
makes her drowsy and also inhibits her ability to think and react.
T.28. Plaintiff takes Methotrexate,4 a chemotherapy drug which has
significant side-effects, including nausea, drowsiness, headache,
hair loss, blurred (or loss of) vision, weakness or difficulty
moving one or both sides of the body, and loss of consciousness.
Plaintiff
testified
that
she
suffers
from
diarrhea,
nausea,
fatigue, and flu-like symptoms when she takes Methotrexate. T.32.
To assist with sleeping at night, Plaintiff takes Ambien, which has
side-effects
of
daytime
drowsiness,
dizziness,
weakness,
and
feeling “drugged” or light-headed.5 Plaintiff also takes Neurontin,
an anti-convulsant medication used to treat seizures and some types
of pain. Neurontin can cause dizziness, drowsiness, weakness, and
feeling tired.6 Finally, when Plaintiff has severe flares of MS,
2
3
4
5
6
http://www.cymbalta.comlPages/cymbaltaandfibromyalgia.aspx.
http://www.drugs.com/sfxlvicodin-side-effects.html.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682019.html.
http://www.drugs.comlambien.html.
http://www.drugs.comlneurontin.html.
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she is treated with intravenous steroids. The medical records thus
overwhelmingly
serious,
support
debilitating
the
conclusion
side-effects
that
from
Plaintiff
her
suffers
medications
that
significantly interfere with her ability to engage in substantial
gainful activity on a regular and continuing basis.
F.
Remedy
In evaluating an appeal from the Commissioner’s denial of
Social Security benefits, a reviewing court should consider the
whole record.
Williams on behalf of Williams v. Bowen, 859 F.2d
255, 258 (2d Cir. 1988).
If the Appeals Council declines review
after accepting new evidence into the record, the Commissioner’s
final
decision
becomes
the
ALJ’s
decision
plus
the
implicit
rejection of the new evidence.
Perez v. Chater, 77 F.3d 41, 45
(2d
court
Cir.
1996).
A
reviewing
must
then
consider
the
substantiality of the ALJ’s decision in light of the evidence that
was considered by the ALJ and the additional evidence accepted by
the Appeals Council.
See id.
If the additional evidence is
consistent with the ALJ’s findings, then the decision should be
affirmed.
See id. at 47.
However, if the additional evidence
undermines the ALJ’s decision, then the case should be reversed or
remanded.
See Brown, 174 F.3d at 60, 65 (stating that conflicting
evidence may indicate that the claimant’s limitations were not
sufficiently documented or worsened over time).
-22-
In this case, the additional evidence accepted by the Appeals
Council wholly undermines the ALJ’s decision. It is undisputed
that, as the ALJ found, Plaintiff has multiple severe impairments–
MS, fibromyalgia, psoriasis, asthma, and obesity. This Court’s
review of the record indicates that the symptoms of, and treatment
for, Plaintiff’s MS alone render her unable to find work due to her
disability. Considered in combination, Plaintiff’s multiple severe
impairments are disabling, as explained more fully above in this
Decision
and
Order.
Due
to
her
multiple
serious
conditions,
Plaintiff is “challenging to treat”: The treatments for her for
psoriasis aggravates her MS. Likewise, when the MS flares, the
treatment for that condition suppresses Plaintiff’s immune system,
thereby causing
her
psoriasis
to
flare. See
T.35,
308,
310.
Long-term remission of any of her conditions has been impossible.
T.421.
The ALJ cited a lack of current medical evidence and the
intermittent nature of Plaintiff’s MS and psoriasis flares as
reasons that Plaintiff did not have a disabling combination of
impairments.
T.81-82.
However,
as
stated
elsewhere
in
this
Decision and Order, the new reports accepted by the Appeals Council
constitute current medical evidence which compels a finding of
disability.
Furthermore, as detailed above, the ALJ incorrectly determined
that Plaintiff did not have a continuous disabling impairment for
-23-
at least 12 months. “Simply because [Plaintiff’s] symptoms were
‘intermittent’
does
not
necessarily
mean
that
[she]
was
not
disabled for a twelve month period.” Martonik v. Heckler, 773 F.2d
236, 241 (8th. Cir. 1985).
“Substantial
substantial
work
gainful
with
activity”
“reasonable
requires
regularity”.
performance
of
DiRienzis
v.
Heckler, 748 F.2d 352, 353 (2d Cir. 1984). The ALJ’s determination
that Plaintiff is not disabled because her impairment will not
preclude her from engaging in substantial gainful activity was not
supported by the substantial evidence in the record, as described
above. On a daily basis, Plaintiff requires so many periods of rest
due to her symptoms and medications that she is unable to complete
a full work day. The significant and frequent flares of her various
conditions mean that she will suffer unacceptable absences in the
long-term. Thus, her occupational base for sedentary work has been
eroded to the point where she is not employable.
Based on the entire record, including the new medical sources
statements, the Court finds that there is such substantial evidence
of Plaintiff’s disability that any further proceedings at the
administrative level would be superfluous. The Court therefore
grants Plaintiff’s motion for judgement on the Pleadings, reverses
the decision of the Commissioner, and remands this case to the
Commissioner for calculation and payment of benefits with an onset
date of December 12, 2008.
-24-
CONCLUSION
For the reasons set forth above, this Court finds that the
Commissioner’s decision to deny benefits was not supported by
substantial evidence in the record and contained errors of law.
Moreover, a review of the record in its entirety reveals that the
substantial evidence contained in the record supports a finding
that Plaintiff is disabled, as defined in the Act, and therefore is
entitled to disability benefits.
Accordingly, Plaintiff’s motion
is granted, and the Commissioner’s motion is denied. This claim is
remanded
to
the
Commissioner
for
calculation
and
payment
benefits.
SO ORDERED.
S/Michael A. Telesca
______________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
October 7, 2013
Rochester, New York
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