McCarthy v. Colvin
Filing
12
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 10 Defendant's Motion for Judgment on the Pleadings; granting 7 Plaintiff's Motion for Judgment on the Pleadings and remanding the matter to the Commissioner for the calculation and payment of benefits. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 11/13/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
MICHAEL McCARTHY,
DECISION AND ORDER
No. 13-CV-06467(MAT)
Plaintiff,
-vsCAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY
Defendant.
_______________________________
INTRODUCTION
Plaintiff,
Michael
McCarthy
(“plaintiff”
or
“McCarthy”),
brings this action under Title II of the Social Security Act (“the
Act”),
claiming
that
the
Commissioner
of
Social
Security
(“Commissioner” or “defendant”) improperly denied his application
for disability insurance benefits (“DBI”).
Currently before the Court are the parties’ competing motions
for judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure.
For the reasons set forth below,
plaintiff’s motion is granted and, the Commissioner’s motion is
denied.
This
action
is
remanded
to
the
Commissioner
for
calculation and payment of benefits.
PROCEDURAL HISTORY
On October 27, 2009, plaintiff filed an application for DIB
alleging disability as of July 10, 2006 due to chronic obstructive
pulmonary disease (“COPD”), depression, anxiety disorder, and the
following left shoulder conditions: impingement, partial tear of
the distal supraspinatus tendon, and acromioclavicular arthropathy.
Administrative Transcript [T.] 71, 72-75, 128-131, 156.
Following
a denial of that application, a hearing was held at plaintiff’s
request on June 9, 2011 before administrative law judge (“ALJ”)
Michael W. Devlin. The ALJ heard the testimony of plaintiff and a
vocational expert (“VE”).
T. 35-70.
Considering the case de novo and applying the five-step
analysis
contained
in
the
Social
Security
Administration’s
regulations (see 20 C.F.R. §§ 404.1520, 416.920), the ALJ made the
following findings: (1) plaintiff last met the insured status
requirements of the Act on June 30, 2009; (2) he did not engage in
substantial gainful activity since the date of the onset of his
alleged disability, July 10, 2006 through his date of last insured,
June 30, 2009; (3) plaintiff’s left shoulder impingement, left
shoulder partial tear of the distal supraspinatus tendon; left
shoulder
generalized
acromioclavicular
anxiety
arthropathy,
disorder,
and
alcohol
COPD,
use
depression,
were
severe
impairments through the last date insured;(4) his impairments,
singly or combined, did not meet or medically equal the severity of
any impairments listed in 20 CFR Part 404; and (5) plaintiff had
the residual functional capacity to perform sedentary work as
defined in 20 CFR 404.157(a).
T. 23.
With respect to finding number four, the ALJ specifically
found that plaintiff’s arm and shoulder impairments did not cause
the inability to manipulate items effectively, nor did plaintiff’s
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COPD meet the necessary criteria. T 23. The ALJ further found that
plaintiff’s mental impairments did not meet the “paragraph B”
criteria, causing at least two marked limitations or one marked
limitation and repeated episodes of decompensation. T. 24.
Plaintiff appealed the ALJ’s decision, and the Appeals Council
affirmed on April 26, 2013.
T. 1-7.
This action ensued.
DISCUSSION
I.
General Legal Principles
42 U.S.C. § 405(g) grants jurisdiction to district courts to
hear claims based on the denial of Social Security benefits.
Section 405(g) provides that the District Court “shall have the
power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.” 42 U.S.C. § 405(g) (2007). The section
directs that when considering such a claim, the Court must accept
the findings of fact made by the Commissioner, provided that such
findings are supported by substantial evidence in the record.
When
determining whether
the
Commissioner’s
findings
are
supported by substantial evidence, the Court's task is “‘to examine
the entire record, including contradictory evidence and evidence
from which conflicting inferences can be drawn.’” Brown v. Apfel,
174 F.3d 59, 62 (2d Cir. 1999), quoting Mongeur v. Heckler, 722
F.2d 1033, 1038 (2d Cir. 1983) (per curiam). Section 405(g) limits
the scope of the Court’s review to two inquiries: whether the
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Commissioner’s findings were supported by substantial evidence in
the record as a whole and whether the Commissioner’s conclusions
are based upon an erroneous legal standard. See Green–Younger v.
Barnhart, 335 F.3d 99, 105–06 (2d Cir. 2003).
II.
Relevant Medical Evidence
In
October
2006,
plaintiff
underwent
a
chest
x-ray
at
Southview Internal Medicine that showed a “right middle lobe
infiltrate.” T. 376. In February 2007, plaintiff saw his treating
physician Judith Allen, M.D. (“Dr. Allen”) of the University at
Rochester
Medical
Center
(“URMC”),
who
hypertension, anxiety and alcohol abuse.
On
April
16,
2007,
intentional drug overdose.
plaintiff
T. 337-341.
diagnosed
him
with
T. 317-318.
was
hospitalized
for
an
Hospital treatment notes
reveal that plaintiff was depressed, and that he was clinically
assessed
T. 341.
with
“ethanol
intoxication”
and
“suicide
ideation.”
In August 2007, Dr. Allen assessed plaintiff’s anxiety,
hypertension, alcohol abuse and depression.
T. 316.
In November
2007, Dr. Allen reviewed his medications and addressed his chronic
pain, “increased stress,” and ongoing depression, anxiety, and
sleeping difficulties.
T. 313.
She noted that plaintiff would be
“delivering for UPS,” but commented that he was “[n]ot doing well
with pain.” T. 313. Dr. Allen assessed his anxiety, hypertension,
alcohol abuse, and depression, and instructed him to follow up with
her in two months.
T. 313-314.
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On April 2, 2008, plaintiff underwent a chest x-ray that
showed a “nodular opacity” superimposed over his left fifth rib.
T. 374.
Several days later, plaintiff was treated by Joanne
Bergen, P.A. at URMC, and she noted that plaintiff was experiencing
head and facial pain, hearing loss, pressure and fullness in the
ears and chronic wheezing.
T. 308.
“[a]cutely ill.”
With respect to plaintiff’s lungs,
Ms.
Bergen
T. 309.
noted
that
She reported that he was
“[p]ulmonary
ausculation
revealed
abnormalities in his lower lobes with scattered wheezing.” She
diagnosed plaintiff with pneumonia and bronchospasm and commented
that his smoking cessation seemed to be going well.
T. 309.
In May 2008, URMC treatment notes reveal that plaintiff was
diagnosed with chronic cough and possible COPD.
T. 307.
When
plaintiff saw Dr. Allen in November 2008, she noted that, overall,
he was doing well and planning to return to UPS in December.
T. 304.
She assessed his ongoing anxiety, hypertension, alcohol
abuse, nicotine dependence, and depression. T. 305. Plaintiff was
treated by Dr. Allen in February 2009, however, for suspected
influenza, dehydration, and possible pneumonia.
T. 303.
He was
subsequently hospitalized for three days with a cough, fever, and
acute renal failure, and he was diagnosed with bronchitis, a
urinary tract infection, and acute kidney injury and treated with
hydration and antibiotics.
T. 188-299.
In October 2009, plaintiff was treated by Dr. Allen for severe
depression and anxiety, following the loss of three immediate
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family members
T. 300.
in
a
brief
period,
and significant
arm
pain.
She opined that plaintiff was “fully disabled given his
combination of psychiatric disorders and COPD.”
T. 301.
In May 2010, an MRI of plaintiff’s right shoulder showed mild
supraspinatus and infraspinatus tendinopathy. T. 432-433. In June
2010,
with
a
diagnosis
of
right
shoulder
impingement
and
acromioclavicular joint arthrosis, plaintiff underwent arthroscopic
surgery with subacromial decompression and acromioplasty.
429.
T. 427-
In September 2010, John P. Goldblatt, M.D. noted that
plaintiff was “making progress” and would continue with therapy,
but he noted that plaintiff was experiencing postoperative cervical
spine pain and left shoulder impingement.
T. 421.
Plaintiff underwent an MRI of his left shoulder in October
2010, which showed a “[s]mall undersurface, partial thickness tear
of the distal supraspinatus tendon and moderate acromioclavicular
joint degenerative arthropathy.”
T. 419-420.
In late December
2010, plaintiff was hospitalized for severe pneumonia with sepsis,
a left lower lung field cavity lesion, and acute renal failure.
T. 456-458.
The record from his admittance noted his “history of
COPD and pneumonia.” T. 456.
Plaintiff underwent chest x-rays on January 4 and January 20,
2011.
The first chest x-ray showed left lung opacity at the base,
and the second showed a small density in the left lower lobe
associated with small left pleural effusion.
T. 465, 467.
Also on
January 20, plaintiff returned to URMC reporting severe right
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shoulder pain and fatigue.
T. 437.
His active problems were
hypertension, alcohol abuse, narcotic dependency, and fatigue.
T. 439.
From February 24 to 28, 2011, plaintiff was hospitalized for
the sudden onset of “sharp and stabbing” left-sided chest pain and
persistent
diarrhea,
and
he
difficile
colitis,
was
atypical
diagnosed
chest
pain
with
clostridium
consistent
with
costochondritis, resolving left lower lung abscess, and COPD.
T. 452-455.
Plaintiff was treated by Dr. Allen in March 2011,
and she noted that he was still suffering from chronic pain,
depression and anxiety, alcohol and nicotine abuse, hypertension,
and interstitial pneumonia.
T. 435.
A May 2011 CT scan of plaintiff’s chest showed that, with
respect to his previously-seen lung lesions, the left lower lobe
opacities had nearly resolved and the opacities in the anterior of
both upper lobes had resolved completely.
T. 478.
Medical Source Statements/Opinions
According to Dr. Allen’s May 11, 2011 Multiple Impairment
Questionnaire
(“MIQ”)
form,
Plaintiff
was
diagnosed
with
depression, generalized anxiety disorder, COPD, alcohol and tobacco
abuse,
shoulder
hypertension.
pain
with
T. 468-476.
significant
impingement,
and
Plaintiff could sit for one hour and
stand/walk for three hours in an 8-hour workday, but he could not
lift or carry any weight, and he had significant limitations for
reaching
with
his
upper
extremities
-7-
and
performing
hand
manipulations.
T. 471-473, 482-483.
Plaintiff had left and right
shoulder pain that was exacerbated with movement, and he had severe
A/C narrowing and impingement in both shoulders.
T. 471.
On this
form, plaintiff reported that his medications and physical therapy
were not effective.
T. 473.
Dr. Allen opined that plaintiff: could not stand or walk
continuously in a work setting; was not capable of work that
required activity on a sustained basis; experienced frequent pain,
fatigue, or other symptoms severe enough to interfere with his
attention and concentration; and
stress.
T. 471, 474.
was intolerant of even low work
Additionally, plaintiff: could not kneel,
bend or stoop; needed to avoid fumes, gases and dust; and had
psychological limitations
T. 475.
plaintiff was not a malingerer.
Dr. Allen further opined that
T.
474.
Plaintiff’s limitations
and symptoms as assessed by Dr. Allen were applicable from 2005 to
May 2011. T. 486.
III. Non-Medical Evidence
Plaintiff, 50 years old, testified that he had a ninth grade
education and previously worked as a package deliverer for United
Parcel Service (“UPS”), a line cook, a restaurant manager, and a
paper packager at Economy Paper Company.
T. 41-45. He stopped
working because of back, shoulder, and right arm pain, depression,
and breathing issues.
T. 46-49.
He took Lyrica for pain and
psychotropic medications for mental health issues, and he used a
nebulizer
twice
a
day
for
his
-8-
breathing
issues.
T.
51-53.
Plaintiff testified that his medications caused him “to lose
focus,” that he could not “concentrate very long,” and that he
“[got] loopy.”
T. 55.
Plaintiff testified that it was difficult to get out of bed in
the morning because of his physical and mental pain.
He testified
that, on an average day, he took his daily medications, drank
coffee, and took care of his dogs by letting them out and providing
water.
T. 56-57.
When plaintiff tried doing laundry, the pain in
his arm would start “immediately” when he carried a basket of
clothes, and he would become short of breath.
T. 57.
He also
testified that he had trouble standing at the sink to do dishes for
more than approximately ten minutes.
T. 57.
He could stand for
about 15 or 20 minutes before his back started to hurt, and he
experienced numbness for 10 or 15 minutes after sitting back down.
T. 58.
Additionally, plaintiff became winded after walking for
about a quarter of a block.
T. 59.
Plaintiff testified that he did puzzles, but that he had to
stop after about 15 minutes due to blurry eyes.
He also testified
that reading “bother[d] [his] eyes” and gave him “a headache.”
T. 61.
Plaintiff had one close friend with whom he talked on the
phone, and, aside from going to the store, he did not go out.
T. 61-62.
He
further
Plaintiff testified that he had panic attacks.
testified
that:
he
last
consumed
alcohol
T. 63.
about
six months ago; he smoked slightly more than a pack a day; and he
did not use street drugs.
T. 63-64.
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The ALJ also heard testimony from the VE. T. 65-69.
posed
a
hypothetical
with
an
individual
of
The ALJ
Plaintiff’s
age,
education, and experience who could perform sedentary work with the
following limitations: occasionally lift and/or carry ten pounds
and frequently lift or carry less than 10 pound; stand and/or walk
for two hours and sit for six hours in an eight-hour work day; push
or pull up to ten pounds; occasionally climb ramps and/or stairs,
balance, stoop, kneel, crouch and crawl; less than occasionally
climb ladders, ropes or scaffolds; frequently handle with both
upper extremities; avoid exposure to extreme heat and cold, fumes,
odors,
dusts,
gases,
poor
ventilation,
and
other
respiratory
irritants; understand, remember, and carry put simple instructions
and tasks; interact appropriately with coworkers and supervisors on
a consistent basis; have occasional contact with the general
public; and consistently maintain concentration and focus for up to
two hours at a time.
T. 65-66.
The VE responded that such person
could not perform any of plaintiff’s past work, but could perform
the sedentary, unskilled jobs of a final assembler or an addresser,
a type of mail room clerk.
T. 67.
When the ALJ changed the
hypothetical to add one limitation, occasionally reach and handle
with both upper extremities, the VE identified only one possible
job in the general economy, “a surveillance system monitor.”
T. 67.
In a letter to the Appeals Council dated April 15, 2012,
Dr. Allen
stated
that she
had
-10-
been
treating
Plaintiff
since
February 22, 2000 and diagnosed him with COPD, shoulder pain with
significant
impingement,
hypertension,
tobacco
abuse,
alcohol
abuse, depression, and generalized anxiety disorder. She explained
that
although
she
had
prescribed
various
medications
for
plaintiff’s chronic pain and he participated in physical therapy,
he
continued
to
experience
hindered his ability to work.”
“severe
symptomatology
which
has
T. 489. She opined that plaintiff:
could sit for no more than one hour and stand for no more than
three hours in an eight-hour day; had limited ability to use his
upper extremities for repetitive activity; experienced pain that
would
interfere
concentration.
IV.
with
his
ability
to
maintain
attention
and
T. 489.
The Commissioner’s Decision Denying Plaintiff Benefits is Not
Supported by Substantial Evidence.
The Social Security Administration has promulgated a five-step
sequential analysis that the ALJ must adhere to for evaluating
disability claims. See 20 C.F.R. § 404.1520.
Here, the ALJ found
that Plaintiff: did not engage in substantial gainful activity
during the period from his alleged onset date of July 10, 2006
through his date last insured of June 30, 2009; had the severe
impairments of left shoulder impingement, left shoulder partial
tear
of
the
distal
acromioclavicular
supraspinatus
arthropathy,
COPD,
tendon,
left
depression,
shoulder
generalized
anxiety disorder, and alcohol use, but that he did not have an
impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments; was unable
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to perform any past relevant work, but had the residual functional
capacity
(“RFC”)
to
perform
sedentary
work
with
certain
limitations; and that considering plaintiff’s age, education, work
experience and RFC, there were jobs that existed in the national
economy that plaintiff could have performed.
The ALJ determined
that plaintiff was not disabled under the Act during the relevant
time period.
T. 28-29.
Plaintiff argues, among other things, that remand is warranted
because the ALJ: (1) failed to “give any weight to any evidence in
the record or explain how the evidence supports his RFC”; and
(2) failed to follow the treating physician rule.
(Dkt. No. 8) at 9-15.
Pl’s Mem
Defendant responds that the ALJ’s RFC
determination is proper as a matter of law, and is supported by the
“totality of the evidence.”
A.
Def’s Mem (Dkt. No. 10-1) at 15-18.
Erroneous RFC Assessment
Here, the ALJ determined that plaintiff had the RFC to perform
sedentary work with the following limitations:
the claimant can occasionally lift and/or
carry ten pounds; frequently lift and/or carry
less than ten pounds; stand and/or walk at
least two hours in an eight hour workday; sit
about six hours in an eight hour workday; push
and/or pull up to ten pounds;
occasionally
climb ramps and/or stairs, balance, stoop,
kneel,
crouch,
and
crawl;
less
than
occasionally climb ladders/ropes/scaffolds;
frequently reach and handle with both upper
extremities; avoid even moderate exposure to
extreme heat, extreme cold, fumes, odor,
dusts, gases, poor ventilation, and other
respiratory irritants; understand, remember,
and carry out simple instructions and tasks;
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interact appropriately with co-workers and
supervisors on a consistent basis; occasional
contact with the general public; and able to
consistently maintain concentration and focus
for up to two hours at a time. T. 25.
“It is well-settled that ‘[t]he RFC assessment must include a
narrative discussion describing how the evidence supports each
conclusion,
findings)
citing
and
specific
nonmedical
observations).’”
Hogan
medical
evidence
v.
Astrue,
facts
(e.g.,
491
F.
(e.g.,
daily
laboratory
activities,
Supp.2d
347,
354
(W.D.N.Y. 2007), quoting Social Security Ruling 96-8p, 1996 WL
374184, *7 (S.S.A. 1996), citing Balsamo v. Chater, 142 F.3d 75,
80-81
(2d
Cir.
1998).
In
this
case,
after
setting
forth
plaintiff’s RFC, the ALJ summarized some of the medical evidence in
the record, including:
treatment notes from Dr. Goldblatt related
to plaintiff’s shoulder problems, plaintiff’s diagnosis of, and
treatment for, COPD, and Dr. Allen’s May 11, 2011 medical source
statement.
T. 26.
However, the ALJ did not mention plaintiff’s
long-standing treatment history with Dr. Allen, and did not discuss
how the
medical
evidence
to
which he referred
supported his
conclusion that plaintiff could perform a range of sedentary work.
T. 26-27.
In support of its position that the ALJ’s RFC determination is
supported by substantial evidence, defendant points, generally, to
plaintiff’s medical records from July 10, 2006 through June 30,
2009
(which
cover
the
relevant
time
period)
that
show
that
Plaintiff was treated for hypertension, pulmonary problems, mental
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issues (including alcohol abuse), and renal failure.
14.
Def’s Mem at
Defendant also points to plaintiff’s medical records from
December 2009 and 2010 from Dr. Goldblatt (which post-date the
relevant time period), which show that Plaintiff was treated for
arm and shoulder pain.
Id.
Without elaboration or specificity,
defendant claims that, based on those records, the ALJ reasonably
determined that plaintiff was capable of performing a range of
unskilled sedentary work.
These
records,
Id.
however,
considered
separately
or
in
combination, are wholly inadequate to support the ALJ’s finding
that plaintiff was capable of performing the particular range of
sedentary work assessed by the ALJ. Rather than seek an assessment
of
plaintiff’s
consultative
evaluating
himself.
functional
physician,
and
the
interpreting
This was error.
limitations
ALJ
from
assessed
portions
of
an
examining
plaintiff’s
the
medical
RFC
or
by
evidence
See Zorilla v. Chater, 915 F. Supp. 662,
666-67 (S.D.N.Y. 1996) (“The lay evaluation of an ALJ is not
sufficient evidence of the claimant’s work capacity; an explanation
of the claimant’s functional capacity from a doctor is required.”).
Moreover, in arriving at his RFC determination, the ALJ “gives
very little weight” to the opinion of the treating physician,
Dr. Allen.
T.
27.
The Court notes that while the record contains
a psychiatric review technique form, this report was left entirely
blank. T. 383-396. In determining plaintiff’s mental RFC, the ALJ
made no mention of this form, nor did he appear to seek further
-14-
clarification.
In short, by discounting the only medical opinion
that assessed plaintiff’s functional limitations, the ALJ clearly
relied on his own assessment of plaintiff’s functional capacity.
Consequently, remand is warranted.
See Pratts v. Chater, 94 F.3d
34, 39 (2d Cir. 1996) (“Remand is particularly appropriate” where
reviewing
court is
“unable
to
fathom
the
ALJ’s
rationale
in
relation to the evidence in the record”) (internal citation and
quotation marks omitted); Naumovski v. Colvin, 2014 U.S. Dist.
LEXIS 125286, *21-22 (W.D.N.Y. Sept. 8, 2014) (remanding where ALJ
simply summarized parts of the medical record and failed to cite to
any specific medical opinion to support his RFC finding); Dailey v.
Barnhart, 277 F. Supp.2d 226, 235 (W.D.N.Y. 2003).
B. Failure to properly apply the Treating Physician Rule
Plaintiff also asserts that the ALJ’s RFC is flawed because
the ALJ failed to afford controlling weight to the opinion of
Dr. Allen in accordance with the treating physician rule. Pl’s Mem
at 9-10.
Defendant responds that the ALJ properly discounted Dr.
Allen’s opinion
because
evidence in the record.
it
was
not
supported
by
the
medical
Def’s Mem at 16-17.
The medical opinion of a claimant’s treating physician or
psychiatrist will be given “controlling” weight if that opinion “is
well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] record.” 20 C.F.R. § 404.1527(d)(2);
see also Green-Younger, 335 F.3d at 106.
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Medically acceptable
clinical and laboratory diagnostic techniques include consideration
of a “patient’s report of complaints, or history, [a]s an essential
diagnostic tool.” Id., 335 F.3d at 107.
A corollary to the treating physician rule is the so-called
“good reasons rule,” which provides that the Commissioner “will
always give good reasons in [her] notice of determination or
decision for the weight [she] gives [the claimant’s] treating
source’s opinion.”
Clark v. Commissioner of Social Sec., 143 F.3d
115, 118 (2d Cir. 1998), quoting 20 C.F.R. §§ 404.15279(d)(2),
416.927(d)(2). “Those good reasons must be ‘supported by the
evidence in the case record, and must be sufficiently specific . .
. .’” Blakely v. Commissioner of Social Sec., 581 F.3d 399, 406
(6th Cir. 2009), quoting Social Security Ruling 96-2p, 1996 WL
374188, *5 (S.S.A. July 2, 1996).
Insomuch as the “good reasons”
rule exists to “ensur[e] that each denied claimant receives fair
process,” (Rogers v. Commissioner of Social Sec., 486 F.3d 234, 243
[6th Cir. 2007]), an ALJ’s “‘failure to follow the procedural
requirement of identifying the reasons for discounting the opinions
and for explaining precisely how those reasons affected the weight’
given ‘denotes a lack of substantial evidence, even where the
conclusion of the ALJ may be justified based upon the record.’”
Blakley, 581 F.3d at 407, quoting Rogers, 486 F.3d at 243.
Here, the ALJ stated that he afforded treating physician
Dr. Allen’s opinion “very little weight” because it was “not
supported by the objective medical evidence in the record.”
-16-
He
also
stated
that
“it
appear[ed]
that
the
physical
capacity
evaluation of the claimant was based largely on the claimant’s
subjective complaints and allegations.”
He also noted that “it
appears that [Dr. Allen’s May 11, 2011 report] [was] prepared for
purposes of supporting the claimant’s disability claim.”
T. 27.
The Court finds that these reasons are unsupported by the record.
As noted above, the ALJ’s summary of the evidence is not an
accurate portrayal of the record. Dr. Goldblatt’s notes from
September 2010 state that plaintiff’s condition improved after his
right shoulder surgery in June 2010, but also reveal that plaintiff
had continued and worsening “troubles with his left shoulder.”
T. 27, 421.
physical
The ALJ’s decision does not discuss Dr. Goldblatt’s
exam,
but
simply
characterizes
those
findings
“fail[ing] to show any significant abnormalities.”
as
T. 26.
The
ALJ’s conclusion, however, is contradicted by Dr. Goldblatt’s
September 2010 report stating that plaintiff exhibited paraspinous
muscular pain with extension and flexion of the neck, trapezius
pain with rotation of the neck to the right, positive Hawkin’s and
Neer impingement signs on the left shoulder, and tenderness in the
left A/C joint.
T. 421.
cervical
pain
spine
impingement.
T. 421.
Dr. Goldblatt found plaintiff to have
with
radiculopathy
and
left
shoulder
Dr. Golblatt also noted that plaintiff’s
left shoulder pain was worsening and may call for arthroscopic
surgery.
T. 421.
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Moreover, the ALJ’s decision improperly disregards Dr. Allen’s
medical
opinion
concerning
plaintiff’s
limitations
“largely” on plaintiff’s subjective complaints.
as
T. 27.
based
While
Dr. Allen’s opinion may have been based in part on plaintiff’s
subjective complaints, the standard form also prompted her to
provide “positive clinical findings” and “laboratory and diagnostic
test results” to support her opinions, which she did.
¶¶ 4-5.
T. 480 at
Further, Dr. Allen opined that plaintiff’s “symptoms and
functional limitations [were] reasonably consistent with [the]
physical and/or emotional impairments described” in the evaluation.
T. 480.
Further, Dr. Allen’s opinion was based on her long-
standing treating relationship with plaintiff, which began on
February 22, 2000 and continued “once [a] month” up to her most
recent exam on March 30, 2011.
T. 479.
Likewise, the Court finds that even where relevant evidence
has been solicited by the claimant or her representative, that is
not reason enough to warrant ignoring such evidence.
See Moss v.
Astrue, 555 F.3d 556, 560-561 (7th Cir. 2009) (per curiam); Reddick
v. Chater, 157 F.3d 715, 726 (9th Cir. 1998).
The record shows
that plaintiff received regular treatment from Dr. Allen during the
relevant period of July 10, 2006 to June 30, 2009 for various
physical and mental impairments, and that Dr. Allen’s May 2011
opinion was based on a long-standing treatment relationship with
Plaintiff.
Notably,
in
October
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2009,
four
months
after
the
relevant time period, Dr. Allen reported that she considered
plaintiff “fully disabled given his combination of psychiatric
disorders and COPD.”
T. 301.
In the absence of a medical opinion
to support the ALJ’s finding that plaintiff was able perform a
range of sedentary work, it is well settled that “the ALJ cannot
arbitrarily substitute his own judgment for competent medical
opinion,” which the ALJ appears to have done here.
See Rosa v.
Callahan, 168 F.3d 72, 79 (2d Cir. 1999).
Accordingly, based on the foregoing, Dr. Allen’s detailed
medical source statement should have been given controlling weight.
Dr. Allen identified numerous functional limitations caused by
plaintiff’s physical and psychological impairments that preclude
him from performing the mental demands of unskilled work. See Peck
v. Astrue, No. C 09–2600 SBA, 2010 WL 3790597, *13 (N.D. Cal. Sept.
27, 2010) (“[E]ven unskilled work has basic mental demands. Thus,
if a claimant is unable to meet those basic demands, he is deemed
disabled.”), citing Social Security Ruling 85-15, 1985 WL 56857, *4
(S.S.A. 1985).
Consequently, remand is warranted.
With respect to points II and III of plaintiff’s memorandum of
law
asserting
that
the
ALJ
failed
to
properly
evaluate
his
credibility and “relied on flawed vocational expert testimony” at
step five of the analysis (Pl’s Mem at 12-17), inasmuch as the
Court is reversing and remanding the matter based on the discussion
above, it declines to address those issues.
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V.
Remedy
Under 42 U.S.C. § 405(g), the district court has the power to
affirm, modify, or reverse the ALJ’s decision with or without
remanding for a rehearing. Although remand for additional fact
development
may
be
appropriate
if
“there
are
gaps
in
the
administrative record or the ALJ has applied an improper legal
standard” (Rosa, 168 F.3d at 82–3), because the record persuasively
demonstrates plaintiff’s disability (see Parker v. Harris, 626 F.2d
225, 235 [2d Cir. 1980]), and there is no reason to conclude that
the additional evidence might support the Commissioner’s claim that
plaintiff is not disabled (see Butts v. Barnhart, 388 F.3d 377,
385–86 (2d Cir. 2004), the standard for directing a remand for
calculation of benefits has been met.
CONCLUSION
For the reasons discussed above, defendant’s motion (Dkt.
No. 10) for judgment on the pleadings is denied. Plaintiff’s motion
(Dkt No. 7) for judgment on the pleadings is granted to the extent
that the ALJ’s decision is reversed and the matter is remanded to
the Commissioner for the calculation and payment of benefits.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
November 13, 2014
Rochester, New York
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