Simmons v. Colvin
Filing
24
-CLERK TO FOLLOW UP- ORDER granting 8 Motion for Judgment on the Pleadings; denying 13 Motion for Judgment on the Pleadings. Signed by Hon. Jonathan W. Feldman on 9/28/2016. (WGC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LEROY SIMMONS, JR.,
Plaintiff,
DECISION & ORDER
15-CV-6064
v.
CAROLYN W. COLVIN,
Defendant.
PRELIMINARY STATEMENT
Plaintiff Leroy Simmons brings this action pursuant to Title
II and Title XVI of the Social Security Act, seeking review of the
I
final
decision
Commissioner")
benefits.
of
the
Commissioner
of
Social
Security
("the
denying his application for disability insurance
See Complaint (Docket # 1).
Presently before the Court
are the parties' competing motions for judgment on the pleadings.
See Docket ## 8, 13.
PROCEDURAL HISTORY
On November 8, 2011, plaintiff applied for disability insurance
benefits and supplemental security income.
("AR.")
at 153-64.
Administrative Record
The Social Security Administration issued a
Notice of Disapproved Claim on April 11, 2012.
AR. at 86.
Plaintiff
then timely filed a request for a hearing before an Administrative
Law Judge ("ALJ").
AR. at 96.
On January 8, 2013, ALJ Hortensia
Haaverson conducted a hearing on plaintiff's claim.
AR. at 36.
On
March 1, 2013, the ALJ issued a decision, therein determining that
plaintiff was not disabled under the Social Security Act.
14-29.
AR. at
Plaintiff timely filed a request for review of the ALJ's
decision by the Appeals Council, submitting additional briefing on
April 29, 2013.
AR. at 5-10.
On December 9, 2014, the Appeals Council
declined to review the ALJ's decision, making it the final decision
of the Commissioner.
AR. at 1-3.
This federal lawsuit followed.
MEDICAL HISTORY
In his application for disability benefits, plaintiff reported
that his ability to work was limited by: a herniated disc in his back,
arthritis, carpal tunnel syndrome, hypertension, high cholesterol,
and
acid
reflux.
AR.
at
207.
In
a
pre-hearing memorandum,
plaintiff's counsel elaborated that plaintiff was alleging disability
based ondegenerative changes and spinal stenosis of the lumbar spine,
discogenic disease at the C4-5 vertebrae with anterior and posterior
osteophyte formation and minimal disc height loss,
change in the left knee,
esophageal reflux/GERD,
degenerative
hyperlipidemia,
major depressive disorder with psychotic features, diabetes melli tus,
retinitis pigmentosa and cataracts in both eyes, and mild tendinopathy
of the right Achilles tendon.
AR. at 250-51.
According to plaintiff,
these conditions became disabling on March 31, 2008.
2
AR. at 207.
Treatment Record for Physical Impairments: Though plaintiff
alleges a disability onset date of March 31, 2008, his pain, and in
particular his back pain, can be traced to a work-place fall in the
early 1990s.
AR. at 51.
Much later, on December 4, 2007, plaintiff
was referred to Dr. GlennRechtine, M.D., by his primary care physician
after allegedly suffering a work-related injury in September 2007.
AR.
at
551-52.
Dr.
Rechtine discussed with plaintiff physical
therapy for his spine.
Id.
Plaintiff returned to Dr. Rechtine's
office on February 12, 2008 for lower back and bilateral leg pain.
Id.
at 550-51.
On February 21,
·resonance imaging
("MRI")
2008,
plaintiff had a magnetic
scan taken of his lumbar spine,
revealed degenerative spine disease at the L5-Sl disc.
which
AR. at 724.
On March 21, 2008, Dr. Rechtine diagnosed plaintiff with lumbardisc
displacement related to a degenerative disc at L5-Sl and remarked
that he was not pursuing treatment aggressively enough.
550.
AR. At 440,
Based on his assessment, Dr. Rechtine determined that plaintiff
was capable of performing light-duty work on a full-time basis; could
frequently lift ten pounds; could stand and walk with frequent changes
in position;
and could bend,
occasionally.
Id.
squat,
and do overhead activities
Plaintiff returned to Dr. Rechtine on May 23,
2008, where he reported a constant pain rated nine out of ten in
severity and an inability to sit or stand for more than one hour.
AR. at 434.
Dr. Rechtine encouraged plaintiff to adopt an exercise
3
regimen and advised him to attend physical therapy.
AR. at 436.
On August 22, 2008, plaintiff saw Dr. Rechtine and complained
of back pain associated with extended sitting, standing, and walking.
AR. at432.
PlaintiffreturnedagainonOctober24, 2008, complaining
of lower back and bilateral leg pain.
AR. at 422.
Plaintiff reported
only being able to walk one mile but presented with a normal gait.
AR. at 423.
Dr. Rechtine advised plaintiff to adopt a fitness plan
and remarked that plaintiff was not consistently working on improving
his aerobic fitness.
AR. at 424.
On January 23,
2009, plaintiff
presented to Dr. Rechtine with unchanged lower back and bilateral
leg pain.
AR. at 416.
According to Dr. Rechtine' s notes, plaintiff
had attended physical therapy, had an MRI taken, and began taking
prescription
medication
appointment,
plaintiff
oriented.
AR. at 417.
with
few
appeared
improvements.
alert,
awake,
Id.
At
the
cooperative,
and
Dr. Rechtine noted that plaintiff needed "to
be much more aggressive with physical therapy," and advised plaintiff
to return in three months.
AR.
at 418.
Plaintiff returned on
February 20, 2009 after falling and hurting his left knee.
414.
AR. at
Dr. Rechtine ordered that plaintiff have an x-ray taken, which
showed no acute fracture, no dislocation, and no significant joint
effusion.
AR.
at
413.
The x-ray did
reveal,
however,
mucoid
degenerative change in his meniscus, tiny focal signal gap, inferior
prepatellar edema, and mild signal heterogeneity of the cartilage
4
on the patella.
AR. at 412.
aquatic exercise.
Dr. Rechtine advised plaintiff to begin
AR. at 410.
Plaintiff returned to Dr. Rechtine on March 13, 2009, complaining
of
continued
lower back and bilateral
leg pain.
AR.
at
401.
Plaintiff appeared to suffer from insomnia and high blood pressure.
AR. at 4 02.
According to Dr. Rech tine's report, plaintiff was walking
two and a half miles at a time, several times a day.
AR. at 403.
Dr.
Rechtine recommended that plaintiff return in a year and. that he treat
any pain with rest, heat or ice, and analgesics.
Id.
On April 28, 2009, plaintiff's primary care physician referred
him to Dr. John P. Goldblatt, M.D., at the University of Rochester
Medical Center.
AR. at 399.
Dr. Goldblatt remarked that plaintiff
injured his left knee approximately two years ago while exiting a
bus, and noted that his knee-joint appeared tender on examination.
Id.
Dr. Goldblatt also noted that plaintiff's MRI suggested that he
tore his medial meniscus and referred him to physical therapy.
Id.
Plaintiff returned to Dr. Rechtine on May 15, 2009, reporting
increased lower back and bilateral leg pain.
AR. at 393.
Plaintiff
demonstrated lower extremity weakness, and Dr. Rechtine diagnosed
him with a worsening displaced lumbar disc and worsening spinal
stenosis
of
the
lumbar region.
Id.
Dr.
Rechtine opined that
plaintiff was capable of performing light work on a full-time basis
and that he could:
lift ten pounds
5
frequently;
stand and walk
occasionally with frequent position changes; and bend, squat, and
do overhead activities occasionally.
AR. at 395.
Dr. Rechtine also
remarked that plaintiff's disability status was temporary.
Id.
Plaintiff returned to the University of Rochester Medical Center
on December 22, 2009, where Dr. Benedict Digiovanni, M.D., examined
him.
AR. at 391.
Plaintiff complained of left heel and ankle pain
that prevented him from walking.
plaintiff
had right
Achilles
Id.
Dr. Digiovanni determined that
tendonitis
and
left
foot
plantar
fasciitis, and recommended that he stretch and ice the affected areas.
Id.
Plaintiff returned for a follow-up appointment on March 15, 2010,
where he reported mild improvement.
AR.
at 387.
Dr. Digiovanni
recommended that he continue stretching and advised him that progress
would be
slow.
Id.
On May 28,
2010,
Mark Cloninger,
a
nurse
practitioner, reported further improvement to plaintiff's Achilles
tendinitis and plantar fasciitis.
AR. at 385.
In June 2011, plaintiff sought treatment for vision loss related
to retinitis pigmentosa from Dr. Katherine White, O.D.
AR. at 679.
He reported difficulty seeing due to sun glare, as well as difficulty
reading text with his glasses.
Id.
His treatment notes indicate that
he could have been declared legally blind, but resisted so as not
to lose his driver's license.
AR. at 680.
On July 30, 2012, plaintiff saw Dr. Kadura for lower back pain.
AR.
at 744.
On examination,
Dr.
6
Kadura noted that he appeared
depressed, and had spasms in his lower back and numbness in his leg.
AR.
at
746.
stretching,
Dr.
Kadura
recommended
taking warm baths,
that
plaintiff
and using heat pads,
continue
and referred
plaintiff to an orthopedic specialist to determine if more invasive
treatment was needed.
Id.
For his depression, Dr. Kadura advised
plaintiff. to take antidepressants.
On
December
12,
2012,
Id.
plaintiff's
primary
care
physician
referred him to Dr. Raj eev Patel, M. D. , for worsening back pain.
at 772.
standing,
AR.
He said the pain was exacerbated by prolonged sitting and
as
well
as
bending,
twisting,
and
lifting.
Id.
On
examination, patient was able to walk heel-to-toe without difficulty
but demonstrated limited lumbar flexion.
AR. at 772-73.
Dr. Patel
determined that plaintiff likely suffered from discogenic axial low
back pain and referred him to physical therapy.
AR. at 773.
He
prescribed plaintiff anti-inflammatory medication and recommended
that he avoid bending and twisting.
AR.
at
773-74.
Plaintiff
returned for a follow-up appointment on December 20, 2012, reporting
continued lower back pain.
AR. at 800.
He demonstrated reduced range
of motion in his lumbar spine, and a December 18, 2012 MRI revealed
segmental degenerative disc desiccation with a broad-based disc bulge
at L5-Sl causing moderate bilateral foraminal stenosis.
Id.
Patel recommended that plaintiff continue physical therapy.
Treatment Record
for Mental
7
Impairments:
On May 16,
Dr.
Id.
2011,
plaintiff saw Dr. Eric Richard, M.D., at the University of Rochester
Medical
Center
for
depression-like
symptoms.
AR.
at
259.
He
reported feeling tired and lonely, having suicidal thoughts, sleeping
very little, and having difficulty finding work.
Id.
Dr. Richard
determined that plaintiff suffered from major depression (or type-II
bipolar disorder), hypertension, hyperlipidemia, and pre-diabetes,
and recommended that plaintiff seek treatment for his depression as
soon as possible.
Id.
On August 1, 2011, plaintiff saw Dr. Sullafa Kadura, M.D., at
the University of Rochester Medical Center for his depression.
at 287.
AR.
Though she did not prescribe him medication, Dr. Kadura
referred plaintiff to therapy.
AR. at 288.
Plaintiff returned to
Dr. Kadura on November 14, 2011, complaining of stress, fatigue, and
anhedonia.
AR. at 290.
Dr. Kadura remarked that his depression had
not improved and that he was resistant to taking medication.
Id.
Dr.
Kadura also remarked that plaintiff was addicted to nicotine and did
"not feel ready to quit" smoking.
Id.
On January 25, 20i2, plaintiff
reported continued depression, drug use, and fatigue.
According to treatment notes,
plaintiff expressed an interest in
taking medication for his depression.
Starting on
February
22,
AR. at 295.
2012,
Id.
plaintiff
began outpatient
treatment with Kathleen Crowley, a mental health counselor, at Unity
Health Systems.
AR. at 556.
Plaintiff complained of depressed mood,
8
listlessness, irritability, anxiety, and possible psychosis.
557.
According
to
treatment
notes,
the
problems
AR. at
began after
plaintiff was in a car accident roughly ten years earlier.
Id.
Crowley recommended that plaintiff attend weekly psychotherapy with
the possibility of hospitalization.
Crowley on March 12,
March 19,
AR.
at 563.
and March 26,
Plaintiff saw
2012,
and Crowley
diagnosed plaintiff with recurrent major depressive disorder of
unspecified severity.
AR. at 607.
On May 31,
plaintiff
2012,
sought inpatient
treatment for
substance abuse at Syracuse Behavioral Health, but was reportedly
denied treatment because "he had too high of a level[] of cocaine
in his
system."
AR.
at 666-76.
Records
indicate that he was
diagnosed with cocaine, opioid, cannabis, and nicotine dependence,
and that his mental health was suffering.
AR.
at 666.
He told
practitioners that his mother financially supported him, and that
he enjoyed listening to music, playing the bass and piano, and going
to concerts.
AR. at 667.
auditory hallucinations.
He also reported recurring visual and
Id.
On August 10, 2012, plaintiff saw Crowley again.
AR. at 565.
At this appointment, Crowley noted that plaintiff attended six out
of his nine treatment sessions, and that he complied with his therapy.
AR. at 568.
Plaintiff reported that employment was a major goal for
him, but that he continued to struggle with depressed mood, poor sleep,
9
and
low
energy.
Id.
Plaintiff
was ·diagnosed with
recurrent
unspecified major depressive disorder, rule out psychotic disorder
not otherwise specified, and impulse-control disorder not otherwise
specified.
AR. at 565.
Plaintiff returned to Unity Health on August
16, 2012, where Dr. Prakash Reddy, M.D. 1 , evaluated his psychiatric
health.
AR. at 569.
He complained of depressed mood, difficulty
sleeping, loss of appetite, violent thoughts, and psychosis.
also described weekly hallucinations.
with
the
exception
of
unremarkable.
Id.
a
depressed
alcohol,
history of
dependence.
AR. at 571.
mood,
his
Id.
He
On examination,
mental
health
was
Based on his observations, Dr. Reddy also noted
cocaine,
opioid,
cannabis,
and nicotine
AR. at 571-75.
On November 29, 2012, plaintiff returned to Dr. Kadura for a
follow-up appointment.
AR. at 750.
He reported difficulty sleeping
and told practitioners that he was not taking his antidepressants,
which Dr. Kadura strongly discouraged.
AR. at 750-52.
On December 21 and 24, 2012, Crowley and Dr. Reddy completed
a mental residual functional capacity questionnaire for plaintiff.
AR. at 737.
plaintiff
The report indicated that they had biweekly contact with
beginning
in
February
1
2012,
and
that
he
presented
Prior to hearing this case the Court disclosed to both counsel that
Dr. Reddy is a neighbor of the Court. Aside from an occasional
greeting, the Court has no social or other interaction with Dr. Reddy
and the parties consented to the Court hearing and determining the
competing motions for judgment on the pleadings.
10
continually with flat affect, depressed mood, and low energy.
Id.
They diagnosed plaintiff with major depressive disorder, rule out
psychotic disorder,
rule out schizoid personality disorder,
degenerative eye disease.
Id.
and
They also noted that plaintiff had
chronic depression with persistent mood disturbances, but declined
to comment on his ability to complete work-related activities on a
day-to-day basis.
AR. at 738-41.
Consultative Physical Examination: On February 29, 2012, Dr.
Elizama Montalvo, M.D., provided a physical examination of plaintiff
at the request of the Division of Disability Determination.
590.
AR. at
He complained chiefly of throbbing lower back pain that started
in 1994.
Id.
Extended walking, standing, and sitting exacerbated
the pain, which he rated a nine out of ten in severity.
Id.
Plaintiff
also complained of spasms in his left knee, which he said were so
painful that they prevented him from sleeping, and pain in his left
arm related to a 2003 car accident.
Id.
He described the arm pain
as sharp and said that he was unable to lift with that arm.
Id.
According to Dr. Montalvo's report, plaintiff had been told that he
had high blood pressure and that he was "borderline diabetic."
Id.
Despite these impairments, plaintiff reported that he cooked twice
a week, cleaned occasionally, dressed himself, watched television,
and listened to the radio.
AR. at 591.
He also claimed that he did
not shop, did not do laundry, and could not shower himself.
11
Id.
Dr. Montalvo noted that plaintiff had poor eyesight - 20/100
in both eyes examination.
and that he complained about pain throughout the
Id.
squat at all.
Id.
He used a cane and was unable to heel-toe walk or
Dr. Montalvo opined that the cane was necessary
for plaintiff to walk.
Id.
Dr. Montalvo also noted that the range
of motion in his cervical spine, lumbar spine, shoulders, and wrists
was limited, and that plaintiff was unable to complete the assessment
due to his apparent pain.
AR. at 592.
Based on her examination, Dr.
Montalvo diagnosed plaintiff with lower back pain, left knee pain,
high blood pressure,
diabetes.
He
Id.
would have
depression,
left arm pain,
and borderline
Ir\ her assessment, plaintiff: s prognosis was stable.
mild
to moderate
limitations
bending,
kneeling, reaching, walking, standing, and sitting.
carrying,
AR. at 593.
Consultative Psychiatric Examination: On March 19, 2012, Dr.
Margery
Baittle,
Ph.D.,
conducted
a
psychiatric
evaluation
of
plaintiff at the request of the Division of Disability Determination.
AR. at 595.
She remarked that plaintiff had no history of psychiatric
hospitalizations and began psychiatric treatment in February 2012.
Id.
He reported difficulty sleeping and depressed mood, as well as
auditory and visual hallucinations.
AR. at 595-96.
At one point
during the examination, he directed unheard voices to be quiet.
Id.
Plaintiff's mother, who was present at the examination, said that
the auditory hallucinations had persisted for a considerable length
12
of time.
AR. at 596.
forgetfulness,
In addition, plaintiff reported paranoia,
difficulty
concentrating,
difficulty
things, and difficulty learning new things.
planning
Id.
On examination, plaintiff was cooperative, but occasionally
interrupted the process due to his hallucinations.
slowly and with a cane.
Id.
Id.
He walked
Though he appeared well-groomed, his
thought processes was confused and paranoid and his affect dysphoric.
Id.
He did not know why he was at the appointment, believing it was
a physical examination, and had difficulty concentrating.
596-97.
AR. at
His memory appeared seriously impaired and his cognitive
function, according to Dr. Baittle, had reduced.
AR. at 597.
demonstrated limited insight and poor judgment.
He also
Id.
Dr. Baittle noted that plaintiff sometimes cooked, cleaned, and
did laundry.
his family,
Id.
He reported no socialization and no contact with
other than his mother.
Id.
He claimed to have no
particular hobbies or interests, and reportedly spent his days going
to medical
television.
appointments,
Id.
listening
Accordingly, Dr.
to
the
radio,
and watching
Baittle opined that plaintiff
could follow and understand simple directions and maintain attention
and concentration, but that he would have difficulty relating with
others and dealing with stress.
Id.
In short, Dr. Baittle believed
that his psychiatric problems might significantly interfere with his
ability to function on a daily basis.
13
Id.
Specifically, Dr. Baittle
diagnosed plaintiff with severe major depressive disorder with
psychotic
features,
experiences,
paranoid
and general
schizophrenia
with
difficulty moving.
hallucinatory
AR.
at
598.
She
recommended that he continue with psychiatric treatment and remarked
that he had clearly regressed such that he could not look after himself
or work at all.
Id.
His prognosis, she found, was poor.
Non-Examining State Agency Consultation:
psychologist L.
Meade
Id.
On April 4,
reviewed plaintiff's medical
2012,
records
and
provided a mental residual functional capacity ("RFC") assessment.
AR. at 649-53.
Dr. Meade determined that plaintiff would not be
significantly limited in his ability to remember work-like procedures
and simple instructions, but would experience moderate limitations
understanding and remembering detailed instructions.
AR. at 649.
Dr. Meade further opined that plaintiff would be mildly limited in
his ability to carry out short instructions and make simple work
decisions,
and
instructions;
moderately
limited:
carrying
out
detailed
maintaining extended attention and concentration;
performing activities within a schedule; maintaining attendance and
punctuality; maintaining an unsupervised routine; and working with
or near others without distraction.
Id.
Plaintiff would also have
moderate limitations interacting with supervisors and coworkers, and
mild limitations interacting with the public and maintaining basic
standards of cleanliness.
AR. at 650.
14
According to Dr. Meade, he
would have mild limitations responding to change,
and moderate
limitations setting realistic goals independently.
Id.
Based on
notes from plaintiff's visits to Unity Health, Dr. Meade determined
that plaintiff showed no major problems beyond depression - the
hallucinations
reported by Dr.
Baittle,
unsupported by other treatment notes.
Dr.
Meade
AR. At 651.
found,
were
Accordingly, Dr.
Meade opined that plaintiff would be able to perform simple work within
a year of February 2012, the month he began outpatient treatment at
Unity Health Systems.
Id.
HEARING TESTIMONY
Testimony of Plaintiff: On January 8, 2013, plaintiff appeared
before ALJ Hortensia Haaversen with his
Goldstein.
AR. at 36-76.
fifty-five years old.
representative,
Justin
At the time of the hearing, plaintiff was
AR. at 39.
He testified that he was a high
school graduate who had attended college for one year in the early
1990s.
Id.
He testified that he worked at Xerox Corporation in 1998
as a production assembly worker, a forklift operator, and, later,
as an expediter.
AR. at 42.
Around this time, he also worked at Antex
of Rochester as a grinder operator.
AR. at 43-44.
approximately twenty-five to thirty pounds.
There, he lifted
AR. at 45.
Plaintiff testified that he had lower back pain that started
after a fall roughly a decade prior.
15
AR. at 51.
The pain extended
to his legs and made it difficult for him to sleep.
AR. at 52.
a result, he testified, he only slept a few hours per day.
Id.
As
He
also testified about pain in his left knee, arthritis in his neck,
pain in his right Achilles tendon, and loss of use of his left arm.
AR. at 53.
His pain prevented him from sitting or standing still for
extended periods of time, and his lawyer remarked that he stood up
at least three times during the hearing.
AR. at 50, 54.
Further,
he testified that he could only walk a few blocks before having to
stop and had difficulty lifting anything that weighed more than twenty
. pounds.
AR. at 55.
Plaintiff also testified that he owned, but rarely drove, his
own car.
AR. at 45.
He said that he was unable to drive at night
because of his eye impairment.
AR. at 46.
it difficult for him to read text.
The impairment also made
AR. at 56-57.
Plaintiff explained
that he lived alone and that his mother helped him pay rent.
46.
AR. at
He mentioned that he saw his son frequently, but said that he
had no friends and spent his time listening to music.
At
the
medication
time
to
of
reduce
the
his
hearing,
blood
medication to help him sleep.
plaintiff was
pressure
AR. at 49-50.
and
AR. at 47-49.
taking
Prozac,
chole.sterol,
and
He also testified that
he was hoping to begin physical therapy and still regularly attended
therapy sessions with Kathleen Crowley.
AR. at 50.
Finally, the ALJ
asked plaintiff about an automobile accident that occurred in 2001
16
or 2002.
AR.
at
59.
Plaintiff was not physically injured but
allegedly developed depression after it.
AR.
however, declined to discuss the accident.
Testimony
of
the
Vocational
Expert:
at 60.
Plaintiff,
AR. at 60-61.
Dr.
Randy
Salmons,
vocational expert ("VE") , also testified at the hearing.
a
AR. at 58.
Dr. Salmons first explained that plaintiff previously worked as an
assembler,
operator.
expeditor,
industrial
truck
operator,
and
grinder
The ALJ then posed a number of hypotheticals to the VE.
First,
the ALJ asked Dr.
Salmons to explain what employment
opportunities existed for an individual:
( 1)
who was limited to
occasionally lifting twenty pounds and frequently lifting ten pounds;
(2) who was limited to standing or walking about six hours out of
an eight hour workday;
(3) who was limited to sitting about six hours
out of an eight hour work day; (4) who had binocular vision, meaning
the position could not involve reading continuous text or driving
at night and required a well-lit environment.
AR. at 61-62.
Dr.
Salmons testified that such an individual could work as an assembler.
AR. at 64.
The ALJ next asked about the same individual from the first
hypothetical,
but
added that
they would be able
to
follow and
understand simple directions and maintain the attention needed to
perform
simple
tasks .
Id.
Such
an
individual,
Dr.
Salmons
testified, would be able to work as an assembler, a cleaner, an office
helper, a garage cashier, and a gate guard.
17
AR. at 65.
However, if
the individual was unable to keep a regular schedule, make appropriate
decisions, and deal appropriately with others, the VE testified that
no jobs existed that the individual could perform.
AR. at 66-67.
Additionally, if the individual had to change positions every ten
minutes and take five minute walks every hour, their productivity
would decline so greatly that it would result in termination from
any position.
five
minute
AR. at 67.
walks,
If that individual did not need to take
however,
they could perform the
surveillance system monitor or food and beverage clerk.
work of
a
AR. at 68.
DETERMINING DISABILITY UNDER THE SOCIAL SECURITY ACT
The Evaluation Process:
The Social Security Act provides that
a claimant will be deemed to be disabled "if [s] he is unable to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which .
. has lasted
or can be expected to last for a continuous period of not less than
twelve months."
42
U.S.C.
§
1382c(a) (3) (A).
The impairments must
be "of such severity that [sJhe 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 which
exists in the national economy . . . . "
42
U.S.C. § 1382c(a) (3) (B).
The determination of disability entails a five-step sequential
evaluation process:
18
1. The Commissioner considers whether the
claimant is currently engaged in substantial
gainful activity.
2. If not, the Commissioner considers whether
the claimant has a "severe impairment" which
limits his or her mental or physical ability to
do basic work activities.
3. If the claimant has a "severe impairment,"
the Commissioner must ask whE;!ther, based solely
on medical evidence, claimant has an impairment
listed in Appendix 1 of the regulations. If the
claimant
has
one
of
these
enumerated
impairments,
the
Commissioner
will
automatically consider him disabled, without
considering vocations factors such as age,
education, and work experience.
4. If the impairment is not "listed" in the
regulations,
the
Commissioner
then
asks
whether,
despite
the
claimant's
severe
impairment, he or she has residual functional
capacity to perform his or her past work.
5. If the claimant is unable to perform his or
her past work, the Commissioner then determines
whether there is other work which the claimant
could perform. The Commiss.ioner bears the burden
of proof on this last step, while the claimant
has the burden on the first four steps.
Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000); see also 20 C.F.R.
§§
404 .1520, 416. 920.
Plaintiff bears the burden of proving her case
at steps one through four.
At step five, there is a "limited burden
shift to the Commissioner" to "show that there is work in the national
economy that the claimant can do."
306
(2d Cir.
2009)
Poupore v. Astrue, 566 F.3d 303,
(noting that Commissioner
"need not provide
additional evidence of the claimant's residual functional capacity"
19
at step five); see also 2.0 C. F .R. § 404 .1560 (c) (2).
When evaluating the severity of mental impairment, the reviewing
authority must also apply a "special technique" at the second and
third steps of the five-step analysis.
Kohler v. Astrue, 546 F. 3d
260, 265 (2d Cir. 2008); see also 20 C.F.R. § 404.1520a(a).
First,
the ALJ must determine whether plaintiff has a "medically determinable
mental impairment."
Kohler, 546 F.3d at 265-66; see also 20 C.F.R.
404 .1520a (b) (1).
If plaintiff has such an impairment, the ALJ must
§
"rate
the
degree
of
functional
limitation
resulting
impairment(s}" in four broad functional areas:
from
the
"(l) activities of
daily living; (2) social functioning; (3) concentration, persistence,
or pace; and ( 4) episodes of decompensation."
266;
see also 20 C.F.R.
§
Kohler, 54 6 F. 3d at
404.1520a(c) (3).
"[I]f the degree of
limitation in each of the first three areas is rated 'mild' or better,
and no episodes of decompensation are identified, then the reviewing
authority
generally
will
conclude
that
the
claimant's
impairment is not 'severe' and will deny benefits."
at 266; see also 20 C.F.R. § 404.1520a(d) (1).
impairment is considered severe,
mental
Kohler, 546 F.3d
If plaintiff·'s mental
the ALJ "will first compare the
relevant medical findings and the functional limitation ratings to
the criteria of listed mental disorders in order to determine whether
the impairment meets or is equivalent in severity to any listed mental
disorder."
Kohler,
546
F.3d
at
20
266;
see
also
20
C.F.R.
§
404. 152 Oa (d) ( 2) .
If plaintiff's mental impairment meets any listed
mental disorder, plaintiff "will be found to be disabled."
546 F.3d at 266.
If not,
the ALJ will then make a finding as to
plaintiff's residual functional capacity.
§
Kohler,
Id.; see also 20 C.F.R.
404 .1520a (d) (3).
The ALJ' s. Decision:
In applying the
five-step
sequential
evaluation, the ALJ first found that plaintiff had not engaged in
substantial gainful activity since March 31, 2008, the alleged onset
date of his disability.
AR. at 17.
At the second step, the ALJ found
that plaintiff had the following severe impairments: degenerative
disc
disease
at
L5-Sl
with
impingement,
retinitis
pigmentosa,
depression starting in February 2012, and polysubstance abuse.
Id.
The ALJ noted that plaintiff's neck degenerative disease, left knee
degenerative
change,
gastroesophageal
reflux
disease
( "GERD") ,
diabetes mellitus, hyperlipidemia, and tendinopathy of the Achilles
tendon - though perhaps impairments - did not present the required
objective diagnostic evidence to qualify as severe impairments under
the regulations.
Id.
At the third step, the ALJ analyzed the medical
evidence and found that plaintiff did not have a listed impairment
which would have rendered.him disabled.
the ALJ moved to the fourth step,
AR. at 17-19.
Accordingly,
which required asking whether
plaintiff had the residual functional capacity ("RFC")
his past work,
to perform
notwithstanding his severe impairments.
21
The ALJ
concluded that plaintiff had the RFC to perform light work with the
following limitations:
he can occasionally lift and carry [twenty] pounds and
frequently lift and carry [ten] pounds; he can stand or
walk for about six hours in an eight-hour workday; he can
sit for about six hours in an eight-hour workday; visually,
he is able to drive an automobile during the day but not
night driving; he has good corrected vision in the left
eye and therefore positions are recommend [ed] that require
only monocular vision and no reading any continuous text;
and the work environment should be well-lit in terms of
light .
Only after February 2012 when he started
treatment for depression [plaintiff] is limited to being
able to follow and understand simple directions and
maintain attention accordingly; and he is able to perform
simple work tasks (Based on the April 3, 2012 assessment
of State agency psychological consultant L. Meade, Ph.D .
.) .
AR. at 19-26.
Based on that RFC, the ALJ determined that plaintiff
could perform his past work as an assembly worker.
AR. at 26-27.
Despite finding that plaintiff could perform his past relevant
work, the ALJ proceeded to the fifth step, which is comprised of two
parts, to demonstrate that he could perform other jobs existing in
the national economy.
First,
the ALJ assessed plaintiff's
job
qualifications by considering his physical ability, age, education,
and previous work experience.
AR. at 27.
The ALJ next determined
whether jobs existed in the national economy that a person having
plaintiff's qualifications and RFC could perform.
Id.; see also 42
U.S.C. §423(d}(2)(A); 20C.F.R. §§404.1520(f), 416.920(f).
After
considering all of the evidence, the ALJ found that plaintiff could
22
perform the work of a housekeeper, office helper, garage cashier,
surveillance monitor, and food and beverage clerk.
AR. at 27-28.
STANDARD OF REVIEW
The scope of this Court's review of the ALJ's decision denying
benefits to plaintiff is limited.
It is not the function of the Court
to determine de nova whether plaintiff is disabled.
Brault v. Soc.
Sec. Admin., Comm'r, 683 F.3d 443, 447 (2d Cir. 2012).
Rather, so
long as a review of the administrative record c,enfirms that "there
is substantial evidence supf1orting the Commissioner's decision," and
"the
Commissioner
applied
the
correct
legal
standard,"
Commissioner's determination should not be disturbed.
Barnhart, 475 F.3d 77, 80-81 (2d Cir. 2007).
is more than a mere scintilla.
the
Acierno v.
"Substantial evidence
It means such r~levant evidence as
a reasonable mind might accept as adequate to support a conclusion."
Brault,
683 F.3d at 447-48 (internal citation and quotation marks
omitted).
"Even where the administrative record may also adequately
support contrary findings on particular issues, the ALJ's factual
findings must be given conclusive effect so long as they are supported
by substantial evidence."
2010)
Genier v. Astrue, 606 F.3d 46, 49 (2d Cir.
(internal quotations omitted) .
This deferential standard of review does not mean, however, that
the
Court
should
simply
"rubber
23
stamp"
the
Commissioner's
determination.
Even when a claimant is represented by counsel, it
is the well-established rule in our circuit that the social security
ALJ,
unlike a judge in a
affirmatively
develop
trial, must on behalf of all claimants
the
record
in
light
of
non-adversarial nature of a benefits proceeding."
569 F.3d 108, 112
the
essentially
Moran v. As true,
(2d Cir. 2009); see also Melville v. Apfel, 198
F.3d 45, 51 (2d Cir. 1999) ("Because a hearing on disability benefits
is a nonadversarial proceeding, the ALJ generally has an affirmative
obligation to develop the administrative record.") .
While not every
factual conflict in the record need be explicitly reconciled by the
ALJ,
"crucial factors in any determination must be set forth with
sufficient specificity to enable
[the reviewing court]
to decide
whether the determination is supported by substantial evidence."
Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
"To determine
whether the findings are supported by substantial evidence,
the
reviewing court is required to examine the entire record, including
contradictory evidence and evidence from which conflicting inferences
can be drawn."
Mongeurv. Heckler, 722 F.2dl033, 1038 (2dCir. 1983).
Moreover, " [w] here there is a reasonable basis for doubt whether the
ALJ applied correct legal principles, application of the substantial
evidence standard to uphold a finding of no disability creates an
unacceptable 'risk that a claimant will be deprived of the right to
have her disability determination made according to the correct legal
24
principles."
Johnson v. Bowen, 817 F. 2d 983,
986
(2d Cir. 1987) .
DISCUSSION
Plaintiff raises a number of challenges to the ALJ's decision,
including that the ALJ failed to comply with the treating physician
rule and that the ALJ' s exertional and non-exertional RFC assessments
lack support from substantial evidence in the record.
See Memorandum
in Support of Plaintiff's Motion for Judgment on the Pleadings (Docket
# 8-1).
At oral argument, however, the parties, with participation
from the Court, spent substantial time discussing plaintiff's mental
impairments and the ALJ' s non-exertional RFC finding.
and
remains
troubled
by
the
ALJ' s
mental
RFC
The Court was
assessment.
As
highlighted by plaintiff both in his briefing submitted to the Court
and
at
oral
argument,
the
ALJ
assigned
little
weight
to
the
consultative opinion of Dr. Baittle and the joint examining opinion
of Crowley (as co-signed by Dr. Reddy) while simultaneously assigning
great
weight
to
the
opinion of
psychiatric consultant,
resulted in error.
the
Dr. Meade,
non-examining
State agency
in formulating her RFC.
This
The ALJ's non-exertional RFC assessment, which
found that plaintiff was capable of completing simple work and only
"limited to being able to follow and understand simple directions
and
maintain
attention
accordingly,"
is
impermissibly
less
restrictive than every opinion of record concerning plaintiff's
25
mental impairments.
AR. at 20.
Under the regulations,
Accordingly, remand is required.
while a
claimant is responsible for
furnishing evidence upon which to base an RFC assessment, the ALJ
is also "responsible for developing [the claimant's] complete medical
history,
including arranging for a consultative examination(s)
if
necessary, and making every reasonable effort to help [the claimant]
get medical reports from [the claimant's] own medical sources."
C.F.R. §§ 404.1545, 416.945.
20
This is because "anALJ is not qualified
to assess a claimant's RFC on the basis of bare medical findings,
and as a
result an ALJ's determination of RFC without a medical
advisor's assessment
is no.t supported by substantial evidence."
Dailey v. Astrue, 2010 WL 4703599, at *11 (W.D.N.Y. Oct. 26, 2010).
After all, " [a] s explicitly stated in the regulations, RFC is a medical
assessment; therefore, the ALJ is precluded from making his assessment
without some expert medical testimony or other medical evidence to
support his decision."
1995)
Grayv. Chater, 903F. Supp. 293, 301 (N.D.N.Y.
(citing 20 C.F.R.
§§
404.1513 (c) and (d) (3)).
Accordingly,
while it is true that an "ALJ is not obligated to reconcile explicitly
every conflicting shred of medical testimony," the ALJ must explain
why a medical opinion was not adopted when his RFC assessment conflicts
with that medical source opinion.
See Dioguardi v. Comm'r of Soc.
Sec., 445 F. Supp. 2d 288, 297 (W.D.N.Y. 2006)
("The plaintiff here
is entitled to know why the ALJ chose to disregard the portions of
26
the medical opinions that were beneficial to her application for
benefits." (citations omitted)).
This is especially true where the
ALJ purports to assign that medical opinion great evidentiary weight.
See Searles v. Astrue, 2010 WL 2998676, at *4 (W.D.N.Y. July 27, 2010)
("An ALJ may not credit some of a doctor's findings while ignoring
other significant deficit:e that the doctor identified."
(citation
omitted)).
Here, despite the voluminous record, the ALJ fell short of her
duty to either rely on competent medical opinion evidence or develop
the record such that it contained competent medical opinions as to
plaintiff's non-exertional, psychologically-based limitations.
Put
simply, there are only three medical opinions of record concerning
plaintiff's mental health: Dr. Meade's, Dr. Baittle's, and the joint
opinion of Crowley and Dr. Reddy.
The ALJ placed "great weight" on
the opinion of Dr. Meade, a State agency psychological consultant
who reviewed plaintiff's records without ever examining him in person,
but assigned "minimal weight" to the opinion of plaintiff's treating
specialists, Crowley and Dr. Reddy, and "little weight" to the opinion
of the consultative examiner, Dr. Baittle.
Indeed, at oral argument,
counsel for the Commissioner conceded that the ALJ relied solely on
Dr. Meade's medical opinion when crafting plaintiff's non-exertional
RFC.
While this, in itself, does not necessarily constitute error,
see Schisler v. Sullivan, 3 F. 3d 563, 568 (2d Cir. 1993) (noting that
27
the regulations "permit the opinions of nonexamining sources to
override treating sources' opinions, provided they are supported by
evidence in the record"), it certainly requires more of an explanation
than given here.
It is problematic that the ALJ assigned "great
weight" to Dr. Meade's speculative conclusion that plaintiff would
be able to perform simple work within a year of February 2012 and
finding
that
plaintiff
did
not
experience
hallucinations,
particularly while the record contains multiple notes of auditory
and visual hallucinations as well as diagnoses of schizoid and
psychotic disorders from plaintiff's examining physicians as late
as December 2012.
AR. at 737-41.
More troubling, however, is the ALJ' s treatment of Dr. Meade's
proposed non-exertional limitations.
Despite largely disagreeing
with the only two opinions of record from examining sources on the
severity of plaintiff's mental impairments, Dr. Meade nevertheless
found that the record supported a finding that plaintiff would "have
difficulty keeping a regular schedule, making appropriate decisions,
and dealing with others."
AR. at 651.
Dr. Meade further opined that
plaintiff would be moderately limited in his ability to set realistic
goals and working without supervision.
AR. at 650-51.
Dr. Baittle' s
opinion corroborates Dr. Meade's findings, stating that plaintiff's
mother kept his schedule and opining that he "can probably not learn
new things very quickly,"
"does not make appropriate decisions,"
28
"relates poorly with other,"
"has much difficulty dealing with
stress," and would face significant difficulty functioning daily.
AR. at 597.
While the Court recognizes that the ALJ declined to
incorporate Dr. Baittle's medical source statement into her RFC, I
fail to understand why these limitations from Dr. Meade's statement
were not incorporated or, at the very least, discussed in her RFC
assessment.
Indeed,
the ALJ assigned Dr. Meade's opinion "great
weight" and counsel for the Commissioner confirmed that her mental
RFC assessment was based entirely on Dr. Meade's findings, yet the
ALJ inexplicably formulated an RFC assessment less restrictive than
Dr. Meade's opinion.
AR. at 20-25.
As noted above, an ALJ must
explain why a medical opinion was not adopted when his RFC assessment
conflicts with the medical source opinion - especially where, as here,
the ALJ gave "great weight" to the opinion undermining her RFC finding.
Dioguardi v. Comm'r of Soc. Sec., 445 F. Supp. 2d 288, 297 (W.D.N.Y.
2006)
(citations omitted);
see also Searles v.
2998676, at *4 (W.D.N.Y. July 27, 2010)
Astrue,
2010 WL
("An ALJ may not credit some
of a doctor's findings while ignoring other significant deficits that
the doctor identified." (citation omitted)).
Seeing no explanation
for this divergence from Dr. Meade's opinion and finding no other
medical opinion that the ALJ could have relied on to form her RFC,
the Court has no choice but to remand this matter so that the ALJ
may re-evaluate plaintiff's RFC in light of the record as a whole
29
or develop the record as needed to make a proper RFC assessment.
CONCLUSION
The Commissioner's motion for judgment on the pleadings (Docket
# 13) is denied, and plaintiff's motion for judgment on the pleadings
(Docket # 8) is granted only insofar as remanding this matter back
to the Commissioner for further proceedings consistent with the
findings made in this Order.
W. FELDMAN
Magistrate Judge
Dated:
September 28, 2016
Rochester, New York
30
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