Cupp v. Colvin
Filing
15
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 9 Plaintiff's Motion for Judgment on the Pleadings; and granting 13 Commissioner's Motion to Remand consistent with this Decision and Order. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 3/23/16. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PATRICE A. CUPP,
Plaintiff,
No. 6:15-cv-06142(MAT)
DECISION AND ORDER
-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
I.
Introduction
Patrice Cupp (“Plaintiff”), represented by counsel, brings
this action pursuant to Titles II and XVI 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”)
and
Supplemental Security Income (“SSI”). This Court has jurisdiction
over the matter pursuant to 42 U.S.C. §§ 405(g), 1383(c). The
parties have moved for judgment on the pleadings pursuant to
Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons
discussed below, the Commissioner’s decision is reversed, and the
matter of remanded for further administrative proceedings.
II.
Procedural Status
On September 15, 2011, Plaintiff protectively applied for DIB
and SSI, alleging disability commencing July 11, 2006, with a date
last insured of December 31, 2009. T.29-43, 75.1 Plaintiff alleged
1
Numerals preceded by “T.” refer to pages in the certified administrative
transcript filed by the Commissioner in this matter.
disability due to back problems, vertigo, heart problems, panic
attacks and hearing loss. After her claims were denied, Plaintiff
requested a hearing, which was held via videoconference before
administrative law judge Stanley K. Chin (“the ALJ”) on August 20,
2013. T.44-73. Plaintiff appeared with her attorney; she and her
husband both testified. The ALJ also heard testimony from impartial
vocational expert James R. Newton. The ALJ issued a partially
favorable
decision
on
September
13,
2013,
finding
Plaintiff
disabled as of March 27, 2012, the date she had experienced a
stroke. T.80-102. The ALJ found that Plaintiff was not under a
disability as defined by the Act from July 11, 2006, to March 27,
2012.
on
The Appeals Council declined Plaintiff’s request for review
January
15,
2015,
rendering
the
ALJ’s
decision
the
final
decision of the Commissioner. T.1-4. Plaintiff timely commenced
this action. Conceding that the ALJ erred, the Commissioner offered
to stipulate to remand the matter for further administrative
proceedings but Plaintiff declined. Plaintiff filed a motion for
judgment on the pleadings, seeking reversal and remand solely for
the calculation and payment of benefits. The Commissioner crossmoved for judgment on the pleadings, requesting that the matter be
remanded for further proceedings.
For the reasons discussed below, the Court declines to grant
Plaintiff’s request for reversal and payment of benefits. While the
Court agrees that the Commissioner’s decision should be reversed,
the Court finds that remand for additional proceedings is the
-2-
appropriate remedy, given the ALJ’s failure to consider and weigh
multiple medical opinions.
III. Discussion
A.
Failure to Weigh the Medical Opinions of Record and Apply
the Treating Source Rule
1. Legal Principles
The Commissioner’s regulations provide that “[r]egardless of
its source, [the ALJ] will evaluate every medical opinion [he]
receive[s].” 20 C.F.R. §§ 404.1527(d), 416.927(d). The failure to
do so is an error warranting remand. See, e.g., Harvey v. Astrue,
No. 09-CV-00020 TJM, 2010 WL 4806985, at *4 (N.D.N.Y. Sept. 7,
2010)
Dr.
(“[T]he
Greenky’s
discussion
of
ALJ
failed
August
2007
Dr.
to
evaluate,
opinion.
Greenky/s
.
lengthy
.
or
.
even
Indeed,
treatment
mention,
the
ALJ’s
history
with
Plaintiff consisted entirely of mentioning a few treatment notes in
2001. The ALJ’s complete failure to evaluate Dr. Greenky’s opinions
amounts
to
error
worthy
of
remand.”)
(footnote
and
internal
citation to record omitted), rep. and rec. adopted, No. 09-CV-0020,
2010 WL 4791588 (N.D.N.Y. Nov. 18, 2010). Moreover, the “treating
physician rule” generally requires deference to the medical opinion
of a claimant’s treating physician or other acceptable medical
source. E.g., Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993)
(citation omitted). Specifically, the ALJ may not
discount a
treating physician’s opinion unless it “lack[s] support or [is]
internally
inconsistent.”
Snell
v.
Apfel,
177
F.3d
128,
133
(2d Cir. 1999). Where the ALJ does not give a treating physician’s
-3-
opinion on the nature and severity of a claimant’s disability
“controlling”
weight,
he
must
“comprehensively
set
forth
his
reasons for the weight assigned to [the] treating physician’s
opinion.” Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008)
(quoting Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004))
(internal quotation marks omitted). The regulations specify that
the Commissioner “‘will always give good reasons in [his] notice of
determination or decision for the weight [he] give[s] [claimant’s]
treating
§
source’s
404.1527(d)(2);
opinion.”
alterations
Id.
in
(quoting
original;
20
other
C.F.R.
citations
omitted). “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 SSR 96–2p, 1996 WL 374188, at *5 (S.S.A. July 2,
1996)). Because 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.’”
Blakely,
581 F.3d
(quoting Rogers, 486 F.3d at 243; emphasis in Blakely).
-4-
at
407
2.
Overview of Plaintiff’s Claim
Plaintiff contends that there were “eight treating source
opinions from four different sources” regarding her functioning
prior to her stroke on March 27, 2012, the on which the ALJ found
she became disabled. See Pl’s Mem. at 17-18 (emphases in original).
Plaintiff cites opinions dated June 13, 2011; November 29, 2011;
April 24, 2012; and June 26, 2012 from primary care physician
Dr. Renee Wheeler; an October 27, 2012 opinion from Dr. Donovan
Holder, Plaintiff’s pain management specialist since August 3,
2012; a May 17, 2013 opinion from therapist Kay Loree, LMSW, CASAC,
whom Plaintiff began seeing on October 25, 2012; and a June 19,
2013 opinion from Dr. Clifford J. Ameduri, who had seen Plaintiff
on one occasion the previous month. The Commissioner concedes only
that the ALJ erred in failing to evaluate Dr. Wheeler’s June 13,
2011 opinion. Plaintiff argues that the ALJ also failed to weigh
Dr. Wheeler’s November 29, 2011, and April 24, 2012 opinions, in
which Dr. Wheeler noted that Plaintiff had become disabled prior to
March 27, 2012.
It appears to the Court that, out of the opinions cited by
Plaintiff above, the ALJ only reviewed and weighed Dr. Wheeler’s
June 26, 2012 opinion (cited as Ex. 23F in the ALJ’s decision) and
LMSW-CASAC
Loree’s
opinion
(cited
as
Ex.
35F
in
the
ALJ’s
decision). The ALJ gave LMSW-CASAC Loree’s opinion “great” weight.
With regard to Dr. Wheeler’s June 26, 2012 opinion, the ALJ
accorded parts of it “some” weight (i.e., the limitations on
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lifting, carrying, standing, and walking) and parts of it “less”
than “some” weight (i.e., the “postural limitations in general”).
3.
The Opinions Not Discussed by the ALJ
a.
On
June
Dr. Wheeler
13,
2011,
Plaintiff
visited
Dr.
complaints of severe vertigo, and feeling as though
Wheeler
with
the room were
spinning. See T.417-18. She felt “off-balance” and experienced
ataxia (the loss of full control of body movements) daily. Vertigo
flares caused her to be bedridden at times. Plaintiff reported
daily
back
pain
for
years,
insomnia,
and
hearing
deficits.
Dr. Wheeler observed that Plaintiff had been disabled by vertigo
since
2006.
On
examination,
Dr.
Wheeler
noted
tenderness
to
palpation in the lumbar and thoracic spine with palpable muscle
rigidity at L1-L5. In a disability form completed on or about that
date, Dr. Wheeler opined that Plaintiff suffered from vertigo,
hearing loss,
and back pain. T.494. As a result, she could not sit
or stand for more than 10 minutes at a time, could not lift, and
had to change positions. Dr. Wheeler stated that Plaintiff was
100 percent disabled, and could not
work due to her physical
impairments. The ALJ clearly erred in failing to evaluate and weigh
this
medical
source
statement
by
Dr.
Wheeler
regarding
the
limitations caused by Plaintiff’s severe impairments of vertigo,
hearing loss and back pain.
On November 29, 2011, Dr. Wheeler observed that Plaintiff had
been 100 percent disabled since her last job in 2006 due to chronic
-6-
dizziness. Similarly, on April 24, 2012, Dr. Wheeler noted that
Plaintiff continued to have chronic vertigo episodes and back pain,
which had disabled her prior to the stroke on March 27, 2012.
T.560. It is well-settled that “[a] treating physician’s statement
that the claimant is disabled cannot itself be determinative.”
Green-Younger v. Barnhart, 335 F.3d 99, (2d Cir. 2003) (quoting
Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999)). Dr. Wheeler’s
opinion that Plaintiff is “100 percent disabled” is not entitled to
any
particular
deference
because
the
Commissioner
makes
the
ultimate determination on the issue of disability. See, e.g.,
Taylor
(“Dr.
v.
Barnhart,
Desai’s
opinion
83
F.
that
App’x
347,
Taylor
was
349
(2d
Cir.
‘temporarily
2003)
totally
disabled’ is not entitled to any weight, since the ultimate issue
of disability is reserved for the Commissioner.”) (citing 20 C.F.R.
§ 404.1527(e)(1); Snell, 177 F.3d at 133). However, “[r]eserving
the ultimate issue of disability to the Commissioner . . . does not
exempt administrative decision makers from their obligation . . .
to explain why a treating physician’s opinions are not being
credited.” Snell, 177 F.3d at 134. To the extent these treatment
notes from Dr. Wheeler additionally specify particular limitations
on Plaintiff’s ability to perform work-related functions caused by
her vertigo, back pain, hearing loss, and other severe impairments
for the period from July 11, 2006, to March 27, 2012, the ALJ must
evaluate them against the regulatory factors.
-7-
b.
Dr. Holder
On October 12, 2012, Plaintiff’s pain management specialist,
Dr.
Holder,
issued
an
opinion
regarding
Plaintiff’s
residual
functional capacity. T.594-96. According to Dr. Holder, Plaintiff
could stand or walk for one hour at a time and one hour total in an
eight-hour day; could sit for six hours continuously and in an
eight-hour day; could only lift less than ten pounds; needed to
alternate between sitting and standing; would miss about four days
of work per month due to the limitations caused by her impairments;
and would constantly be off-task, even on simple tasks. Dr. Holder
opined that she had been under these limitations since July 11,
2006.
There is no dispute that Dr. Holder qualifies as a treating
source for purposes of applying the treating physician rule of
deference.
The
fact
that
Dr.
Holder
rendered
his
functional
capacity report in 2012, after the end of the period relevant to
the instant
appeal
does
not
undermine its
significance
as a
treating source opinion. See Pierce v. Astrue, 946 F. Supp. 2d 296,
311 (W.D.N.Y. 2013) (“The fact that [the treating physician]
rendered his functional capacity report in 2009, after the end of
the relevant period for [the claimant]’s disability application,
does not undermine its significance as a treating source opinion.”)
(citing, inter alia, Dousewicz v. Harris, 646 F.2d 771, 774–75
(2d Cir. 1981) (“[A] diagnosis of a claimant’s condition may
properly be made even several years after the actual onset of the
-8-
impairment.”) (quotation omitted; alteration in original)). As the
Second Circuit has observed, “the fact that a condition is more
disabling today than it was yesterday does not mean that the
condition was not disabling yesterday.” Dousewicz, 646 F.2d at 775.
c.
Dr. Ameduri
Dr. Ameduri issued an opinion dated June 19, 2013, regarding
Plaintiff’s functional limitations. T.683-85. He had seen Plaintiff
only once previously, on May 14, 2013. According to Dr. Ameduri,
Plaintiff could not stand continuously, and could only stand
cumulatively for one hour in an eight-hour workday; could walk for
15 minutes continuously, and 30 minutes in an eight-hour day; could
sit continuously for one hour, and for two hours in an eight-hour
day. T.684. She was limited to lifting less than 10 pounds, needed
to elevate her legs with prolonged sitting, would miss more than
four days per month due to her impairments; and would off-task
constantly, even for simple tasks. T.684-85. Although noting that
Plaintiff had experienced a stroke in March 2012, Dr. Ameduri
nevertheless opined that these limitations had been continuing and
consistent since July 11, 2016. T.685.
B.
Residual Functional Capacity Not Supported by Substantial
Evidence
Given that the ALJ failed to weigh and consider numerous
treating source opinions, as discussed above, it appears that there
is only one medical opinion supporting his residual functional
capacity (“RFC”) assessment for the time period at issue on this
appeal, namely, the report of consultative physician Karl Eurenius,
-9-
M.D. The ALJ found, however, that Dr. Eurenius failed to provide
sufficiently
specific
limitations
caused
by
Plaintiff’s
impairments. See T.90 (according “less weight” to Dr. Eurenius’s
opinion because “it fails to state specific limitations in the
claimant’s
ability
to
lift
and
carry
or
to
be
exposed
to
environmental factors, consistent with her noted diagnoses[,]”
namely, chronic low back pain with neuropathic symptoms) (citing
Ex. 13F).
Courts uniformly have held that “[b]ecause an RFC
determination is a medical determination, an ALJ who makes an RFC
determination in the absence of supporting expert medical opinion
has improperly substituted his own opinion for that of a physician,
and has committed legal error.” Hilsdorf v. Comm’r of Soc. Sec.,
724 F. Supp. 2d 330, 347 (E.D.N.Y. 2010) (citing, inter alia,
Woodford v. Apfel, 93 F. Supp.2d 521, 529 (S.D.N.Y. 2000) (“An ALJ
commits legal error when he makes a residual functional capacity
determination based on medical reports that do not specifically
explain the scope of claimant’s work-related capabilities.”)). This
error also warrants remand.
C.
Remedy
The Second Circuit has instructed that remand is appropriate
“when the Commissioner has not provided ‘good reasons’ for the
weight given to a treating physician [’]s opinion,” or when the
“opinions . . . do not comprehensively set forth reasons for the
weight assigned to a treating physician’s opinion.” Halloran v.
Barnhart, 362 F.3d 28, 33 (2d Cir. 2004). The Court declines to
-10-
reverse solely for calculation and payment of benefits. “[A]lthough
there is substantial evidence of Plaintiff’s disability—including
considerable evidence the ALJ did not explicitly consider—there is
also
conflicting
evidence
from
which
it
is
conceivable
the
Commissioner might find that Plaintiff is not disabled” during the
period of time at issue on this appeal. Kane v. Astrue, 942 F.
Supp. 2d 301, 315 (E.D.N.Y. 2013) (citing Veino v. Barnhart, 312
F.3d 578, 588 (2d Cir. 2002) (citation omitted)). On remand, the
Commissioner must address the weight to be given to the treating
source opinions from Dr. Wheeler, Dr. Holder, and Dr. Ameduri and,
if those opinions are not given controlling weight, to provide
“good reasons” for doing so in compliance with the Commissioner’s
regulations and SSR 06–03p, 2006 WL 2329939, at *2, *3 (S.S.A.
Aug. 9, 2006). The Commissioner also must re-contact consultative
physician
Dr.
Eurenius
to
obtain
clarification
regarding
the
limitations he imposed on Plaintiff in his report. After completing
the record and weighing all of the medical opinions of record, the
ALJ will need to re-formulate an RFC assessment for the date of
onset through July 11, 2006.
IV.
Conclusion
For the foregoing reasons, Plaintiff’s Motion for Judgment on
the Pleadings (Dkt #9) is denied, and the Commissioner’s Motion for
Remand
(Dkt
#13)
is
granted.
The
Commissioner’s
decision
is
reversed, and the matter is remanded for further administrative
proceedings consistent with this Decision and Order. Specifically,
-11-
the Commissioner must address the weight to be given to the
treating
source
opinions
from
Dr.
Wheeler,
Dr.
Holder,
and
Dr. Ameduri and, if those opinions are not given controlling
weight, to provide “good reasons” for not doing so, in compliance
with
the
Commissioner’s
Commissioner
also
must
regulations
and
SSR
06–03p.
re-contact
consultative
The
physician
Dr. Eurenius to obtain clarification regarding the limitations he
imposed on Plaintiff in his report. After completing the record and
weighing all of the medical opinions of record, the ALJ will need
to re-formulate an RFC assessment for the date of onset through
July 11, 2006.
The Clerk of the Court is directed to close this case.
SO ORDERED.
S/Michael A. Telesca
______________________________
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
Rochester, New York
March 23, 2016.
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