Wilson v. Colvin
Filing
21
-CLERK TO FOLLOW UP-ORDER granting 10 Motion for Judgment on the Pleadings; denying 13 Motion for Judgment on the Pleadings. Signed by Hon. Jonathan W. Feldman on 9/27/2016. (WGC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOHN ANDREW LLEWELLY WILSON,
Plaintiff,
DECISION & ORDER
15-CV-6316
V.
CAROLYN W. COLVIN,
Defendant.
Preliminary Statement
Plaintiff John Wilson (hereinafter "plaintiff") brings this
action pursuant to Titles II and. XVI of the Social Security Act,
seeking review of the final decision of the Commissioner of Social
Security ("the Commissioner") denying his application for social
security disability insurance and supplemental security income.
Presently before the Court are the parties'
See Docket # 1.
competing motions· for judgment on the pleadings.
See Docket ## 10,
13.
Background and Procedural History
On March 14,
2012,
plaintiff applied for
social
security
disability insurance and supplemental security income, alleging a
disability o.nset date of April 1,
("AR")
at
118-30.
On
April
27,
Administrative Record
2007.
2012,
Administration denied his application.
the
Social
AR at 56-59.
Security
Plaintiff
filed a timely request for a hearing before an administrative law
judge ("ALJ").
AR at 64-65.
On December 18, 2013, ALJ Mary Withum
held a hearing on plaintiff's claim.
AR at 27-52.
On January 23,
2014, the ALJ issued a decision finding plaintiff not disabled under
the Social Security Act and denying his application for benefits.
AR at 12-23.
Plaintiff filed a request for review of the ALJ's
decision by the Appeals Council and, on March 27, 20.15, the Appeals
Council denied his request,
making the ALJ' s decision the final
decision of the Commissioner.
AR at 1-7.
This federal lawsuit
followed.
Relevant Evidence and Medical History
In plaintiff's disability report, he alleges that he was limited
in his ability to work due to his autism, Asperger' s syndrome, anxiety
disorder, acid reflux, high blood pressure, and panic attacks.
at 156.
AR
Due to the nature of plaintiff's impairments, the record
below contains reports from plaintiff's time in high school that
pre-date his alleged April 2007 disability onset date.
Educational and Vocational Records: On March 9, 2004, plaintiff
underwent a psychological evaluation in accordance with New York
regulations for students receiving special education services.
at 229.
AR
According to the report on the evaluation, plaintiff, who
was sixteen years old at the time, split his time between a vocational
2
school and a
public school.
Id.
In school,
finishing assignments and was disruptive.
well academically,
Id.
he had difficulty
Though he performed
his behavior suggested that he would need a
significant amount of adult support.
AR at 230.
He had limited but
improving social skills and, according to the report, would benefit
from consulting with a job coach.
Id.
On October 20, 2005, the Committee on Special Education in the
Pittsford Central School District convened to review plaintiff's
Individualized Education Plan.
that
plaintiff
received
AR at 223-28.
special
testing
organizational support fives time per week.
The report indicates
accommodations
AR at 224.
and
The report
also notes that plaintiff displayed symptoms related to Asperger's
syndrome, including issues with self-motivation, independence, work
ethic,
and social awareness.
knowledgeable,
creative,
and
AR at 225.
good-natured,
Nevertheless,
and
he was
displayed
good
memory, strong reading and math skills, and good verbal and reasoning
skills.
Id.
According to the report, he needed assistance staying
on task, organizing and managing his time, and working independently.
Id.
Additionally,
while his
social skills were improving,
the
report states that plaintiff needed encouragement to socialize with
his peers and remain focused.
AR at 226.
Prior to his high school graduation and after consulting with
the Off ice of Vocational and Educational Services for Individuals
3
with Disabilities ( "VESID") , VESID referred plaintiff to a clinical
neuropsychologist for an evaluation in April 2006.
AR at 232-43.
The report on the evaluation notes that plaintiff worked part-time
tending to the parking lot at Wegmans, a regional supermarket, and
that he was planning on enrolling at Monroe Community College in the
fall of 2006.
AR at 232.
It also notes that he was diagnosed with
attention deficit disorder and Asperger's syndrome at an early age.
Id.
The report indicates that plaintiff's anxiety disrupted his
ability to stay on task, and that he had deficient social skills.
AR at 232-33.
During the examination, plaintiff appeared anxious
but cooperative.
AR at 233.
He displayed an IQ in the "high ":verage
range" with equivalent vocabulary and nonverbal reasoning skills.
AR at 234.
however,
His numerical and written expressive language skills,
were
at
the
lower
end
of
the
average
socialization was described as moderately low.
range
Id.
and his
In short,
according to the report, plaintiff's condition appeared consistent
with a
diagnosis
disorder.
Id.
of
Asperger' s
syndrome
and attention deficit
In light of the evaluation, the neuropsychologist
suggested that plaintiff continue to take his medication and receive
special accommodations to complete high school.
Plaintiff returned to VESID on June 2,
training.
AR at 306.
AR at 235.
2010 for vocational
Plaintiff was described as having Asperger' s
syndrome, attention deficit disorder, and anxiety.
4
Id.
He bored
easily and had difficulty socializing.
Id.
At the appointment, he
appeared engaged and maintained eye contact, but had "no idea" what
he would like to do professionally.
On
August
rehabilitation
l,
2010,
counselor
difficulty
with
job
plaintiff
through
counselor remarked that,
due
learning
subtleties.
AR at 304.
new
skills,
met
VESID.
to his
interviews,
directions,
AR at 307.
with
AR
at
following
and
noted
that
vocational
304-05.
impairments,
The
plaintiff had
written
and
understanding
oral
language
He also had difficulty expressing himself
in writing and explaining information coherently.
counselor
a
he
met
the
"Most
Id.
Plaintiff's
Significantly Disabled"
criteria and would benefit from vocational services.
AR at 305.
On September 1, 2010, plaintiff returned to VESID and reported
that he had almost graduated from Monroe Community College.
303.
AR at
On April 19, 2011, plaintiff met with another counselor through
VESID and reported that he had begun studying culinary arts at Monroe
Community
College.
AR
at
300.
Though
he
claimed
that
his
impairments impacted his everyday life, he expressed an interest in
obtaining employment beyond his
job at Wegmans.
issues with organizational skills,
anxiety,
Id.
However,
and anxiety-related
gastrointestinal illness presented challenges for him.
Id.
Treatment with Dr. Marsocci: On November 2, 2010, plaintiff saw
Dr. Steven Marsocci, M. D., at Elmwood Pediatric Group.
5
AR at 247-48.
He
reported
feeling
anxious,
difficulty focusing.
particularly at
AR at 247.
work,
and
having
Plaintiff appeared physically and
psychologically healthy, and Dr. Marsocci advised him to contact his
psychiatrist.
AR at 24 7-4 8.
Plaintiff returned to Dr. Marsocci on
November 16, 2010, and reported that he was feeling better.
249.
AR at
Though he appeared healthy, Dr. Marsocci advised him again to
contact his psychiatrist.
Id.
Treatment with Dr. Campbell: On April 22, 2011, plaintiff went
to the University of Rochester Medical Center to establish care and
receive a physical.
M. D. ,
AR at 261.
The physician, Dr. Scott Campbell,
described plaintiff as morbidly obese and suffering from
anxiety
with
depressive
Asperger' s syndrome.
disorder
AR at 263.
as
well
as
high-functioning
Plaintiff returned to Dr. Campbell
on July 26, 2011, and reported high anxiety related to his job search.
AR at 269.
By January 12, 2012, however, Dr. Campbell observed that
plaintiff's anxiety had improved.
AR at 270.
Treatment with Dr. Fauth: On March 29, 2011, Dr. Richard Fauth,
Ph.D., produced a "Brief Treatment Summary" based on his history with
plaintiff.
AR at 257.
In this summary, Dr. Fauth noted that he saw
plaintiff for bi-monthly psychotherapy for approximately two years.
Id.
Plaintiff reported a
anxiety,
isolation,
motivation.
Id.
lack of career direction,
significant
dissatisfaction with his weight,
and lack of
Dr. Fauth indicated that plaintiff's mental focus
6
had improved through treatment,
moderate.
AR at 258.
but that his progress had been
Additionally, while he noted that plaintiff
was intelligent and capable, Dr. Fauth remarked that plaintiff rarely
took advantage of the strategies they had developed to address his
issues.
Id.
Dr. Fauth noted that plaintiff was frequently derailed
by intrusive and distracting thoughts.
Id.
Despite these issues,
Dr. Fauth described plaintiff as kind, friendly, and relatable when
comfortable, and noted that plaintiff had successfully completed his
courses at Monroe Community College.
Id.
Dr. Fauth recommended
that plaintiff continue to attend counseling to manage his social
anxiety
and
medication,
Asperger's-related
and
symptoms,
different
explore
continue
taking
options.
career
his
Id.
Specifically, Dr. Fauth remarked that plaintiff would perform best
in a structured work setting with few people or with well-defined
interactions with other individuals.
On March
3 O,
2o12,
Dr.
Id.
Fauth completed a
medical
source
statement for plaintiff at the request of the Division of Disability
Determinations.
AR at
meetings with plaintiff
Dr.
322-28.
for
Fauth reported bi-monthly
his Asperger' s
syndrome,
attention
deficit disorder, and anxiety disorder that started on April 28,
2010,
and described plaintiff's symptoms as:
anxiety,
below average
organizational
social
skills,
significant planning and
challenges
difficulties,
7
significant social
with
sustained
concentration, and rapid fatigue.
AR at 322.
Dr. Fauth opined that
plaintiff would be limited in his ability to maintain concentration,
interact closely with others, and adapt to environmental changes
without taking a break.
plainti'ff's
AR at 327.
communication
skills
Dr.
were
Fauth also noted that
excellent
when
he
comfortable and that he was intelligent, lucid, and thoughtful.
at 325.
was
AR
Dr. Fauth remarked that plaintiff managed all activities
of daily living well.
AR at 326.
According to Dr. Fauth, plaintiff
brought many assets to the work setting - he was intelligent, verbally
adept,
and eager to please - but required frequent breaks due to
social anxiety and rapid-onset fatigue.
Id.
Based on his medical
findings, Dr. Fauth opined that plaintiff was capable of performing
many job functions in a wide array of work settings as long as he
received proper training and was limited to working for four to five
hours per day.
Id.
Treatment with Dr. Thomassen: Plaintiff also received treatment
from Dr. John Thomassen, Ph.D., a clinical psychologist at Easter
Seals
New
York
Diagnostic
& Treatment
Center.
AR
at
321.
Plaintiff's treatment notes with Dr. Thomassen begin on April 24,
2012 and indicate that plaintiff was referred to him by Dr. Fauth. 1
AR at 321.
Plaintiff expressed an interest in living alone and
1
Based on other evidence in the record, plaintiff started receiving
treatment at Easter Seals as early as fall of 2011.
See AR at 270,
274.
8
obtaining new employment.
On May 11,
Id.
2012,
Dr.
Thomassen
prepared a psychiatric progress note and treatment plan review for
plaintiff.
AR at 318.
Dr.
Thomassen noted that plaintiff had
recently started a new job washing dishes at a restaurant in addition
to his position at Wegmans, but that his anxiety had become worse.
AR at 318.
curb
Dr. Thomassen also noted that a new medication had helped
some of
plaintiff's
anxiety overall.
Id.
However,
Dr.
Thomassen reported that anxiety held "a great influence over his
choices and ability to function."
AR at 319.
According to the
record, plaintiff then saw Dr. Thomassen five times, with the last
treatment notes dated July 18,
appointments,
Dr.
2012.
AR at 313-17.
At these
Thomassen noted that plaintiff had difficulty
maintaining focus for eight hours, difficulty maintaining pace at
work, and suffered from generalized anxiety.
Id.
On November 6, 2013, Arthur Broadhurst, a nurse practitioner
at Easter Seals, completed an additional psychiatric progress note
and treatment plan review for plaintiff.
AR at 332-33.
Broadhurst
noted that plaintiff continued to work as a dish washer and that,
while his anxiety had decreased, plaintiff was feeling anxious about
his
application
Broadhurst
also
for
noted
social
that
security
benefits.
plaintiff's
difficulty
persisted and that he had lower functional abilities.
AR
at
332.
socializing
AR at 332-33.
On evaluation, Broadhurst remarked that plaintiff had a "high level
9
of anxiety" that appeared largely untreatable with medication.
at 333.
AR
Plaintiff did, however, appear interested in learning to
control and cope with his impairments.
Broadhurst advised
Id.
plaintiff to alter his medication and return in two months.
Id.
The record also contains a "Psychological, Intellectual, and
Adaptive Functioning Assessment" prepared by Dr. Thomassen after
meeting with plaintiff on seven occasions between April and December
2012.
AR at
334.
The report details plaintiff's background,
indicating that he received a degree from Monroe Community College
after six years.
Id.
At the time of this report, which is undated
but was presumably prepared on or after plaintiff's December 2012
appointment with Dr.
Thomassen,
withdrawn, and anxious.
plaintiff reported feeling sad,
AR at 334-35.
The anxiety, he told Dr.
Thomassen, usually set in after working for thirty minutes to two
hours
and
made
it
difficult
for
him
to
focus.
AR
at
335.
Plaintiff's mother, who also spoke to Dr. Thomassen, confirmed that
plaintiff had difficultly focusing and socializing.
AR at 335"36.
Based on a review of plaintiff's records, Dr. Thomassen wrote
that plaintiff had a history of Asperger's syndrome and attention
deficit
disorder,
which
contributed
to
his
reported
lack
of
direction, anxiety, social isolation, and general dissatisfaction.
AR at 337.
Intelligence
Dr.
Thomassen also administered the Wechsler Adult
Scale-Fourth
Edition
10
to
assess
plaintiff's
intellectual functioning.
AR at 338.
The results were varied:
plaintiff scored in the superior range in his ability to process
information and work with language,
low average in his working
memory, and above average in intellectual functioning.
different
assessment,
reading and spelling,
338-39.
plaintiff
demonstrated
Id.
In a
proficiency
but difficulty with mathematics.
with
AR at
Dr. Thomassen then noted that, based on plaintiff's results
from the different intellectual and social functioning examinations,
he scored at the fiftieth percentile on the Asperger's Disorder
Quotient, meaning that he had more significant symptoms than fifty
percent of individuals diagnosed with the disorder.
AR at 339.
Based on his review of the record and the test results, Dr. Thomassen
diagnosed plaintiff with Asperger' s
hyperactivity
disorder,
syndrome;
inattentive
disorder; and mathematics disorder.
type;
attention-deficit
generalized
anxiety
AR at 341.
Dr. Thomassen opined that plaintiff, due to his impairments,
had lifelong difficulties in social relationships.
often engaged in "isolated pursuits"
peer-to-peer interactions.
Id.
AR at 341.
He
and had extremely limited
Relatedly, Dr. Thomassen remarked
that plaintiff had significant anxiety that restricted his ability
to socialize and work.
Id.
Given the
"complex interplay of
neurodevelopmental disorder[s]" from which plaintiff suffered, Dr.
Thomassen determined that plaintiff had significant difficulties
11
living independently.
plaintiff
Id.
Additionally, Dr. Thomassen found that
could only work
"on a
part-time basis
in restricted
settings in which he has the ability to retreat when overly anxious
and that provides minimal social demands due to his social functional
limitations and social anxiety."
AR at 342.
difficulties left his prognosis guarded.
These significant
Id.
In another mental impairment questionnaire prepared on November
19, 2013, Dr. Thomassen suggested that plaintiff's prognosis was
fair, but provided a number of restrictions due to his impairments.
AR at 344.
They included moderate restrictions in his ability to
remember locations and work-like procedure,
instructions,
questions,
make
simple
sustain a
transportation,
precautions,
routine
maintain
meet
work-related
basic
of
standards
decisions,
ask
simple
supervision,
without
awareness
understand one-step
take
public
normal
of
hazards
neatness,
appropriately to changes in the work setting.
Id.
and
and
take
respond
Additionally,
Dr. Thomassen suggested that plaintiff would have moderately severe
restrictions
understanding multi-step
instructions,
maintaining
extended concentration and attention, performing activities within
a schedule, maintaining regular attendance, being punctual, working
in coordination with others without being distracted, completing a
normal workday without interruptions from psychologically-based
symptoms, performing at a consistent pace, accepting instructions
12
from supervisors, responding to criticism from supervisors, getting
along with peers without unduly distracting them or exhibiting
behavioral extremes, and maintaining socially appropriate behavior.
Id.
Taken
together,
Dr.
Thomassen
opined
that
plaintiff's
impairments would require him to take more than three days off from
work per month.
AR at 345.
Consultative Opinion Evidence: On April 11, 2012, consultative
psychologist Christine Ransom, Ph.D. , performed an adult psychiatric
evaluation of
plaintiff.
AR at
274-77.
At
the
time
of
the
evaluation, plaintiff had received his degree from Monroe Community
College and was working four hours per week at Wegmans.
AR at 274.
He was also receiving psychological treatment for his anxiety and
Asperger's syndrome.
Id.
He told Dr. Ransom that he experienced
constant generalized anxiety and difficulty staying on task.
AR at
He claimed that working for extended periods of time without
2 7 4 - 7 5.
a break induced panic attacks and that he required breaks every hour
from work.
On examination,
AR at 275.
plaintiff appeared largely normal,
attention
and
intellectual
concentration,
functioning
all
Dr.
Ransom noted that
but mildly tense.
immediate
and
recent
appeared intact.
Id.
memory,
AR at
276.
His
and
He
reported that he dressed and cared for himself, but had difficulty
making
friends.
computers,
Id.
For hobbies,
watched television,
he
said that he worked on
and listened to
13
the
radio.
Id.
Based on her examination, Dr. Ransom opined that plaintiff could
follow and understand simple directions and instructions,
perform simple tasks independently, maintain attention
and concentration for simple tasks, maintain a simple
regular schedule and learn simple new tasks.
He would
have mild to moderate difficulty performing complex tasks,
relating adequately with others and appropriately dealing
with stress due to Asperger's syndrome, currently mild to
moderate.
Id.
In
short,
Dr.
Ransom
noted,
the
results
evaluation were consistent with his allegations.
of
plaintiff's
Accordingly, she
diagnosed plaintiff with mild to moderate Asperger's syndrome and
high blood pressure.
AR at 277.
With continued treatment, Dr.
Ransom opined that his prognosis was fair to good.
On April
23,
2012,
reviewed plaintiff's
Technique" form.
suffered
from
psychological
consultant Dr.
record and prepared a
AR at 278.
attention
Id.
R.
Nobel
"Psychiatric Review
Dr. Nobel determined that plaintiff
deficit
disorder,
generalized
disorder, and mild to moderate Asperger's syndrome.
anxiety
AR at 278-87.
Based on a review of plaintiff's record, Dr. Nobel said that plaintiff
would have moderate difficulties in maintaining social functioning,
concentration, persistence, and pace.
AR at 288.
Dr. Nobel also prepared a mental residual functional capacity
("RFC") assessment, determining that plaintiff would be moderately
limited in his ability to carry out detailed instructions, maintain
extended attention and concentration, perform activities within a
14
schedule, maintain regular attendance, be punctual within customary
tolerances, and work in coordination with or in proximity to others
without being distracted by them.
AR at 292.
Additionally, Dr.
Nobel noted that plaintiff would be moderately limited in his ability
to
complete
a
normal
workday
without
interruptions
from
his
psychologically-based symptoms and perform at a consistent pace
without an unreasonable number and length of rest periods.
293.
With respect to social interaction,
Dr.
AR at
Nobel found that
plaintiff would be markedly limited in his ability to interact
appropriately with the general public and moderately limited in his
ability
to
accept
respond
instructions,
to
criticism
from
supervisors, and get along with peers without distracting them or
exhibiting behavioral extremes.
AR at 293.
Finally, Dr. Nobel
opined that plaintiff would be moderately limited in his ability to
respond appropriately to changes in the work setting and his ability
to set realistic goals.
Id.
Nevertheless, Dr. Nobel stated that
plaintiff had "the ability to perform at least unskilled work"
r,emoved from the public.
AR at 295.
Hearing Testimony
Testimony
appeared
of
Plaintiff:
before ALJ
On
Mary Withum
December
with
18,
counsel.
2013,
AR
plaintiff
at
27-52.
Plaintiff's counsel spoke first, describing plaintiff as a younger
15
individual diagnosed with generalized anxiety disorder, attention
deficit disorder,
a learning disorder,
and Asperger's syndrome,
which, when taken together, satisfy listing 12. 06 or 12 .10 under the
regulations.
AR at 31.
Plaintiff then testified, stating that he
worked as a dishwasher at a small restaurant for eight hours per week.
AR at 32.
He explained that he got the job after working with a
professional development agency.
AR at 43.
The agency, Arc of
Monroe County, had job coaches that routinely checked on plaintiff's
progress.
AR at 44.
Before working at the restaurant, he worked
part-time at Wegmans, collecting shopping carts and tending to the
parking lot.
AR at 34.
His anxiety, he stated, prevented him from
working more than twelve hours per week.
Id.
He also stated that
he had a two-year degree that he earned in six years because he was
unable to maintain a full-time schedule.
Plaintiff
also
explained
that
AR at 33.
his
anxiety
of ten
led
intestinal problems, which prevented him from working full-time.
at
35.
He
testified
that
his
episodes
of
anxiety
left
debilitated, and that he had to isolate himself to calm down.
to
AR
him
Id.
Relatedly, he said that because of his attention deficit disorder,
he became bored very easily.
AR at 38.
While medication helped with
his concentration, he said that he still needed a fifteen-minute
break every three hours while working.
AR at 38-39.
For hobbies,
plaintiff testified that he watched television and played on his
16
computer.
AR at 40.
without assistance.
He lived with his parents but cared for himself
AR at 41.
He claimed to have no close friends
and said that he generally avoided large and new social environments
because he felt uncomfortable around unfamiliar people.
46.
He
explained
that
changes
productivity for the entire day.
physical
limitations
in
his
AR at 48.
routine
AR at 41,
impacted
his
He also described some
including mild difficulty squatting and
walking on hilly terrain - but explained that his impairments were
primarily mental in kind.
AR at 41-43.
Testimony of the Vocational Expert: Vocational Expert ("VE")
Judy Burnett also testified at the hearing, explaining that plaintiff
had no past relevant work experience because he had only worked
part-time.
AR at 49.
The ALJ then posed a series of hypotheticals
to the VE to determine what available work existed for a person in
plaintiff's
position.
First,
the
ALJ
asked
what
employment
opportunities existed for a person of the same age and with the same
educational and work history as plaintiff who had no exertional
limits, but: was limited to simple, routine, repetitive tasks; and
could only occasionally interact with coworkers, supervisors, and
the general public.
AR at 49.
The VE responded that such a person
could work as a hand packager, a groundskeeper, or a warehouse worker.
AR at 50.
Next, the ALJ asked the VE what employment opportunities
existed for the same individual, but with the added limitation that
17
they could have no interaction with the general public.
Id.
The
VE testified that such a person could still work as a hand packager,
a
groundskeeper,
or a
warehouse worker.
Id.
However,
individual had moderate limitations making simple,
if
the
work-related
decisions·- meaning that, for fifteen percent of the time, they would
be off task - the VE testified that the individual would not qualify
for competitive employment.
AR at 51.
Determining Disability Under the Social Security Act
The Evaluation Process: The Social Security Act provides that
a claimant will be deemed disabled "if he is unable to engage in any
substantial gainful activity by reason of any medically determinable
physical or mental
has
impairment which
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 he is not only unable to do his previous work but
cannot, considering his 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:
1. The Commissioner considers whether the
claimant is currently engaged in substantial
gainful activity.
18
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 whether, 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 Commissioner 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 his case
at steps one through four.
At step five, there is a
"limit~d
burden
shift to the Commissioner" to "show that there is work in the national
economy that the claimant can do."
306 (2d Cir. 2009)
(per curiam)
Poupore v. Astrue, 566 F.3d 303,
(noting that Commissioner "need not
provide additional evidence of the claimant's residual functional
capacity" at step five); see also 20 C.F.R.
19
§
404.1560(c) (2).
When
evaluating
the
severity
of
reviewing authority must also apply a
mental
impairment,
"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.
First,
also
§
404.1520a(a).
the ALJ must determine whether plaintiff has a
determinable mental impairment."
20
C.F.R.
"medically
Kohler, 546 F. 3d at 265-66; see
404.1520a(b) (1).
§
the
If
plaintiff
has
such
an
impairment, the ALJ must "rate the degree of functional limitation
resulting from the impairment(s)" in four broad functional areas:
"(1)
activities
concentration,
of
daily
living;
persistence,
social
pace;
or
(2)
and
( 4)
episodes
of
Kohler,
404.1520a(c) (3).
"[I] f the degree of limitation in each of the first
areas
is
decompensation
rated
are
'mild'
or
better,
then
identified,
the
see also 20 C.F.R.
(3)
decompensation."
three
546 F.3d at 266;
functioning;
and
no
episodes
reviewing
§
of
authority
generally will conclude that the claimant's mental impairment is not
'severe' and will deny benefits."
20 C.F.R.
§
404.1520a(d) (1).
Kohler, 546 F.3d at 266; see also
If plaintiff's mental impairment is
considered severe, 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 266; see also 20 C.F.R. § 404.1520a(d) (2).
20
If
plaintiff's mental
impairment meets any listed mental disorder,
plaintiff "will be found to be disabled."
Kohler, 546 F. 3d at 266.
If not, the ALJ will then make a finding as to plaintiff's RFC.
see also 20 C.F.R.
The
ALJ' s
§
Id.;
404.1520a(d) (3).
Decision:
On
January
23,
2014,
the
plaintiff benefits and supplemental security income.
ALJ denied
AR at 12-23.
In applying the five-step sequential evaluation, the ALJ first found
that plaintiff had not engaged in substantial gainful activity since
April L, 2007, the alleged onset date of his disability.
AR at 14.
At the second step, the ALJ found that plaintiff had the following
severe impairments: anxiety disorder, attention deficit hyperactive
disorder, and Asperger' s syndrome.
Id.
At the third step, the ALJ
analyzed the medical evidence and found that plaintiff did not have
an impairment that met or medically equaled the severity of one of
the listed impairments in the regulations and, as a result, proceeded
to assign plaintiff an RFC.
plaintiff
had
exertional
limitations:
the
levels,
he
RFC
AR at 15-21.
to perform a
but
should perform
full-range
the
with
The ALJ concluded that
simple,
of
work at
all
following
non-exertional
routine,
and repetitive
tasks; he should have a low-stress job that requires only occasional
decision-making and changes in the work setting; he should have no
interaction with the public;
and he should have only occasional
interaction with co-workers and supervisors.
21
AR at 17.
Accordingly, the ALJ moved to the fourth step, which required
asking whether plaintiff had the RFC to perform his past work,
notwithstanding
his
severe
impairments.
AR
at
21.
Because
plaintiff had no past full-time employment history, the ALJ proceeded
to the fifth step, which is comprised of two parts.
First, the ALJ
assessed plaintiff's job qualifications by considering his physical
ability, age, education, and previous work experience.
Id.
The ALJ
next determined whether jobs existed in the national economy that
a person having plaintiff's qualifications and RFC could perform.
AR at
21-22;
404 .1520 (f)'
see
also 42 U.S.C.
416.920(f)
qualifications,
After
§
423 (d) (2) (A);
assessing
20
C.F.R.
plaintiff's
§§
job
the ALJ determined that he could work as a hand
packager, groundskeeper, or warehouse worker.
AR at 22.
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 novo whether plaintiff is disabled.
Sec. Admin., Comm'r, 683 F.3d 443, 447 (2d Cir. 2012)
Brault v. Soc.
(per curiam).
Rather, so long as a review of the administrative record confirms
that "there is substantial evidence supporting the Commissioner's
decision,"
and
"the
Commissioner
applied
the
correct
legal
standard," the Commissioner's determination should not be disturbed.
22
Aciernov. Barnhart, 475 F.3d77, 80-81 (2dCir.), cert. denied, 551
U.S.
1132
(2007).
scintilla.
"Substantial
evidence
is
more
a
mere
It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion."
Sec.
than
Admin.,
Comm'r,
683
quotation marks omitted) .
F.3d at 447-48
Brault v. Soc.
(internal citation and
"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."
F.3d 46, 49
(2d Cir. 2010)
(per curiam)
Genier v. Astrue, 606
(internal quotation marks
omitted)
This deferential standard of review does not mean, however, that
the
Court
should
determination.
simply
"rubber
stamp"
the
Commissioner's
"Even when a claimant is represented by counsel, it
is the well-established rule in our circuit that the social security
ALJ,
unlike a
affirmatively
judge in a trial,
develop
the
must on behalf of all claimants
record
in
light
of
non-adversarial nature of a benefits proceeding."
the
essentially
Moran v. As true,
569 F.3d 108, 112 (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
23
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
inferences can be drawn."
(2d
Cir.
1983)
(per
and
evidence
from
which
conflicting
Mongeur v. Heckler, 722 F.2d 1033, 1038
curiam) .
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 principles."
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
Discussion
Plaintiff raises three arguments in his motion,
2
2
but they can
Plaintiff argues that: (1) "the ALJ erred in evaluating the opinion
evidence of record," (2) "the ALJ' s failure to accord proper weight
to the treating source opinions was not harmless error," and (3) "the
ALJ erred in formulating hypothetical questions to the vocational
expert.
See Docket # 10-1 at 19-29. At base, however, plaintiff
is objecting to the ALJ' s application of the treating physician rule
and its result on her subsequent RFC determination.
Indeed,
plaintiff argues that the ALJ's questions to the VE were improper
24
be distilled into two related· challenges:
(1)
the ALJ erred in
evaluating the opinion evidence from plaintiff's treating physicians
and (2)
this error was not harmless.
See Docket # 10-1 at 19-29.
Each will be addressed below.
I.
Opinions
of
Plaintiff's
Treating
Physicians:
First,
plaintiff argues that the ALJ failed to provide satisfactory reasons
for her decision to apply less than controlling weight to the opinion
evidence from two of plaintiff's treating physicians, Dr. Thomassen
and Dr.. Fauth.
ALJ
assigned
Id. at 19-27.
''little
With respect to Dr. Thomassen, the
probative
weight"
to
his
assertion
that
plaintiff would be unable "to work full-time due to deficits in
socializing and his anxiety" because "it is a finding reserved for
the Commissioner" and "it is not consistent with Dr. Thomassen's
evaluation notes, which do not refer to any positive mental findings
and the severe health limitations he asserts serve as the basis for
his very restrictive opinion" of plaintiff.
AR at 19.
Similarly,
the ALJ gave "little probative weight" to Dr. Fauth's opinion that
plaintiff would be unable to work an eight-hour day because "it is
a finding reserved for the Commissioner," "it is not consistent with
Dr. Fauth' s therapy notes," and plaintiff's "mental focus and ability
to remain focused" improved through treatment.
contends
that
these
explanations
are
factually
because the RFC was incorrectly determined.
25
AR at 20.
Plaintiff
inaccurate
Id. at 27-29.
and
invalid under Second Circuit law.
See Docket# 10-1 at 21-25.
In
response, the Commissioner argues that the ALJ properly gave portions
of Dr. Thomassen's and Dr. Fauth's opinions "less than probative
weight" because they are inconsistent with the record as a whole,
including their treatment notes and the opinion of plaintiff's
consultative examiner.
Docket# 13-1 at 22-27.
Additionally, the
Commissioner notes that the opinions of Dr. Thomassen and Dr. Fauth
treaded into the ALJ's decision-making territory and,
properly rejected.
thus, were
Id.
There is no question that plaintiff's mental health limitations
are complex.
In determining that plaintiff was not disabled, the
ALJ clearly focused on the fact that plaintiff is relatively healthy,
has
no
exertional
and
limitations,
intellectual functioning.
ranks
above-average
in
But the record also pays tribute to the
fact that the medical professionals who have treated plaintiff and
know him best have found that plaintiff is incapable of maintaining
full-time
competitive
persistent mental
employment
due
to
AR at
impairments.
his
19-21.
debilitating
and
Far from being
irreconcilable, plaintiff's limitations are remarkably consistent
with his diagnosis of Asperger' s syndrome, "a lifelong developmental
disorder characterized by impairment of social interactions and
restricted interests and behaviors."
Neiman v. Astrue,
816779, *l E.D. Pa. March 8, 2011).
Because the ALJ improperly
26
2011 WL
rejected the critical· findings and opinions of plaintiff's treating
doctors
and
then,
without
adequate
explanation,
discounted
the
compelling testimony of plaintiff as "not entirely credible" (AR at
18), the Court finds remand appropriate based on the ALJ's failure
to follow the treating physician rule.
Under the treating physician rule, an ALJ must afford "a measure
of
deference
physician."
to
the
medical
opinion
See Halloran v.
of
Barnhart,
2004); 20 C.F.R. § 404.1527(d) (2).
claimant's treating physician as
a
claimant's
362 F.3d 28,
Accordingly,
to
treating
31
(2d Cir.
the opinion of a
the nature and severity of
claimant's impairment is given "controlling weight," so long as it
"is well-supported by medically acceptable clinical and laboratory
diagnostic
techniques
and
is
not
inconsistent
substantial evidence in [the] case record."
F.3d 117, 128
(2d Cir. 2008)
with
the
other
Burgess v. Astrue, 537
(citing 20 C.F.R.
§
404.1527(d) (2));
see also Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003);
Shaw v.
Chater,
221
F.3d 126,
134
(2d Cir.
2000).
"Medically
acceptable clinical and laboratory diagnostic techniques include
consideration of a patient's report of complaints, or history, as
an essential diagnostic tool."
Burgess, 537 F.3d at 128 (internal
citations and quotations omitted).
Relatedly, the Commissioner is required to explain the weight
she
gives
to
the opinions
of
treating physicians . .20
27
C.F.R.
§
404.1527(d) (2)
("[W]e will always give good reasons in our notice
of determination or decision for the weight we give your treating
source's opinion.").
This is true even when the treating source's
opinion is given controlling weight,
but especially true if the
opinion is not given controlling weight.
129.
See Burgess, 537 F.3d at
The ALJ must consider, inter alia, the
[l]ength of the treatment relationship and the frequency
of examination; the nature and extent of the treatment
relationship; the relevant evidence, particularly medical
signs and laboratory findings, supporting the opinion; the
consistency of the opinion with the record as a whole; and
whether the physician is a specialist in the area covering
the particular medical issues.
(internal
Id.
quotations
404 .1527 (d) (2) (i) - (ii)'
omitted)
(3) - (5)).
(citing
20
C.F.R.
§
"After considering the above
factors, the ALJ must comprehensively set forth [their] reasons for
the weight assigned to a treating physician's opinion."
Colvin, 802 F. 3d 370, 375 (2d Cir. 2015)
at 129).
Greek v.
(citing Burgess, 537 F. 3d
The failure to provide "good reasons for not crediting the
opinion of a claimant's treating physician is a ground for remand."
Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999); see also Schaal
v. Apfel, 134 F.3d496, 505 (2dCir. 1998)
("Commissioner's failure
to provide 'good reasons' for apparently affording no weight to the
opinion
error.
of
plaintiff's
treating
physician
constituted
legal
11
)
Neither party disputes that Dr. Thomassen and Dr. Fauth were
28
plaintiff's treating physicians.
also Docket# 13-1 at 22-27.
See Docket# 10-1 at 19-25; see
Indeed, their treating relationships
with plaintiff consisted of recurring appointments that spanned many
months, if not several years.
See AR at 257, 321-28, 334-45.
Based
on their long-standing relationships with plaintiff, Dr. Thomassen
and Dr.
Fauth offered a number of opinions about his functional
limitations.
For example,
Dr.
Thomassen opined that plaintiff:
would only be capable of working "on a part-time basis in restricted
settings in which he has the ability to retreat when overly anxious
and that provides minimal social demands due to his social functional
limitations and social anxieties"; would have moderate difficulty
maintaining a routine without supervision; ,and would have moderately
severe difficulty sustaining extended,concentration, maintaining
regular
attendance,
completing
a
normal
workday
without
interruptions from psychologically-based symptoms, and performing
at a consistent pace.
AR at 342-45.
Similarly, Dr. Fauth noted that
plaintiff would be limited in his ability to maintain concentration
and would only be able to work for four to five hours per day.
at 322-27.
AR
The ALJ, however, gave "little probative weight" to these
assessments,
claiming
that
they
are
inconsistent
with
their
treatment notes and constituted determinations on issues reserved
for the ALJ.
AR at 19-20.
While the Commissioner is correct in arguing that an ALJ may
29
properly
discount
a
treating
physician's
opinion
if
it
is
inconsistent with their treatment notes, see Campbell v. Astrue, No.
12-CV-6103T, 2013 WL 1221931, at *2 (W.D.N.Y. June 29, 2013), that
simply isn't the case here.
Nothing in Dr.
Thomassen's or Dr.
Fauth's notes indicates that their medical source statements were
inconsistent or exaggerated.
In fact, from the outset, Dr. Fauth
noted that plaintiff had a limited attention span and frequently fell
victim to "intrusive thoughts that distract [ed] .and preoccupy [ied]
him and that sometimes demotivate[d] him."
AR at 257-58.
After
treating plaintiff for two years, Dr. Fauth confirmed the persistence
of these problems in his functional assessment, noting that plaintiff
was only capable of working for four to five hour per day.
322-27.
plaintiff
AR at
Dr. Thomassen's treatment notes similarly indicate that
had
difficulty
maintaining
focus
for
eight
hours,
difficulty keeping pace at work, and that plaintiff suffered from
generalized anxiety.
AR at 313-317.
Put simply, I find no support
for the ALJ's claim that Dr. Thomassen's and Dr. Fauth's treatment
notes betray their ultimate functional assessments.
Regardless, and assuming arguendo that Dr. Thomassen' s and Dr.
Fauth's notes did not include these specific descriptions of the
symptoms of plaintiff's impairments, I fail to see how that would
render their functional assessments inconsistent or invalid.
all, treatment notes are "simply notes from an office visit."
30
After
Ubiles
v. Astrue, No. ll-CV-6340T, 2012 WL 2572772, at *9
2,
2012)
their
(W.D.N.Y. July
(relying on treating physician's treatment notes and not
function-by-function
physician rule) .
assessment
violates
the
treating
It strikes the Court as particularly "unreasonable
to expect a physician to make,
on his own accord,
the detailed
functional assessment demanded by the [Social Security regulations]
in support of a patient seeking SSI benefits" in his treatment notes,
especially when,
compile
his
as is the case here,
findings
in
a
medical
the physician intended to
source
statement.
Id.
Nevertheless, treatment notes aside, plaintiff's record makes clear
at every turn
~
through his educational and vocational records, his
work history, his length of treatment with multiple specialists, his
self-reported
impairments
and
limitations,
and,
of
course,
his
treating physicians' functional assessments - that he suffered from
persistent mental impairments that severely impacted his ability to
maintain concentration and attendance in a work-related environment.
The ALJ' s argument that Dr. Thomassen' s and Dr. Fauth' s opinion
about plaintiff's inability to complete an eight-hour workday is a
"finding reserved for the Commissioner" is similarly problematic.
AR at 19-20.
As the Commissioner correctly notes, see Docket # 13-1
at 26, the ALJ does not need to accept a determination from a treating
physician as to the ultimate issue of whether plaintiff is capable
of work.
Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999).
31
However,
a treating physician's opinion as to the "nature and severity" of
plaintiff's conditions, far from the ultimate issue, is exactly what
a treating physician should be speaking to.
See Green-Younger v.
Barnhart, 335 F.3d 99, 106 (finding that the treating physician was
offering an opinion on the "nature and severity" of plaintiff's
impairment when he discussed her ability to function, sit or stand
continuously and her need for
Callahan,
168
arbitrarily
opinion."
F.3d
72,
substitute
79
his
rest periods) ;
(2d
own
Cir.
1999)("[T]he
judgment
(internal citations removed)).
see also Rosa v.
for
ALJ
competent
cannot
medical
A treating physician's
opinion that their patient is unable to maintain the concentration
and attendance required for an eight-hour work day, for example, is
typically based on objective medical facts developed by the physician
during the course of treatment for an illness or medical issue.
Thus,
courts have often repeatedly cautioned SSA adjudicators
that this [ultimate issue] guideline must be considered
in conjunction with the regulatory mandate that a
treating source's opinion on the issue of the nature and
severity of the claimant's impairments must be given
controlling weight if it is well supported by medically
acceptable clinical and laboratory diagnostic techniques
and not inconsistent with other substantial evidence.
See, e.g., Green-Younger v. Barnhart, 335 F.3d 99, 106
(2d Cir. 2003). Indeed, SSR 96-5p expressly reminds
adjudicators that, "[i] n evaluating the opinions of
medical sources on issues reserved to the Commissioner,
the adjudicator must apply the applicable factors in 20
C.F.R. §§ 404.1527(d) and 416.927(d) ." 1996 WL 374183,
at *3.
32
Delkv. Astrue, No. 07-CV-167, 2009 WL 656319, at *7 (W.D.N.Y. 2009).
Neither Dr. Thomassen nor Dr. Fauth invented plaintiff's inability
to complete a full work-day; rather, they based their assessments
on their long-standing treating relationships with him.
As this
Court has observed before, the ALJ here appears to be relying on Dr.
Thomassen's and Dr. Fauth's opinions about plaintiff's inability to
work full-time as "talismanic incantation[s]
that shielded [her]
from meaningfully engaging" with the various limitations highlighted
by
plaintiff's
treating
physicians.
Rivera
v.
Colvin,. No.
15-CV-6318, 2016 WL 2636311 (W.D.N.Y. May 6, 2016).
Equally troublesome was the ALJ's boilerplate finding that
plaintiff's "statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely credible."
at 18.
AR
The plaintiff's testimony about his limitations was entirely
consistent with the findings of his treating doctors.
Given his
Asperger's diagnosis and his lifelong struggles with appropriate
thought process and social interaction, the fact that plaintiff has
repeatedly
attempted
competitive
testimony more, not less credible.
record
to
suggest
that
employment
makes
his
hearing
Indeed, there is nothing in the
plaintiff's
testimony
concerning
the
"intensity, persistence and limiting effects symptoms" were anything
but "entirely credible."
Plaintiff is clearly not a malingerer.
33
The anxiety, abnormal social behavior, attention and concentration
deficits, difficulties relating to others plaintiff described at his
hearing,
medical
see AR at 35-36, 38-49, were all well documented in the
record.
repeated efforts
despite
If
to
anything,
"fit in"
self-awareness
of
plaintiff's
see AR at 45-46,
exaggerating
his
his
at various workplace environments
his
limitations,
testimony about
psychological
impairments
and
support a finding that he is not
symptoms.
Plaintiff's
inability
to
sustain
full-time competitive employment is not because he has deliberately
exaggerated his "alleged symptoms."
The ALJ also noted that, at
so~e
that plaintiff's condition improved.
points, the record suggests
Here, however, the fact that
plaintiff showed some "improvement" was not so compelling as to
override the opinion of plaintiff's treating physicians.
While Dr.
Fauth certainly noted that plaintiff made "moderate" progress with
therapy, in the same report he stated that plaintiff was "beset by
frequent
intrusive
demotivated
him.
thoughts"
AR
at
that
258.
distracted,
More
preoccupied,
tellingly,
a
year
and
after
commenting on plaintiff's moderate progress, Dr. Fauth asserted that
plaintiff was still limited to a maximum of four to five hours of
work at a time.
AR
treating physician
at 326.
found
This revelation -
him unable
that plaintiff's
to maintain the
requisite
concentration and attendance to work more than five hours a day in
34
spite of his moderate progress - should undermine, not bolster, the
ALJ's conclusion.
See Rymer v. Colvin, 62 F. Supp. 3d 265, 271-72
(W.D.N.Y. 2014) (remandingwhereALJgave "slight weight" to treating
physician's opinion because claimant's condition improved while
being treated after an episode of decompensation) .
Similarly, the
ALJ's decision to credit the opinion of the consultative examiner
over plaintiff's treating physicians is, as best the Court can tell
from the record, an arbitrary one.
263, 267 (6th Cir. 2009)
See Hensley v. Astrue, 573 F.3d
("Nothing in the regulations indicates, or
even suggests, that the administrative judge may decline to give the
treating physician's medical opinion less than controlling weight
simply
because
conclusion.") .
another
Indeed,
physician
the
has
long-term
reached
treating
a
contrary
relationships
plaintiff had with Dr. Thomassen and Dr. Fauth serve as a far more
reliable foundation from which to comment on plaintiff's limitations
than
a
single
consultative
appointment.
While
conflicting
consultative opinions is just one of two or three reasons 3 the ALJ
3
To reiterate, the ALJ assigned Dr. Thomassen's opinion "little
probative weight" because "it is a finding reserved for the
Commissioner" and "it is not consistent with Dr. Thomassen's
evaluation notes, which do not refer to any positive mental findings
and the severe health limitations he asserts serve as the basis for
his very restrictive opinion" of plaintiff, AR at 19, and assigned
Dr. Fauth's opinion "little probative weight" because "it is a
finding reserved for the Commissioner," "it is not consistent with
Dr. Fauth' s therapy notes," and plaintiff's "mental focus and ability
to remain focused" improved through treatment. AR at 20.
35
provides for assigning plaintiff's treating physicians'
opinions
"little probative weight," a review of the ALJ's decision and the
record below makes clear that none of those reasons pass muster.
Accordingly,
reasons"
because
that
the
Commissioner
lias
not
provided
comprehensively· explain
the
weight
"good
assigned
to
plaintiff's treating physicians' opinions, remand is appropriate.
See Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004)
("We do not
hesitate to remand when the Commissioner has not provided "good
reasons" for the weight given to a treating physician's opinion and
we will continue remanding when we encounter opinions from ALJ' s that
do not comprehensively set forth reasons for the weight assigned to
a treating physician's opinion.") ; see also see also Schaal v. Apfel,
134 F.3d 496, 505 (2d Cir. 1998) ("Commissioner's failure to provide
'good reasons' for apparently affording no weight to the opinion of
plaintiff's treating physician constituted legal error.").
II. The ALJ' s RFC Determination: In a continuation of his first
argument, plaintiff next asserts that the ALJ's failure to adhere
to the Second Circuit's treating physician rule was more than mere
har:nless error;
plaintiff contends
that it was prejudicial and
necessarily tainted the ALJ's subsequent analysis, especially with
respect to her RFC determination.
The Court agrees.
See Docket # 10-1 at 28-29.
By rejecting the functional assessments
provided by plaintiff's treating physicians as to his ability to
36
maintain concentration and attendance in a work setting, the ALJ had
no opinion evidence to consider on that issue other than what was
provided by: (1) a consultative examiner who saw plaintiff once; and
(2) a state agency consultant who never saw plaintiff at all.
at 19-20.
AR
These sorts of opinions are not substitutes for the
thorough medical source statements provided by plaintiff's longtime
treating physicians.
(2d Cir. 2015).
See, e.g., Greek v. Colvin, 802 F.3d 370, 376
After all, the Social Security regulations require
ALJs to give treating source opinions controlling weight in the vast
majority of circumstances for that very reason.
404.1527(c)
See 20 C.F.R.
§
("Generally, we give more weight to opinions from your
treating sources, since these sources are likely to be the medical
professionals most able to provide a detailed, longitudinal picture
of your medical impairment(s) and may bring a unique perspective to
the medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual examinations,
such as consultative examinations or brief hospitalizations.") .
To
make matters worse, the VE here testified that an individual with
the functional
limitations proposed by Dr.
Thomassen could not
maintain competitive employment, see AR at 51, meaning that, had the
ALJ properly weighed and considered the medical source statement
provided by Dr. Thomassen, her conclusion would have been different.
Accordingly, the ALJ's violation of the treating physician was not
37
harmless and remand is required.
See Greek, 802 F.3d at 376.
Conclusion
For the reasons set forth above, the Commissioner's motion for
judgment on the pleadings (Docket # 13) is denied and plaintiff's
motion for judgment on the pleadings (Docket # 10) is granted only
insofar as remanding this matter back to the Commissioner for further
proceedings consistent with the findings made in this Order.
SO ORDERED.
Magistrate Judge
Dated: September 27, 2016
Rochester, New York
38
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?