Marrese v. Colvin
Filing
17
-CLERK TO FOLLOW UP-ORDER granting 9 Motion for Judgment on the Pleadings; denying 15 Motion for Judgment on the Pleadings. Signed by Hon. Jonathan W. Feldman on 09/16/2016. (JKT)
SEP 16 2016
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JENNY REBECCA MARRESE,
Plaintiff,
DECISION& ORDER
15-CV-6369
v.
CAROLYN W. COLVIN,
Defendant.
Preliminary Statement
Plaintiff
Jenny
Marrese
brings
this
action
pursuant
to
Title I I of the Social Security Act seeking review of the final
decision
of
the
Commissioner")
benefits.
Court
are
Commissioner
Social
Security
("the
denying her application for disability insurance
See Complaint
the parties'
(Docket # 1) .
competing motions
pleadings pursuant to Rule 12 (c)
See Docket ## 9,
Procedure.
of
15.
Presently before
for
judgment
on the
of the Federal Rules of Civil
On June 23,
2016,
a hearing
was held and argument was heard from counsel on the motions.
the conclusion of the hearing,
the
At
the Court made ah oral ruling on
the record, finding that the ALJ failed to adequately follow and
apply
the
"treating physician rule"
application.
to plaintiff's
disability
For the reasons stated on the record and below, it
is hereby ORDERED that the Commissioner's motion for judgment on
1
the pleadings (Docket # 15) is denied and plaintiff's motion for
judgment on the pleadings (Docket # 9) is granted in part.
Discussion
Plaintiff's primary challenge to the ALJ's decision is that
the ALJ did not give the proper weight to the medical findings
and opinions of plaintiff's treating medical professionals.
Plaintiff's Memorandum of Law (Docket # 9-1).
ALJ
than
improperly applied the
affording
weight,
the
three
ALJ
I agree that the
"treating physician rule."
treating
discounted
physician
them
for
See
opinions
the
Rather
controlling
opinions
of · a
consultative examiner and a non-treating, non-consulting doctor.
Because the ALJ failed to adequately explain why she discounted
the
opinions
professionals,
of
treating
the ALJ' s
doctors
in
favor
of
non-treating
decision was not based on substantial
evidence and remand for further proceedings is required.
The Treating Physician Rule:
The treating physician rule,
set forth in the Commissioner's own regulations,
"mandates that
the medical opinion of a claimant's treating physician is given
controlling weight if it is well supported by medical findings
and not
inconsistent
with other
substantial
record
Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000).
§
evidence."
See 20 C.F.R.
416.927(d) (2) ("Generally, we give more weight to opinions from
2
your
treating
sources.").
treating
physician
weight,"
she
must
Where,
opinion
provide
as
here,
less
something
good
an
than
reasons
for
ALJ
gives
a
"controlling
doing
so.
Our
circuit has consistently instructed that the failure to provide
good
reasons
for
not
crediting
the
opinion
treating physician is a ground for remand.
134 F.3d 496,
Barnhart,
503-05
335 F.3d 99,
"treating
physician"
physician
who
claimant.");
2 O04) (per
remanding
not
v.
do
of
we
in
the
Barnhart,
not
See Schaal v. Apfel,
to
primary
362
'good
the
views
of
the
treatment
of
the
F.3d
hesitate
provided
encounter
plaintiff's
2003) ("The SSA recognizes a
deference
treating physician [ 's]
when
a
1998); see also Green-Younger v.
(2d Cir.
engaged
Halloran
has
106
rule
curiam) ("We
Commissioner
given to a
has
(2d Cir.
of
28,
to
33
remand
reasons'
for
(2d
Cir.
when
the
the
weight
opinion and we will continue
opinions
from
ALJs
that
do
not
comprehensively set forth reasons for the weight assigned to a
treating physician's opinion.").
Our circuit has also been blunt on what an ALJ must do when
deciding not to give controlling weight to a treating physician:
To override the opinion of the treating physician, we
have held that the ALJ must explicitly consider, inter
alia: (1) the frequency, length, nature, and extent of
treatment;
(2)
the
amount
of
medical
evidence
supporting the opinion; (3) the consistency of the
opinion with the remaining medical evidence; and, (4)
whether
the
physician
is
a
specialist.
After
3
considering
the
above
factors,
the
ALJ
must
comprehensively set forth his reasons for the weight
assigned to a
treating physician's opinion.
The
failure to provide good reasons for not crediting the
opinion of a claimant's treating physician is a ground
for remand.
The ALJ is not permitted to. substitute
his own expertise or view of the medical proof for the
treating physician's opinion or for any competent
medical opinion.
Greek
v.
Colvin,
802
F.3d
370,
375
(2d
Cir.
2015) (emphasis
added) (internal citations, quotations and alterations omitted).
Plaintiff had three treating source opinions on the record
stating that she would not be able to participate in full time,
competitive
employment,
and
all
three
opinions
concluded
that
she would be absent from work more than four days per month due
to
symptoms.
Newman,
The
plaintiff's
her
long-time
plaintiff
over
forty
report.
Dr.
capacity
questionnaire
Newman
first
times
opinion
from
treating physician,
between
completed
on
came
a
May
2008
and
physical
25,
the
Dr.
Valerie
who had seen
date
of
her
residual · functional
2012,
indicating
that
plaintiff "can't function a normal life due to mental illness,"
was
time
"incapable of
competitive
bipolar,
low stress
employment
and anxiety,
jobs,"
on a
June
at
680-85.
12,
2012,
engage
sustained basis
due
in fullto
PTSD,
and would be likely absent from work more
than four days per month due
AR.
could not
Filling out
to her impairments or treatments.
the
same
form one month later on
mental-health
plaintiff's
4
treating
Nurse
Practitioner
(NP)
1
Lyn Sullivan opined that
plaintiff would be
absent from work at least four days per month and would not be
able to engage in full-time competitive employment.
One year
later,
NP
Sullivan's opinion remained the
opinion co-signed by Dr.
Michael Simson. 2
AR.
AR. at 692.
same
at 937.
in an
The ALJ
1
Ms. Sullivan is a nurse practitioner, not a medical doctor, and
she is thus not an' "acceptable medical source" as defined in 2 O
C. F. R. § 404.1513(a).
However, as SSR-06-03P notes, "[w]ith
the growth of managed health care in recent years and the
emphasis on containing medical costs, medical sources who are
not 'acceptable medical sources, ' " such as nurse practi ti one rs,
"have increasingly assumed a greater percentage of the treatment
and
evaluation
functions
previously
handled
primarily
by
physicians and psychologists."
SSR 06-03P, 2006 WL 2329939, at
*2 (SSA Aug. 9, 2006).
Opinions from these medical sources,
although "not technically deemed 'acceptable medical sources'
under, [the] rules, are important and should be evaluated on key
issues such as impairment severity and functional effects, along
with the other relevant evidence in the file." Id.
(emphasis
added) .
Indeed, SSR 06-03p provides that an opinion from, a
"non-medical
source"
who,
like NP Sullivan,
has
seen the
claimant
in
a
"professional
capacity
may,
under
certain
circumstances, properly be determined to outweigh the opinion
from a medical source, including a treating source," such as
when "the 'non-medical source' has seen the individual more
often and has greater knowledge of the individual's functioning
over time and if the 'non-medical source's' opinion has better
supporting evidence and is more consistent with the evidence as
a whole."
Id. at *6.
Here, NP Sullivan has seen plaintiff for
mental health treatment at least dating back to 2010, and thus
has unique knowledge of plaintiff's functioning regardless of
her credentialing.
2
Dr. Simson never examined plaintiff.
I read his co-signature
of NP Sullivan's opinion as providing it additional weight.
Cf.
Beckers
v.
Colvin,
38
F.
Supp.
3d
362
(W.D.N.Y.
2014)
(" [R] eports co-signed by a treating physician may be evaluated
as having been the treating physician's opinion.")
(citations
omitted);
Keith v. Astrue, 553 F. Supp. 2d 291, 301 (W.D.N.Y.
5
assigned the relevant portions of each of these three opinions
"little,"
"limited," and "less" weight,
did not support such limitations.
In
afforded
place
more
of
these
weight
three
to
and Dr.
the
opinions
review
and
the
of
Dr.
Based
only
on
a
apparently
Reddy,
V.
a
a consultative examiner who
AR .. at 21.
mental
Dr. Reddy performed a
residual
functional
record
review,
capacity
2012.
Dr.
AR. at 645-
Reddy
assessment of plaintiff's record on March 9,
62.
ALJ
examined or personally assessed
Yu-Ying Lin,
met the plaintiff only once.
psychiatric
AR. at 19, 22, 23.
opinions,
reviewing doctor who never met,
the plaintiff,
stating that the record
opined
that
plaintiff would be able to fulfill the requirements of unskilled
work
in
a
low-contact,
low-stress
environment.
Psychological consultative examiner Dr.
on March 6,
"regular
weight"
2012,
schedule."
at
to Dr. Lin's report,
642.
at
661.
Lin met with plaintiff
and opined that plaintiff
AR.
AR.
While
could maintain a
the
ALJ
gave
"some
it must be noted that in the same
report, Dr. Lin also opined that the results of her examination
"appear to be consistent with psychiatric problems and this may
significantly interfere with the claimant's ability to function
on a daily basis."
AR. at 643.
(emphasis added) .
2008) (directing that the ALJ evaluate treatment notes drafted
by a nurse practitioner and co-signed by a physician in
accordance with the treating physician rule on remand) .
6
Counsel
for
the
Commissioner
argued
in
her
brief
and
at
oral argument that it is the ALJ's duty to weigh the evidence in
making her decision,
medical
and that the ALJ is not bound by any single
or non-medical
(Docket # 15-1)
v.
Barnhart,
is
correct
evidence
opinion.
at 17;
and
a
general
resolve
588
(2d Cir.
rule.
It
conflicts.
conflicting evidence,
Commissioner's Memorandum
see also 20 C.F.R.
312 F.3d 578,
as
See
is
The
§
2002).
the
ALJ
reject portions of
The ALJ is not free,
findings
and opinions
of
however,
Of course,
ALJ's
may,
a
in
to weigh
reconciling
See Veino,
312 F.3d
to denigrate the medical
treating doctors and professionals
favor of one doctor who never met the plaintiff,
who met her only once,
job
this
medical opinion and
accept other portions of the same opinion.
at 588.
404.1520b(c); Veino
in
and one doctor
without a more comprehensive explanation
than the one given here.
Contrary to
record
is
serious
the
replete
ALJ and the
with
psychological
evidence
Commissioner's assertion,
suggesting
limitations
that
plaintiff
that would preclude her
full time employment in a competitive environment.
Newman,
notes
plaintiff's
plaintiff's
long-term
anxious
and
treating
fearful
7
physician,
thoughts,
Dr.
the
has
from
Valerie
routinely
depressed mood
and difficulty functioning.
609,
779,
785.
Dr.
3
See,
e.g.,
AR.
at
592,
Newman notes that plaintiff was
panic attacks daily."
AR.
at
599,
601,
"down to 2
Plaintiff reported to Dr.
779.
Newman and at the hearing before the ALJ that she stays in bed
most of
Dr.
the
time due
Newman's
socially
or
to depression.
assessment
function
limited
in
high
AR.
at
plaintiff's
stress
50,
52,
58,
ability
settings.
to
AR.
835.
engage
at
870.
Elsewhere on the record plaintiff discusses suicide attempts and
suicidal ideation, AR. at 47,
at 419,
714,
personal
testimony
getting
hygiene,
out
of
sure
AR.
[she]
to
the
ALJ
has
bed,
get[s]
reveals
caring
and performing minor
She said that she sees her
make[s]
and difficulty sleeping.
757, 886.
Plaintiff's
difficulty
420,
a
for
tasks
woman who
her
of
"psychiatrist once a
daily
week,
out of bed on Wednesdays."
3
family
and
living.
so
[she]
AR. at 50.
Counsel for the Commissioner seemed to set forth a brief
argument that Dr. Newman's opinion regarding plaintiff's mental
health determinations should be afforded less weight because she
was
not
a
mental
health
specialist.
See
Commissioner's
Memorandum (Docket # 15-1) at 23-24.
At oral argument, counsel
acknowledged that under the regulations and the law a general
physician may opine on a claimant's physical as well as mental
health..
See Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir.
1987) ("While the medical profession has standards which purport
to restrict the practice of psychiatry to. physicians who have
completed residency training programs in psychiatry, it is well
established that primary care physicians (those in family or
general practice) identify and treat the majority of Americans'
psychiatric disorders.").
8
Otherwise, she stays in bed three or four days a week.
Id.
She
goes for three days without a shower because she cannot get up
to get in the shower.
AR. at 52.
She opens her bedroom door so
that her daughter can come in and talk to her.
Id.
small panic attacks three or four times a week,
She has
and during the
relevant period she was hospitalized for a week due to a panic
attack.
AR. at 58.
In
sum,
the
record
here
pays
tribute
to
a
woman
with
significant mental health issues that would severely impact her
ability to sustain full time,
provided
three
separate
competitive employment.
opinions
from
treating
She has
professionals
documenting her psychiatric limitations and confirming that due
to her mental health diagnosis she would be absent from work at
least
four
days
a
reasons
why
than
the
doctors.
The ALJ
findings
these
weight
month.
and opinions
opinions
of
failed
to articulate good
are
non-treating
entitled to
and
less
non-examining
Accordingly, remand is required.
Conclusion
For the reasons stated on the record and discussed above,
this Court finds
that the ALJ did not appropriately apply the
treating physician
opinions of record.
rule
when
assigning
weight
to
the medical
Therefore, plaintiff's motion for judgment
9
on the pleadings
motion
for
(Docket # 9)
judgment
on the
is granted, and the Commissioner's
pleadings
(Docket
#
15)
is denied
only insofar as this matter is remanded back to the Commissioner
for
further
proceedings
in
accordance
with
this
Decision and
Order and the Court's Oral decision on the record.
SO ORDERED.
W. FELDMAN
Magistrate Judge
Dated:
September 16, 2016
Rochester, New York
10
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