Wilson v. Colvin
Filing
14
-CLERK TO FOLLOW UP-DECISION ORDER granting 10 Plaintiff's Motion for Judgment on the Pleadings; denying 12 Defendant's Motion for Judgment on the Pleadings. The Commissioner's decision is reversed, and the matter is solely remanded for calculation and payment of benefits. The Clerk of the Court is directed to close this case. Signed by Hon. Michael A. Telesca on 10/3/16. (AFB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KEVIN RENARD WILSON,
No. 6:15-cv-06377(MAT)
DECISION AND ORDER
Plaintiff,
-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
INTRODUCTION
Represented by counsel, Kevin Renard Wilson (“Plaintiff”)
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
his 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).
PROCEDURAL STATUS
On May 18, 2012, Plaintiff protectively filed applications for
DIB and SSI, alleging disability beginning on June 9, 2011. After
the applications were denied on July 25, 2012, Plaintiff requested
a
hearing,
which
was
held
on
January
28,
2014,
before
Administrative Law Judge John P. Costello (“the ALJ”). Plaintiff
appeared
with
his
attorney
and
-1-
testified,
as
did
impartial
vocational expert Peter Manzi (“the VE”). T.36-75.1 The ALJ issued
an unfavorable decision on March 14, 2014. T.10-22. On April 27,
2015, the Appeals Council denied Plaintiff’s request for review,
making
the
ALJ’s
decision
the
Commissioner’s
final
decision.
Plaintiff timely commenced this action.
The parties have cross-moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. In
connection with their motions, the parties have summarized the
administrative transcript in their briefs, and the Court adopts and
incorporates these factual summaries by reference. The record
evidence will be discussed in further detail below, as necessary to
the resolution of the parties’ contentions.
For the reasons discussed below, the Commissioner’s decision
is reversed, and the matter is remanded for the calculation and
payment of benefits.
THE ALJ’S DECISION
At step one of the five-step sequential evaluation, the ALJ
found that Plaintiff meets the insured status requirements of the
Act through December 31, 2014, and had not engaged in substantial
gainful activity since June 9, 2011. Plaintiff had worked from
February 12, 2012, to April 13, 2012, at St. Mary’s Hospital as a
care assistant. He did not miss any work but reportedly had chest
1
Citations to “T.” refer to pages from the certified transcript of the
administrative record, submitted by the Commissioner in connection with her
answer to the complaint.
-2-
pain and back pain in April, which caused him to see emergency room
attention. He was unable to return to work due to back pain.
At step two, the ALJ found that Plaintiff has the following
“severe” impairments: spinal stenosis, neck and low back sprain,
partial meniscectomy, “tight knee”, adjustment disorder, and posttraumatic stress disorder (“PTSD”).
At the third step, the ALJ determined that none of Plaintiff’s
impairments,
considered
singly
or
in
combination,
meets
or
medically equals a listed impairment. The ALJ gave particular
consideration to Listings 1.02 (Dysfunction of a major joint), 1.04
(Disorders of the spine), and 12.04 (Affective disorders). In the
domains of functioning pertinent to mental impairments, the ALJ
found that Plaintiff has a mild restriction in activities of daily
living;
mild
difficulties
in
social
functioning;
moderate
difficulties in maintaining concentration, persistence or pace; and
had not experienced any episodes of decompensation.
The ALJ proceeded to assess Plaintiff as having the residual
functional capacity (“RFC”) to perform light work, except that he
is
able
to
“occasionally”
climb
stairs,
ladders,
ropes,
and
scaffolds; “occasionally” balance, kneel, crouch, and crawl; and is
limited to “simple tasks.”
At step four, the ALJ stated that Plaintiff was a “younger
individual” on the alleged disability onset date with at least a
high school education. He did not have any past relevant work.
-3-
At the fifth step, the ALJ relied on the VE’s testimony to
find that, given Plaintiff’s age, education, work experience, and
RFC, there are jobs that exist in significant numbers in the
national economy that he can perform, including such representative
occupations as laundry sorter (light exertion, SVP of 2) and
photocopy operator (light exertion, SVP of 2). Accordingly, the ALJ
entered a finding of not disabled.
SCOPE OF REVIEW
When considering a claimant’s challenge to the Commissioner’s
decision denying benefits under the Act, a district court must
accept the Commissioner’s findings of fact, provided that such
findings are supported by “substantial evidence” in the record.
See 42 U.S.C. § 405(g) (the Commissioner’s findings “as to any
fact, if supported by substantial evidence, shall be conclusive”).
The reviewing court nevertheless must scrutinize the whole record
and examine evidence that supports or detracts from both sides.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation
omitted). “The deferential standard of review for substantial
evidence does not apply to the Commissioner’s conclusions of law.”
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley
v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)). “Failure to apply
the correct legal standards is grounds for reversal.” Townley, 748
F.2d at 112; see also, e.g., Johnson v. Bowen, 817 F.2d 983, 985
(2d Cir. 1987) (“The scope of review of a disability determination
-4-
. . . involves two levels of inquiry. . . . We must first decide
whether [the Commissioner] applied the correct legal principles in
making
the
determination.
We
must
then
decide
whether
the
determination is supported by ‘substantial evidence.’”) (internal
citations omitted; quotation omitted).
DISCUSSION
I.
Errors in Weighing Opinions by Plaintiff’s Treating Physicians
Plaintiff argues that the ALJ erroneously discounted the two
opinions offered by primary care physician Dr. Lisa Harris, and the
opinion provided by treating psychologist Dr. Lauren DeCaporaleRyan. See T.18-19.
“[T]he treating physician rule generally requires deference to
the medical opinion of a claimant’s treating physician[.]” Halloran
v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam) (internal
and other citations omitted). A corollary to the treating physician
rule is the so-called “good reasons rule,” which is based on the
regulations specifying that “the Commissioner ‘will always give
good reasons’” for the weight given to a treating source opinion.
Halloran, 362 F.3d at 32 (quoting 20 C.F.R. § 404.1527(d)(2);
citing 20 C.F.R. § 416.927(d)(2); citation 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)). The “good reasons”
-5-
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). Accordingly, 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 on the
record[,]’” Blakely, 581 F.3d at 407 (quotation omitted; emphasis
in original).
Where an ALJ elects not to accord controlling weight to a
treating physician’s opinion, he “must consider various ‘factors’
to determine how much weight to give to the opinion[,]” Halloran,
362 F.3d at 32 (quoting 20 C.F.R. § 404.1527(d)(2)), such as “(i)
the frequency of examination and the length, nature and extent of
the treatment relationship; (ii) the evidence in support of the
treating physician’s opinion; (iii) the consistency of the opinion
with the record as a whole; (iv) whether the opinion is from a
specialist;
and (v) other factors brought to the Social Security
Administration’s attention that tend to support or contradict the
opinion.’” Id. (quoting 20 C.F.R. § 404.1527(d)(2)).
The
Court
turns
first
to
the
mental
RFC
questionnaire
completed by treating psychologist Dr. DeCaporale-Ryan on December
31, 2013. See T.563-65. Dr. DeCaporale-Ryan indicated she had
treated Plaintiff
once
per
week
-6-
since
October
30,
2013.
His
diagnoses were PTSD and adjustment disorder with depressed mood,
with a rule-out diagnosis of panic disorder. Dr. DeCaporale-Ryan
opined that due to his impairments, Plaintiff was precluded from
carrying out detailed instructions and traveling to unfamiliar
places or using public transportation, and was unable to do the
following activities for more than 20 percent of an 8-hour workday:
carry out detailed instructions, maintain regular attendance, work
in coordination with or proximity to others without being unduly
distracted, complete a normal workweek without interruptions from
psychologically based symptom, and perform at a consistent pace.
T.564. Dr. DeCaporale-Ryan opined that, from 11 percent to 20
percent of an 8-hour workday, Plaintiff would be precluded from
carrying out detailed instructions, interacting appropriately with
the general public, and responding appropriately to changes in a
routine work setting. T.564. She stated that Plaintiff’s pain
significantly interfered with his ability to maintain activity,
engage
in
social
response/distress
interaction,
during
and
interaction
monitor
with
his
emotional
others.
Dr.
DeCaporale-Ryan opined that Plaintiff would be off task due to his
physical and mental limitations for 30 percent of an 8-hour day,
and would likely miss more than 4 days per month of work. T.565.
Dr. DeCaporale-Ryan noted that Plaintiff wished to return to work,
but “pain and subsequent mood lability hinder that at this time.”
Id.
-7-
The Second Circuit has “indicated that when a medical opinion
stands
uncontradicted,
non-physicians,
‘[a]
however
circumstantial
thorough
or
critique
responsible,
must
by
be
overwhelmingly compelling in order to overcome’ it.” Giddings v.
Astrue, 333 F. App’x 649, 652 (2d Cir. 2009) (unpublished opn.)
(quoting Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008)
(internal quotation marks omitted; brackets in original; other
citations omitted).
As Plaintiff points out, the ALJ did not
require him to undergo a consultative psychiatric examination.
Thus, Dr. DeCaporale-Ryan, provided the sole medical expert opinion
in the record regarding the nature and extent of the limitations
caused by Plaintiff’s mental impairments.
The
ALJ,
however,
accorded
Dr.
DeCaporale-Ryan’s
uncontradicted mental RFC assessment only “little weight,” T.19,
because she had treated Plaintiff “for a few sessions. . . and
there [was] little interaction for [the doctor] to rely on when
completing
the
report.”
T.19.
The
ALJ’s
characterization
of
Plaintiff’s treating relationship with Dr. DeCaporale-Ryan was not
accurate
and
does
not
correctly
apply
the
law.
Under
the
Regulations, a treating source is afforded greater weight once he
has examined the claimant “‘a number of times and long enough to
have obtained a longitudinal picture of [the alleged] impairment.’”
20 C.F.R. §§ 404.1527(c)(2)(i), 416.927(c)(2)(i). “Importantly,
there is no arbitrary, minimum period of treatment by a physician
-8-
before this standard is considered met.”
Fratello v. Colvin, No.
13-CV-4339 VSB JLC, 2014 WL 4207590, at *11 (S.D.N.Y. Aug. 20,
2014), rep. and rec. adopted sub nom. Fratello v. Comm’r of Soc.
Sec., No. 13-CV-4339 VSB JLC, 2014 WL 5091949 (S.D.N.Y. Oct. 9,
2014) (emphasis supplied; citing Schisler v. Bowen, 851 F.2d 43, 45
(2d Cir. 1988) (“SSA adjudicators [should] focus on the nature of
the ongoing
physician-treatment
relationship,
rather
than its
length.”); Simmons v. U.S. R.R. Ret. Bd., 982 F.2d 49, 55 (2d Cir.
1992)
(“The
nature—not
the
length—of
the
[physician-patient]
relationship is controlling.”) (emphasis in original); Vargas v.
Sullivan, 898 F.2d 293, 294 (2d Cir. 1990) (applying treating
physician rule where doctor saw patient for only 3 months)). While
Plaintiff did not begin treatment until the end of 2013 with Dr.
DeCaporale-Ryan, he attended 7 in-depth psychotherapy sessions with
her during October, November, and December of that year, the
substance of which are set forth in her detailed treatment notes.
See T.567-88. By the time she issued her mental RFC assessment, Dr.
DeCaporale-Ryan had a sufficient therapeutic relationship with
Plaintiff
to
warrant
giving
her
opinion
significant,
if
not
controlling, weight. See Fratello, No. 13-CV-4339 VSB JLC, 2014 WL
4207590, at *11 (finding that doctor was a “treating physician”
where, “[b]y the time of the ALJ hearing, [Dr.] Quittman had seen
Fratello ten times between March and October 2011. While the record
contains relatively few pages of notes from [Dr.] Quittman—at least
-9-
in comparison with those from Summit or Good Samaritan—he evidently
had enough of a treatment relationship with, and professional
opinion of, Fratello to complete a four-page mental health function
questionnaire”).
The
ALJ
next
determined
that
he
could
not
credit
two
limitations placed on Plaintiff by Dr. DeCaporale-Ryan regarding
the number of days of work he would miss, and the percentage of
time he would be off-task during the workday because they were
allegedly based on “speculation.” T.19. The ALJ did not explain why
he believed these limitations were based on “speculation,” and his
failure to link this vague assertion to any evidence in the record
precludes meaningful appellate review. The Court finds that the
allegedly
professional
“speculative”
opinion,
nature
based
on
of
her
Dr.
DeCaporale-Ryan’s
established
treating
relationship and face-to-face interactions with Plaintiff, is not
a “good reason”.
The ALJ then dismissed, without “good reasons,” the balance of
Dr. DeCaporale-Ryan’s opinion, which contained other significant
limitations
regarding
Plaintiff’s
work-related
functioning,
including his ability to maintain regular attendance, concentrate
for 2-hour segments of time, complete a normal workday or workweek
without interruptions from psychologically-based symptoms, and work
at a consistent pace without an unreasonable number and length of
rest periods. According to the ALJ, Plaintiff enjoyed “mentally
-10-
stimulating puzzles,” which established that he could not have
“significantly
impaired
concentration
or
persistence,”
T.20,
contrary to Dr. DeCaporale-Ryan’s opinion. While Plaintiff did
testify that he used Sudoku or word puzzles to try to get his mind
off his pain, T.59, he qualified this by stating he could only
focus on doing a puzzle for about 10 to 15 minutes before he became
frustrated by his pain. Id.; see also T.60 (“If I’m doing a book,
I can finish one puzzle and go on to the next puzzle but my body
starts hurting [and] I get so frustrated that I just put the book
down because I want to be able to finish the puzzle and the pain
over the puzzle, the pain always wins.”). A reason, such as this,
that relies on a mischaracterization of the record cannot be a
“good reason.” See Lowe v. Colvin, No. 6:15-CV-6077(MAT), 2016 WL
624922, at *5 (W.D.N.Y. Feb. 17, 2016) (In rejecting a treating
source’s opinion, “the ALJ mischaracterized the substance of [the
doctor]’s
first
Questionnaire,
which
was
improper.”)
(citing
Brennan v. Colvin, No. 13-CV-6338 AJN RLE, 2015 WL 1402204, at *16
(S.D.N.Y.
Mar.
25,
2015)
(“By
unreasonably
minimizing
Dr.
Barandaran’s opinion that corroborated Dr. Fauser’s opinion, the
ALJ mischaracterized evidence in the record. In evaluating the
record, the ALJ may not ignore or mischaracterize evidence of a
person’s alleged disability.”); Ericksson v. Comm’r of Soc. Sec.,
557 F.3d 79, 82–84 (2d Cir. 2009) (“[T]he record demonstrates that
the first ALJ improperly disregarded or mischaracterized evidence
-11-
of Ericksson’s continuing disability, and that the second ALJ
awarded Ericksson benefits based, in substantial part, on a proper
assessment of this very evidence.”)). This error was significant
since the
VE
testified
that
the limitations
assigned
by
Dr.
DeCaporale-Ryan (e.g., being off-task or unable to perform required
duties for 20 percent of an 8-hour day) were “too much” and would
preclude competitive gainful employment. T.74.
The Court turns next to the ALJ’s evaluation of the opinions
provided by Plaintiff’s primary care physician, Dr. Harris. The
administrative record contains treatment notes from Dr. Harris
summarizing approximately 24 appointments with Plaintiff through
October 2013.
Dr. Harris submitted her first medical source statement on
March 12, 2013, see T.358-62, indicating that she had treated
Plaintiff for 9 years. Plaintiff had been in two motor vehicle
accidents in 2010 and 2011, in which he sustained a neck sprain,
lumbar sprain, thoracic sprain, and shoulder sprain. Over the
course of his treatment with Dr. Harris, he had attempted physical
therapy
but
consulted
was
medications
with
discharged
a
neurologist;
without
(Mobic/meloxicam,
due
to
lack
had
been
long-term
Indocin,
benefit,
Relafen,
of
improvement;
prescribed
including
diclofenac),
had
numerous
NSAIDs
narcotics
(Fentanyl patches, Percocet, Valium, OxyContin), muscle relaxants
(Flexural), neuropathic pain medications (Lyrica, gabapentin), and
-12-
others (Medrol DosePak, Cymbalta, Lidoderm patches); and had tried
heating pads, a TENS unit, and chiropractic treatment. Plaintiff’s
chronic back pain was refractory to the many interventions tried.
Dr. Harris diagnosed him with chronic pain syndrome, and opined
that
his
emotional
prognosis
factors
was
poor.
affected
Dr.
Harris
Plaintiff’s
noted
that
physical
various
condition,
including depression. She stated that his pain would constantly be
severe enough to interfere with his ability to maintain attention
and concentration. Dr. Harris opined that Plaintiff could not walk
any city blocks without pain, could sit for 15 minutes at one time,
and could stand for only 5 minutes at one time. He could only sit,
stand and walk for less than 2 hours each in an 8-hour day. He
needed to walk around during an 8-hour day, but because walking
exacerbated his pain, he also needed the opportunity to be supine.
T.360. If doing prolonged sitting, he needed to elevate his legs 15
degrees. He could never lift even less than 10 pounds; and could
never twist, stoop, bend, crouch, squat, or climb ladders or
stairs. He was limited in overhead reaching, and could only reach
with his arms 40 percent of the time. Dr. Harris noted that
Plaintiff would have good and bad days, and that he would be absent
more than 4 days per month due to his impairments or treatment.
Dr. Harris submitted a second medical source statement on May
17, 2013, see T.451-55, again stating that Plaintiff suffered from
chronic pain syndrome, and had a poor prognosis. She again opined
-13-
that pain would constantly interfere with his ability to maintain
attention and concentration. Dr. Harris remarked that Plaintiff was
eager to work, and “attempted” to do household activities. He could
sit only 15 minutes at one time, and stand for only 10 minutes at
one time. He could sit, stand, and walk for less than 2 each hours
in an 8-hour day. Dr. Harris opined Plaintiff would need periods of
walking in an 8-hour day, every 10 minutes for 10 minutes at a
time. He would need to take unscheduled breaks every hour for 10 to
15 minutes. Again, Dr. Harris stated that Plaintiff could never
lift even less than 10 pounds. His impairments would cause good
days and bad days, and he would miss more than 4 days per month of
work as a result.
The
ALJ
elected
to
give
“little
weight”
to
Dr.
Harris’
opinions because they were allegedly “inconsistent” with “the
record,” “belied” by Plaintiff’s activities of daily living, and
not supported by objective evidence. T.18. Plaintiff argues that
these do not constitute “good reasons,” and that the ALJ committed
a step two error by ignoring Dr. Harris’ diagnosis of chronic pain
syndrome. The Court agrees that the ALJ’s omission of chronic pain
syndrome at step two was erroneous. See, e.g., Myers v. Colvin, 954
F. Supp. 2d 1163, 1173 (W.D. Wash. 2013) (“The ALJ’s finding with
respect to chronic pain syndrome/disorder appears to lack both
medical and legal support. The DSM–IV–TR recognizes three subtypes
of pain disorder: pain disorder associated with psychological
-14-
factors (307.80); pain disorder associated with both psychological
factors and a general medical condition (307.89); and pain disorder
associated with a general medical condition—only the latter of
which is not considered a mental disorder and is used to facilitate
differential
diagnosis.
DSM–IV–TR
499
(4th
ed.
2000).
Thus,
contrary to the ALJ’s assertion that the DSM–IV–TR establishes that
‘Chronic Pain Syndrome is neither a mental disease . . . nor a
physical disease,’ the DSM–IV–TR shows that two subtypes of pain
disorder are recognized mental disorders.”) (internal citation to
record omitted).2 Dr. Harris’ diagnosis of chronic pain syndrome
was corroborated by the treatment notes from behavioral pain
psychologist behavioral pain psychologist Dr. Michael J. Kuttner,
who also diagnosed Plaintiff with chronic pain syndrome. Dr. Harris
stated that Plaintiff “continues with high levels of pain that are
not consistent with the findings or the MRI. The high level of pain
exceeds what would be expected. He has symptoms that are more
consistent with a chronic pain syndrome from the trauma of the
accident.” T.471; see also T.479 (Dr. Harris stated that Plaintiff
“has developed chronic pain due to multilevel stenosis . . . .”).
2
The U.S. Department of Veterans Affairs recognizes “chronic pain syndrome”
a s
d i s t i n c t
f r o m
c h r o n i c
p a i n .
S e e
http://www.va.gov/PAINMANAGEMENT/Chronic_Pain_Primer.asp (“In deciding how to
treat chronic pain, it is important to distinguish between CHRONIC PAIN and a
CHRONIC PAIN SYNDROME. A chronic pain syndrome differs from chronic pain in that
people with a chronic pain syndrome, over time, develop a number of related life
problems beyond the sensation of pain itself. . . . [Individuals] who do develop
chronic pain syndromes tend to experience increasing physical, emotional, and
social deterioration over time. . . .”) (last accessed Sept. 29, 2016).
-15-
Similarly,
Dr.
Kuttner
indicated
that
Plaintiff
fell
into
a
dysfunctional profile of chronic pain patients, making him highly
sensitive to his pain, beyond what one might expect based on his
anatomic or physiologic presentation. T.438. Dr. Kuttner observed
that Plaintiff was “so significantly more depressed [when compared
to
chronic
pain
patients
in
rehabilitative attempts.” Id.
general]
as
to
interfere
with
Dr. Kuttner also identified that
Plaintiff’s use of distraction (e.g., doing puzzles) was “generally
an unsuccessful strategy for chronic pain.” T.438. Dr. Kuttner
explained that Plaintiff was “having a difficult time in managing
his
MVA-related
injury
loss
of
functional
capacity
and
endurance[,]” id., and was responding to the loss of functional
capacity, enduring pain, and suffering with an increase in anxiety
and depression, T.439, which in turn was increasing pain levels and
decreasing tolerance of pain, thereby reducing perseverance when he
attempted activities that might increase pain (e.g., rehabilitative
efforts). Id.
As Plaintiff argues, he was diagnosed with chronic
pain syndrome because he was experiencing chronic, intractable pain
that was inconsistent with the objective medical findings, such as
the MRIs. However, the Court need not determine whether the ALJ’s
step-two error was harmful, standing alone, because the effects of
it were subsumed by the ALJ’s other errors in weighing Dr. Harris’
RFC assessments, as discussed further below.
The ALJ’s assertion that Dr. Harris’ opinions were “wholly
-16-
inconsistent with the entire record,” T.18, is simply not accurate
given that Plaintiff reported pain to every treatment provider
during the relevant period. Dr. Harris consistently identified
Plaintiff as being in distress and experiencing pain of varying
levels of severity. During a number of visits, she described him as
“nearly immobile” due to lower back pain. T.463, 465, 469, 467,
471. Dr. Harris noted on multiple occasions that he was moving
slowly or sitting uncomfortably due to pain. T.481, 483, 487, 491,
495, 497, 500, 504, 505, 510, 512. Other medical providers made
similar observations. Primary care physician Dr. Holub stated that
Plaintiff’s back pain was “poorly controlled.” T.547. Neurologist
Dr. Mary Dombovy observed that straight-leg raise testing was
positive
bilaterally,
and
Plaintiff
moved
“very
slowly.”
On
multiple occasions, Plaintiff had reduced range of motion, reduced
strength, tenderness, and spasms in his back. T.457, 369, 461, 314,
314, 467, 471, 288, 306, 344, 334, 497, 512. The Court is unable to
discern what
evidence (apart from the “modest” MRI findings)
the
ALJ found to be contradictory to Dr. Harris’ opinions, because the
ALJ concluded without explanation that Dr. Harris’ opinions were
“wholly inconsistent with the entire record.” T.18. This does not
constitute a “good reason” to reject a treating source opinion.
See, e.g., Marthe v. Colvin, No. 6:15-CV-06436(MAT), 2016 WL
3514126, at *7 (W.D.N.Y. June 28, 2016) (“The ALJ did not point to
any other evidence to support his contention that Dr. Drinkwater’s
-17-
opinion was ‘somewhat’ inconsistent with his treatment notes.
failing
to
identify
the
alleged
inconsistencies
between
By
Dr.
Drinkwater’s RFC questionnaire and the 7 years of treatment notes,
the
ALJ
has
failed
to
provide
any
basis
for
rejecting
Dr.
Drinkwater’s opinion, much less the requisite ‘good reasons’ based
on substantial evidence.”) (citing Ely v. Colvin, No. 14-CV-6641P,
2016 WL 315980, at *4 (W.D.N.Y. Jan. 27, 2016) (“The ALJ does not
identify anything
in
the
record,
other than the
GAF
scores,
discussed below, that is inconsistent with [the treating doctor]’s
opinions. Without identifying the alleged inconsistencies in the
record, the ALJ has failed to provide any basis for rejecting
[those] opinions.”); other citation omitted).
Finally,
the
ALJ
asserted
that
Dr.
Harris’
opinion
was
“belied” by Plaintiff’s activities of daily living. Again, this
does not represent a “good reason” to reject Dr. Harris’ opinion.
Courts in this Circuit repeatedly have recognized that “‘[a]
claimant's participation in the activities of daily living will not
rebut his or her subjective statements of pain or impairment unless
there is proof that the claimant engaged in those activities for
sustained periods of time comparable to those required to hold a
sedentary job.’” Harris v. Colvin, 149 F. Supp.3d 435, 445–46
(W.D.N.Y. 2016) (quoting Polidoro v. Apfel, No. 98 CIV.2071(RPP),
1999 WL 203350, at *8 (S.D.N.Y. 1999) (citing Carroll v. Sec’y of
Health and Human Servs., 705 F.2d 638, 643 (2d Cir. 1983) (finding
-18-
that Secretary failed to sustain burden of showing that claimant
could perform sedentary work on the basis of (1) testimony that he
sometimes reads, watches television, listens to the radio, rides
buses and subways, and (2) ALJ’s observation that claimant “‘sat
still for the duration of the hearing and was in no evident pain or
distress’”; “[t]here was no proof that [claimant] engaged in any of
these activities for sustained periods comparable to those required
to hold a sedentary job”)).
The ALJ asserted that certain mundane activities, such as helping
with childcare and housework, undermined Dr. Harris’ opinion.
However, Dr. Harris was aware that Plaintiff attempted to do
housework, as she stated that he was “eager to work and attempt to
do household activities.” T.452. Thus, a reasonable reading of Dr.
Harris’ opinion is that she took these activities into account and
still opined that he could not do the sitting, standing, and
walking required by the definition of sedentary work.
II.
Failure to Weigh a Treating Physician’s Opinion
Plaintiff points out that the ALJ did not explicitly mention
the opinion offered by treating source Dr. David
Holub. See
T.593-96. Plaintiff argues that the ALJ therefore erroneously
failed to weigh it, in violation of the Commissioner’s regulations
that require the administrative decisionmaker to “evaluate every
medical
opinion
[he]
receive[s].”
20
C.F.R.
§§
404.1527(c),
416.927(c). In determining a claimant’s RFC, the ALJ must consider
-19-
all
relevant
medical
and
other
evidence.
20
C.F.R.
§§
404.1545(a)(3), 416.945(a)(3).
Plaintiff testified he had begun treating with Dr. Holub after
his long-time primary care physician, Dr. Harris, left the area.
T.61. Plaintiff established care with Dr. Holub in September 2013,
and treated with him four times. T.544, 549, 547, 551. Dr. Holub
opined that Plaintiff could not stand at all for any length of
time, and could only stand and walk for less than 2 hours in an 8hour day. T.593. Rather than attempting to reconcile Dr. Holub’s
opinion, which conflicted with his assessment that Plaintiff can
perform light work (which requires 6 hours of standing and walking
in a workday), the ALJ apparently simply ignored it. Additionally,
Dr. Holub opined that Plaintiff could sit, stand and walk for 6
hours out of an 8-hour day. T.593. When such a limitation was
presented to the VE, he testified that if an individual were
limited to sitting, standing, and walking for a total of 6 hours
out of an 8-hour day, it would preclude gainful employment. T.74.
Therefore, the ALJ’s failure to evaluate Dr. Holub’s opinion was
not harmless because, if the opinion were credited, it would have
directed a finding of disability. Furthermore, Dr. Holub likely
would have qualified as a treating physician, and his opinion would
have been entitled to treating-physician deference. See, e.g.,
Fratello, 2014 WL 4207590, at *11 (citing Schisler, 851 F.2d at 45;
Vargas, 898 F.2d at 294 (applying treating physician rule where
-20-
doctor saw patient for only 3 months)).
III. Erroneous Credibility Assessment
Plaintiff also that the ALJ did not give proper consideration
to his allegations of pain and side effects, and erroneously found
him not credible.
In assessing a claimant’s subjective complaints of pain, the
ALJ first must determine whether the claimant suffers from a
“medically
determinable
impairment
that
could
reasonably
be
expected to produce” the pain alleged. 20 C.F.R. §§ 404.1529(b),
416.929(b). “Second, the ALJ must evaluate the intensity and
persistence of those symptoms considering all of the available
evidence; to the extent that the claimant’s pain contentions are
not substantiated by the objective medical evidence, the ALJ must
engage in a credibility inquiry.” Meadors v. Astrue, 370 F. App’x
179, 183-84 (2d Cir. 2010) (unpublished opn.) (citing 20 C.F.R. §
404.1529(c)(3)(i)–(vii); Taylor v. Barnhart, 83 F. App’x 347,
350–51 (2d Cir. 2003); footnote omitted). When finding a claimant
not entirely
credible,
the
ALJ
must
include
in
his
decision
“specific reasons for the finding on credibility, supported by the
evidence in the case record . . . .” ; see also ASSESSING THE
CREDIBILITY OF AN INDIVIDUAL’S STATEMENTS, Social Security Ruling
(“SSR”) 96–7p, 1996 WL 374186, at *4 (S.S.A. July 2, 1996).
Here, the ALJ found that although Plaintiff had medically
determinable impairments that reasonably could be expected to
-21-
produce the alleged symptoms, and “[a]lthough [he] continues to
experience some limitations from his impairments, there is no
credible evidence to show that they prevent him from performing
basic work activities.”
As discussed further below, the ALJ’s
analysis is marred by numerous, substantial factual errors, and
unsupported reasoning.
First,
the
ALJ
asserted,
Plaintiff
“has
described
daily
activities, which are not limited to the extent one would expect”
since he, on one occasion, told the “consultative internist that he
is able to cook, clean, do laundry, go shopping, perform personal
hygiene, travel to appointments, and interact with his girlfriend
and three-year-old daughter.” T.20. Courts in this Circuit have
definitively and uniformly rejected the discounting of a claimant’s
credibility
based
on
the
ability
to
perform
such
mundane
activities. See, e.g., Doyle v. Apfel, 105 F. Supp.2d 115, 120
(E.D.N.Y. 2000) (“The activities of daily living that he relied
upon, such as reading, watching TV, doing light household work,
going out to dinner periodically, and taking occasional trips, are
not indicative of an ability to satisfactorily perform a job, much
less plaintiff’s previous job as a personnel manager.”) (citing
Balsamo v. Chater, 142 F.3d 75, 81–82 (2d Cir. 1998); Carroll v.
Sec’y of Health and Human Servs., 705 F.2d 638, 643 (2d Cir.
1983)); see also, e.g., Moss v. Colvin, No. 1:13–CV–731–GHW–MHD,
2014 WL 4631884, at *33 (S.D.N.Y. Sept. 16, 2014) (“There are
-22-
critical differences between activities of daily living (which one
can do at his own pace when he is able) and keeping a full time
job.”); other citations omitted); Scannapieco v. Chater, No. CIV.
A. 94-1891, 1995 WL 613096, at *4 (E.D. Pa. Oct. 18, 1995)
(claimant testified that she attended AA meetings twice a week and
was able to take care of her personal hygiene; ALJ concluded that
“[b]oth of these activities indicate[d] a residual functional
capacity for at least sedentary work”; district court found that
“[n]either [claimant]’s attendance at AA meetings nor her ability
to
maintain
her
personal
hygiene
constitute[d]
‘substantial
evidence’ of residual capacity to perform specific jobs existing in
the national or regional economies”) (citation omitted).
The ALJ also stated that Plaintiff was “apparently able to
care for young children [sic] at home, which can be quite demanding
both
physically
and
emotionally,
without
any
particular
assistance.” T.20. This assertion misstates the record insofar as
Plaintiff only has one child, and there is no evidence in the
record that he ever cared for multiple children. Furthermore, it
“fails to recognize differences between being a parent, caring for
one’s
children
employment
in
at
the
home,
and
competitive
performing
workplace
substantial
on
a
gainful
‘regular
and
continuing basis,’ i.e., ‘8 hours a day, for 5 days a week, or an
equivalent work schedule[.]’” Harris v. Colvin, 149 F. Supp. 3d
435, 444 (W.D.N.Y. 2016) (citing Gentle v. Barnhart, 430 F.3d 865,
-23-
868 (7th Cir. 2005) (“A more important point is that taking care of
an infant, although demanding, has a degree of flexibility that
work in the workplace does not.”); other citations omitted).
The ALJ also asserted that Plaintiff was not credible because
he had “not undergone any formal physical therapy or other pain
relieving treatment.” T.20. This statement is inaccurate. Plaintiff
underwent a physical therapy evaluation for his back pain on July
12, 2011, with Jessica Nonkes MS, PT. T.369. Plaintiff reported
severe neck and low back pain, radiating to above the knee.
Plaintiff had five physical therapy appointments in July of 2011,
and eight such appointments in August of 2011. T.371-75. On August
8, 2011, it was noted that Plaintiff had minimal change in his back
pain and function, but he reported decreased radiation of pain. The
discharge note dated August 25, 2011, stated that despite his
compliance with therapy, Plaintiff had no significant change in his
neck and back pain. T.376. He was discharged from physical therapy
for lack of improvement. Id. He again attended physical therapy
after his right-knee arthroscopy, from July 26, 2013, to August 14,
2013.
T.528-33;
535.
In
addition
to
physical
therapy
and
medication, Plaintiff tried heating pads, a TENS unit, chiropractic
care, massage therapy, and acupuncture. T.551, 545. Plaintiff also
sought treatment from a behavioral pain specialist, Dr. Jaimala
Thanik, and a behavioral psychologist, Dr. Kuttner, in efforts to
address his chronic pain. T.437-40; 567-88.
-24-
The
ALJ
discredited
Plaintiff’s
statements
based
on
the
incorrect assertion that he “has not taken any medication” for his
“allegedly disabling symptoms.” T.20. As noted above, Plaintiff has
been
prescribed
(Mobic/meloxicam,
a
slew
of
Indocin,
medications,
Relafen,
including
diclofenac),
NSAIDs
narcotics
(Fentanyl patches, Percocet, Valium, OxyContin), muscle relaxants
(Flexural), neuropathic pain medications (Lyrica, gabapentin), and
others (Medrol DosePak, Cymbalta, Lidoderm patches). Some did not
provide any relief at all, and none of them has had lasting or
significant benefit.
The ALJ further opined that Plaintiff had “not generally
received the type of medical treatment one would expect for a
totally
disabled
individual.”
T.20.
This
amounts
to
the
ALJ
improperly “playing doctor,” by relying on his own lay opinion over
the multiple, competent medical opinions before him. See Primes v.
Colvin, No. 6:15-CV-06431(MAT), 2016 WL 446521, at *4 (W.D.N.Y.
Feb. 5, 2016) (“The ALJ repeated this error [of playing doctor]
when he opined that Plaintiff ‘has not generally received the type
of medical treatment one would expect from a totally disabled
individual[.]’ The ALJ identified no medical expert who opined that
Plaintiff’s medical treatment was atypical for a person who is
disabled. Thus, the ALJ again improperly relied on his own lay
opinion.”)
(internal
citation
to
record
omitted;
brackets
in
original); Andino v. Bowen, 665 F. Supp. 186, 191 (S.D.N.Y. 1987)
-25-
(“[T]he Secretary may not ‘substitute his or her own inferential
judgment for a competent medical opinion, particularly where the
ALJ's judgment assumes some degree of medical expertise and would
amount to rendering an expert medical opinion which is based on
competence he or she does not possess.’”) (quotation and citation
omitted).
Here,
although
the
ALJ
provided
“‘specific’
reasons
for
discounting Plaintiff’s credibility, the Court cannot find that
they
were
‘legitimate’
reasons
because
they
are
based
on
a
misconstruction of the record.” Poles v. Colvin, No. 14-CV-06622
MAT, 2015 WL 6024400, at *6 (W.D.N.Y. Oct. 15, 2015). This is an
additional basis for reversing the Commissioner’s decision. See,
e.g., Branca v. Comm’r of Soc. Sec., No. 12-CV-643 JFB, 2013 WL
5274310, at *13 (E.D.N.Y. Sept. 18, 2013) (collecting cases).
IV.
Remedy
The fourth sentence of Section 405(g) of the Act provides that
a “[c]ourt shall have power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner. . ., with or without
remanding the case for a rehearing.” 42 U.S.C. § 405(g). Although
it is less typical, reversal without remand is the appropriate
disposition
when
the
record
contains
“persuasive
proof
of
disability,” Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980),
and further proceedings would be of no use because there is no
-26-
reason to conclude that additional evidence might support the
Commissioner’s claim that the claimant is not disabled, Butts v.
Barnhart, 388 F.3d 377, 385–86 (2d Cir. 2004).
Here, that standard is met. The ALJ committed multiple errors
of law and repeatedly mischaracterized the record when weighing the
medical source statements of Plaintiff’s treating physician, Dr.
Harris, and treating psychologist, Dr. DeCaporale-Ryan. None of the
regulatory factors support a decision not to afford controlling
weight to these opinions, which are well supported by the evidence
of record and consistent with the opinion of primary care physician
Dr. Holub, who took over Plaintiff’s care when Dr. Harris left the
area,
and
whose
report
the
ALJ
did
not
evaluate
at
all.
Furthermore, the ALJ’s assessment of Plaintiff’s credibility was
based
on
numerous
mischaracterizations
of
the
record
and
misapplications of the law. If Dr. Harris’ and Dr. DeCaporaleRyan’s opinions were given controlling weight, and Plaintiff’s
testimony
were
Plaintiff
would
credited,
be
the
unable
VE’s
to
testimony
maintain
establishes
competitive
that
gainful
employment. See Beck v. Colvin, No. 6:13–CV–6014(MAT), 2014 WL
1837611, at *15 (W.D.N.Y. May 8, 2014) (“Substantial evidence
exists in the record to warrant giving deference to the opinions of
Plaintiff’s treating psychiatrist, and when that deference is
accorded, a finding of disability is compelled.”) (citing Spielberg
v. Barnhart, 367 F. Supp.2d 276, 283 (E.D.N.Y. 2005) (“[H]ad the
-27-
ALJ given more weight to the treating sources, he would have found
plaintiff disabled. . . .”)). In the present case, the record is
complete, and further administrative proceedings would serve no
purpose. Accordingly, remand for the calculation of benefits is
warranted. See Parker, 626 F.2d at 235.
CONCLUSION
For the foregoing reasons, the Commissioner’s motion for
judgment on the pleadings is denied, and Plaintiff’s motion for
judgment on the pleadings is granted. The Commissioner’s decision
is reversed, and the matter is remanded solely for the calculation
and payment of benefits. The Clerk of the Court is directed to
close this case.
SO ORDERED.
S/ Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
October 3, 2016
Rochester, New York
-28-
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?