Miller v. Astrue
Filing
14
-CLERK TO FOLLOW UP-DECISION AND ORDER granting 7 Motion for Judgment on the Pleadings; denying 12 Motion for Judgment on the Pleadings. Defendants cross-motion [#12] for judgment on the pleadings is denied, and Plaintiffs motion for judgment o n the pleadings [#7] is granted, though his request to have the matter remanded solely for calculation of benefits is denied. The matter is reversed and remanded to the Commissioner for further administrative proceedings. The Clerk of the Court is directed to enter judgment in Plaintiffs favor and to close this action.Signed by Hon. Charles J. Siragusa on 5/17/16. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
DAVID K. MILLER,
Plaintiff
DECISION AND ORDER
-vs15-CV-6468 CJS
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
________________________________________
APPEARANCES
For the Plaintiff:
Christopher M. Mesh
Connors & Ferris, LLP
3445 Winton Place, Suite 112
Rochester, New York 14623
For the Defendant:
Rebecca H. Estelle
Tomasina DiGrigoli
Social Security Administration
Office of General Counsel
26 Federal Plaza, Room 3904
New York, New York 10278
Kathryn L. Smith
Office of the United States Attorney
for the Western District of New York
100 State Street
Rochester, New York 14614
INTRODUCTION
This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final
determination of the Commissioner of Social Security (“Commissioner” or “Defendant”),
which denied the application of David K. Miller (“Miller” or “Plaintiff”) for Social Security
Disability Insurance (“SSDI”) benefits. Now before the Court is Plaintiff’s motion
1
(Docket No. [#7]) for judgment on the pleadings and Defendant’s cross-motion [#12] for
judgment on the pleadings. Plaintiff’s motion is granted, Defendant’s cross-motion is
denied and this matter is remanded for further administrative proceedings.
BACKGROUND
The reader is presumed to be familiar with the Parties’ submissions, which
contain detailed recitations of the pertinent facts. The Court has reviewed the entire
administrative record and will offer only a brief summary of the facts contained therein.1
Prior to 2010, Miller had worked for many years in “the music business” as a stagehand
for various bands. Later, Miller worked as an assistant stage manager for an orchestra
and also assisted his wife with her restaurant business.
In December 2010, while Miller was working, he sustained a concussion when he
slipped on ice in a parking lot and struck the back of his head on the pavement. Miller
was hospitalized for two days following the accident. Subsequently, Miller complained
of headaches, depression, anxiety, dizziness, poor concentration and memory, loss of
interest in his family and increased irritability.
Following the injury, Miller was examined numerous times by his treating internist
Richard Abbott, M.D. (“Abbot”), and his treating neurologist, Marc Schieber, M.D.
(“Schieber”). In addition, Miller was evaluated on one occasion each by neurologist
Thomas Rodenhouse, M.D. (“Rodenhouse”), neuropsychologist Krista Damann, Ph.D.,
1
Snell v. Apfel, 177 F.3d 128, 132 (2d Cir. 1999) (“To determine whether the findings are
supported by substantial evidence, the reviewing court is required to examine the entire record, including
contradictory evidence and evidence from which conflicting inferences can be drawn.”) (citation omitted).
Of course, in discussing the entire record, the Court “keep[s] in mind that it is up to the agency, and not
this court, to weigh the conflicting evidence in the record.” Clark v. Commissioner of Social Security, 143
F.3d 115, 118 (2d Cir. 1998).
2
ABPP-CN (“Damann”), clinical- and neuro-psychologist Michael Baer, Ph.D., ScD
(“Baer”), neurologist James Azurin, M.D. (“Azurin”),2 agency consultative neurologist
Harbinder Toor, M.D. (“Toor”) and agency consultative psychologist Yu-Ying Lin, Ph.D.
(“Lin”).
On January 10, 2011, approximately one month after his concussion, Plaintiff
told Abbott that he had returned to work on January 4th and was “having no problem
performing his duties.” (289). Plaintiff reportedly stated that he was having “slow
improvement,” but still had “daily constant headaches rated 6/10 in severity,” “mild
photophobia” and some problems with sleep. (289).
On February 4, 2011, Plaintiff told Abbott that he was having severe headaches,
photophobia and nausea. (284). Plaintiff indicated that he spent much of his time in
bed sleeping, and had little motivation. Plaintiff’s wife indicated that he seemed
disengaged, unmotivated and lethargic, which was unusual. (284). Plaintiff was still
working, but had called in sick a few times. Plaintiff felt depressed because he was not
improving. Abbott reported that Plaintiff’s affect was flat, and that he was “obviously
depressed and frustrated.” (284). Abbott’s impression was “closed head injury with
postconcussive syndrome,” for which he prescribed amitriptyline and vicodin. (285).
Abbot noted that Plaintiff was working and was not “disabled from regular duties.” (286).
On February 15, 2011, Rodenhouse examined Plaintiff, upon a referral from
Abbott. (288). Plaintiff complained of “intermittent headaches.” (288). Plaintiff
reportedly told Rodenhouse that “he ha[d] no difficulty at work and [was] able to modify
2
At page 11 of the ALJ’s Decision she erroneously refers to Dr. Azurin as Dr. Azaria. (20)
3
his activities as symptoms dictate[d].” (288). Rodenhouse conducted a neurological
exam that was essentially normal. Rodenhouse opined that, “He has a post concussive
syndrome which I believe will eventually clear.” (288).
On February 28, 2011, Abbott reported that Plaintiff was still complaining of
severe headaches, though the “frequency seem[ed] to [be] lessening,” and his
“depression [was] clearly improved.” (286). Abbott remarked that Plaintiff’s “mood [was]
definitely improved.” (286) (“He appears much less withdrawn. He is more alert and
brighter.”).
On March 9, 2011, neurologist Dr. Azurin examined Miller at Rodenhouse’s
request. (350-352). Miller reportedly complained of headaches, depression, memory
loss, fatigue, anxiety, difficulty concentrating and possible seizures, though he also
indicated that his concentration had actually improved recently. (350). Miller reportedly
“denie[d] all toxic habits.” (351). When Azurin initially asked Miller if he knew the date,
Miller quickly responded in the negative, but on further questioning he provided the
correct date, which caused Azurin to opine that there might be “a component of
intentionally poor effort.” (352). Azurin reported that Miller could follow commands and
remember two-out-of-three objects. (351). Azurin opined that Miller had “slightly
abnormal mental status short-term memory,” which “could be multifactorial in etiology,”
but which was probably due, at least in part, to the concussion. (352). Azurin also
agreed with Abbot that Miller had a mood disorder, which could have been impairing his
attention and concentration. Azurin also questioned whether Miller’s memory problems
could have been caused by sleep apnea. (352) However, in light of the possibility that
there might have been “a component of intentionally poor effort” on testing, Azurin
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recommended that Miller have a further evaluation. (352).
On April 25, 2011, Plaintiff told Abbott that he was having “daily headaches rated
6/10 in severity,” as well as fatigue, insomnia, dizziness, irritability and trouble
concentrating. (282). Abbott noted that Plaintiff appeared “frustrated, depressed and
fatigued.” (282). Plaintiff indicated that he was working about 40% of his usual
schedule. Abbott had prescribed a variety of pain medications, but Plaintiff claimed that
they were not helping.
On August 8, 2011, Plaintiff reportedly told Abbott that he was continuing to have
headaches, but did not feel depressed. (280). Plaintiff stated that he was having
problems with concentration and short-term memory. (280).
On October 31, 2011, Abbott reported that Plaintiff was continuing to work, but
was complaining of frequent headaches, ranging from 2/10 to 8/10 in severity. (278).
Plaintiff indicated that he lacked motivation and felt irritable. Abbott reported that
Plaintiff appeared “tired and depressed.” (277). Abbott’s diagnosis was “status post
severe closed head injury - post concussive syndrome with depression and headache.”
(277).
On February 14, 2012, Abbott reported that Plaintiff was continuing to work fulltime, but was complaining of severe daily headaches. (276). Plaintiff reportedly stated
that he had “bad days” “50-60% of the time.” (276).
On March 20, 2012, Miller began treating with Marc Schieber, M.D. (“Schieber”),
a neurologist, who diagnosed post-concussive syndrome. Miller complained of
continuous headaches, poor concentration and memory, lack of initiative and increased
irritability. (330). Schieber diagnosed “ongoing post-concussive syndrome, and
5
prescribed medication for headaches, mood and concentration. (332).
On April 10, 2012, Miller reportedly told Schieber that the prescribed medication
was helping with anxiety and sleep (319), and Schieber noted that Miller seemed
“slightly more interactive” than before. (320). However, Miler remained irritable and felt
no affection for his family. (319).
On May 22, 2102, Miller told Schieber that his headaches were worse following a
motor vehicle accident in which he sustained a whiplash-type injury. (309). Although,
there is no indication in the record that Miller ever sought medical treatment for such an
injury. Nevertheless, Schieber reported that Miller seemed “definitely more
communicative” than before, was better groomed, walked more briskly, and was able to
sit through the entire visit. (310). Schieber prescribed Percocet for the headaches.
(310).
On June 4, 2012, Abbott reported that Plaintiff had stopped working, and was
complaining of “unrelenting” headaches. Abbott noted that Plaintiff was “frustrated and
tearful.” (272).
On June 26, 2012, Miller told Schieber that his sleep and mood had improved
with medication, but not his headaches. (364). Schieber opined that Miller’s headaches
and problems with memory and attention prevented him from working. (365).
On June 28, 2012, neuropsychologist Dr. Damann performed an evaluation upon
a referral from Schieber. Damann administered a variety of tests to Miller, and
diagnosed him with, inter alia, post-concussive syndrome, pain disorder associated with
concusssion and psychological factors, cognitive deficits, anxiety disorder, and mood
disorder. (263). However, Damann indicated that it was difficult to assess Miller
6
because his test performance was inconsistent and may have been affected by various
factors, including pain, emotional disturbance, the effects of prescription medications,
“acute cannabis intoxication” (Miller told Damann that he smoked marijuana daily, and
had smoked just before the examination, though he denied that he was “high”), and
“secondary gain factors.” (262) (“It is possible that Mr. Miller is experiencing legitimate
cognitive impairment; however the inconsistencies preclude accurate assessment of
this. Therefore, Mr. Miller’s cognitive impairment is thought to be more highly correlated
with environmental, physical, and emotional factors, rather than significant organicallybased brain damage.”). In any event, Damann opined that Miller’s brain injury was
“mild,” and that his symptoms would improve. (262) (“Mr. Miller can be reassured that
he will continue to experience improvement with his attention, memory, and processing
speed, as the overwhelming majority of research suggests that resolution of cognitive
symptoms generally occurs by 3 months post mild brain injury.”). Damann also
recommended that Miller stop smoking marijuana, as it was “likely impairing his
cognitive functioning and contributing to lack of initiation and hypersomnolence.” (263).
On July 24, 2012, neuropsychologist Baer conducted an independent
examination on behalf of Miller’s employer’s workers compensation carrier. (335-339).
Baer’s findings about Miller included the following: 1) his short term memory and ability
to recall directions were “lost”; 2) he was anxious, depressed, irritable and felt sorry for
himself; 3) he had poor reading ability; and 4) he appeared “confused and lost.” Miller
reportedly told Baer that he had a difficult childhood, and based upon such selfreporting Baer noted that “psychologically, [Miller] is a mess” and that “other
psychological psychopathology exist[ing] in his life prior to brain injury” could be
7
contributing to his problems. (339). Baer found no evidence that Miller was
“malingering, faking, feigning, or looking for secondary gain.” (337). Nevertheless, Baer
recommended that Miller undergo a full battery of testing that was even more
exhaustive than what Damann had performed, in order to provide clearer results and
rule out malingering. (339).
On July 31, 2012, Schieber reported that Miller seemed quite improved in certain
respects. (300) (Noting that Miller was more animated, speaking in full sentences and
making better eye contact). However, Miller complained that his headaches were not
improved by the prescribed medication. (299).
On August 10, 2012, Abbott reported that Miller’s depression and headaches
were somewhat improved, although still claimed to have headaches every day, and
severe headaches three times per week. (268). Miller told Abbott that he was feeling
somewhat better, was performing daily chores around the house, was more engaged
with his family and was visiting friends on a near-daily basis. (268). Abbott decreased
Miller’s medications for depression, pain and seizures, since he thought that they might
be interfering with his ability to concentrate.
On September 4, 2012, Schieber reported that Miller was still having headaches,
but had stopped taking Morphine because he did not like the way it made him feel.
(357). Miller indicated that he was doing more chores around the house and had
attended a concert with friends, though he generally felt stress around “large numbers
of people.” (357). Schieber stated that Miller was “on the verge of tears” at times, but
that his verbal expression was improved. (358).
On December 11, 2012, Abbott reported that Miller had stopped taking his
8
medications, and that “his tremor is resolved and his speech pattern has returned to
normal. He is performing chores around the house.” (407). Abbott stated that, “He has
made some gains in overall functioning. He remains with chronic headache
occurrence[.] [D]ifficulty is really with depression and self imposed isolation.” (407).
Abbott further stated that Miller was “continuing” to smoke marijuana on a daily basis:
“He continues to smoke marijuana on a daily basis. This helps his headaches.” (407).
On January 17, 2013, Abbott reported that Miller was “doing somewhat better.
Headaches seem to be more manageable. Mood seems improved. He is looking
forward to doing some part-time driving work.” (408). Indeed, Abbott encouraged Miller
to “seek some part-time appointment,” and filled out a “DOT physical form for CDL
[commercial driver’s license]” for Miller. (408-409).
On April 16, 2013, Abbott noted that Miller “still fe[lt] quite depressed” and had
“[t]rouble with motivation.” (411).
On April 28, 2013, Abbott reported Miller had “discontinued all his medications”
because he did not think that they were helping, and had begun “using a holistic
approach.” (405). Miller indicated that he still had “bad headache[s],” but that his mood
had improved and he was “now active in yard work, shopping and housework.” (405).
Abbott opined that Miller was “clearly improved off of medications.” (406) (“He is
engaging. Mood is much improved. Abnormal motor activity is absent today.”).
On April 30, 2013, Abbott reported: “He appears well. He is moving easily in the
exam room. He is very talkative and engaging and seems quite upbeat today. Affect is
appropriate. . . . He seems to be doing better, at least today he is quite alert, talkative
and engaging. Much more animated than I have seen him.” (412).
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On July 29, 2013, Abbott reported that Miller was sleeping much better, and felt
“much less anxiety.” (413). Miller stated that his headaches continued but were
“improved,” and that he was continuing to smoke marijuana daily, purportedly for the
headaches. (413). Abbott stated: “He is adhering strictly to a routine [of] chores
around the house and daily activities. He has renewed interest for prior hobbies and
activities. He feels that his mood is improved. He is getting along well with his wife.”
(413).
On September 30, 2013, Abbott reported that Miller no longer felt depressed and
was “active in the household”: “He is active in the household, taking care of his 2
children and doing most of the housework while his wife is employed at her business.
He has no trouble sleeping. . . . He does not feel anxious most of the day but at night
has trouble with racing thoughts. He does not like the way he feels with the
clonazepam as it often makes him forgetful. . . . He has been smoking marijuana
regularly as this is the only thing that has helped him with his headaches. . . . He does
not like the fact that he has to smoke so often as the duration of action [the effect of the
marijuana] is quite short. He would like to try Marinol [THC] tablets.” (414).
In connection with Abbott’s treatment, on several occasions he completed forms
for the New York State Workers’ Compensation Board (“Workers’ Compensation”),
indicating that Miller was “100%” temporarily disabled. For example, on February 19,
2012, June 8, 2012 and August 10, 2012, Abbott indicated that Miller was incapable of
“any type of work.” (269, 273, 276). Similarly, on June 26, 2012, Schieber indicated
that Miller was “100% temporarily disabled from any gainful employment.” (306).
On January 22, 2013, Dr. Toor conducted a consultative neurologic examination
10
at the Commissioner’s request. (382- 384). Curiously, despite Miller’s decades-long
use of marijuana, he reportedly told Toor that he had only tried marijuana once. (382)
(“He denies any history of drug or alcohol use. He tried marijuana once[.]”). Miller
reported having severe headaches “every day,” sometimes lasting all day. (382). Miller
also stated that he sometimes stayed in bed all day because he felt “stressed.” (382).
Miller told Toor that he did not cook, but cleaned the house and did laundry daily,
assisted with childcare, showered and took care of his own needs, and spent his time
watching television. (382). Miller reportedly stated that he had no hobbies, did not go
out (“no outing”) and did not socialize (“no socialization”). (382). Toor’s examination
essentially found no abnormalities, and in particular he found “[n]o indication of recent
or remote memory impairment.” (383). Toor further found that Miller’s mood and affect
were “appropriate.” (383). Further, although Miller has claimed that he feels dizzy when
he closes his eyes, Toor conducted a Romberg test that was negative. (383).
Nevertheless, based on Miller’s self-reporting, Toor opined that headaches could
interfere with his daily routine and that dizziness could interfere with his balance. (384).
On February 26, 2013, psychologist Dr. Lin conducted a consultative psychiatric
examination at the Commissioner’s request. (385-388). As with Dr. Toor, Miller
reportedly told Lin that he had no “drug history,” despite his long-term use of marijuana.
(386). Miller reportedly told Lin that he cooked, cleaned, bathed and groomed himself,
went shopping when necessary, and drove occasionally. (387). Miller reportedly stated
that he had a strained relationship with his family and did not socialize, preferring to
stay in bed as a way to “cope.” (387). Lin reported that Miller’s “motor behavior was
lethargic,” and that his thought “processing speed appeared to be slow.” (386). Lin
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stated that Miller’s attention, concentration and memory appeared to be impaired due to
“reported cognitive change.” (386). Lin opined that Miller’s cognitive functioning
appeared to be “borderline,” and that his insight and judgment were “fair.” (387). Lin
stated that Miller could follow and understand simple instructions, learn new tasks and
perform simple tasks with supervision. (387). However, Lin stated that Miller could not
maintain attention or concentration, and was “not able to maintain a regular schedule.”
(387).
On January 31, 2014, Miller and his attorney appeared at a hearing before an
Administrative Law Judge (“ALJ”). (33-105). Miller stated that the medications that he
was taking at that time were mainly for depression. (68). Miller stated that otherwise,
he had generally stopped medications because “some of it had me absolutely out of my
mind.” (70). Instead, Miller stated that he was taking a “wholistic approach” to his
medical condition, which made him feel better. (69). Miller testified that he had daily
headaches, which last for hours. (88-89). Miller stated that he had difficulty sleeping at
night and got up many times each night. (71). The ALJ asked Miller about his
statement to Dr. Abbott that he used marijuana daily, see (407, 413-414), but Miller
denied that he smoked marijuana daily, stating that it was only “periodically.” (72).3
With regard to memory and concentration, the ALJ asked Miller if he recalled Damann’s
examination, which occurred nineteen months prior to the hearing,4 and Miller
responded that he “remember[ed] the whole situation,” including the type of shoes that
3
Miller also reportedly told Damann that he used marijuana daily, with increased usage on
weekends. (259).
4
Damann examined Miller on June 28, 2012, while the hearing took place on January 31, 2014.
12
Damann was wearing. (82). With regard to his ability to concentrate, Miller
acknowledged that during Damann’s evaluation, he had worked steadily through the
three-hour examination, and had declined the opportunity to take breaks, but stated that
he only did so because he wanted to finish the test quickly. (82) (“I just wanted to get
done with it and over with it.”). As for activities of daily living, Miller stated that he does
not cook or do any laundry. (77). Miller stated that he occasionally drove to the store.
(77). Miller stated that earlier in the week he had gone to his wife’s restaurant to deliver
supplies, and that a friend had taken him to the supermarket. (79). Miller stated that on
another occasion a friend of his had driven him from Rochester to Canandaigua to visit
with other friends prior to a concert. (81). Miller testfied that he drove a car only
“periodically,” because it scared him to do so. (47).
A vocational expert (“VE”) also testified at the hearing.
On April 24, 2014, the ALJ issued a decision denying Miller’s application for
disability benefits. In that regard, the ALJ followed the familiar five-step sequential
analysis for disability claims and concluded, at step five, that Miller is not disabled. At
steps one, two and three of the sequential analysis, respectively, the ALJ found that
Miller was not engaged in substantial gainful activity; that he had the following severe
impairments: traumatic brain injury, obesity, anxiety disorder, adjustment disorder and
cognitive disorder; and that none of those impairments, either separately or in
combination, met or equaled the severity of a listed impairment. (12-15). Next, the ALJ
determined that Miller had the following residual functional capacity (“RFC”):
[Can] perform light work as defined in 20 CFR 404.1567(h) with the
following additional limitations: The claimant cannot climb a rope, ladder
13
or scaffold, but he can occasionally stoop, balance on narrow, slippery or
moving surface. He needs to avoid exposure to hazards -- open water,
unprotected heights, but he can occasionally drive. He can perform
unskilled work with occasional changes in work setting. He requires up to
three short, less than 5-minute breaks in addition to the regularly
scheduled breaks. He can occasionally interact with [the] public, at DOT
people function levels of 6 (speaking/signaling), 7 (serving), and 8
(helping/taking instruction). He cannot perform teamwork meaning no
co-worker needs to wait for claimant to complete tasks before performing
their tasks and the claimant does not need to wait for another to finish
before performing own tasks. He can only occasionally make judgments
or work-related discretionary decisions. He can work toward goals, but not
at an hourly, machine driven, assembly line productions rate.
(15). At step four of the sequential analysis the ALJ found, based on the VE’s
testimony, that Miller could not perform his past relevant work. (20-21). However, at
step five of the sequential analysis, and based on testimony of the VE concerning a
hypothetical claimant with the aforementioned RFC, the ALJ found that Miller could
perform other work, including these jobs: Agricultural Produce Sorter (DOT # 529.687186)and Small Products Assembler (DOT # 706.684-022).
Miller appealed, but the Appeals Council declined to review the ALJ’s
determination.
On August 10, 2015, Miller commenced this action. Miller contends that the
Commissioner’s determination must be reversed for the following reasons: 1) the ALJ’s
determination was not supported by substantial evidence, since all of the medical
opinions were essentially consistent and favored a finding of disability; 2) the ALJ did
not apply the “treating physician rule”; 3) the ALJ failed to develop the record; 4) the
ALJ did not properly assess his credibility; and 5) the ALJ erroneously relied upon the
14
Medical Vocational Guidelines (“the grids”) to find him not disabled.5
The Commissioner opposes Miller’s motion, and has cross-moved for judgment
on the pleadings.
DISCUSSION
42 U.S.C. § 405(g) states, in relevant part, that “[t]he findings of the
Commissioner of Social security as to any fact, if supported by substantial evidence,
shall be conclusive.” The issue to be determined by this Court is whether the
Commissioner’s conclusions “are supported by substantial evidence in the record as a
whole or are based on an erroneous legal standard.” Schaal v. Apfel, 134 F.3d 496,
501 (2d Cir. 1998); see also, Walker v. Bowen, 660 F.Supp. 360, 362 (S.D.N.Y. 1987)
(“The Secretary’s findings of fact are binding on this Court so long as the claimant
receives a fair hearing, no error of law is committed, and the findings are supported by
‘substantial evidence’ in the administrative record.”) (Weinfeld, J.). Substantial
evidence is defined as “more than a mere scintilla. It means such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Schaal v. Apfel,
134 F.3d at 501.
For purposes of the Social Security Act, disability is the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 423(d)(1)(A); Schaal, 134 F.3d at 501.
5
At oral argument, Plaintiff’s counsel attempted to raise an additional argument, which is that the
jobs that the ALJ found Plaintiff could perform, at Step 5 of the sequential analysis, require abilities that
exceed those contained in the ALJ’s RFC determination. However, the Court does not consider that
argument since it was not included in Plaintiff’s papers.
15
Substantial Evidence and the Treating Physician Rule
Plaintiff maintains that the ALJ’s decision is not supported by substantial
evidence, since all of the medical evidence points toward a finding of disability. In a
related argument, Plaintiff contends that the ALJ failed to properly apply the treating
physician rule. The Court agrees with the second argument, but not with the first.
The Court understands Plaintiff’s first argument to be that, even assuming that
the ALJ committed no errors of law, there is simply not enough evidence to support a
finding that Miller is capable of working on a sustained basis. As noted above,
substantial evidence means “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Schaal v. Apfel, 134 F.3d at 501. Here,
the ALJ cited substantial evidence to support her finding that Miller is capable of
working. For example, the ALJ cited Miller’s fairly extensive activities of daily living (1314, 19, 20), the significant improvement of his symptoms over time (16-18, 20), his
demonstrated ability to work and focus for hours at a time (14, 18, 20), his ability to
obtain a commercial driver’s license (17, 408-409) and the apparent over-statement of
his mental impairments due either to his heavy use of marijuana/prescription
medication, his tendency to “give up” quickly during testing or his unreliability as a
historian (17-18, 20). Accordingly, the Court denies this aspect of Plaintiff’s motion.
As for Plaintiff’s argument concerning the treating physician rule, the Second
Circuit has provided a concise summary of the applicable law:
The SSA recognizes a rule of deference to the medical views of a
physician who is engaged in the primary treatment of a claimant. Thus,
“the opinion of a claimant's treating physician as to the nature and severity
of the impairment is given ‘controlling weight’ so long as it ‘is
16
well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in
[the] case record.’ [Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)]
(quoting 20 C.F.R. § 404.1527(c)(2)). There are, of course, circumstances
when it is appropriate for an ALJ not to give controlling weight to a treating
physician's opinion. See, e.g., Halloran v. Barnhart, 362 F.3d 28, 32 (2d
Cir.2004) (per curiam) (holding that “the opinion of the treating physician
is not afforded controlling weight where, as here, the treating physician
issued opinions that are not consistent with other substantial evidence in
the record, such as the opinions of other medical experts”). Nevertheless,
even when a treating physician's opinion is not given controlling weight,
SSA regulations require the ALJ to consider several factors in determining
how much weight the opinion should receive. See 20 C.F.R. §
404.1527(c)(2)(i), (2)(ii), (3)–(6). “[T]o override the opinion of the treating
physician, we have held that the ALJ must explicitly consider, inter alia: (1)
the frequen[c]y, 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.” Selian v. Astrue, 708 F.3d 409, 418 (2d
Cir.2013) (per curiam). “After considering the above factors, the ALJ must
‘comprehensively set forth [his] reasons for the weight assigned to a
treating physician's opinion.’” Burgess, 537 F.3d at 129 (alteration in
original) (quoting Halloran, 362 F.3d at 33). The failure to provide “ ‘good
reasons' for not crediting the opinion of a claimant's treating physician is a
ground for remand.” Id. at 129–30 (quoting Snell [v. Apfel, 177 F.3d 128,
133 (2d Cir. 1999)]. 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. Id. at 131.
Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015). An ALJ is not required to “slavishly”
recite and discuss each factor contained in 20 C.F.R. § 404.1527(c), provided that “the
ALJ’s reasoning and adherence to the regulation are clear.” Atwater v. Astrue, 512 Fed.
Appx. 67, 70, 2013 WL 628072 at *2 (2d Cir. Feb. 21, 2013).
A treating physician is a “physician, psychologist, or other acceptable medical
17
source,” who provides “medical treatment or evaluation” to a claimant as part of an
“ongoing treatment relationship.” 20 C.F.R. § § 404.1502 & 416.902. A “nontreating
source” is a “physician, psychologist, or other acceptable medical source” who has
examined the claimant, but not as part of an ongoing treatment relationship. Id.
In Miller’s discussion of the treating physician rule, he references the opinions of
Abbott, Schieber, Baer, Damann, Lin and Toor, as if they were all treating physicians.6
However, the Court finds that under the definitions set forth above, Miller’s only treating
physicians are Dr. Abbott and Dr. Schieber.7 Doctors Rodenhouse, Damann, Baer,
Azurin, Lin, and Toor each examined Miller, but did not have an ongoing treatment
relationship, and consequently they are nontreating sources.
Abbott and Schieber, on the other hand, have treated Miller for several years,
and each has indicated that Miller is “100% temporarily disabled.”8 (19). The ALJ’s
decision contains a boilerplate reference to the treating physician rule. (“I have also
considered opinion evidence in accordance with the requirements of 20 CFR
404.1527[.]”). However, several factors suggest that the ALJ did not consider the
opinions of Schieber and Abbott in accordance with the treating physician rule. To
begin with, the ALJ never identified Schieber and Abbott as treating physicians under
the regulations, or indicated that as such their opinions were entitled to special
6
See, Pl. Memo of Law [#7] at pp. 14-15.
7
At oral argument, Plaintiff’s attorney agreed that there are only two treating physicians in this
action.
8
The Court agrees with Defendant that whether or not the claimant is “disabled” or “unable to
work” is a determination for the Commissioner, and that the doctors’ opinions should instead be
expressed in terms of what the claimant can and cannot do.
18
consideration. To the contrary, when the ALJ discussed the opinions of Schieber and
Abbott, she lumped them together with the opinions of Baer, who is not a treating
physician. (19). Further, the ALJ indicated that she was giving only “some weight” to
the opinions of Schieber and Abbott because they rendered their opinions in the context
of New York State Worker’s Compensation Law, whose definition of disability is
different than the Commissioner’s. In particular, the ALJ stated, “opining that the
claimant is disabled pursuant to Worker’s Compensation law may mean that [the]
doctor finds that the claimant cannot perform his past work. While the claimant may be
precluded from past work, that is not the standard for disability here.” (19). However,
the ALJ’s finding on this point was erroneous because it overlooked the fact that both
Schieber and Abbott indicated that Miller was, at least temporarily, incapable of
performing any gainful full-time employment. See, (365, 366) (Schieber: Patient is
“100% temporarily disabled from any gainful employment.”); (403) (Abbott: Patient
unable to “do any type of work.”).9
Moreover, even where a treating source expresses an opinion on an issue
reserved to the Commissioner, such as whether a claimant is “disabled,” the ALJ
cannot simply ignore or disregard the treating source’s opinion. In that regard, the
Commissioner has stated as follows, in pertinent part:
[O]ur rules provide that adjudicators must always carefully consider
medical source opinions about any issue, including opinions about issues
that are reserved to the Commissioner. For treating sources, the rules
9
Although, Abbott later encouraged Miller to go back to work part-time, and apparently gave his
approval for Miller to obtain a commercial driver’s license (“CDL”). (408-409). In that regard, Abbott
completed a “DOT physical form for CDL,” which is not currently part of the record, but which would
presumably be helpful to have as evidence. (Id.).
19
also require that we make every reasonable effort to recontact such
sources for clarification when they provide opinions on issues reserved to
the Commissioner and the bases for such opinions are not clear to us. . .
. [T]reating source opinions on issues that are reserved to the
Commissioner are never entitled to controlling weight or special
significance.
***
However, opinions from any medical source on issues reserved to the
Commissioner must never be ignored. The adjudicator is required to
evaluate all evidence in the case record that may have a bearing on the
determination or decision of disability, including opinions from medical
sources about issues reserved to the Commissioner. If the case record
contains an opinion from a medical source on an issue reserved to the
Commissioner, the adjudicator must evaluate all the evidence in the case
record to determine the extent to which the opinion is supported by the
record.
***
[For example,] [m]edical sources often offer opinions about whether an
individual who has applied for title II or title XVI disability benefits is
“disabled” or “unable to work,” or make similar statements of opinions. . . .
Such opinions on these issues must not be disregarded. However, even
when offered by a treating source, they can never be entitled to controlling
weight or given special significance.
Titles II & Xvi: Med. Source Opinions on Issues Reserved to the Comm'r, SSR 96-5P
(S.S.A. July 2, 1996). Here, while it does not appear that the ALJ “disregarded” the
opinions of Abbott and Schieber, it is unclear whether she followed this rule. On
remand, the ALJ should clarify the weight that she gave to the opinions of Abbott and
Schieber, and how she evaluated their opinions that Miller was (temporarily) unable to
work at any job. In doing so, it may be necessary for the ALJ to seek clarification from
Abbott and Schieber. See, SSR-96-5p (“Because treating source evidence (including
opinion evidence) is important, if the evidence does not support a treating source's
20
opinion on any issue reserved to the Commissioner and the adjudicator cannot
ascertain the basis of the opinion from the case record, the adjudicator must make
‘every reasonable effort’ to recontact the source for clarification of the reasons for the
opinion.”).
Development of the Record
Plaintiff further contends that the ALJ failed to develop the record. It is clear that
an ALJ is required to develop the administrative record where there are “clear gaps.”
See, Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999)(“[A]n ALJ cannot reject a treating
physician's diagnosis without first attempting to fill any clear gaps in the administrative
record.”). Here, Plaintiff contends that if the ALJ was not going to give controlling
weight to the opinions of Abbott and Schieber, she was “under an absolute obligation to
re-contact said physicians to seek clarification”10 of their opinions pursuant to 20 C.F.R.
§ 404.1512(e). However, the version of 20 C.F.R. § 404.1512(e) which Plaintiff cites for
that proposition was repealed, effective March 26, 2012. See, 77 Fed. Reg. 10651-01,
2011 WL 7404303 (Feb. 23, 2012) (“We are modifying the requirement to recontact
your medical source(s) first when we need to resolve an inconsistency or insufficiency
in the evidence he or she provided.”). Consequently, this aspect of Plaintiff’s
application is denied.
The Assessment of Miller’s Credibility
Miller further contends that the “ALJ improperly determined that the [he] was not
10
Pl. Memo of Law [#7] at p. 16.
21
disabled solely based upon her observations [of him] at the hearing.”11 However, that
assertion is puzzling since the ALJ’s decision does not mention any such observations.
On the other hand, as referenced in the ALJ’s decision, the record is replete with
inconsistent statements by Miller that undermine his credibility. For example, as
discussed above, Miller’s reported statements to Toor and Lin about his daily activities
(cooking, cleaning, driving, yard work, socializing), as well as his hearing testimony
about those activities, are inconsistent with statements that he made to Abbott,
particularly in late 2012 and 2013. Miller also reportedly hid his heavy marijuana usage
from Toor and Lin, which is significant inasmuch as they were attempting to determine
the nature and extent of his cognitive impairments. If Toor and Lin had known that
Miller was a frequent marijuana user it might well have affected their opinions. Indeed,
Damann had already observed that Miller’s poor test performance might have been
caused by acute cannabis intoxication. Furthermore, while Miller claims to have
significant problems with memory, he was able to recall what type of shoes Damann
was wearing when she examined him nineteen months earlier. Accordingly, to the
extent that the ALJ made a negative credibility finding,12 there was substantial evidence
of record to support the finding.
Plaintiff nevertheless contends that the ALJ failed to properly consider evidence
supporting his credibility, such as his consistent attempts to obtain treatment or his
11
Pl. Memo of Law [#7] at p. 16.
12
The ALJ was actually quite charitable in her assessment of Miller’s credibility, since although she
found that Miller exaggerated some of his symptoms, she indicated that such exaggeration might well
have been unintentional. (20) (“I do not find evidence of intentional distortions.”); see also (18) (referring to
Miller’s “perception of his limitations.”).
22
favorable work history, including the fact that he continued to work following his initial
head injury. However, the Court disagrees and notes, for example, that the ALJ
specifically referenced Miller’s “significant work history” as supporting his credibility.
(20). Consequently, this aspect of Plaintiff’s motion is denied.
The ALJ’s Determination at Step Five of the Sequential Analysis
Lastly, Miller contends that the ALJ erred, at step five of the sequential analysis,
in various ways. Miller first argues that if the ALJ had properly evaluated the medical
evidence she would have concluded that he was incapable of a full range of sedentary
work and therefore would have had to find him disabled “pursuant to 20 C.F.R. Part
404, [Subpart P,] Appendix 2, § 201.00(h) and Social Security Ruling 96-9p.”13 To the
extent that Miller is suggesting that there was not substantial evidence of record to
support a finding that he was capable of light work, the Court disagrees. However, as
already discussed the matter is being remanded due to the ALJ’s failure to properly
apply the treating physician rule.
Miller also contends that the ALJ erred by finding him not disabled based on an
application of the grids, 20 C.F.R. Part 404, Subpart P, Appendix 2 § 202.18. That
argument, though, also lacks merit, since the ALJ did not actually rely on the grids at
step five of the sequential analysis. To the contrary, the ALJ stated that she could not
use the grids since Plaintiff was restricted to less-than-the-full-range of light work. (21).
Instead, the ALJ relied on the testimony of the VE.
Miller further contends that the VE testified that there were“no jobs [that he]
13
Pl. Memo of Law [#7] at p. 19.
23
could perform.”14 However, that assertion is also incorrect,15 since the VE actually
indicated that based on the ALJ’s RFC finding, there were other jobs that Plaintiff could
perform. (100-103).
CONCLUSION
Defendant’s cross-motion [#12] for judgment on the pleadings is denied, and
Plaintiff’s motion for judgment on the pleadings [#7] is granted, though his request to
have the matter remanded solely for calculation of benefits is denied.16 The matter is
reversed and remanded to the Commissioner for further administrative proceedings.
The Clerk of the Court is directed to enter judgment in Plaintiff’s favor and to close this
action.
So Ordered.
Dated: Rochester, New York
May 17, 2016
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
14
Pl. Memo of Law [#7] at p. 21.
15
The VE initially indicated that there were no such jobs, but that answer was based on a
misunderstanding of the question. Once the ALJ clarified the question, the VE indicated that there were
jobs that Plaintiff could perform.
16
Although Plaintiff’s motion includes a demand to have the case remanded solely for calculation
of benefits, he has not shown that such relief is appropriate in this case. As discussed above, the record
contains substantial evidence from which the ALJ could conclude on remand that Plaintiff is not disabled.
24
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