Boyd v. Colvin
Filing
13
DECISION AND ORDER granting 9 Plaintiff's Motion for Judgment on the Pleadings to the extent that this matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order; and denying 11 Commissioner's Motion for Judgment on the Pleadings. Clerk to close case. Signed by Hon. Michael A. Telesca on 12/8/16. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DAVID WILLIAM BOYD,
Plaintiff,
-vs-
No. 6:15-CV-06667 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
I.
Introduction
Represented
by
counsel,
David
William
Boyd (“plaintiff”)
brings this action pursuant to Title II 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”). The Court
has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g).
Presently before the Court are the parties’ cross-motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of
Civil
Procedure.
For
the
reasons
discussed
below,
plaintiff’s motion is granted to the extent that this matter is
remanded to the Commissioner for further administrative proceedings
consistent with this Decision and Order.
II.
Procedural History
The record reveals that in November 2012, plaintiff (d/o/b
February 21, 1965) applied for DIB, alleging disability beginning
July
15,
2010.
After
his
application
was
denied,
plaintiff
requested a hearing, which was held, via videoconference, before
administrative law judge Joseph L. Brinkley (“the ALJ”) on June 17,
2014. The ALJ issued an unfavorable decision on June 27, 2014. The
Appeals Council denied review of that decision and this timely
action followed.
III. Summary of the Evidence
The record reveals that plaintiff suffered a work-related back
injury in 2008. He also underwent surgery on his right wrist,
including a right proximal carpectomy, in June 2000 and suffered a
work-related right wrist sprain in May 2005. Plaintiff began
treating for back pain with Dr. Clifford Ameduri in January 2009.
In March 2009, Dr. Ameduri opined in a letter (apparently completed
for worker’s compensation purposes) that plaintiff should avoid
repetitive bending and twisting, should not climb ladders or lift
more than 20 pounds, and may stand for one hour before needing to
sit down.
Plaintiff continued to treat with Dr. Ameduri during the
relevant time period. Physical examinations consistently revealed
positive straight leg raise (“SLR”) tests, positive Minor’s sign,1
antalgic gait, limited and slow range of motion (“ROM”) of the
lower back, and tenderness to palpation in the lower back. An MRI
conducted in August 2012 revealed facet hypertrophy and mild
central canal narrowing at L3-L4. Dr. Ameduri prescribed narcotic
1
A positive Minor’s sign is present when a patient, rising
from a sitting to a standing position, uses the arms and unaffected
lower extremity to support body weight or uses hands to “walk up”
the legs.
2
medications for plaintiff’s pain, as well as intermittent use of a
TENS unit, home exercises, and physical therapy. In September 2013,
plaintiff reported to Dr. Ameduri that he was unable to continue
with physical therapy due to pain, and Dr. Ameduri continued
plaintiff’s Vicodin prescription and recommended home stretching
and heat for pain management.
Dr. Ameduri completed three medical source statements. On
August
1,
2012,
Dr.
Ameduri
opined
that
plaintiff
could
occasionally lift and carry up to 10 pounds and never carry more
than 10 pounds; plaintiff could sit for up to 30 minutes at a time
and up to four hours in an eight-hour workday; plaintiff could
occasionally reach, push, and pull, and frequently hand, finger,
and feel; and plaintiff could occasionally climb stairs and ramps
but never climb ladders or scaffolds, balance, stoop, kneel,
crouch,
or
crawl.
Dr.
Ameduri
opined
that
plaintiff’s
pain
interfered with concentration, persistence, or pace, would likely
interfere with social relationships at work, and plaintiff would
have “good” and “bad” days due to pain. Dr. Ameduri opined that
plaintiff’s symptoms would cause him to miss at least two full
workdays per month.
On December 17, 2012, Dr. Ameduri opined that plaintiff could
occasionally (up to one-third of the workday) lift and carry up to
10 pounds; plaintiff was limited to standing and/or walking for
less than two hours per day; and plaintiff could sit less than six
3
hours per day. On March 21, 2014, Dr. Ameduri gave an opinion that
was substantially similar to his previous opinions.
On September 13, 2012, Dr. Steven Hausmann completed an
independent medical examination (“IME”) of plaintiff for worker’s
compensation purposes. On physical examination, plaintiff exhibited
limited ROM of the lumbar spine and positive SLR bilaterally.
Dr.
Hausmann
opined
that
plaintiff’s
“MRI
findings
[were]
consistent with age-related degenerative processes and not due to
any traumatic
injury”
and that
“[h]is
pain
appear[ed]
to
be
disproportionate to the anatomic findings.” T. 282. Nevertheless,
Dr. Hausmann opined that his “back pain [was] clearly documented to
have arisen from the claimed occupational exposure so there would
be
a
causal
relationship in
that respect.”
Id.
Dr.
Hausmann
recommended that plaintiff continue with home exercises, which did
“not require any physical or physical therapy supervision.” Id.
Dr. Harbinder Toor completed a consulting internal medicine
examination, at the request of the state agency, on January 30,
2013. On physical examination, Dr. Toor noted that plaintiff
appeared to be in “moderate pain” with an abnormal gait (“limping
toward left side”). T. 332. Plaintiff declined heel-toe walking,
squat, and laying down on the examination table. Dr. Toor noted
that plaintiff had “difficulty changing for exam” and “difficulty
getting out of [the] chair.” Id. Plaintiff’s lumbar spine ROM was
limited to 20 degrees forward flexion, zero degrees extension,
20
degrees
lateral
flexion,
and
4
20
degrees
rotary
movement.
Plaintiff declined to take an SLR test. An X-ray of plaintiff’s
lumbar spine was negative for abnormalities.
Dr.
Toor
limitations
opined
with
that
standing,
plaintiff
walking,
had
“moderate
squatting,
to
severe
bending,
and
lifting”; pain interfered with his balance; he was moderately
limited in
“sitting
for
a
long
time”
and
“pushing, pulling,
reaching, grasping, holding, writing, tying shoelaces, zipping the
zipper, buttoning the button, manipulating the coin, or holding an
object with
the
right
arm,
right
shoulder,
and
right
hand”;
plaintiff was mildly limited in hearing in the right ear; and he
“should avoid irritants or other factors which can precipitate his
asthma.” T. 335.
IV.
ALJ’s Decision
Initially, the ALJ found that plaintiff met the insured status
requirements of the Act through December 31, 2013. At step one of
the five-step sequential evaluation, see 20 C.F.R. § 404.1520, the
ALJ determined that plaintiff had not engaged in substantial
gainful activity since his alleged onset date, July 15, 2010. At
step two, the ALJ found that plaintiff suffered from the following
severe impairments: mild canal narrowing at L3-4, chronic back
pain, right shoulder degenerative joint disease, and status post
right wrist surgery. At step three, the ALJ found that plaintiff
did not have an impairment or combination of impairments that met
or medically equaled the severity of any listed impairment.
5
Before proceeding to step four, the ALJ determined that
plaintiff retained the residual functional capacity (“RFC”) to
perform sedentary work, as defined in 20 C.F.R. § 404.1567(a),
“except that [he]: can frequently use his hands; can occasionally
climb ramps/stairs, balance, stoop, kneel, and reach overhead
bilaterally; can never climb ladders/ropes/scaffolds, crouch, or
crawl;
must
avoid
concentrated
exposure
to
hazards
including
dangerous machinery and unprotected heights; can sit, stand, and
walk one hour each without interruptions, then he would need to
alternate postural positions for 20 minutes before returning to the
position that was held immediately prior; can sit for a total of
6 hours in an 8-hour workday, and can stand/walk combined for a
total of 4 hours in an 8-hour workday, with interruptions and
regularly scheduled breaks.” T. 14.
At step four, the ALJ found that plaintiff could not perform
past relevant work. At step five, the ALJ found that considering
plaintiff’s age, education, work experience, and RFC, jobs existed
in significant numbers in the national economy which plaintiff
could
perform.
Accordingly,
he
found
that
plaintiff
was
not
disabled.
V.
Discussion
A
district
court
may
set
aside
the
Commissioner’s
determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
6
Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
Plaintiff
contends
that
the
ALJ’s
RFC
assessment
is
unsupported by substantial evidence, arguing that the ALJ failed to
properly weigh the medical opinions of record and that no medical
opinion provided substantial support for the ALJ’s ultimate RFC
finding. In formulating plaintiff’s RFC, the ALJ gave “little”
weight to Dr. Ameduri’s August 1, 2012 opinion, because plaintiff
had a “large gap in . . . treatment from July 2011 to August 1,
2012"; plaintiff’s complaints were “subjective in nature”; and
because the ALJ found the opinion inconsistent with Dr. Hausmann’s
September 13, 2012 IME. The ALJ did not explicitly state what
weight he gave to Dr. Hausman’s IME opinion, but he gave little
weight to Dr. Ameduri’s December 17, 2012 opinion because the
“less-than-sedentary exertional restrictions [were] not medically
substantiated by either imagining or clinical findings and [were]
inconsistent
with
Dr.
Hausmann’s
findings.”
T.
17.
The
ALJ
similarly gave little weight to Dr. Toor’s consulting opinion,
finding that “clinical and imaging evidence did not support [the]
level of limitation” opined by Dr. Toor; X-ray was normal; and
because it was “apparent that the claimant failed to cooprate with
the full exam, refusing to comply with squatting, laying down on
the exam table, hip movement, and straight leg raising.” Id.
7
The treating physician rule provides that an ALJ must give
controlling weight to a treating physician’s opinion if that
opinion is well-supported by medically acceptable clinical and
diagnostic techniques and not inconsistent with other substantial
evidence in the record. See Halloran v. Barnhart, 362 F.3d 28, 32
(2d Cir. 2004); 20 C.F.R. § 416.927(c)(2). However, “[w]hen other
substantial evidence in the record conflicts with the treating
physician's
opinion
.
.
.
that
opinion
will
not
be
deemed
controlling. And the less consistent that opinion is with the
record as a whole, the less weight it will be given.” Snell v.
Apfel,
177
F.3d
128,
133
(2d
Cir.
1999)
(citing
20
C.F.R.
§ 404.1527(d)(4)).
In considering a treating physician’s opinion, an ALJ is
required to consult the factors listed in 20 C.F.R. § 404.1527,
including “(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.” Halloran, 362 F.3d at 32. Plaintiff argues
that the ALJ in this case failed to apply the appropriate factors
and failed to give “good reasons” as he was required to do before
rejecting Dr. Ameduri’s opinions. See Coluciello-Pitkouvich v.
Astrue, 2014 WL 4954664, *6 (E.D.N.Y. Sept. 30, 2014) (“[T]he ALJ
8
must expressly state the weight assigned and provide ‘good reasons’
for why
the
particular weight
was
assigned to
each treating
source's opinion.”) (citing 20 C.F.R. § 404.1527(c)(2)).
The Court agrees with plaintiff that the ALJ failed to provide
good reasons for rejecting Dr. Ameduri’s opinions and instead
apparently
examiner
giving
Dr.
greater
Hausmann,
weight
who
to
examined
the
opinion
plaintiff
of
one-time
for
worker’s
compensation purposes. Although the ALJ stated repeatedly that he
found Dr. Ameduri’s restrictive limitations to be inconsistent with
objective medical findings, the ALJ’s decision fails to acknowledge
the length of Dr. Ameduri’s treatment relationship with plaintiff
and fails to take account of Dr. Ameduri’s repeated clinical
findings of positive Minor’s sign, positive SLR tests, antalgic
gait, and limited ROM in plaintiff’s lumbar spine. The ALJ’s
decision reflects that he did not fully consider the extent to
which Dr. Ameduri’s opinions were supported by medically acceptable
clinical and diagnostic techniques and their consistency with the
medical record as a whole, including Dr. Toor’s consulting opinion.
Because it is not clear from the ALJ’s decision whether and to
what extent he considered the applicable factors in reviewing
Dr. Ameduri’s decision, it appears that the ALJ failed to properly
apply the “substance” of the treating physician rule and the ALJ’s
failure to discuss the factors cannot be considered harmless error.
See Atwater v. Astrue, 512 F. App’x 67, 70 (2d Cir. 2013).
9
It also appears from the ALJ’s decision that rather than fully
considering plaintiff’s medical record, the ALJ instead picked and
chose evidence which would support a finding of disability, while
ignoring evidence that would support the limitations found by
plaintiff’s treating physical and by the state agency consulting
physician. See Ebelink v. Colvin, 2015 WL 9581787, *6 (W.D.N.Y.
Dec. 30, 2015) (“While ALJs are entitled to resolve conflicts in
the record, they cannot pick and choose only evidence from the same
sources that supports a particular conclusion.”) (quoting Royal v.
Astrue, 2012 WL 5449610, *6 (N.D.N.Y. Oct. 2, 2012)). In this
regard, the Court finds it significant that the ALJ elected to give
little weight to the restrictive findings of Dr. Toor’s consulting
examination and largely ignored the objective findings of that
examination (which included limited ROM of the lumbar spine). The
ALJ also discounted Dr. Toor’s notations that plaintiff appeared to
be in pain and demonstrated difficulty undressing and rising from
his chair, notations which may have been relevant to plaintiff’s
refusal to perform certain physical tests.
The
case
is
thus
reversed
and
remanded
for
further
proceedings. See Alexander v. Comm’r of Soc. Sec., 2014 WL 7392112,
at *5 (D. Vt. Dec. 29, 2014) (“An ALJ's failure to consider the
relevant regulatory factors in weighing a treating physician’s
opinion is ordinarily grounds for remand.”) (citing Halloran, 362
F.3d at 33). On remand, the ALJ is instructed to consider the
factors
listed
in
20
C.F.R.
10
§
404.1527
when
evaluating
Dr. Ameduri’s opinions and to state the weight he gives to each of
Dr. Ameduri’s opinion as well as the weight given to Dr. Toor’s and
Dr. Hausmann’s opinions. The ALJ is reminded that he must give good
reasons before rejecting Dr. Ameduri’s opinions. Additionally, on
remand, the ALJ is directed to obtain VE testimony consistent with
the RFC he finds after properly applying weighing the medical
opinions of record.
VI.
Conclusion
For the foregoing reasons, the Commissioner’s cross-motion for
judgment on the pleadings (Doc. 11) is denied and plaintiff’s
motion (Doc. 9) is granted to the extent that this matter is
remanded to the Commissioner for further administrative proceedings
consistent with this Decision and Order. The Clerk of the Court is
directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
December 8, 2016
Rochester, New York.
11
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