Leavy v. Colvin
Filing
19
ORDER granting 13 Motion for Judgment on the Pleadings; denying 14 Motion for Judgment on the Pleadings. Signed by Hon. Jonathan W. Feldman on 09/20/2017. (JKT)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
GREGORY ALAN LEAVY,
DECISION & ORDER
16-CV-6053
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Defendant.
Relevant Background
Plaintiff
Gregory
Alan
Leavy
(hereinafter
commenced this action pursuant to 42 U.S.C.
§
"plaintiff")
405(g) seeking review
of the decision of the Commissioner of Social Security denying his
application
Complaint
for
(Docket
Social
#
Security
1) .
Disability
Presently before
benefits.
t he
Court
See
are
the
parties' competing motions for judgment on the pleadings pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure.
See Dockets
## 13, 14.
On April 14, 2017, a hearing was held and argument was heard
from counsel on the motions.
Docket## 17, 18.
At the conclusion
of the hearing, the Court granted plaintiff's motion (Docket# 13)
and denied the Commissioner's motion (Docket# 14), remanding the
case for further proceedings.
The following Decision and Order
serves to briefly confirm the Court's oral ruling.
Factual Background
At the time of his hearing, plaintiff was a 61 year old former
construction worker with a history of lumbar disc disease with Tl2
compression,
living
assistance.
on
food
stamps
and
temporary
public
The ALJ determined that plaintiff had the residual
functional capacity to perform the full range of medium work.
This
RFC finding was not supported by substantial evidence.
The medical record in this case was limited to two opinions.
The first came from Dr. Shivender K.
physician
who
was
plaintiff's
Thakur,
treating
a board certified
doctor.
Dr.
Thakur' s
treatment notes demonstrate that plaintiff's compression fracture
generated significant back pain and difficulty standing, sitting,
pulling, pushing, and lifting.
AR. at 203-06, 230, 235-36.
examining plaintiff on March 25,
plaintiff
pounds,
could not pull,
and
could not
push or
stand
for
Dr.
Thakur opined that
lift more
more
than
than
twenty-five
fifteen
to
AR.
Montalvo,
who examined plaintiff on a single occasion,
2013,
twenty
The second opinion was from Dr. Elizama
minutes.
14,
at 231.
2014,
After
at the request of the Commissioner.
opinion was similar to Dr. Thakur's,
Dr.
February
Montalvo 1 s
finding that plaintiff had
~moderate limitation for bending, lifting, carrying, pushing, and
reaching,"
sitting.
and
mild-to-moderate
AR. at 210.
2
limitations
in
standing
and
Plaintiff appeared prose at a hearing before ALJ Withum on
May 16, 2014.
AR. at 21-23.
The hearing was conducted by video
conference and was very brief.
The ALJ hardly questioned plaintiff
about his limitations in sitting, standing, and lifting, and asked
him nothing about his abilities to carry, push, or reach.
19-44.
AR. at
The ALJ presented the testifying vocational expert with
only one hypothetical,
which included the full
scope of medium
work and made no reference to any of the limitations mentioned by
either Drs. Montalvo or Thakur.
AR. at 41.
The ALJ's decision found plaintiff fully capable of medium
work, which means she found plaintiff to have the ability to sit
for up t o six hours a day and stand for two hours a day.
at 12 (citing 20 C.F.R. § 404.1567(c)).
See AR.
In determining this RFC,
the ALJ decided not to "assign significant weight" to the opinions
of
either
Dr.
Montalvo
or
Dr.
Thakur.
Id.
at
13.
The ALJ
cryptically reasoned that Dr. Montalvo's use of the terms "mild"
and
"moderate"
was
"vague
determining the claimant's"
limiting plaintiff
and
ambiguous
RFC,
for
and that Dr.
to standing no more
the
purposes
of
Thakur's opinion
than fifteen or twenty
minutes and pulling, pushing and lifting no more than twenty-five
pounds was "inconsistent with the relatively unremarkable physical
findings."
Id.
3
Discusssion
The ALJ's dismissive treatment of the medical evidence in
this
case was
consultative
clear error.
examiner
Both the treating doctor and the
determined
that
plaintiff
had medically
supported limitations in his abilities to sit, stand, lift, push
and pull.
opined
Indeed,
that
plaintiff's
plaintiff
treating physician specifically
could
requirements of medium work.
not
perform
opinion
of
a
exertional
The treating physician rule,
forth in the Commissioner's own regulations,
medical
the
claimant's
treating
set
"mandates that the
physician
is
given
controlling weight if it is well supported by medical findings and
not inconsistent with other substantial record evidence."
Chater,
221
F.3d
416. 927 (d) (2)
126,
134
("Generally,
your treating sources.").
(2d
Cir.
2000);
see
20
Shaw v.
C.F.R.
§
we give more weight to opinions from
Where, as here, an ALJ gives a treating
physician opinion something less than "controlling weight," she
must
provide
good
reasons
for
doing
so.
Our
circuit
has
consistently instructed that the failure to provide good reasons
for not crediting the opinion of a plaintiff's treating physician
is error.
See Schaal v.
Apfel,
134 F.3d 496,
503-05
(2d Cir.
1998); see also Green-Younger v. Barnhart, 335 F.3d 99,
106
Cir.
rule of
2003)
( "The SSA recognizes a
'treating physician'
(2d
deference to the views of the physician who has engaged in the
4
primary treatment of the claimant.") ; Halloran v. Barnhart,
F.3d 28,
33
(2d Cir. 2004)
(per curiam)
362
("We do not hesitate to
remand when the Commissioner has not provided 'good reasons'
for
the weight given to a treating physician[']s opinion and we will
continue remanding when we encounter opinions from ALJs that do
not comprehensively set forth reasons for the weight assigned to
a treating physician's opinion.").
Our circuit has also been blunt on what an ALJ must do when
deciding not to give controlling weight to a treating physician:
To override the opinion of the treating physician, we
have held that the ALJ must explicitly consider, inter
alia: (1) the frequency, length, nature, and extent of
treatment; (2) the amount of medical evidence supporting
the opinion; (3) the consistency of the opinion with the
remaining medical evidence; and,
(4)
whether the
physician is a specialist. After considering the above
factors, the ALJ must comprehensively set forth his
reasons
for
the
weight
assigned
to
a
treating
physician's opinion.
The failure to provide good
reasons for not crediting the opinion of a claimant's
treating physician is a ground for remand.
The ALJ is
not permitted to substitute his own expertise or view of
the medical proof for the treating physician's opinion
or for any competent medical opinion.
Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015)
(emphasis added)
(internal citations, quotations and alterations omitted); see also
Burgess v. Astrue,
537 F.3d 117, 129
(2d Cir. 2008)
("[T]he ALJ
must comprehensively set forth his reasons for the weight assigned
to a
treating physicians opinion.
5
Failure to provide such good
reasons for not crediting the opinion of a
claimant's treating
physician is a ground for remand.")
Here, the ALJ engaged in none of the required analysis, and
the
opinion does
not
inform plaintiff
of
the
specific
weight
assigned to the opinions of either the treating physician or the
consultative examiner.
The failure to provide "'good reasons' for
not crediting the opinion of a claimant's treating physician is a
ground for remand."
Snell v. Apfel, 177 F.3d 128, 133
(2d Cir.
1999); see also Schaal v. Apfel, 134 F.3d at 505 ("Commissioner's
failure
to provide
weight
to
the
'good reasons'
opinion
constituted legal error.").
for
apparently affording no
plaintiff's
of
treating
physician
While an ALJ is free choose between
properly submitted medical opinions,
she may not substitute her
own lay opinion for those of medical experts.
Balsamo v. Chater,
142 F.3d 75, 81 (2d Cir. 1998); see also Halloran v. Barnhart, 362
F. 3d at 33
( "We do not hesitate to remand when the Commissioner
has not provided 'good reasons
physicians
[sic]
1
for the weight given to a treating
opinion and we will continue remanding when we
encounter opinions from ALJs that do not comprehensively set forth
reasons
for
opinion.") .
the
weight
assigned
to
a
treating
physician's
The failure of the ALJ to ask the vocational expert
a single hypothetical question that incorporated the exertional
limitations found by Dr. Thakur and Dr. Montalvo only compounded
6
the error and deprived plaintiff of a fair hearing.
remand is required.
(2d Cir. 2014)
Accordingly,
See McIntyre v. Colvin, 758 F.3d 146, 151-52
(an ALJ may rely on a vocational expert's testimony
at Step Five so long as it "accurately reflect[s] the limitations
and
capabilities
of
the
claimant
Winschel
involved");
v.
Commissioner of Social Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)
( "In order
for
a
vocational
substantial evidence,
expert's
testimony
to
constitute
the ALJ must pose a hypothetical question
which comprises all of the claimant's impairments.").
It is also the duty of the ALJ to develop the administrative
When,
record.
as here,
a claimant is unrepresented,
the Second
Circuit has stated that "the ALJ is under a heightened duty 'to
scrupulously
and
conscientiously
probe
explore for all the relevant facts.'"
8,
11
(2d Cir.
1990)
into,
inquire
of,
and
Cruz v. Sullivan, 912 F. 2d
(quoting Echevarria v.
Sec.
of Health and
Human Serv., 685 F.2d 751, 755 (2d Cir. 1982) (additional quotation
omitted))
If, on remand,
Montalvo or Dr.
Thakur are
the ALJ believes the opinions of Dr.
"vague,"
"ambiguous,"
or seemingly
"inconsistent" with physical findings, then the ALJ shall contact
the doctors or otherwise develop the record further in order to
7
provide the clarity necessary to make a reasoned decision supported
by substantial evidence. 1
Based on the reasons stated on the record and above,
hereby
ORDERED
that
plaintiff's
motion
for
judgment
it is
on
the
pleadings (Docket# 13) is granted, and the Commissioner's motion
for judgment on the pleadings (Docket# 14) is denied.
This case
is remanded for further proceedings consistent with this Decision
and Order.
SO ORDERED.
FELDMAN
Magistrate Judge
Dated:
September 20, 2017
Rochester, New York
1 Developing
a full and complete record is critically important
here because plaintiff meets the advanced age requirement, and an
RFC of light work may warrant a finding of disabi li ty under the
Medical Vocational Guidelines ("Grid Rules").
See MedicalVocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P, App. 2 §§
202.01 et seq.; see also Draegert v. Barnhart, 311 F.3d 468, 47273 ( 2d Cir. 2 O02) (applying the Grid Rules as related to an
individual of advanced age capable of sedentary or light work).
8
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?