Smith v. Commissioner of Social Security
DECISION AND ORDER Plaintiff's motion for summary judgment 10 is granted. The Commissioner's cross-motion for summary judgment 16 is denied. The Commissioner's decision that plaintiff was not disabled is vacated pursuant to 42 U.S.C. §405(g), and the case is remanded for further proceedings consistent with this opinion. Signed by Hon. David G. Larimer on 3/8/2018. (KAH)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Plaintiff Caprice Smith (“plaintiff”), brings this action under 42 U.S.C. §405(g) to review
the final determination of the Commissioner of Social Security (“the Commissioner”) that she is
not disabled under the Social Security Act.
Plaintiff originally applied for a period of disability and disability insurance benefits, as
well as supplemental security income, on March 8, 2013. She listed a disability onset date of
November 30, 2012. (Dkt. #7 at 10). Plaintiff’s applications were initially denied. Plaintiff
requested a hearing before an administrative law judge (“ALJ”), which was held on September 18,
2014 via videoconference before ALJ James G. Myles. The ALJ issued a written decision on
October 3, 2014 determining that plaintiff was not disabled under the Act (Dkt. #7 at 10-20), and
his decision became the final decision of the Commissioner when the Appeals Council denied
review on January 13, 2016. (Dkt. #7 at 1-3). This appeal followed.
The plaintiff has moved (Dkt. #10) and the Commissioner has cross-moved (Dkt. #16) for
judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. For the
reasons set forth below, the Commissioner’s decision is vacated, and the matter is remanded for
A person is considered disabled when he is unable “to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months. . . . 42 U.S.C. §423(d)(1)(A). In order to determine whether a claimant
is disabled, an ALJ employs a consecutive five-step inquiry, familiarity with which is presumed.
See Bowen v. City of New York, 476 U.S. 467, 470-71 (1986).
The Commissioner’s decision that plaintiff was not disabled must be affirmed if it applies
the correct legal standards and is supported by substantial evidence. 42 U.S.C. § 405(g); Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998).
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.’” Richardson v. Perales,
402 U.S. 389, 401 (1971), (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
If the Commissioner’s decision “rests on adequate findings supported by evidence having rational
probative force,” a district court cannot not substitute its own judgment for that of the
Commissioner. Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); see also Melville v. Apfel,
198 F.3d 45, 52 (2d Cir. 1999) (“[i]t is not the function of a reviewing court to decide de novo
whether a claimant was disabled”).
Such a deferential standard, however, is not applied to the Commissioner’s conclusions of
law. Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984). The Court must determine if the
Commissioner’s decision applied the correct legal standards in finding that plaintiff was not
disabled. “Failure to apply the correct legal standards is grounds for reversal.” Id., 748 F.2d at
“Where there is a reasonable basis for doubt whether the ALJ applied correct legal
principles, application of the substantial evidence standard to uphold a finding of no disability
creates an unacceptable risk that a claimant will be deprived of the right to have her disability
determination made according to the correct legal principles.” Schaal v. Apfel, 134 F.3d 496, 504
(2d Cir. 1998).
The ALJ’s Decision
The ALJ found that plaintiff had severe impairments, consisting of osteoarthritis,
degenerative disc disease of the lumbar and cervical spine, mild avascular necrosis of the hips, and
depression. (Dkt. #7 at 12). Upon review of the record, the ALJ concluded that plaintiff retained
the residual functional capacity (“RFC”) to perform light work, except that she could only
occasionally crouch, balance, stoop, climb, kneel and crawl, and should avoid ladders, ropes and
scaffolds. The claimant is further limited to routine, unskilled work. (Dkt. #7 at 14). When
presented with this RFC, vocational expert William T. Cody testified that a person with plaintiff’s
RFC could perform the positions of sorter, packer and cleaner. (Dkt. #7 at 19).
The Treating Physician Rule
It is well-settled that “the medical opinion of a claimant’s treating physician is given
controlling weight if it is well supported by medical findings and not inconsistent with other
substantial record evidence.” Shaw, 221 F.3d at 134. In determining what weight to give a
treating physician’s opinion, the ALJ must consider: (1) the length, nature and extent of the
treatment relationship; (2) the frequency of examination; (3) the evidence presented to support the
treating physician’s opinion; (4) whether the opinion is consistent with the record as whole; and
(5) whether the opinion is offered by a specialist. 20 C.F.R. §404.1527(d)1. Further, the ALJ
must articulate his reasons for assigning the weight that he does accord to a treating physician’s
opinion. See Shaw, 221 F.3d at 134. See also Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999)
(“[f]ailure to provide good reasons for not crediting the opinion of a claimant’s treating physician
is a ground for remand”) (internal quotations omitted). An ALJ’s failure to apply these factors
and provide reasons for the weight given to the treating physician’s report is reversible error. See
Snell, 177 F.3d at 134.
Plaintiff’s primary care physician since at least 2012, internist Dr. Karen G. Nead, provided
an RFC assessment on May 6, 2013. Dr. Nead opined that in light of plaintiff’s diagnoses,
including lumbar disc degeneration (prognosis: “poor”), hypertension, Graves disease and
depression, plaintiff’s ability to walk would be moderately limited (to no more than 2-4 hours in
an 8-hour workday), and her ability to stand, sit, push/pull/bend, and lift/carry, would be very
limited (to no more than 1-2 hours in an 8-hour workday). (Dkt. #7 at 217-20).
The ALJ summarily rejected Dr. Nead’s opinion as “vague,” and assigned it limited weight,
citing the fact that the form Dr. Nead used to indicate the extent of each exertional limitation
included a “check box” portion.2
A recent change to the Administration’s regulations regarding the consideration of opinion evidence will eliminate
application of the “treating physician rule” for claims filed on or after March 27, 2017. See Revisions to Rules
Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5848-49 (Jan. 18, 2017) (to be codified at 20
C.F.R. pts. 404 and 416). For the purposes of this appeal, however, the prior version of the regulation applies.
Review of the ALJ’s discussion of Dr. Nead’s opinion is further frustrated by the disjointedness of the paragraph in
which it appears. After rejecting Dr. Nead’s opinion, the ALJ lists, presumably as evidence contradicting Dr. Nead’s
opinion, plaintiff’s “[ability to] walk up to six hours . . . normal gait, and . . .tenderness in the lumbar spine.” (Dkt.
#7 at 17). This combination of findings is not included in Dr. Nead’s report, and it is unclear what evidence the ALJ
was referring to in making this observation. The ALJ then proceeds to describe a Social Security field office opinion
concerning plaintiff’s need for “stretch breaks” which the ALJ observes “is consistent with Dr. Nead’s opinion that
the claimant could not sit for long periods,” but the ALJ nonetheless declines to incorporate such limitations into his
RFC finding, because the unspecified “record of evidence [sic] and the claimant’s activities” suggest an ability to
perform light work. Id.
Initially, the Court finds the ALJ’s characterization of Dr. Nead’s opinion to be erroneous.
While the form used by Dr. Nead does include some check-boxes and was not filled out in its
entirety, it is hardly vague or unsupported. The form includes a thorough listing of plaintiff’s
diagnoses and the prognosis for each, lists all of her prescribed medications, provides an objective
assessment rendered after a physical examination (height, weight, appearance, gait, squat, etc.),
and gives specific opinions concerning plaintiff’s physical functions in light of those diagnoses
The ALJ’s dismissal of Dr. Nead’s opinion as “vague,” and failure to consider any of the
factors relevant to the evaluation of a treating physician’s opinion, is error. See Rankov v. Astrue,
2013 U.S. Dist. LEXIS 46969 at *28-*31 (E.D.N.Y. 2013) (ALJ committed reversible error where
she declined to grant controlling weight to treating physician because the form submitted by the
physician was cursory and/or ambiguous: to the extent the ALJ was concerned that checkmarks on
the form lacked a proper clinical foundation, she was required to request clarification from the
physician before discounting his opinion). The ALJ does not appear to have considered the length
and frequency of Dr. Nead’s treating relationship with the plaintiff, her credentials, or any of the
evidence supporting or contradicting her conclusions. Indeed, the record does contain evidence
consistent with Dr. Nead’s opinion which the ALJ referenced in his decision, but does not appear
to have actually credited in determining plaintiff’s RFC. This includes, inter alia, the April 15,
2013 opinion of consulting internist Dr. Karl Eurenius that due to back pain and neurological
deficits plaintiff was moderately limited with respect to sitting, standing, walking, climbing,
bending, lifting and carrying (Dkt. #7 at 209-12), treatment records documenting Dr. Nead’s
ongoing attempts to treat plaintiff’s pain with an aggressive series of multiple narcotics which were
frequently adjusted, and MRI records confirming degenerative changes in plaintiff’s cervical
spine, with minimal to mild spinal stenosis at levels C2-3 through C5-6, and moderate to severe
neural foraminal narrowing (compression of the spinal nerve root) at C4-5 and C5-6. (Dkt. #7 at
I therefore find that the ALJ’s determination that Dr. Nead’s opinion was not entitled to
controlling weight failed to properly consider the relevant factors and is unsupported by the
evidence of record. See 20 C.F.R. §404.1527(d)(2).
The Commissioner’s Burden to Prove That Plaintiff Can Perform Work
At step five of the disability determination, the Commissioner has the burden of proving
that there were other jobs that plaintiff could perform, in light of her age, education, work
experience, and RFC. See Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002). That burden
was not met here when the ALJ relied on testimony by a vocational expert to determine that
plaintiff was “not disabled,” to the extent that the hypothetical RFC that the vocational expert was
provided was based on an improperly-supported rejection of the opinion of plaintiff’s treating
physician. As a result, the record does not provide substantial evidence that plaintiff can perform
other work. See Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980); Mathews v. Barnhart, 220
F. Supp. 2d 171, 175-76 (W.D.N.Y. 2002).
Based on the foregoing, the Commissioner has failed to meet her burden to explain why
the opinion of plaintiff’s treating physician was not afforded controlling weight, or to demonstrate
that plaintiff can perform any work that exists in the economy. Where, as here, “‘there are gaps
in the administrative record or the ALJ has applied an improper legal standard,’” the appropriate
course is to remand the matter to the Commissioner for further development of the evidence. See
Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) (quoting Parker v. Harris, 626 F.2d 225, 235 (2d
Cir. 1980)). This is not a case “[w]here the existing record contains persuasive proof of disability
and a remand for further evidentiary proceedings would serve no further purpose . . .” Martinez
v. Commissioner, 262 F.Supp.2d 40, 49 (W.D.N.Y.2003). See also Curry v. Apfel, 209 F.3d 117,
124 (2d Cir. 2000). Remand is required so that the Commissioner can apply the proper legal
standards in weighing the evidence of record, and to obtain additional evidence and clarification,
as appropriate, from plaintiff’s treating physician. See Rosa v. Callahan, 168 F.3d 72, 83 (2d Cir.
Plaintiff’s motion for summary judgment (Dkt. #10) is granted. The Commissioner’s
cross-motion for summary judgment (Dkt. #16) is denied. The Commissioner’s decision that
plaintiff was not disabled is vacated pursuant to 42 U.S.C. §405(g), and the case is remanded for
further proceedings consistent with this opinion.
IT IS SO ORDERED.
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
March 8, 2018.
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