Mura v. Colvin

Filing 15

DECISION & ORDER The Commissioner's motion for judgment on the pleadings 12 is denied, and Mura's motion for judgment on the pleadings 11 is granted to the extent that the Commissioner's decision is reversed, and this case is remanded to the Commissioner pursuant to 42 U.S.C. § 405(g), sentence four, for further administrative proceedings consistent with this decision. Signed by Hon. Marian W. Payson on 6/13/2017. (KAH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
JILL MARIE MURA,
DECISION & ORDER
Plaintiff,
16-CV-6159P
v.
CAROLYN W. COLVIN,1
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_______________________________________

PRELIMINARY STATEMENT
Plaintiff Jill Marie Mura (“Mura”) brings this action pursuant to Section 205(g) of
the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision of the
Commissioner of Social Security (the “Commissioner”) denying her application for
Supplemental Security Income Benefits (“SSI”). Pursuant to 28 U.S.C. § 636(c), the parties
have consented to the disposition of this case by a United States magistrate judge. (Docket
# 14).
Currently before the Court are the parties’ motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket ## 11, 12). For the
reasons set forth below, I hereby vacate the decision of the Commissioner and remand this claim
for further administrative proceedings consistent with this decision.

1

On January 23, 2017, after this appeal was filed, Nancy A. Berryhill became Acting Commissioner of
Social Security.

BACKGROUND
I.

Procedural Background
Mura applied for SSI alleging disability beginning on November 1, 2012, due to

asthma, anxiety, depression, degenerative disc disease, morbid obesity, bursitis in her left
shoulder, arthritis in her knees, and acid reflux. (Tr. 258, 262).2 On February 19, 2013, the
Social Security Administration denied Mura’s claim for benefits, finding that she was not
disabled.3 (Tr. 114). Mura requested and was granted a hearing before Administrative Law
Judge John P. Costello (the “ALJ”). (Tr. 29, 152, 196-98). The ALJ conducted a hearing on
September 18, 2014. (Tr. 29-54). In a decision dated November 24, 2014, the ALJ found that
Mura was not disabled and was not entitled to benefits. (Tr. 11-24).
On January 4, 2016, the Appeals Council denied Mura’s request for review of the
ALJ’s decision. (Tr. 1-4). Mura commenced this action on March 11, 2016, seeking review of
the Commissioner’s decision. (Docket # 1).

II.

Relevant Medical Evidence4
The record indicates that Mura began receiving primary care treatment from Rana

Masood (“Masood”), M.D., as early as October 2009 and continued receiving primary care
treatment from her until approximately September 2012. (Tr. 135, 265, 267, 289, 293, 344, 346,
371, 373, 417). The records suggest that Masood treated Mura for a variety of complaints, both
mental and physical, including asthma, anemia, low back and thoracic spine pain, acid reflux,
2

The administrative transcript shall be referred to as “Tr. __.”

3

Mura previously sought Disability Insurance Benefits (“DIB”) and SSI. (Tr. 118). These claims were
denied on March 20, 2006. (Id.). Thereafter, on March 29, 2011, she filed for benefits, alleging disability beginning
on February 2, 2002. (Id.). On October 30, 2012, Administrative Law Judge Rosael Gautier determined that Mura
was not disabled between March 21, 2006 and December 31, 2007, her date last insured. (Tr. 118-32, 259).
4

Those portions of the treatment records that are relevant to this decision are recounted herein.

2

anxiety, and depression. (Id.). Beginning in December 2012, Mura began receiving primary
care treatment from Susan Areeckal (“Areeckal”), M.D. (Tr. 353). The record suggests that
Mura continued to receive treatment from Areeckal until the time of the administrative hearing.
(Tr. 359, 386, 393, 395, 397, 400, 407).
On May 2, 2011, Masood completed a physical assessment for determination of
employability relating to Mura. (Tr. 375-78). Masood reported that Mura suffered from
shoulder and back pain and was unable to use public transportation or to squat. (Id.). Masood
opined that Mura was “very limited” in her ability to walk, stand, sit, push, pull, bend, lift, and
carry. (Id.). The form defined “very limited” to mean an ability to perform those functions an
estimated one to two hours per eight-hour workday. (Id.).

DISCUSSION
I.

Standard of Review
This Court’s scope of review is limited to whether the Commissioner’s

determination is supported by substantial evidence in the record and whether the Commissioner
applied the correct legal standards. See Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004)
(“[i]n reviewing a final decision of the Commissioner, a district court must determine whether
the correct legal standards were applied and whether substantial evidence supports the
decision”), reh’g granted in part and denied in part, 416 F.3d 101 (2d Cir. 2005); see also
Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (“it is not our function to determine de novo
whether plaintiff is disabled[;] . . . [r]ather, we must determine whether the Commissioner’s
conclusions are supported by substantial evidence in the record as a whole or are based on an
erroneous legal standard”) (internal citation and quotation omitted). Pursuant to 42 U.S.C.

3

§ 405(g), a district court reviewing the Commissioner’s determination to deny disability benefits
is directed to accept the Commissioner’s findings of fact unless they are not supported by
“substantial evidence.” See 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner . . . as to
any fact, if supported by substantial evidence, shall be conclusive”). 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) (internal quotation omitted).
To determine whether substantial evidence exists in the record, the court must
consider the record as a whole, examining the evidence submitted by both sides, “because an
analysis of the substantiality of the evidence must also include that which detracts from its
weight.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). To the extent
they are supported by substantial evidence, the Commissioner’s findings of fact must be
sustained “even where substantial evidence may support the claimant’s position and despite the
fact that the [c]ourt, had it heard the evidence de novo, might have found otherwise.” Matejka v.
Barnhart, 386 F. Supp. 2d 198, 204 (W.D.N.Y. 2005) (citing Rutherford v. Schweiker, 685 F.2d
60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983)).
A person is disabled for the purposes of SSI and disability benefits if he or she 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) & 1382c(a)(3)(A). When assessing whether a claimant is disabled, the ALJ
must employ a five-step sequential analysis. See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.
1982) (per curiam). The five steps are:

4

(1)

whether the claimant is currently engaged in substantial
gainful activity;

(2)

if not, whether the claimant has any “severe impairment”
that “significantly limits [the claimant’s] physical or mental
ability to do basic work activities”;

(3)

if so, whether any of the claimant’s severe impairments
meets or equals one of the impairments listed in Appendix
1 of Subpart P of Part 404 of the relevant regulations;

(4)

if not, whether despite the claimant’s severe impairments,
the claimant retains the residual functional capacity to
perform his past work; and

(5)

if not, whether the claimant retains the residual functional
capacity to perform any other work that exists in significant
numbers in the national economy.

20 C.F.R. §§ 404.1520(a)(4)(i)-(v) & 416.920(a)(4)(i)-(v); Berry v. Schweiker, 675 F.2d at 467.
“The claimant bears the burden of proving his or her case at steps one through four[;] . . . [a]t
step five the burden shifts to the Commissioner to ‘show there is other gainful work in the
national economy [which] the claimant could perform.’” Butts v. Barnhart, 388 F.3d at 383
(quoting Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998)).
A.

The ALJ’s Decision
In his decision, the ALJ followed the required five-step analysis for evaluating

disability claims. (Tr. 11-24). Under step one of the process, the ALJ found that Mura had not
engaged in substantial gainful activity since November 6, 2012, the application date. (Tr. 13).
At step two, the ALJ concluded that Mura had the severe impairments of anxiety disorder,
depressive disorder, asthma, obesity, and degenerative disc disease of the lumbar spine. (Id.).
The ALJ concluded that Mura’s left shoulder impairment, bilateral knee impairment, plantar
fasciitis, heel spurs, bursitis, and acid reflux were not severe. (Tr. 13-14). According to the ALJ,
her medical records did not indicate that she was currently receiving treatment for her alleged
5

shoulder, knee, and foot impairments. (Id.). At step three, the ALJ determined that Mura did not
have an impairment (or combination of impairments) that met or medically equaled one of the
listed impairments. (Tr. 14-16). With respect to Mura’s mental impairments, the ALJ found that
Mura suffered from mild restrictions in activities of daily living and moderate difficulties in
maintaining concentration, persistence and pace, and social functioning. (Id.). The ALJ
concluded that Mura had the Residual Functional Capacity (“RFC”) to perform light work, but
that she was limited to performing simple, routine tasks, requiring only occasional interaction
with coworkers and the general public, and needed to avoid concentrated exposure to respiratory
irritants. (Tr. 17-23). At steps four and five, the ALJ determined that Mura was unable to
perform any past relevant work, but that other jobs existed in the national economy that she
could perform, including the positions of agriculture produce sorter and cleaner/housekeeping.
(Tr. 23-24). Accordingly, the ALJ found that Mura was not disabled. (Id.).
B.

Mura’s Contentions
Mura contends that the ALJ’s determination that she was not disabled is not

supported by substantial evidence and is the product of legal error. (Docket # 11-1). First, Mura
maintains that the ALJ failed to fulfill his duty to develop the record by obtaining treatment
records from Mura’s primary care physicians. (Id. at 14-18). Next, Mura contends that the
ALJ’s RFC assessment was not based upon substantial evidence because he erred in evaluating
the opinion evidence contained in the record. (Id. at 18-30). According to Mura, the ALJ
improperly rejected Masood’s opinion as to her physical limitations. (Id. at 19-20, 24-26).
Additionally, Mura maintains that that ALJ improperly rejected the opinions of her other treating
physicians as to her mental limitations. (Id. at 19-24). Finally, Mura contends that the ALJ
improperly rejected the most restricting limitations of the consultative psychiatric examiner’s

6

opinion (id. at 26-28) and improperly relied upon the opinions of Dr. Eurenius as to Mura’s
physical limitations and Dr. Kamin as to Mura’s mental limitations (id. at 28-30).

II.

Analysis
I turn first to Mura’s contention that the ALJ’s RFC assessment was flawed

because the ALJ improperly discounted Masood’s opinion. (Id. at 19-20, 24-26). In his
decision, the ALJ accorded no weight to Masood’s opinion on the grounds that “it [was]
illegible, and was completed in 2011, prior to the current period at issue.” (Tr. 22). Mura
contends that neither reason justified the ALJ’s rejection of the only opinion from a treating
source regarding her physical limitations. I agree.
Generally, a treating physician’s opinion is entitled to “controlling weight” when
it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R.
§§ 404.1527(c)(2) and 416.927(c)(2); see also Gunter v. Comm’r of Soc. Sec., 361 F. App’x 197,
199 (2d Cir. 2010) (“the ALJ [must] give controlling weight to the opinion of the treating
physician so long as it is consistent with the other substantial evidence”). Thus, “[t]he opinion of
a treating physician is generally given greater weight than that of a consulting physician[]
because the treating physician has observed the patient over a longer period of time and is able to
give a more detailed picture of the claimant’s medical history.” Salisbury v. Astrue, 2008 WL
5110992, *4 (W.D.N.Y. 2008).
“An ALJ who refuses to accord controlling weight to the medical opinion of a
treating physician must consider various ‘factors’ to determine how much weight to give to the

7

opinion.” Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). The ALJ must explicitly
consider:
(1)

the frequency of examination and length, nature, and extent
of the treatment relationship,

(2)

the evidence in support of the physician’s opinion,

(3)

the consistency of the opinion with the record as a whole,

(4)

whether the opinion is from a specialist, and

(5)

whatever other factors tend to support or contradict the
opinion.

Gunter v. Comm’r of Soc. Sec., 361 F. App’x at 199. The regulations also direct that the ALJ
should “give good reasons in [his] notice of determination or decision for the weight [he] give[s]
[claimant’s] treating source’s opinion.” Halloran v. Barnhart, 362 F.3d at 32 (quoting 20 C.F.R.
§ 404.1527(c)(2)).
In his decision, the ALJ explained that he rejected Masood’s opinion because it
was illegible. (Tr. 22). I have reviewed the handwritten opinion and, contrary to the ALJ’s
characterization, find that it is almost entirely legible (and is summarized above). (Tr. 375-78).
Masood’s opinion, through the use of checkmark boxes, indicated significant physical limitations
due to back and shoulder pain. (Id.). Although other reasons may exist to discount the opinion,
the ALJ’s determination to discount a legible treating physician opinion on the grounds that it is
illegible was improper; at the very least, the ALJ should have contacted Masood to decipher
those portions the ALJ found to be illegible.5 See Drozdowski v. Colvin, 2016 WL 5402698, *8
5

On March 26, 2012, the regulations were amended to delete the provision that imposed a duty to
recontact a treating physician “when the report from [a claimant’s] medical source contains a conflict or ambiguity
that must be resolved, the report does not [contain all the necessary information,] [or does not] appear to be based on
medically acceptable clinical and laboratory diagnostic techniques.” Quinn v. Colvin, 2016 WL 4255020, *12 n.2
(W.D.N.Y. 2016) (quoting 20 C.F.R. § 404.1512(e) (before amendment)). Thus, where an ambiguity concerns an
opinion provided by a treating physician, the ALJ has “discretion to ‘determine the best way to resolve the
inconsistency or insufficiency’ based on the facts of the case.” Rolon v. Comm’r of Soc. Sec., 994 F. Supp. 2d 496,

8

(W.D.N.Y. 2016) (“[t]here may be reasons to discount this opinion or to give greater weight to
other conflicting testimony and opinion evidence in the record, but the ALJ erred by failing to
specifically state those reasons”); Stewart v. Colvin, 2015 WL 4546050, *8 (W.D.N.Y. 2015)
(“plaintiff’s treating physician’s notes were contained within the record but were illegible[;] . . .
the ALJ should have endeavored to clarify the treatment notes rather than simply ignore them
and conclude that no evidence in the record supported plaintiff’s reports of her symptoms”);
Clark v. Astrue, 2010 WL 3036489, *4 (S.D.N.Y. 2010) (“although the psychological expert
remarked that the treatment records were often illegible, . . . and the ALJ noted that the records
were of ‘rather poor quality,’ . . . these facts alone do not constitute ‘good reasons’ to disregard
the treating physician’s opinion”); Jackson v. Barnhart, 2008 WL 1848624, *8 (W.D.N.Y. 2008)
(“[the ALJ] should have obtained more detailed and clearer statements from her treating
physician, especially since the medical records which appear in the administrative record are
often illegible[;] . . . [t]here is no way for this court to determine whether the illegible
information in these reports might have provided further support for plaintiff’s claim”) (internal
quotations and brackets omitted).
The ALJ also rejected Masood’s opinion – the only opinion from a treating
physician regarding Mura’s physical capabilities – because it predated the period at issue.
(Tr. 22). According to the government, the ALJ correctly rejected the opinion because the record
does not reflect that Masood treated Mura during the period after she applied for benefits.
(Docket # 12-1 at 19). Although the timing of a treating physician’s report is plainly relevant to
the ALJ’s determination of the weight, if any, to give it, a treating physician’s opinion need not

505 (S.D.N.Y. 2014) (quoting 20 C.F.R. §§ 404.1520b(c)(1), 416.920b(c)(1)). The regulations nonetheless continue
to “contemplate the ALJ recontacting treating physicians when ‘the additional information needed is directly related
to that source’s medical opinion.’” Jimenez v. Astrue, 2013 WL 4400533, *11 (S.D.N.Y. 2013) (quoting How We
Collect and Consider Evidence of Disability, 77 Fed. Reg. 10,651, 10,652 (Feb. 23 2012)).

9

be rejected solely because it predates the relevant time period. See Drozdowski v. Colvin, 2016
WL 5402698 at *8 (remanding with instructions for ALJ to consider treating source opinions
given prior to the alleged onset date; “not every medical opinion provided before an alleged
onset date is necessarily irrelevant”); Burdick v. Colvin, 2015 WL 8352320, *7 (D. Vt.)
(“[a]lthough [the treating physicians] treated [plaintiff] prior to the application date . . . , their
treatment notes and opinions are relevant to [plaintiff’s] condition during the alleged disability
period and to the issue of whether [another opinion is] consistent with other medical evidence of
record[;] ALJs ‘may consider all evidence of record, including medical records and opinions
dated prior to the alleged onset date,’ when, as here, there is no evidence of deterioration or
progression of symptoms”) (quoting Pirtle v. Astrue, 479 F.3d 931, 934 (8th Cir. 2007)), report
and recommendation adopted, 2015 WL 8481849 (D. Vt. 2015); Binder v. Comm’r of Soc. Sec.,
2016 WL 4079533, *4 (N.D.N.Y. 2016) (“[i]t is true that courts have found opinions provided
before the onset date to be irrelevant in certain situations[;] . . . [h]owever, this [c]ourt does not
conclude that every opinion provided before an alleged onset date is irrelevant, nor does it
believe that [the treating physician’s] opinion is”); Green v. Barnhart, 2009 WL 68828, *9
(W.D.N.Y. 2009) (“[t]he ALJ may consider all evidence of record, including medical records
and opinions dated prior to the alleged onset date, when there is no evidence of deterioration or
progression of symptoms”) (quotations omitted).
Although opinions from physicians who did not treat the claimant during the
relevant time period are not entitled to controlling weight, see Rogers v. Astrue, 895 F. Supp. 2d
541, 549 (S.D.N.Y. 2012) (“[t]he treating physician rule . . . does not technically apply when the
physician was not the treating physician at all during the relevant time period”) (citing Monette v.
Astrue, 269 F. App’x 109, 112 (2d Cir. 2008)), such opinions may be entitled to significant

10

weight, see Monette v. Astrue, 269 F. App’x at 113 (“the fact that a treating physician did not
have that status at the time referenced in a retrospective opinion does not mean that the opinion
should not be given some, or even significant weight”); Tricarico v. Colvin, 2015 WL 5719696,
*7 (E.D.N.Y. 2015) (noting the ALJ properly gave significant weight to treating physician
opinion “even though th[e] opinion was completed before the claimant’s alleged onset date,
because . . . the record did not show any significant change in [plaintiff’s] condition since the last
time [the doctor] examined him”), aff’d, 2017 WL 902603 (2d Cir. 2017); Rogers v. Astrue, 895
F. Supp. 2d at 550 (treating physician’s opinion was entitled to significant, but not controlling,
weight, where physician did not treat plaintiff during the relevant period). In this case, Masood
apparently treated Mura for several years immediately preceding her application date. Indeed, it
appears that Masood examined Mura in September 2012, less than two months prior to her
application. Nothing in the record suggests that Mura’s condition changed significantly after she
stopped treating with Masood. Rather, the record suggests that Mura continued to suffer from
the same ailments for which she sought treatment from Masood. Although Masood’s opinion
was not entitled to controlling weight, the ALJ did not explicitly consider whether it was entitled
to significant weight, given the substantial treatment history. Under such circumstances, remand
for consideration and weighing of the treating physician is appropriate.
Moreover, throughout his opinion, the ALJ explicitly questioned whether Mura
continued to suffer from many of her alleged physical ailments because the record contained no
indication that she received ongoing treatment for those complaints. (Tr. 14, 18, 21). The ALJ
reasoned that Mura’s apparent lack of ongoing treatment supported his conclusion that her
physical complaints were not as disabling as she alleged. (Tr. 21 (“The claimant’s lack of
pursuit of even routine treatment (such as imaging studies and physical therapy) for all these

11

conditions suggests that they are not as disabling as alleged”)). Similarly, he questioned the
severity of her mental health limitations and her credibility based upon apparent gaps in her
mental health treatment records. (Tr. 21 (“She did not receive mental health treatment for a
prolonged period of time, despite agonizing complaints and availability of treatment”)). He also
discounted her credibility based upon her apparent failure to seek treatment for her physical pain.
(Tr. 21 (“[f]or instance, while the claimant reported at the consultative examination that she felt
increasing aching in her left shoulder, particularly when she tried to elevate her arm, she has not
had this evaluated . . . [;] [t]he claimant has not sought any treatment for this issue even a year
after her complaints began”; “while the claimant reported a bilateral knee impairment at the
consultative examination particularly the left knee when climbing and descending stairs, she has
not had this evaluated . . . [;] [t]he claimant has not sought any treatment for this issue”)).
The record demonstrates that Mura received ongoing treatment from Masood over
the course of several years through September 2012, less than two months prior to her
application date. (Tr. 135, 259, 265, 267, 293, 344, 346, 371, 373, 417). Mura began receiving
primary care treatment from Areeckal in December 2012 and continued treating with her
throughout the relevant period, including at the time of the hearing. (Tr. 359, 386, 393, 395, 397,
400, 407). The record suggests that Mura’s primary care providers addressed both physical and
mental ailments. (Tr. 41). According to Mura, although she stopped seeing a psychotherapist
due to her difficulty in attending appointments, she discussed her ongoing mental health issues
with her primary care physicians, and they apparently prescribed mental health medications to
her. (Tr. 41). It is clear that Masood’s treatment records were available; indeed, they were part

12

of the record on Mura’s previous application for benefits.6 (Tr. 135). Despite that, this record
contains none of Masood’s treatment records and only the notes from Mura’s initial visit with
Areeckal. The absence of Mura’s primary care treatment records is especially concerning
because the ALJ’s decision appears to have been influenced by his assumption that Mura did not
treat for her complaints – an assumption that may be belied by the treatment notes. See, e.g.,
Welsh v. Colvin, 2016 WL 836081, *13 (W.D.N.Y. 2016) (“[a]lthough I do not find that the ALJ
erred by not making additional efforts to obtain the treatment notes, I agree with [plaintiff] that
the ALJ was not permitted to draw any adverse inferences against [plaintiff] because the records
had not been submitted”).
On remand, the ALJ should evaluate Masood’s opinion and, if any parts are
illegible, contact Masood to translate those portions. Additionally, the ALJ should attempt to
obtain the treatment notes from Masood and Areeckal to evaluate the extent to which, if at all,
Mura sought and received treatment from them for her physical and mental impairments.
“Because further development of the record may affect the ALJ’s determinations regarding
[Mura’s] credibility and capability, [Mura’s] remaining arguments need not be considered at this
time.” Girolamo v. Colvin, 2014 WL 2207993, *9 (W.D.N.Y. 2014).

CONCLUSION
For the reasons stated above, the Commissioner’s motion for judgment on the
pleadings (Docket # 12) is DENIED, and Mura’s motion for judgment on the pleadings (Docket
# 11) is GRANTED to the extent that the Commissioner’s decision is reversed, and this case is

6

Although these records were part of the previous administrative record, it does not appear that they were
considered by the ALJ in her earlier determination because that determination concerned whether Mura was disabled
between March 21, 2006 and December 31, 2007. (Tr. 130-31).

13

remanded to the Commissioner pursuant to 42 U.S.C. § 405(g), sentence four, for further
administrative proceedings consistent with this decision.
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
June 13, 2017

14