Wagner v. Colvin
DECISION AND ORDER granting 8 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 12 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 2/27/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
No. 6:16-CV-06161 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Represented by counsel, Roberta Wagner (“plaintiff”) brings
this action pursuant to Title XVI of the Social Security Act (“the
Act”), seeking review of the final decision of the Commissioner of
Social Security (“the Commissioner”) denying her application for
supplemental security income. 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 for further administrative
proceedings consistent with this Decision and Order.
The record reveals that in October 2012, plaintiff (d/o/b
January 1, 1999. After her application was denied, plaintiff
requested a hearing, which was held before administrative law judge
Connor O’Brien (“the ALJ”) on June 25, 2014. The ALJ issued an
unfavorable decision on November 3, 2014. The Appeals Council
denied review of that decision and this timely action followed.
III. Summary of the Evidence
The record reveals that plaintiff treated with Dr. Maureen
Perry during the relevant time period.1 Treatment notes indicate
medication to control her diabetes. Notes of physical examinations,
however, were unremarkable. Plaintiff also attended treatment at
Sawgrass Pain Treatment Center (“Sawgrass”), where she received
epidural injections approximately every three months. Physical
decreased range of motion (“ROM”) of the lumbosacral spine, and
improvement with the epidural injections. Imaging of plaintiff’s
lumbar spine showed mild degenerative changes without significant
central canal or neural foramina narrowing, as well as posterior
central disc protrusion at T10-T11 level, causing mild central
On April 10, 2013, Dr. Perry completed a medical source
statement regarding plaintiff’s physical capabilities. Dr. Perry,
who noted that plaintiff had been her patient “for many years,”
The record also contains regular treatment notes prior to the relevant
time period, during which plaintiff saw Dr. Perry for treatment of a work-related
opined that plaintiff’s impairments were severe enough to interfere
with the attention and concentration required to perform simple
work-related tasks on a frequent basis. According to Dr. Perry,
plaintiff could walk one city block without rest or significant
pain; could sit 30 minutes at one time and stand 15 minutes at one
time, but could not sit, stand, and/or walk at all during an eighthour workday;
positions at will from sitting, standing, or walking; and she would
need to take unscheduled breaks from the workday every hour for 10
minutes. Dr. Perry opined that plaintiff could occasionally lift up
to 10 pounds, but could never lift anything heavier. Dr. Perry
concluded that plaintiff was incapable of working eight hours per
day, five days per week on a sustained basis, and she would be
absent from work more than four times per month.
Plaintiff also received mental health treatment at Unity
Mental Health during the relevant time period. On mental status
examination (“MSE”), plaintiff at times demonstrated preoccupied
thought processes or thought processes characterized by guilt or
superficial insight. Plaintiff was diagnosed with major depressive
disorder, recurrent, of moderate severity, and prescribed Trazodone
(a sedative and antidepressant), Wellbutrin (a smoking cessation
aid and antidepressant), Lunesta (a sedative), and Abilify (an
disorder, and depression).
In a Disability Determination Explanation which included a
mental RFC assessment dated September 17, 2012, state agency
reviewing psychologist Dr. L. Blackwell opined that plaintiff was
moderately limited in maintaining attention and concentration for
extended periods, completing a normal workday and workweek without
interruptions from psychologically based symptoms, and performing
at a consistent pace without an unreasonable number and length of
plaintiff’s file, that plaintiff had no restrictions in activities
functioning; and moderate difficulties maintaining concentration,
persistence, or pace.
The ALJ’s Decision
At step one of the five-step sequential evaluation, see
20 C.F.R. § 416.920, the ALJ determined that plaintiff had not
engaged in substantial gainful activity since October 17, 2012, the
suffered from the following severe impairments: degenerative disc
disease of the lumbar spine; degenerative joint disease of the
bilateral hips and knees; diabetes mellitus; vitamin D deficiency;
hyperlipidemia; status post fracture of the right foot; depression;
and obesity. 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.
Before proceeding to step four, the ALJ determined that,
considering all of plaintiff’s impairments, plaintiff retained the
RFC to perform sedentary work as defined in 20 C.F.R. § 416.967(a),
except that she could not climb a rope, ladder, or scaffolding;
could not balance on narrow, slippery, or moving surfaces; could
occasionally stoop, crouch, climb stairs, kneel, and crawl; could
tolerate up to occasional exposure to extreme cold, extreme heat,
wetness, humidity, and occasional exposure to concentrated airborne
irritants; could “focus on work tasks for 2 hour periods, but
required up to three, short, unscheduled, less-than-5-minute breaks
in addition to the regularly scheduled daily breaks”; and could
work to meet daily goals, but not maintain an hourly, machinedriven, assembly line production rate.
At step four, the ALJ found that plaintiff could not perform
considering plaintiff’s age, education, work experience, and RFC,
jobs existed in the national economy which plaintiff could perform.
Accordingly, she found that plaintiff was not disabled.
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
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 RFC finding is unsupported by
substantial evidence. Specifically, plaintiff argues that the ALJ
did not properly weigh the treating physician opinion given by
Dr. Perry, and that the ALJ failed to discuss the only mental
reviewing state psychologist Dr. Blackwell. In a related argument,
plaintiff contends that the hypothetical questions posed to the
vocational expert (“VE”) were incomplete because they were based on
the RFC finding, which in turn was not supported by substantial
Regarding physical limitations, the ALJ gave “very little
weight” to Dr. Perry’s opinion, finding that “[a]lthough from a
supported,” because “clinical and objective evidence documenting
[plaintiff’s] physical impairments [did] not support this opinion;
treatment,” and plaintiff’s “own report of her activities, such as
that she is able to walk one mile per day undercuts this opinion.”
The only other physical assessment weighed by the ALJ was an
April 2011 assessment signed by Dr. Perry’s physician’s assistant,
Becky Thomas, in which PA Thomas opined that plaintiff was 75%
PA Thomas opined that plaintiff could “possibly” work “but she
[was] very limited as to how long she could sit, stand, walk, and
she [was] unable to do any persistent lifting or bending.” T. 354.
PA Thomas indicated that this condition could result in permanent
limitation and stated that plaintiff had reached maximal medical
improvement. The ALJ gave PA Thomas’s opinion “very little weight
. . . because it [was] inconsistent with the [plaintiff] exercising
“condition [was] greatly improved for long periods of time with
Additionally, the ALJ noted that PA Thomas was not an acceptable
medical source under the regulations and as such “her opinion [was]
not entitled to any special deference.” T. 18.
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). An ALJ must give “good
reasons” for rejecting the opinion of a treating physician. See
Saxon v. Astrue, 781 F. Supp. 2d 92, 102 (N.D.N.Y. 2011) (citing
20 C.F.R. § 404.1527(d); Social Security Ruling (“SSR”) 96–2p, 1996
SSR LEXIS 9, *12 (July 2, 1996) (stating that, when an ALJ’s
decision is not fully favorable to a claimant, he must provide
specific reasons for the weight given to each treating source's
medical opinion, supported by record evidence, and must state the
reasons for that weight)).
As noted above, the reasons given by the ALJ for rejecting
Dr. Perry’s opinion were that “clinical and objective evidence
documenting [plaintiff’s] physical impairments [did] not support
this opinion; [plaintiff] respond[ed] positively to comparatively
moderate treatment,” and plaintiff’s “own report of her activities,
such as that she is able to walk one mile per day undercuts this
opinion.” T. 18. The ALJ failed, however, to explain what clinical
and objective evidence failed to support Dr. Perry’s opinion, and
failed to describe how the opinion was inconsistent with the
demonstrated tenderness, positive SLR tests, and decreased ROM.
Because the ALJ did not explain how the medical record specifically
failed to support any of the limitations opined by Dr. Perry, this
Court is not able to glean the ALJ’s rationale and cannot find that
the requisite “good reasons” were given for according Dr. Perry’s
opinion “very little” weight. See, e.g., Vogel v. Colvin, 2013 WL
5566108, *5 (E.D.N.Y. Oct. 9, 2013).
Moreover, because the ALJ gave very little weight to the only
two physical assessments in the record, it appears that the ALJ
impermissibly substituted her own medical judgment for competent
medical opinion. See Silvers v. Colvin, 67 F. Supp. 3d 570, 580
(W.D.N.Y. 2014) (“The ALJ’s determination to give the treating
physician’s opinion such little weight can only be interpreted by
the court as an arbitrary substitution of his own judgment for
competent medical source opinion evidence.”) (citing Balsamo v.
Chater, 142 F.3d 75, 81 (2d Cir. 1998) (holding that ALJ cannot
arbitrarily substitute his own judgment for competent medical
Regarding mental impairments, the ALJ failed to discuss the
only mental health assessment in the record, which came from an
months after plaintiff filed her application. The record reveals
that plaintiff received regular mental health treatment and was
prescribed a variety of psychotropic medications for treatment of
her conditions. The ALJ’s failure to consider the only medical
opinion evidence regarding plaintiff’s mental health impairments
was reversible error. See 20 C.F.R. 416.927(c) (“Regardless of its
source, we will evaluate every medical opinion we receive.”).
Accordingly, this case is reversed and remanded for further
administrative proceedings consistent with this Decision and Order.
On remand, the ALJ is directed to evaluate Dr. Perry’s opinion with
treating physician’s opinion). The ALJ is also directed to obtain
a medical source opinion, preferably from a treating source,
regarding plaintiff’s mental health impairments and limitations. If
an opinion cannot be obtained from a treating mental health source,
the ALJ is directed to order a consulting psychiatric examination.
Because vocational expert testimony will necessarily be altered
upon a finding of a different RFC on remand, the ALJ is also
directed to obtain new hearing testimony from a vocational expert,
and to pose hypothetical questions which reflect the RFC found on
For the foregoing reasons, the Commissioner’s motion for
judgment on the pleadings (Doc. 12) is denied and plaintiff’s
motion (Doc. 8) 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
February 27, 2017
Rochester, New York.
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