Ross v. Colvin
Filing
19
DECISION AND ORDER granting 12 Plaintiff's Motion for Judgment on the Pleadings; denying 16 Commissioner's Motion for Judgment on the Pleadings; The Commissioner's decision is reversed and the matter is remanded for calculation and payment of benefits. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 2/20/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KAREN CHRISTINE ROSS,
Plaintiff,
No. 6:16-cv-06618(MAT)
DECISION AND ORDER
-vsCAROLYN W. COLVIN, ACTING COMMISSIONER
OF SOCIAL SECURITY,
Defendant.
I.
Introduction
Represented by counsel, Karen Christine Ross (“Plaintiff”)
instituted this action pursuant to Titles II and XVI of the Social
Security Act (“the Act”), seeking review of the final decision of
the Acting Commissioner of Social Security (“the Commissioner”)1
denying her application for Disability Insurance Benefits (“DIB”)
and
Supplemental
Security
Income
(“SSI”).
The
Court
has
jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c).
II.
Procedural Status
Plaintiff protectively filed for DIB and SSI on August 7,
2013,
alleging
applications
disability
were
denied
beginning
on
October
September
1,
23,
and
2013,
2010.
The
Plaintiff
1
Nancy A. Berryhill became the Acting Commissioner of Social Security on
January 20, 2017. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil
Procedure, Nancy A. Berryhill should be substituted, therefore, for Acting
Commissioner Carolyn W. Colvin as Defendant in this suit. No further action need
be taken to continue this suit by reason of the last sentence of section 205(g)
of the Social Security Act, 42 U.S.C. § 405(g).
requested a hearing. Administrative Law Judge Rosanne M. Dummer
(“the
ALJ”)
conducted
videoconference.
a
Plaintiff
hearing
on
appeared
December
with
4,
her
2014,
via
attorney
and
testified. Stephen P. Davis, an impartial vocational expert (“the
VE”), also testified at the hearing, via videoconference telephone.
On
December
4,
2014,
the
ALJ
sent the
objective
record
evidence by query with interrogatories to Stuart Gitlow, M.D., MPH
Board Certified in General Medicine and Addiction and Forensic
Psychiatry. Dr. Gitlow’s response and professional qualifications
were
sent
to
Plaintiff’s
attorney,
who
did
not
provide
any
response. After the hearing, the ALJ also received into the record
treatment notes from March of 2014, to September of 2014 (pulmonary
treatment), and from November 2013, to September 2014 (Unity Family
Medicine).
On January 26, 2015, the ALJ issued an unfavorable decision.
(T.14-38).2 The Appeals Council denied Plaintiff’s request for
review on July 14, 2016, making the ALJ’s decision the final
decision of the Commissioner. Plaintiff then timely commenced this
action.
III. The ALJ’s Decision
At the outset, the ALJ noted that Plaintiff previously had
filed two sets of applications for DIB and SSI, the last of which
2
Citations to “T.” in parentheses refer to pages from the certified
administrative transcript.
-2-
was denied at the initial level on July 19, 2012, and no further
review was sought. Since Plaintiff had alleged an onset date of
disability within the previously adjudicated time period, the ALJ
found there was an implied request for reopening. However, the ALJ
found no basis to reopen the prior denials, which were final and
binding through July 19, 2012, meaning that the relevant period
commenced July 20, 2012. (T.17).
The ALJ then found that Plaintiff meets the insured status
requirements of the Act through December 31, 2015, and had not
engaged in substantial gainful activity since September 1, 2010.
At
step
following
two,
severe
the
ALJ
determined
impairments:
that
bipolar
Plaintiff
disorder,
has
and
the
alcohol
dependence and marijuana abuse in reported remission. The ALJ found
that Plaintiff’s asthma appeared to stable on medication, and was
not severe. The ALJ noted that Plaintiff also reported elbow pain,
bilaterally; x-rays taken in December 2011, showed spurring of the
right and left elbow and degenerative changes of the left elbow.
The ALJ observed that Plaintiff reported she could not lift five
pounds with either arm, “though no evidence indicates significant
musculoskeletal
treatment
or
that
follow[-]up
was
required.”
Therefore, the ALJ concluded that Plaintiff’s elbow impairment was
not severe. The ALJ noted that Plaintiff reported right leg muscle
weakness,
but
it
did
“not
appear
related
to
a
medically
determinable impairment[,]” and was not severe. In addition, the
-3-
ALJ considered notations in the record by social workers mentioning
a psychotic disorder. Since the assessment of a psychotic disorder
was noted by Plaintiff’s providers in connection with her substance
use,
the
ALJ
considered
the
reported
psychotic
symptoms
in
severity
of
connection with Plaintiff’s severe impairments above.
At
step
Plaintiff’s
three,
mental
the
ALJ
determined that the
impairments,
considered
singly
and
in
combination, do not meet or medically equal the criteria of any
listed impairment, see 20 C.F.R. § Pt. 404, Subpt. P, App. 1 (eff.
Jan. 2, 2015, to May 17, 2015). The ALJ particularly considered
Listings 12.04 (affective disorders) and 12.09 (substance addiction
disorders).
Prior to proceeding to step four, the ALJ assessed Plaintiff
as having the residual functional capacity (“RFC”) to perform a
range of medium work as defined in 20 C.F.R. § 404.1567(c).
Plaintiff could lift/carry about 50 pounds occasionally and 25
pounds frequently; sit about six of eight hours and stand/walk
about six of eight hours; should avoid concentrated exposure to
pulmonary irritants; should avoid concentrated exposure to work
hazards; is able to understand, remember, and carry out simple
instructions; can sustain attention for simple tasks for extended
periods of two-hour segments in an eight-hour day; is able to
tolerate brief and superficial contact with others; and is able to
-4-
adapt to changes for simple, routine, and repetitive type tasks.
(T.21).
At step four, the ALJ found that Plaintiff cannot perform any
of her past relevant work as a (1) certified nurse assistant
(Dictionary
of
Occupational
Titles
(“DOT”)
code: 355.674-014)
medium level (performed at heavy), Specific Vocational Preparation
(“SVP”)
4,
semi-skilled;
(2)
day-care
provider
(DOT
code:
301.677-010) medium level, SVP 3, semi-skilled; (3) teacher’s aide
(DOT code: 249.367-074) light level (performed at medium), SVP 3,
semi-skilled; or (4) package sealer (DOT code: 920.685-074) medium
level, SVP 2, unskilled. The demands of all these jobs exceeded
Plaintiff’s RFC. (T.32).
At step five, the ALJ noted that Plaintiff was 50 years-old,
defined as an individual closely approaching advanced age, with a
limited (eleventh grade) education. (T.32). The ALJ found that
transferability of job skills was not material to disability
determination because the Medical-Vocational Rules (“the Grids”)
supported a finding of “not disabled,” whether or not Plaintiff has
transferable job skills. (T.33).
The
ALJ
relied
on
the
VE’s
testimony
that
a
person
of
Plaintiff’s age, and with her education, work experience, and RFC,
could perform the requirements of various unskilled medium and
light occupations that exist in significant numbers nationally and
in New York State. Examples of jobs at the unskilled medium level
-5-
provided by the VE were (1) hand packager (DOT code: 920.587-018);
(2) marker (DOT code: 369.687.026); (3) linen clerk (DOT code:
222.387-030); (4) meat clerk (DOT code: 222.684-014); and (5)
stacker (DOT code: 222.587-046). Examples of jobs at the unskilled
light level provided by the VE were (1) shipping and receiving
weigher (DOT code: 222.387-074); (2) toy assembler (DOT code:
731.687-034); and (3) assembler of glass products (DOT code:
739.687.194). At the hearing, the ALJ also presented the VE with
hypotheticals regarding an individual of Plaintiff’s age, and with
her
education,
work
experience,
and
certain
additional,
non-
exertional limitations. In response, the VE testified that if an
individual were further limited to only occasional public contact,
the job of meat clerk would be precluded, but all other jobs he
identified would remain available.
IV.
Scope of Review
When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Act, the district court is
limited to determining whether the Commissioner’s findings were
supported
by
substantial
record
evidence
and
whether
the
Commissioner employed the proper legal standards. Green-Younger v.
Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). The district court
must accept the Commissioner’s findings of fact, provided that such
findings are supported by “substantial evidence” in the record.
See 42 U.S.C. § 405(g) (the Commissioner’s findings “as to any
-6-
fact, if supported by substantial evidence, shall be conclusive”).
The reviewing court nevertheless must scrutinize the whole record
and examine evidence that supports or detracts from both sides.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation
omitted). In addition, “[t]he deferential standard of review for
substantial
evidence
conclusions of law.”
does
not
apply
to
the
Commissioner’s
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir.
2003) (citing Townley v. Heckler, 748 F.2d 109, 112 (2d Cir.
1984)).
V.
Discussion
A.
Physical RFC Unsupported by Substantial Evidence Due to
ALJ’s Failure to Obtain a Consultative Physical
Examination (Plaintiff’s Point I)
Plaintiff argues that the ALJ improperly determined that all
of her physical impairments were non-severe without any opinion
from an acceptable medical source. Plaintiff notes that the only
medical opinion regarding her physical limitations in the record
was from Physician’s Assistant Sandra Williams (“PA Williams”) at
Unity Health Family Health (St. Mary’s). Plaintiff contends that
the ALJ’s rejection of PA Williams’ opinion created a “paradox” for
the ALJ: “no acceptable medical source to identify Plaintiff’s
medically determinable physical impairments, but an opinion from
her treating other source that indicated [she] would be capable of,
at best, sedentary work.” (Plaintiff’s Memorandum of Law (“Pl’s
-7-
Mem.”) (Dkt #12-1) at 12). According to Plaintiff, the situation
required the ALJ to order a consultative physical examination.3
PA Williams provided almost all of Plaintiff’s primary care
treatment through the period from 2011 to 2014. On February 19,
2011, Plaintiff presented to PA Williams with, among other things,
“elbow pain [due to] congenital abnormality where she cannot
straighten either elbow since a child[,]” and in the past year she
“has been having some aching worse with cold weather.” (T.249).
Under assessment/plan, PA Williams noted that the elbow condition
was under “sub-optimal control,” and she ordered x-rays to check
for arthritis. Plaintiff was to follow up “as needed,” and take
non-steroidal anti-inflammatories (“NSAIDs”) as needed. (T.250). On
April 18, 2012, PA Williams wrote that the x-ray had been done;
impression
was
“[history]
congenital
abnormality
bilat[eral]
elbows.” (T.295). PA Williams noted that the elbow condition was
“stable,” and instructed her to take NSAIDs, and to follow up, on
an
as-needed
basis.
(T.296).
On
June
2,
2014,
PA
Williams
indicated that she completed a Department of Social Services
(“DSS”) form and indicated that, due to
Plaintiff’s degenerative
arthritis of the elbow (stable), she was able to work 40 hours a
3
The
regulations
provide
that
the
Social
Security
Administration (“SSA”) “may purchase a consultative examination to
try to resolve an inconsistency in the evidence, or when the
evidence as a whole is insufficient to allow [it] to make a
determination or decision on [a] claim.” 20 C.F.R. §§ 404.1519a,
416.929a.
-8-
week with the following restrictions: “no carrying over 5 lbs each
arm,
no
overhead
reaching
[for]
one
year.”
(T.823).
Due
to
Plaintiff’s right leg weakness (stable), she could engage in “no
prolonged standing [longer than] 15 min.” (Id.).
Physician’s assistants are defined as “other sources” under
the
Regulations;
sources”
they
entitled
to
do
the
not
constitute
presumption
of
“acceptable
deference
medical
under
the
treating physician rule. E.g., Genier v. Astrue, 298 F. App’x 105,
108 (2d Cir. 2008) (unpublished opn.); SSR 06–3p, 2006 WL 2329939
(S.S.A. Aug. 9, 2006). While, as a general rule, opinions from
“other sources” are not entitled to controlling weight, SSR 06-3p
recognizes that “other source” opinions “are important and should
be
evaluated
on
key
issues
such
as
impairment
severity
and
functional effects, along with the other relevant evidence in the
file.” SSR 06-3p, 2006 WL 2329939, at *3.
SSR 06–03p states that
the same factors used in evaluating the opinions of “acceptable
medical sources” can be used to evaluate the opinions of “medical
sources who are not ‘acceptable medical sources,’” although “[n]ot
every factor for weighing opinion evidence will apply in every
case.” Id. at *4.
Here, the ALJ afforded PA Williams’ statement “little weight”
because
“[n]o
treatment
appear[ed]
to
be
indicated
for
[Plaintiff’s] elbow symptoms.” That is not a correct reflection of
the record. Plaintiff was prescribed conservative treatment for her
-9-
elbow
pain,
but
the
fact
remains
that
she
has
a
congenital
abnormality of both elbows that was confirmed by radiographic
studies.
(T.818). Both elbows showed degenerative changes: On the
right, Plaintiff had “[s]ignificant spurring involving the anterior
aspect of the joint,” and “[d]egenerative spurring of the right
elbow.” (T.818). On the left, she had “mild spurring involving
anterior aspect of the elbow joint” and “[m]ild degenerative
changes of the left elbow.” (Id.). The ALJ also offered the
following confusing statement for rejecting PA Williams’ opinion
about Plaintiff’s limitations for prolonged standing:
[a]s to leg weakness, the undersigned notes the claimant
has some obesity, and to the extent she could lose weight
would appear to improve overall functioning, including
any joint complaints, though no debilitating problems are
indicated.
(T.30
(emphases
supplied)).
This
is
problematic
for
several
reasons. First, the ALJ is improperly attempting to “play doctor”
by speculating as to what would improve Plaintiff’s leg weakness
(according to the ALJ, weight-loss). “This assessment is the result
of a hunch and an ALJ may not rely on a hunch.” Blakes ex rel.
Wolfe v. Barnhart, 331 F.3d 565, 570 (7th Cir. 2003); see also
Primes v. Colvin, No. 6:15-CV-06431(MAT), 2016 WL 446521, at *4
(W.D.N.Y. Feb. 5, 2016) (finding error where ALJ stated, in regards
to claimant’s back injury, that “[g]iven that the claimant’s
strength in his lower extremities is within normal limits, it is
reasonable to assume that the claimant walks a reasonable amount
-10-
during
the
day”)
(citing
Blakes,
331
F.3d
at
570;
citations and citation marks omitted). Second, the ALJ
internal
“seems to
have succumbed to the temptation to play doctor[,]” Blakes, 331
F.3d at 570 (7th Cir. 2003), by concluding, without a competent
medical opinion, that the cause of Plaintiff’s leg weakness is socalled “joint complaints” in unspecified joints. The ALJ’s final
statement, “no debilitating problems are indicated,” is conclusory
and vague; it is unclear what is meant by “debilitating problems,”
and the ALJ rejected the only quantified opinion on any limitations
caused by Plaintiff’s leg weakness. The ALJ cannot simply ignore
Plaintiff’s
leg
disabling;
the
weakness
because,
regulations
standing
require
the
alone,
ALJ
to
it
is
not
account
for
limitations imposed by both severe and non-severe impairments when
formulating the RFC. See 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2)
(“We will consider all of your medically determinable impairments
of which we are aware, including your medically determinable
impairments that are not ‘severe [ ]’ . . . when we assess your
[RFC]. . . .”); see also, e.g., Davis v. Comm’r of Soc. Sec., No.
5:16-CV-0657(WBC), 2017 WL 2838162, at *6 (N.D.N.Y. June 30, 2017)
(“Even
if
the
ALJ
properly
determined
that
[the
claimant]’s
cervical spine impairment was non-severe, the ALJ must still take
that
impairment
into
consideration
when
formulating
the
RFC.
Further, because the ALJ must consider all of [the claimant]’s
impairments,
severe
and
non-severe,
-11-
in
formulating
her
RFC
determination, it was inapposite for the ALJ to discredit the
entirety of the treating sources’ medical statements providing
limitations based on a combination of [the claimant]’s impairments
because one such impairment was deemed non-severe.”). In sum, the
Court finds that the ALJ’s rationale for rejecting PA Williams’
opinion about Plaintiff’s physical impairments is legally erroneous
and unsupported by substantial evidence. The Court further finds
that the ALJ should have requested a consultative examination or
submitted a physical RFC questionnaire to an acceptable medical
source from Plaintiff’s primary care practice concerning the extent
of limitations due to Plaintiff’s physical impairments.
B.
Failure to Re-Contact Plaintiff’s Treating Psychiatrist
(Plaintiff’s Point II)
Plaintiff asserts that the ALJ erred in assigning the opinion
(T.748-53) offered by her treating psychiatrist, Dr. Dinesh M.
Nanavati, only “limited weight” (T.29-30), without re-contacting
Dr. Nanavati for clarification. Plaintiff reasons that the ALJ must
have had unanswered questions regarding the record, because she
sent interrogatories to a non-treating, non-examining, State agency
physician, Dr. Gitlow. Plaintiff contends those questions about the
severity of her mental impairments were more properly directed to
her treating psychiatrist, whose opinion was consistent with the
opinions offered by treating social worker Sheri Kreher (“SW
Kreher”). The Commissioner counters that even the absence of a
-12-
treating source opinion does not necessarily trigger the ALJ’s
obligation to develop the record, and, in any event, the ALJ
properly weighed Dr. Nanavati’s opinion and provided good reasons
for the weight she afforded it.
In evaluating a treating source’s opinion, the regulations
instruct adjudicators to consider the following factors:
(1)
“[l]ength of the treatment relationship and the frequency of
examination;”
(2)
relationship;”
“[n]ature
(3)
and
extent
“[s]upportability”
of
of
the
treatment
the
opinion;
(4) “[c]onsistency” of the opinion “with the record as a whole;”
(5) whether the source is opining about an area in which he or she
specializes;
and
(6)
“[o]ther
factors”
brought
to
the
Commissioner’s attention. 20 C.F.R. § 404.1526(d)(2) (eff. Aug. 24,
2012, until Mar. 26, 2017). A corollary to the treating physician
rule is the so-called “good reasons rule,” which provides that the
SSA “will always give good reasons in [its] notice of determination
or
decision
for
the
weight
[it]
gives
[claimant’s]
treating
source’s opinion.” 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).
“Those good reasons must be ‘supported by the evidence in the case
record, and must be sufficiently specific . . . .’” Blakely v.
Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting
Social Security Ruling (“SSR”) 96–2p, 1996 WL 374188, at *5 (S.S.A.
July 2, 1996)). Because the “good reasons” rule exists to “ensur[e]
that each denied claimant receives fair process,” Rogers v. Comm’r
-13-
of Soc. Sec., 486 F.3d 234, 243 (6th Cir. 2007), an ALJ’s “‘failure
to follow the procedural requirement of identifying the reasons for
discounting the opinions and for explaining precisely how those
reasons affected the weight’ given ‘denotes a lack of substantial
evidence, even where the conclusion of the ALJ may be justified
based upon the record.’” Blakely, 581 F.3d at 407 (quoting Rogers,
486 F.3d at 243; emphasis in Blakely).
On April 29, 2014, Dr. Nanavati completed a Mental Residual
Functional Capacity Questionnaire (T.748-53), indicating an Axis I
diagnosis
of
Bipolar
Disorder
(296.54),
no
Axis
II
or
III
diagnoses, and an Axis IV diagnosis of economic problems. With
regard
to
treatment
and
response,
Dr.
Nanavati
stated
that
Plaintiff was “very engaged” and followed all recommendations, but
her “mental illness is moderate [to] severe and causes significant
impairments” because she “can have periods of severe depression
with suicidal ideation, hopelessness and mild psychosis” as well as
“periods of high irritability and impulsive behaviors.” (T.748).
Dr. Nanavati opined that she was “unable to meet competitive
standards” in connection with the following mental abilities and
aptitudes needed for unskilled work: maintain regular attendance,
sustain an ordinary routine without special supervision, perform at
a consistent pace without an unreasonable number and length of rest
periods, and deal with normal work stress. (T.750). He opined that
she had “no useful ability to function” with regard to completing
-14-
a
normal
workday
and
workweek
without
interruptions
from
psychologically based symptoms. (Id.). Dr. Nanavati noted that it
was “important for her to take all medications, which can cause
drowsiness and mental fog,” and he anticipated that her impairments
would cause her to be absent from work more than 4 days per month.
(T.752).
As an initial matter, the Court finds that the length of Dr.
Nanavati’s treatment relationship with Plaintiff; the frequency of
his examination of Plaintiff; the nature and extent of their
treatment
relationship; and
the
fact
that
Dr.
Nanavati
is a
specialist in the area about which he is rendering an opinion all
favor according greater weight to his opinion. Dr. Nanavati saw
Plaintiff regularly over a few years, and, as a psychiatrist, is
well-qualified to opine on the limitations caused by Plaintiff’s
mental impairments.
The ALJ, however, afforded Dr. Nanavati’s opinion little
weight (see T.29-30) because she found it to be “inconsistent with
the
overall
record
“fifteen-minute
evidence[,]”
medications
as
checks,
well
.
.
.
as
Dr.
noting
Nanavati’s
no
overall
concern.” (T.30). First, a statement that a treating source’s
opinion is inconsistent with the overall record evidence, without
specifying the items of evidence with which it is at odds, is too
vague to allow meaningful review by the district court, and is not
a
“good
reason.”
See,
e.g.,
-15-
Marthe
v.
Colvin,
No.
6:15–CV–06436(MAT), 2016 WL 3514126, at *7 (W.D.N.Y. June 28, 2016)
(“The ALJ did not point to any other evidence to support his
contention that [the treating physician]’s opinion was ‘somewhat’
inconsistent with his treatment notes. By failing to identify the
alleged inconsistencies between [the treating physician]’s RFC
questionnaire and the 7 years of treatment notes, the ALJ has
failed
to
provide
any
basis
for
rejecting
[the
treating
physician]’s opinion, much less the requisite ‘good reasons’ based
on substantial evidence.”). Second, the ALJ took an unjustifiably
narrow view of Dr. Nanavati’s treatment records by only referring
to his appointments with Plaintiff for medication checks. It is
apparent from the record that Plaintiff’s psychiatric treatment
team consisted of, not just Dr. Nanavati, but various social
workers in the same practice who conducted individual therapy
sessions with Plaintiff and coordinated group therapy sessions in
which she participated. For instance, Plaintiff engaged in regular
individual therapy sessions with Licensed Clinical Social Worker
Sheri Kreher (“LCSW Kreher”) throughout 2012, 2013, and 2014. LCSW
Kreher also completed psychological assessments on January 5, 2012;
May 16, 2012; May 16, 2013; and November 8, 2013. (T.622-25;
626-29;
630-33;
634-37).
Dr.
Nanavati’s
opinion
was
not
inconsistent with those offered by Plaintiff’s treating therapist,
LCSW Kreher.
-16-
The ALJ dismissed Dr. Nanavati’s statement that Plaintiff’s
medication regime could cause side-effects of drowsiness and mental
fog by noting that “it appear[ed] that when side effects were
reported, medication was changed.” (T.30 (citing Ex. 7F at 31). The
ALJ only cites one treatment note from February 29, 2012, which
indicates that her “meds were changed from symbyax to zyprexa.”
(T.387). The note does not indicate why these medications were
changed. Thus, it is unclear how this treatment note undermines Dr.
Nanavati’s assertion, in 2014, that Plaintiff’s combination of
prescriptions “can cause drowsiness and mental fog.” As Plaintiff
points out, she was prescribed multiple psychotropic drugs (Eskalith
-17-
CR (lithium);4 Saphris;5 Prozac;6 Artane;7 and Atarax.8
and a drug
to treat the side effects of one of those drugs.
Next, the ALJ’s statement that Plaintiff “only needed followed
[sic] up for routine medication checks, i.e., in four months or six
months” (T.30), mischaracterizes the record. As noted above, in
4
Eskalith CR is form of lithium. The following
neuromuscular/central nervous system adverse reactions have been reported and
appear to be related to serum lithium levels, including levels within the
therapeutic range: tremor, muscle hyperirritability (fasciculations,
twitching, clonic movements of whole limbs), hypertonicity, ataxia,
choreo-athetotic movements, hyperactive deep tendon reflex, extrapyramidal
symptoms including acute dystonia, cogwheel rigidity, blackout spells,
epileptiform seizures, slurred speech, dizziness, vertigo, downbeat nystagmus,
incontinence of urine or feces, somnolence, psychomotor retardation,
restlessness, confusion, stupor, coma, tongue movements, tics, tinnitus,
hallucinations, poor memory, slowed intellectual functioning, startled
response, worsening of organic brain syndromes, myasthenia gravis (rarely),
fatigue, and lethargy. See
https://dailymed.nlm.nih.gov/dailymed/archives/fdaDrugInfo.cfm?archiveid=4827
(last accessed Feb. 17, 2018).
5
Saphris is used to treat, e.g., bipolar mania in adults, as an
adjunct to lithium or valproate. In such patients, commonly observed adverse
reactions are somnolence and oral hypoesthesia. See
https://dailymed.nlm.nih.gov/dailymed/drugInfo.cfm?setid=17209c32-56eb-4f84-95
4d-aed7b7a1b18d (last accessed Feb. 17, 2018).
6
Prozac (fluoxetine) is used to treat, among other things, major
depressive disorder. Common side effects include somnolence, anxiety, and
nervousness.
https://dailymed.nlm.nih.gov/dailymed/drugInfo.cfm?setid=c88f33ed-6dfb-4c5e-bc
01-d8e36dd97299 (last accessed Feb. 17, 2018).
7
Atarax (hydroxyzine hydrochloride) is used, among other things, to
provide symptomatic relief of anxiety and tension associated with
psychoneurosis and as an adjunct in organic disease states in which anxiety is
manifested.
https://dailymed.nlm.nih.gov/dailymed/drugInfo.cfm?setid=7eaf5043-5c73-47af-90
4b-8e1fae02af2e (last accessed Feb. 17, 2018).
8
Artane (trihexyphenidyl) is an anticholinergic used, among other
things, to treat involuntary movements due to the side effects of certain
antipsychotic drugs. Common side effects include drowsiness, dizziness,
nausea, nervousness, and blurred vision.
https://www.webmd.com/drugs/2/drug-6683/artane-oral/details (last accessed
Feb. 17, 2018).
-18-
addition to the medication checks, Plaintiff regularly attended
group therapy sessions and individual counseling appointments to
attend to her mental health. “A reason, such as this, that relies
on a mischaracterization of the record cannot be a ‘good reason.’”
Wilson
v.
Colvin,
213
F.
Supp.3d
478,
485
(W.D.N.Y.
2016)
(collecting cases). The ALJ’s critique of Dr. Nanavati’s opinion as
inconsistent with his notes, because his notes indicated “no
overall concern” about Plaintiff’s mental condition, is not a good
reason. First, it is unclear to the Court what the ALJ meant by
“overall concern,” or how this vague observation by a layperson
undermines the specific limitations detailed in Dr. Nanavati’s
opinion.
The
records
indicate
that
Plaintiff
suffers
from
significant mental health diagnoses for which she has received
continuous treatment during the relevant period. The Commissioner
has not pointed to any discussion in Dr. Nanavati’s records about
weaning Plaintiff off any of her medications, or discontinuing
therapy
or
treatment,
or
reducing
the
frequency
of
her
appointments. A claimant does not have to be in acute emotional
distress every minute of the day or on the verge of decompensating
in order to qualify as disabled due to mental impairments. Second,
it “is unreasonable to expect a physician to make, on his own
accord, the detailed functional assessment demanded by the Act in
support of a patient seeking [disability] benefits.” Ubiles v.
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Astrue, No. 11–CV–6340T(MAT), 2012 WL 2572772, at *9 (W.D.N.Y. July
2, 2012).
Finally, the ALJ noted, Dr. Nanavati’s opinion “does not
appear to consider the claimant’s drug and alcohol abuse issues.”
(T.30). It is unclear what she meant by this; the Court surmises
that she is implying that Dr. Nanavati did not consider what her
limitations would be in the absence of drug and alcohol abuse
issues. This reason is both contrary to the ALJ’s findings, and the
record. The ALJ herself found that Plaintiff’s alcohol dependence
and marijuana abuse was in reported remission. (T.21). Furthermore,
non-examining review consultant Dr. Gitlow, stated that “[t]he
record does not suggest that significant substance use has been an
issue during the period from 1/1/12 to the present other than
immediately prior to the 1/17/12 partial hospital admission.”
(T.863 (emphasis supplied)).
Thus, at the same time that the ALJ
criticizes Dr. Nanavati for allegedly not considering Plaintiff’s
drug and alcohol abuse issues as being contributory causes to her
mental illness symptoms, she assigned “great weight” to
Dr.
Gitlow, who essentially concluded the same thing. (See T.31 (Dr.
Gitlow “noted that the evidence established the existence of a
substance use disorder that was only relevant for 1/17/12 to 2/7/12
hospital stay.”) (emphasis supplied)). Dr. Nanavati certainly was
aware that one of Plaintiff’s Axis I diagnoses is alcohol abuse, in
addition to her primary diagnosis of bipolar I disorder (current or
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most
recent
episode
major
depressive,
severe
with
psychotic
features). (E.g., T.639). However, the records indicate that during
sobriety, her mental health diagnoses persisted, as well as her
need for an extensive pharmacological regime along with individual
counseling and group therapy. The ALJ’s decision is thus internally
inconsistent and relies on a selective reading of the record in
order to justify the discounting of the treating psychiatrist’s
opinion in favor of the non-treating, non-examining consultant’s
opinion.9 Courts in this Circuit have regularly observed that
“[p]articularly where psychiatric status is at issue, the opinions
of non-examining physicians should be accorded less weight than
those of treating physicians.” O’Connor v. Astrue, No. 07-CV-141,
2009 WL 3273887, at *6 (W.D.N.Y. Oct. 9, 2009) (citing Westphal v.
Eastman Kodak Co., No. 05-CV-6120, 2006 WL 1720380 (W.D.N.Y. June
21, 2006)).
VI.
Remedy
Under 42 U.S.C. § 405(g), the district court has the power to
affirm, modify, or reverse the ALJ’s decision with or without
remanding for a rehearing. Remand for additional fact development
may be appropriate if “there are gaps in the administrative record
9
Despite giving “great weight” to the non-examining, non-treating medical
source, Dr. Gitlow, the ALJ rather incongruously did not accept his assessments
of Plaintiff’s limitations in the domains of functioning (Dr. Gitlow found that
Plaintiff had no restrictions of activities of daily living, no difficulties in
maintaining social functioning, and no difficulties in maintaining concentration,
persistence or pace). (T.865). The ALJ found, instead, that Plaintiff had mild
restrictions in those areas.
-21-
or the ALJ has applied an improper legal standard.” Rosa v.
Callahan, 168 F.3d 72, 82–83 (2d Cir. 1999). The standard for
directing a remand for calculation of benefits is met when the
record persuasively demonstrates the claimant’s disability, Parker
v. Harris, 626 F.2d 225, 235 (2d Cir. 1980), and where there is no
reason to conclude that the additional evidence might support the
Commissioner’s claim that the claimant is not disabled, Butts v.
Barnhart, 388 F.3d 377, 385–86 (2d Cir.2004).
As
discussed
above,
Defendant
has
failed
to
explain
satisfactorily why the opinion of Plaintiff’s treating psychiatrist
was not afforded controlling weight by the ALJ, who unjustifiably
gave controlling weight to the non-examining, non-treating review
consultant. Substantial evidence exists in the record to warrant
giving
deference
to
the
opinions
of
Plaintiff’s
treating
psychiatrist, and when that deference is accorded, a finding of
disability is compelled. See Spielberg v. Barnhart, 367 F. Supp.2d
276, 283 (E.D.N.Y. 2005) (“[H]ad the ALJ given more weight to the
treating sources, he would have found plaintiff disabled. . . .”).
In the present case, further administrative proceedings would serve
no purpose. Accordingly, remand for the calculation of benefits is
warranted. See Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980).
VII. Conclusion
For the foregoing reasons, the Commissioner’s decision is
reversed. Plaintiff’s motion for judgment on the pleadings is
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granted, and the matter is remanded for calculation and payment of
benefits. Defendant’s motion for judgment on the pleadings is
denied. The Clerk of Court is directed to close this case.
IT IS SO ORDERED.
S/Michael A. Telesca
_______________________________
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
February 20, 2018
Rochester, New York.
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