Morris v. COLVIN
Filing
14
DECISION AND ORDER Plaintiff's motion for judgment on the pleadings 11 is granted, and the Commissioner's cross motion for judgment on the pleadings 13 is denied. The Commissioner's decision that plaintiff was not disabled is reversed, and the matter is remanded solely for the calculation and payment of benefits. Signed by Hon. David G. Larimer on 6/28/2018. (KAH)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
THURL MORRIS, JR.,
DECISION AND ORDER
Plaintiff,
17-CV-6129L
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
________________________________________________
Plaintiff appeals from a denial of disability benefits by the Commissioner of Social Security
(“the Commissioner”). The action is one brought pursuant to 42 U.S.C. §405(g) to review the
Commissioner’s final determination.
On May 3, 2012, plaintiff, then forty-five years old, filed applications for a period of
disability and disability insurance benefits, and for supplemental security income, alleging an
inability to work since February 1, 2011. (Dkt. #8-2 at 13).1 Those applications were initially
denied. Plaintiff requested a hearing, which was held November 2013 before Administrative Law
Judge (“ALJ”) Jennifer Gale Smith. On January 21, 2013, the ALJ issued a decision finding
plaintiff not disabled. (Dkt. #8-2 at 13-29). The Appeals Council denied review, and plaintiff
commenced an action in this Court.
Pursuant to a stipulation between plaintiff and the
Commissioner, this Court entered judgment in favor of the plaintiff, remanding the matter for
further administrative proceedings. (Dkt. #8-9 at 779-82).
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References to page numbers in the Administrative Transcript (Dkt. #8 et seq.) refer to the internal Bates-stamped
numbers assigned by the parties.
A supplemental hearing was held on October 4, 2016 via videoconference. On December
23, 2016, the ALJ issued a second decision, again finding plaintiff not disabled. Plaintiff now
appeals.
The plaintiff has moved, and the Commissioner has cross moved, for judgment on the
pleadings pursuant to Fed. R. Civ. Proc. 12(c). For the reasons set forth below, plaintiff’s motion
(Dkt. #11) is granted, the Commissioner’s cross motion (Dkt. #13) is denied, and the matter is
remanded for the calculation and payment of benefits.
DISCUSSION
An ALJ applies a well-established five-step evaluation process to determine whether a
claimant is disabled within the meaning of the Social Security Act, 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 is not disabled must be affirmed if it is supported by substantial evidence,
and if the ALJ has applied the correct legal standards. See 42 U.S.C. § 405(g); Machadio v. Apfel,
276 F.3d 103, 108 (2d Cir. 2002).
Here, the ALJ determined that plaintiff suffers from the following severe impairments:
degenerative disc disease of the cervical, thoracic and lumbar spine; osteoarthritis; chronic
obstructive pulmonary disease; dysthymia versus major depression; post-traumatic stress disorder
(“PTSD”); and alcohol abuse. (Dkt. #8-6 at 662).
After reviewing of the evidence of record, the ALJ found that the plaintiff has retained the
residual functional capacity (“RFC”) to perform a range of work at the medium, light or sedentary
exertional levels, with a number of limitations. Plaintiff can lift and carry up to 10 pounds
frequently, 11-20 pounds frequently, and 21-50 pounds occasionally. He can sit for 6 total hours
in an 8-hour workday, for up to 3 hours at a time; can stand for a total of 4 hours up to 2 hours at
2
a time; and can walk for 2 hours total, for up to 1 hour at a time. Plaintiff can occasionally reach
overhead, and frequently reach in all other directions. He can occasionally push and pull up to the
weight limits [specified for lifting and carrying]. He can frequently handle, finger and feel, and
occasionally operate foot controls. Plaintiff cannot climb ladders, ropes or scaffolds, and can
occasionally stoop, balance, kneel, crouch, crawl, work at unprotected heights and around moving
mechanical parts. He should not work in extreme temperatures or around vibrations, and should
have no more than occasional exposure to respiratory irritants, such as dusts, odors, fumes, gases
and extreme temperatures. He can work only in a low-stress job defined as involving occasional
decision-making, occasional use of judgment and occasional changes in the work setting. He
should work at goal-oriented work rather than production pace rate work, and should have no more
than occasional contact with coworkers, supervisors, and the public. (Dkt. #8-8 at 670).
When presented with this RFC, vocational expert Josiah L. Pearson testified that plaintiff
could perform the positions of address clerk and document preparer. (Dkt. #8-8 at 688-89).
On appeal, plaintiff chiefly claims that the ALJ failed to properly consider the medical
opinion evidence of record – particularly, that of plaintiff’s treating psychiatrist, Dr. Martha E.
Tymeson, to whom the ALJ gave “little” weight. (Dkt. #8-8 at 681). The Court concurs.
A treating physician’s opinion is entitled to controlling weight if it is well-supported by
medical findings and not inconsistent with other substantial evidence. See Rosa v. Callahan, 168
F.3d 72, 78 (2d Cir. 1999). If an ALJ opts not to afford controlling weight to the opinion of a
treating physician, the ALJ must consider: (1) the examining relationship; (2) the extent of the
treatment relationship; (3) medical support for the opinion: (4) consistency; and (5) the physician’s
specialization, along with any other relevant factors. 29 C.F.R. §404.1527(d)(2). An ALJ’s failure
to apply these factors and provide reasons for the weight given to the treating physician’s report is
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reversible error. See Snell v. Apfel, 177 F.3d 128,1 34 (2d Cir. 1999); Schall v. Apfel, 134 F.3d
496 (2d Cir. 1998).
Plaintiff is a United States Army veteran who served from 1980 to 1992, with combat
experience in Desert Storm and Desert Shield. (Dkt. #8-7 at 466). Dr. Tymeson, plaintiff’s
treating psychiatrist at the Veterans Administration, rendered a mental RFC opinion dated July 1,
2013. (Dkt. #8-7 at 470-72). Dr. Tymeson noted plaintiff’s diagnoses of major depressive disorder
with insomnia, PTSD with irritability and nocturnal hyperarousal, and chronic pain as a
complication of both conditions. Dr. Tymeson opined, among other things, that plaintiff had
“marked” limitations (defined as a loss of function greater than 33%) in maintaining attention and
concentration, performing activities within a schedule, and responding appropriately to stressors
or workplace changes. Dr. Tymeson also found “extreme” limitations (defined as “no or very little
useful ability to function”) with respect to completing a workday without interruptions from
symptoms, and opined that plaintiff’s impairments would be expected to result in more than three
absences per month. (Dkt. #8-7 at 470-72). In a subsequent form completed September 9, 2016,
Dr. Tymeson reviewed her July 1, 2013 mental RFC assessment, and indicated that her opinion as
to plaintiff’s limitations had not changed. (Dkt. #8-13 at 1221).
The ALJ rejected Dr. Tymeson’s opinion, deferring instead to that of consulting
psychologist Dr. Robert J. Maiden, who examined plaintiff one time, on January 6, 2012. Dr.
Maiden found plaintiff’s eye contact to be “a bit bizarre . . . kind of a vacant stare,” and observed
that plaintiff appeared “apathetic,” “long winded” and “unrealistic,” telling “rather strange or
bizarre” stories and seeming to have “stress-related problems.”
(Dkt. #8-7 at 465-69).
Notwithstanding these observations, Dr. Maiden opined that plaintiff was able to understand
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simple directions, perform simple tasks, attend and concentrate, make appropriate decisions, and
relate adequately with others. Id.
In granting Dr. Tymeson’s more restrictive opinion “little” weight, the ALJ found that it
was “not well-supported by the scant chronically positive objective clinical findings noted on
repeat mental status exams” and “inconsistent with other substantial evidence,” such as an absence
of evidence that plaintiff canceled or missed medical appointments, the fact that he was generally
assigned high Global Assessment of Functioning (“GAF”) scores by mental health care providers,
and the fact that he had been recommended to attend group therapy. (Dkt. #8-8 at 683-84).
The ALJ’s determination that Dr. Tymeson’s opinion was not entitled to controlling weight
failed to properly consider the bulk of the relevant factors, and is unsupported by the evidence of
record. See 20 C.F.R. § 404.1527(d)(2). Dr. Tymeson is a psychiatrist who treated plaintiff on a
routine basis beginning in May 2012. Her initial evaluation notes that it was performed with the
benefit of a complete “review of [plaintiff’s prior] medical record, especially the detailed notes by
[case manager] Ms. Jones and telephone contact with [treating internist] Dr. Sandberg,” as well as
statements by plaintiff, who Dr. Tymeson judged to be “a cooperative and coherent historian.”
(Dkt. #8-7 at 398, 427).
Dr. Tymeson’s treatment records consistently report that plaintiff’s PTSD and depression
symptoms include problems with alcohol abuse, sleep disturbance (sleeping only 3-4 hours per
night), nightmares and delusions related to women and babies being terribly burned by the
weaponry plaintiff used during his military service, uncontrollable anger and resentment, low
energy, poor concentration and irritability. (Dkt. #8-7 at 398, 427-28). Id. Clinical observations
of plaintiff include PTSD in only “partial control” (Dkt. #8-7 at 431), with plaintiff “irritated but
cooperative, eye contact intermittent . . . affect constricted . . . mood bereaved and irritated”. (Dkt.
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#8-13 at 1211). On May 18, 2016, Dr. Tymeson reported that plaintiff had discontinued treatment
with his primary therapist after June 5, 2014, and was feeling “major distress” at recent events in
his life, but continued to present to Dr. Tymeson for psychiatric medication management, reporting
that his “[d]epression worsened in late spring of 2014” and that a self-guided attempt by plaintiff
to stop taking antidepressants had been abandoned after three weeks “out of frustration at how bad
[plaintiff] was feeling; he became even more explosive [without medications] so he restarted them
again.” (Dkt. #8-13 at 1209). Dr. Tymeson’s notes reveal a consistent history of uncontrolled
moods, problems relating appropriately with others such as family members and a landlord,
depression, anxiety, poor concentration, and sleep disturbances, all of which are logically
connected with plaintiff’s diagnoses of PTSD, anxiety and depression, and with the limitations Dr.
Tymeson described in her opinion.
Dr. Tymeson’s opinion concerning the severity of plaintiff’s limitations is also consistent
with other evidence of record, including a November 16, 2012 PTSD Assessment performed by
Veterans Administration psychologist Deborah Marshall, who administered an objective test for
PTSD and found plaintiff’s results within the “clinically significant range for symptoms of PTSD.”
She noted that plaintiff’s symptoms included recurrent and distressing recollections and dreams
concerning combat-related traumatic events, difficulty falling and staying asleep, irritability and
angry outbursts, difficulty concentrating, and hypervigilance. Effects included depressed mood,
anxiety, suspiciousness, chronic sleep impairment, flattened affect, impaired judgment, mood
disturbance, difficulty establishing and maintaining effective work and social relationships,
difficulty in adapting to stressful circumstances including work settings, suicidal ideation,
obsessional rituals which interfere with routine activities, and impaired impulse control. (Dkt.
#8-7 at 625-36).
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Plaintiff has also had several inpatient admissions related to alcohol dependence and PTSD.
(Dkt. #8-7 at 336, 429). Plaintiff’s case managers, including social workers Lauren May-Jones
and Janine Alington, repeatedly noted that his PTSD symptoms included sleep disturbance,
difficulty concentrating, hypervigilance, poor anger control and impulsivity, anxiety and failure to
assimilate traumatic memories, all of which “affect[ed plaintiff’s] daily functioning.” (Dkt. #8-7
at 356-57, 361, 369-70, 374, 378-79, 423, 434). On several visits with his therapist, plaintiff
reported increased nightmares and “daymares” including tasting and smelling burning flesh and
visions of burning women and babies, difficulty with anger management, and thoughts of homicide
and suicide. (Dkt. #8-7 at 360, 368, 426).
Plaintiff has also been found 100% disabled by the Department of Veterans Affairs. (Dkt.
#8-12 at 955). While “[a] determination made by another agency regarding a claimant’s disability
is not binding on the Social Security Administration, 20 C.F.R. §404.1504, ‘it is entitled to some
weight and should be considered.’” Claymore v. Astrue, 519 Fed. Appx. 36, 38 (2d Cir. 2013)
(quoting Hankerson v. Harris, 636 F.2d 893, 897 (2d Cir. 1980)).
Given the consistency between Dr. Tymeson’s opinion and the record as a whole, the ALJ
erred in declining to give that opinion controlling weight, and the reason given by the ALJ for
doing so – alleged inconsistency with a cherry-picked selection of excerpts from the record, and/or
a lack of “chronologically positive objective clinical findings” – is vague and insufficient. See
Nasca v. Colvin, 216 F. Supp. 3d 291, 298 (W.D.N.Y. 2016).
Remand for the purpose of calculation of benefits is warranted where the record
demonstrates the claimant’s disability, and where there is no reason to conclude that there is
additional evidence to support the Commissioner’s claim that a claimant is not disabled. See
Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980) (where the existing record contains persuasive
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proof of disability and a remand for further evidentiary proceedings would serve no purpose, a
remand for calculation of benefits is appropriate); Martinez v. Commissioner, 262 F. Supp. 2d 40,
49 (W.D.N.Y. 2003) (same). That standard has been met here. While the RFC findings that were
described in the ALJ’s primary hypothetical to the ALJ were not, as discussed above, supported
by substantial evidence, plaintiff’s counsel did pose a hypothetical to the vocational expert which
incorporated the limitations in attention and concentration, attendance and punctuality, etc., that
Dr. Tymeson described. In answer to that hypothetical, the vocational expert testified that no jobs
existed in the national economy which could be performed by such an individual. (Dkt. #8-8 at
737).
Based on the foregoing, the Commissioner has failed to meet her burden to set forth good
reasons why the opinion of plaintiff’s treating psychiatrist was not entitled to controlling weight,
and/or to demonstrate that plaintiff can perform any work that exists in the economy. The record
is clear that if the opinion of plaintiff’s treating physician controls, there are no jobs in the national
economy that plaintiff can perform. See e.g., Bogdan v. Colvin, 2016 U.S. Dist. LEXIS 48478
(W.D.N.Y. 2016) (reversing and remanding for calculation of benefits where treating psychiatrist’s
opinion establishes disability as a matter of law). As such, additional proceedings would serve no
proper purpose, and remand for the calculation and payment of benefits is warranted.
CONCLUSION
For the foregoing reasons, plaintiff’s motion for judgment on the pleadings (Dkt. #11) is
granted, and the Commissioner’s cross motion for judgment on the pleadings (Dkt. #13) is denied.
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The Commissioner’s decision that plaintiff was not disabled is reversed, and the matter is
remanded solely for the calculation and payment of benefits.
IT IS SO ORDERED.
_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
June 28, 2018.
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