Harbot v. Commissioner of Social Security
Filing
21
DECISION AND ORDER Plaintiff's motion for judgment on the pleadings 13 is granted. The Commissioner's cross-motion for summary judgment 18 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 11/27/2018. (KAH)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
ROBYN SUE HARBOT,
DECISION AND ORDER
Plaintiff,
17-CV-6371L
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
________________________________________________
INTRODUCTION
Plaintiff Robyn Sue Harbot (“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 28, 2012. She listed a disability onset date of
April 26, 2009. (Dkt. #10-2 at 35). Plaintiff’s applications were initially denied. Plaintiff
requested a hearing before an administrative law judge (“ALJ”), which was held on July 16, 2013
via videoconference before ALJ Marie Greener. The ALJ issued a written decision on August
27, 2013, concluding that plaintiff was not disabled. Plaintiff appealed to the Appeals Council,
which remanded the matter with instructions to the ALJ to obtain additional evidence, further
evaluate the claimant’s mental impairments, give further consideration to the plaintiff’s residual
functional capacity (“RFC”), and if warranted, obtain additional evidence from medical and/or
vocational experts.
On August 19, 2015, the ALJ held a supplemental hearing by
videoconference, at which the plaintiff appeared with her counsel and testified.
On November 10, 2015, the ALJ issued a second decision, again determining that plaintiff
was not disabled under the Act (Dkt. #10-2 at 35-48). That decision became the final decision of
the Commissioner when the Appeals Council denied review on April 21, 2017. (Dkt. #10-2 at
1-3). This appeal followed.
The plaintiff has moved (Dkt. #13) and the Commissioner has cross moved (Dkt. #18) for
judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. For the
reasons set forth below, the plaintiff’s motion is granted, the Commissioner’s cross motion is
denied, and the matter is remanded for the calculation and payment of benefits.
DISCUSSION
I.
Applicable Standards
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. See Shaw v. Chater, 221
F.3d 126, 131 (2d Cir. 2000); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998).
2
II.
The ALJ’s Decision
The ALJ found that plaintiff had severe impairments, consisting of cervical spine
impairment, psychogenic non-epileptic attacks, obesity, mild neurocognitive disorder, depressive
disorder, posttraumatic stress disorder (“PTSD”), dissociative identity disorder (commonly known
as “multiple personality” disorder), conversion disorder and panic disorder. (Dkt. #10-2 at 38).
Upon review of the record, the ALJ concluded that plaintiff retained the residual functional
capacity (“RFC”) to perform light work, except that plaintiff is limited by a fainting disorder with
episodes once per day for one minute, with no recovery time required. Claimant is unable to
operate motor vehicles or heavy equipment, and cannot work at unprotected heights or use ladders
or scaffolds. Plaintiff is unable to use cutting tools, and may not work near machinery with
unprotected moving parts, or near water such as lakes or swimming pools. Further, she is limited
to routine daily tasks and duties in the same workplace that do not significantly change in pace or
location on a daily basis. (Dkt. #10-2 at 41).
When presented with this RFC, vocational expert David A. Festa testified that a person
with plaintiff’s RFC could perform the positions of routing clerk, cafeteria attendant and cleaner,
housekeeping. (Dkt. #10-2 at 47). The ALJ accordingly concluded that plaintiff, at the time of
her application a 46-year-old woman with a high school education and past relevant work as a bus
monitor, was not disabled.
A.
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
3
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
1
(5) whether the opinion is offered by a specialist. 20 C.F.R. §404.1527(d) . Further, the ALJ
must articulate her reasons for assigning the weight that she 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 128 at 134.
Dr. Anwar Ahmed, a psychiatrist who treated plaintiff on a monthly basis, and supervised
her treatment every two weeks with licensed clinical social worker Jackie Hurst, co-signed an RFC
assessment by Ms. Hurst on March 13, 2014, reflecting plaintiff’s treatment beginning September
23, 2011.
Dr. Ahmed noted that plaintiff had been diagnosed with major depression with
psychotic features, PTSD, dissociative identity disorder, conversion disorder with attacks or
seizures, agoraphobia, panic disorder, and an unspecified learning disorder. (Dkt. #10-7 at 825).
Plaintiff’s prognosis was “guarded,” and Dr. Ahmed opined that plaintiff was “unable to meet
competitive standards” or had “no useful ability to function” with respect to remembering work
procedures, understanding and remembering even simple instructions, maintaining attention and
concentration for two hours, sustaining an ordinary routine without supervision, making simple
work-related decisions, completing a normal workday or workweek without interruptions,
performing at a consistent pace without an unreasonable number and length of rest periods, getting
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.
1
4
along with coworkers or peers, responding appropriately to changes in a routine work setting,
dealing with normal work stress, and taking care around normal hazards. (Dkt. #10-7 at 827).
The ALJ summarily rejected Dr. Ahmed’s opinion and gave it “little” weight, citing the
fact that the form Dr. Ahmed used included a “check box” portion. The ALJ also interpreted Dr.
Ahmed’s statement that, “[w]hile it is within the realm of possibility that [plaintiff] could
undertake some kind of work despite her depression, anxiety, flashbacks, panic attacks, avoidance
of people and auditory hallucinations, it is inconceivable she could do so given her seizure
activity,” as a concession that plaintiff’s mental impairments do not preclude her from working.
(Dkt. #10-2 at 45).
Initially, the Court finds the ALJ’s analysis of Dr. Ahmed’s opinion to be both legally and
factually erroneous. While the form Dr. Ahmed used did contain some check-boxes, the opinion
was fully supported by narrative explanations: indeed, the “check-box” sections are accompanied
by hand-written explanatory notes which fill the margins of the relevant pages, overflowing into a
a page-and-a-half attachment of single-spaced, typewritten notes expounding on the hand-written
answers given on the form, and discussing plaintiff’s symptoms – their severity, frequency, and
impact on her ability to perform specific functions – in detail. Indeed, it is hard to imagine how
the bases for Dr. Ahmed’s opinions concerning plaintiff’s diagnoses, symptoms, and resulting
limitations could have been described or supported with any greater completeness or specificity.
(Dkt. #10-7 at 825-32).
Furthermore, to the extent that the ALJ purported to rely on Dr. Ahmed’s speculative
statement that it is “within the realm of possibility” that plaintiff’s mental limitations might permit
work if standing alone but the addition of her seizure disorder would not, such statements on the
ultimate issue of disability are not creditable, as that issue is reserved for the Commissioner. See
5
Snell, 177 F.3d 128 at 134. It is not Dr. Ahmed’s opinion on plaintiff’s employability (which, in
any event, was that plaintiff was not ultimately employable) that should have guided the ALJ’s
analysis, but rather Dr. Ahmed’s opinions as to the limitations caused by plaintiff’s symptoms such
as sleep disruption, intrusive voices from alternate personalities, uncontrollable psychogenic
seizures (sometimes causing falls), panic attacks, and social withdrawal, which the form and its
attachment identify and discuss in considerable detail.
The ALJ made similar errors in her summary rejection of the opinions of plaintiff’s other
treating psychiatrist, Dr. Sharifuzzama Siddiqui, who cosigned an opinion by treating licensed
master social worker Dorrit Ram concerning plaintiff’s biweekly therapy from September 2011
through the August 4, 2015 date of the opinion, and also submitted a letter to plaintiff’s counsel
describing the duration and effects of plaintiff’s regular seizures.
(Dkt. #10-8 at 1121-29,
1138-39). The ALJ rejected Dr. Siddiqui’s opinions, again criticizing the use of a “check-box”
form. The ALJ further found that Dr. Siddiqui’s mention of symptomology not mentioned
elsewhere in the record, including self-harm behaviors and low intellectual functioning, eroded the
credibility of the opinion, as did the fact that it was cosigned, rather than authored, by Dr. Siddiqui.
Finally, the ALJ concluded that Dr. Siddiqui’s letter to plaintiff’s counsel concerning plaintiff’s
seizures was probably a response to an attorney inquiry which must have contained “leading
language,” and therefore gave it “little” weight. (Dkt. #10-2 at 46).
As with Dr. Ahmed’s opinion, the ALJ’s analysis of Dr. Siddiqui contains several errors.
First, the ALJ made no attempt to apply the treating physician rule or to discuss any of the relevant
factors. The ALJ’s characterization of Dr. Siddiqui’s opinion as a mere “check-box” form was
factually incorrect, as the margins of the form were filled with hand-written notes and it was, like
Dr. Ahmed’s opinion, accompanied by a multi-page, single-spaced typewritten supplemental
6
attachment which explained the clinical bases for the limitations it described. See generally
Rankov v. Astrue, 2013 U.S. Dist. LEXIS 46969 at *28-*31 (E.D.N.Y. 2013). While it is true that
the form was cosigned by Dr. Siddiqui, the ALJ’s presumption that it was entitled to any less
weight because of this was incorrect: an opinion signed by a treating physician is presumed to be
entirely his, regardless of whether he authored it. See e.g., Rosa v. Callahan, 168 F.3d 72, 78 (2d
Cir. 1999); Lewis v. Colvin, 2018 U.S. Dist. LEXIS 30539 at *6 (W.D.N.Y. 2018). The ALJ’s
observation that the opinion contained symptomology not mentioned elsewhere in the record (e.g.,
self-harm and low intellectual functioning) is factually incorrect, as treatment notes and Dr.
Ahmed’s opinion also mentioned these symptoms. (Dkt. #10-7 at 828, 971, 1000, 1032, 1035,
1048, 1060, 1071). Finally, the ALJ’s cavalier dismissal of Dr. Siddiqui’s opinion letter to
plaintiff’s counsel on the basis of the ALJ’s unfounded suspicion that the attorney had supplied
“leading language” in requesting it – without any meaningful application of the treating physician
rule, or even any discussion of the opinion on its merits – was improper.
In summary, the ALJ’s conclusory dismissal of Dr. Ahmed’s and Dr. Siddiqui’s opinions,
and her failure to consider any of the factors relevant to the evaluation of treating physicians’
opinions or to provide any “good reasons” for rejecting them, was error. Her determination that
Dr. Ahmed’s and Dr. Siddiqui’s opinions were 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).
B.
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 are other jobs that plaintiff can 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
7
here when the ALJ relied on testimony by a vocational expert to determine that plaintiff was “not
disabled,” because the hypothetical RFC that the vocational expert was provided was based on an
improperly-supported rejection of the opinions of plaintiff’s treating psychiatrists. 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).
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
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.
If the opinions of Dr. Siddiqui and Dr. Ahmed are given controlling weight, they establish
that plaintiff’s symptoms (and in particular, her frequent psychogenic non-epileptic attacks) will
result in her requiring lengthy recovery breaks, will cause her to miss at least two days of work per
month, and will frequently render her unable to complete a workday. (Dkt. #10-7 at 827, 829;
Dkt. #10-8 at 1123, 1125, 1138-39). Per the testimony of the vocational expert at plaintiff’s
hearing, an individual with these limitations would not be able to meet the demands of any job.
(Dkt. #10-2 at 149-50).
Based on the foregoing, the Commissioner has failed to meet her burden to set forth good
reasons why the opinions of plaintiff’s treating psychiatrists are not entitled to controlling weight,
and/or to demonstrate that plaintiff can perform any work that exists in the economy. The record
8
is clear that if the opinions of plaintiff’s treating psychiatrists control, 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
Plaintiff’s motion for judgment on the pleadings (Dkt. #13) is granted. The
Commissioner’s cross-motion for summary judgment (Dkt. #18) 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.
IT IS SO ORDERED.
_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
November 27, 2018.
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?