McCray v. Commissioner of Social Security
Filing
19
DECISION AND ORDER granting 11 Plaintiff's Motion for Judgment on the Pleadings to the extent that, as set forth in the Decision and Order, the Commissioners decision is reversed, and the claim is remanded for further administrative proceedings; and denying 14 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 7/12/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RONALD L. McCRAY,
Plaintiff,
-vs-
No. 6:17-cv-06478-MAT
DECISION AND ORDER
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
I.
Introduction
Ronald L. McCray (“Plaintiff”), represented by counsel, brings
this action under Title XVI of the Social Security Act (“the Act”),
seeking review of the final decision of Nancy A. Berryhill,1 Acting
Commissioner
of
Social
Security
(“the
Commissioner”
or
“Defendant”), denying his application for supplemental security
income (“SSI”). The Court has jurisdiction over the matter pursuant
to 42 U.S.C. §§ 405(g), 1383(c).
Presently before the Court are
the parties’ competing motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For
the reasons set forth below, Defendant’s motion is denied, and
Plaintiff’s motion is granted to the extent that the Commissioner’s
decision is reversed, and the matter is remanded for further
administrative proceedings.
1
Nancy A. Berryhill is no longer serving in this position. The Clerk of
Court therefore is directed to substitute “The Commissioner of Social Security”
for “Nancy A. Berryhill, Acting Commissioner of Social Security” as the defendant
in this action. See 20 C.F.R. § 422.210(d).
II.
Procedural Status
Plaintiff protectively applied for SSI on September 26, 2013,
alleging disability since May 15, 2007, due to limitations from
neck and back pain; human immunodeficiency virus (“HIV”); sciatica
in
his
arm
specified
epidermal
and
shoulder’
(“NOS”);
depressive
cervical
inclusion
cyst;
disorder,
radiculopathy;
possible
not
right
glaucoma;
otherwise
ear
hip
pain;
pain;
mastoidectomy of his right ear; insomnia; sleep apnea; smoking
cessation; potential dyslexia; migraines; anxiety; and short term
memory loss. (T.162-67, 207).2 His claim was denied initially.
(T.93-105, 121-26). Plaintiff requested a hearing, which was held
on August 27, 2015, by Administrative Law Judge David Begley (“the
ALJ”),
via
videoconference.
(T.37-82).
Plaintiff
appeared
in
Rochester, New York, with his attorney and testified. Impartial
vocational expert Jennifer Karr (“the VE”) also testified. On
December 1, 2015, the ALJ issued a decision finding Plaintiff not
disabled. (T.16-27). In connection with his request for review by
the
Appeals
Council,
Plaintiff
submitted
additional
medical
records. (T.8-10). In a letter dated May 20, 2017, the Appeals
Council denied review, finding that the new evidence was not
material because did not relate to the period at issue. (T.1-4).
The Appeals Council’s denial of review rendered the ALJ’s decision
2
Citations in parentheses to “T.” refer to pages in the certified copy of
the administrative transcript (Docket No. 7).
-2-
the final decision of the Commissioner. Plaintiff then timely
commenced this action.
III. The ALJ’s Decision
The
ALJ
applied
the
five-step
sequential
evaluation
promulgated by the Commissioner for adjudicating disability claims.
See 20 C.F.R. § 416.920(a). At step one, the ALJ found that
Plaintiff had not engaged in substantial gainful employment since
September 26, 2103, the protective application date. (T.16). At
step two, the ALJ determined that Plaintiff has the “severe”
impairments of degenerative disc disease of the cervical vertebrae,
sciatica, HIV, hearing loss of the right ear, major depressive
disorder,
and
polysubstance
abuse.
Id.
The
ALJ
found
that
Plaintiff’s left ear hearing loss, asthma, insomnia, sleep apnea,
migraines, and post-traumatic stress disorder were non-severe, a
finding which Plaintiff does not contest in this appeal.
At step three, the ALJ found that Plaintiff does not have an
impairment or combination of impairments that meets or medically
equals an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. The ALJ gave particular consideration to Section 1.04
(Disorders
of
the
Spine);
Section
2.07
(Disturbance
of
Labyrinthine-Vestibular Function); 2.10 (Hearing Loss Not Treated
with Cochlear Implantation); Section 14.08 (HIV); Section 12.04
(Affective Disorders); and 12.09 (Substance Addiction Disorders).
(T.17).
-3-
Before proceeding to step four, the ALJ assessed Plaintiff as
having the residual functional capacity (“RFC”) to perform light
work as defined in 20 C.F.R. § 416.967(b), with several exertional
and nonexertional limitations: He cannot climb ladders, ropes, and
scaffolds; can climb ramps and stairs, balance, stoop, kneel,
crouch, and crawl occasionally; cannot perform repetitive rotation,
flexion, or extension of the neck; must avoid concentrated exposure
to extreme heat, cold, and excessive noise; must avoid hazardous
machinery and unprotected heights; is limited to simple, routine
repetitive tasks; can perform work in a low stress job, defined as
having no fixed production quotas, no hazardous conditions, only
occasional decision-making required with only occasional changes in
the work setting, only occasional interaction with coworkers and
supervisors, no direct interaction with the general public, and no
performance of tandem tasks. (T.20).
At step four, the ALJ found that Plaintiff had no past
relevant work. (T.26). At step five, the ALJ relied on the VE’s
testimony to determine that a person of Plaintiff’s age, and with
his
education,
work
experience,
and
RFC,
could
perform
the
requirements of the following representative jobs that exist in
significant numbers in the national economy: Small parts assembler
(Dictionary
of
Occupational
Titles
(“DOT”)
No.
706.684-022,
unskilled, light exertional level); electronics assembly worker
(DOT No. 726.687-010, unskilled, light exertional level); and
Inspector/hand packager (DOT No. 559.687-074, unskilled, light
-4-
exertional level). Id. The ALJ accordingly found that Plaintiff had
not been under a disability, as defined in the Act, since the
application date. (T.27).
IV.
Scope of Review
A
district
court
may
set
aside
the
Commissioner’s
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.
Commissioner’s
findings
“as
42 U.S.C. § 405(g) (stating the
to
any
fact,
if
supported
by
substantial evidence, shall be conclusive”). “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)
(quotation
omitted).
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). “The deferential
standard of review for substantial evidence does not apply to the
Commissioner’s conclusions of law.”
Byam v. Barnhart, 336 F.3d
172, 179 (2d Cir. 2003) (citation omitted).
V.
Discussion
A.
Erroneous Weighing of Treating Physician’s Opinions
1.
Steven Fine, M.D., Ph.D.
Plaintiff contends that the ALJ failed to provide to good
reasons for declining to accord controlling weight to the opinions
offered by his treating physician, infectious disease specialist
-5-
Steven Fine, M.D., Ph.D., who he began seeing in January 2013.
Dr. Fine provided primary care for Plaintiff with regard to his
HIV,3 depression, and neck and back pain. (T.394-410, 413-26,
430-37,
526-26,
556-58,
572-74).
The
record
indicates
that
Plaintiff saw Dr. Fine approximately every two to three months.
Dr. Fine referred Plaintiff to other providers to treat his hearing
loss and ear infections, his orthopedic complaints, and his mental
health complaints.
On
April
29,
2013,
Dr.
Fine
completed
a
Monroe
County
Department of Human Services Physical Assessment for Determination
of
Employability
(“2013
Physical
Assessment”)
on
Plaintiff’s
behalf. (T.443-46). Dr. Fine indicated that Plaintiff was unable to
participate
in
activities
except
treatment
or rehabilitation,
namely, mental health treatment, for 3 months. (T.444). As chief
complaints, Dr. Fine listed depression and history of psychiatric
admission for suicidal ideation. (Id.). With regard to Plaintiff’s
HIV-positive diagnosis, Dr. Fine opined that Plaintiff’s prognosis
was good. (Id.). At that point, Plaintiff had not begun taking any
medications for either his HIV or depression. (T.445). Dr. Fine
described as “normal” all of Plaintiff’s bodily systems. (T.44546). Plaintiff “no evidence of limitations” in walking; standing;
3
Initially, Plaintiff refused to take any medications for his HIV, as he
stated it reminded him that he had the disease (T.403-15). In June 2014, he
finally agreed to begin antiretroviral therapy, which he continued, more or less
consistently, throughout the relevant period. (T.416-26, 430-37, 526-26, 556-58,
572-74). Even without medication, Plaintiff had no complications from his HIV;
the medications were prescribed as a prophylactic measure. (T.394-410, 413-26,
430-37, 526-26, 556-58, 572-74).
-6-
sitting;
pushing,
pulling,
and
bending;
seeing,
hearing,
and
speaking; and being able to lift/carry. (T.446).
On March 13, 2014, Dr. Fine completed another Monroe County
Department of Human Services Physical Assessment for Determination
of
Employability
(“2014
Physical
Assessment”)
on
Plaintiff’s
behalf. (T.447-50). Dr. Fine indicated that Plaintiff’s chief
complaints were back pain, neck pain, muscle spasm, and also leg
and arm pain. (T.448). He noted that Plaintiff’s general appearance
and gait were “stiff” and that he was “unable” to either heel-toe
walk or squat. (T.449). Dr. Fine checked the box labeled “abnormal”
with
regard
systems,
due
to
Plaintiff’s
neurological
to
“leg/hip/arm
pain.”
and
(T.450).
musculoskeletal
With
regard
to
functional limitations in an 8-hour work day, Dr. Fine restricted
Plaintiff to “1-2 hours” each of walking; standing; sitting;
pushing, pulling, bending; and being able to lift/carry. (T.450).
Plaintiff had no limitations in seeing, hearing, or speaking.
(T.450).
2.
The ALJ’s Weighing of Dr. Fine’s Opinions
In his decision, the ALJ recited the functional limitations
expressed by Dr. Fine in his 2013 and 2014 assessment forms.
(T.23). The ALJ assigned Dr. Fine’s 2014 opinion “little weight”
because Plaintiff’s “own activities of daily living refute these
findings as described above[.]” (Id. (citing Exhibit B9E)). In
addition, the ALJ noted, Plaintiff’s “musculoskeletal physical
examinations
with
findings
of
a
-7-
normal
gait,
strength, and
reflexes do not corroborate the[se] extreme findings[.]” (Id.
(citing Exhibits B3F (Strong Memorial Hospital Emergency Department
Records and Progress Notes; T.279-327), B4F (Progress Notes dated
05/29/2013 to 12/21/2013 from URMC Strong Memorial Hospital; T.32876) & B5F (Consultative physician Dr. Karl Eurenius’s report;
T.377-80)).
With
regard
to
Dr.
Fine’s
2013
opinion
of
no
physical
functional limitations, the ALJ “gave little weight to the findings
since they were before the protective filing date, the relevant
period[,]” and, moreover, were “were
superseded by the later March 2014 opinion during the relevant
period.” (T.23).
3.
The Treating Physician Rule
Under the regulations in effect at the time of the ALJ’s
decision here, “[i]f . . . a treating source’s4 opinion . . . is
well-supported by medically acceptable clinical and laboratory
techniques and is not inconsistent with other substantial evidence
. . . [it] will [be] give[n] controlling weight.” 20 C.F.R.
§
416.927(c)(2).
“Medically
acceptable
techniques
include
consideration of a patient’s report of complaints, or the patient’s
history, as essential diagnostic tools.” Green–Younger v. Barnhart,
335 F.3d 99, 107 (2d Cir. 2003). “An ALJ who refuses to give
4
A treating source is the claimant’s “own physician, psychologist, or other
acceptable medical source who provides [a claimant] with medical treatment or
evaluation and who has, or has had, an ongoing treatment relationship with [the
claimant].” 20 C.F.R. § 416.902.
-8-
controlling weight to the medical opinion of a treating physician
must consider various factors [listed in the regulations] to
determine how much weight to give to the opinion.” Halloran v.
Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (citation omitted); see
also Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013) (“[T]o
override the opinion of the treating physician, we have held that
the ALJ must explicitly consider, inter alia: (1) the frequen[c]y,
length, nature, and extent of treatment; (2) the amount of medical
evidence supporting the opinion; (3) the consistency of the opinion
with the remaining medical evidence; and, (4) whether the physician
is a specialist.”) (citation omitted).
A corollary to the treating physician rule is the so-called
“good reasons rule,” which is based on the regulations specifying
that “the Commissioner ‘will always give good reasons’” for the
weight given to a treating source opinion. Halloran v. Barnhart,
362 F.3d 28, 32 (2d Cir. 2004) (per curiam) (quoting 20 C.F.R.
§
404.1527(d)(2);
citing
20
C.F.R.
§
416.927(d)(2);
citation
omitted). “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
SSR 96–2p, 1996 WL 374188, at *5 (S.S.A. July 2, 1996)). The “good
reasons”
rule
exists
to
“ensur[e]
that
each
denied
claimant
receives fair process[.]” Rogers v. Comm’r of Soc. Sec., 486 F.3d
234, 243 (6th Cir. 2007).
Accordingly, an ALJ’s “‘failure to
follow the procedural requirement of identifying the reasons for
-9-
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 on the record[,]’” Blakely, 581 F.3d at 407 (quotation
omitted; emphasis in original).
4.
Application
Plaintiff argues that “[t]he ALJ did not explicitly consider
these factors, which are well-documented in the
record and
weigh
heavily in
favor of the
treating sources.”
(Plaintiff’s Brief (“Pl.’s Br.”) (Docket No. 11-1) at 24). As an
initial matter, the Court finds it makes no sense for Plaintiff to
argue that the ALJ erred in giving little weight to Dr. Fine’s 2013
Physical
Assessment.
That
report
assigned
no
limitations
to
Plaintiff, and therefore was unhelpful for his disability claim.
The Court finds that the ALJ did not err in finding that the 2013
report by Dr. Fine was entitled to little weight.
The Court turns now to Dr. Fine’s 2014 Physical Assessment,
in
which
Dr.
significant
Fine
physical
allegedly
and
“opined
mental
that
[Plaintiff]
limitations.”)
(Id.
has
(citing
T.449-55)). However, the page citations Plaintiff gave in support
of
this
assertion,
T.449-55,
conflate
two
reports
issued
on
different dates. Pages 449 through 450 are part of Dr. Fine’s March
2014 Physical Assessment, and refer only to Plaintiff’s physical
limitations. Pages 451 through 455, on the other hand, refer to an
HIV Questionnaire completed by Dr. Fine on July 23, 2015. In the
-10-
HIV
Questionnaire,
Dr.
Fine
does
rate
Plaintiff’s
mental
limitations. However, it appears that the ALJ did not discuss this
opinion
by
Dr.
Fine
in
his
decision.
Remand
accordingly
is
warranted so that the ALJ can weigh Dr. Fine’s July 23, 2015 HIV
Questionnaire
(T.451-55)
dealing
with
Plaintiff’s
mental
and
physical limitations.
With regard to the ALJ’s weighing of Dr. Fine’s 2014 Physical
Assessment, Plaintiff argues that the ALJ “erred by failing to
identify particular
findings
before
discrediting
the
treating
sources’ opinions as inconsistent with treatment records.” (Pl’s
Br. at 25 (citing Wilson v. Colvin, 213 F. Supp.3d 478, 487
(W.D.N.Y. 2016) (ALJ’s assertion that the treating physician’s
physical limitations were “wholly inconsistent with the entire
record” did not constitute a “good reason” for discounting them
because it was (1) inaccurate, and (2) insufficiently specific, as
the ALJ “concluded without explanation that [treating physician]
Dr. Harris’ opinions were ‘wholly inconsistent with the entire
record’”). The Commissioner argues that Wilson is distinguishable
because
the
ALJ
specifically
referenced
Plaintiff’s
normal
musculoskeletal physical examinations with findings of a normal
gait, strength, and reflexes, and also provided references to the
exhibits that contained those particular findings: Exhibits B3F
(Strong Memorial Hospital Emergency Department Records and Progress
Notes dated 05/14/2013 to 12/17/2013, T.279-327), B4F (Progress
Notes dated 05/29/2013 to 12/21/2013 from URMC Strong Memorial
-11-
Hospital,
T.328-76)
&
B5F
(Consultative
physician
Dr.
Karl
Eurenius’s report, T.377-80)). (See Defendant’s Brief (“Def.’s
Br.”) (Docket No. 14-1) at 20-21). The Commissioner notes that,
elsewhere in his decision, the ALJ discussed Plaintiff’s normal
musculoskeletal findings with more particularity,
referencing
specific findings by multiple providers (including Dr. Fine) on
dates throughout the relevant period. (Id. (citing (T.18-25 (citing
T.276, 280-81, 299, 306, 378-80, 430-31, 482-84, 487-90, 557))).
The Commissioner reasons that this discussion demonstrates that the
ALJ sufficiently identified the medical evidence that undermined
Dr. Fine’s opinion. (Def.’s Br. at 21).
The Court disagrees. The ALJ did not make these connections
between the record and Dr. Fine’s findings in the context of
discussing
the
weight
to be
given to this
doctor’s
opinion.
Therefore, the Commissioner’s argument consists of impermissible
post hoc rationalizations not apparent from the face of the ALJ’s
decision. See, e.g., Snell v. Apfel, 177 F.3d 128, 134 (2d Cir.
1999) (“A reviewing court may not accept appellate counsel’s post
hoc rationalizations for agency action.”).
In any event, the pages numbers referenced in the foregoing
paragraph, as well as many pages of the exhibits cited by the ALJ,
refer to records where Plaintiff is being seen for medical issues
other than his neck and back pain. For instance, page 276 refers to
a visit at Dr. Paul Dutcher’s office to treat chronic recurrent
otitis; pages 280 to 281 refer to an emergency room visit for
-12-
nausea, vomiting, diarrhea, and headache.
It is not surprising
that these providers, who were not treating Plaintiff for his
orthopedic
issues,
did
not
perform
a
full
musculoskeletal
examination. The lack of abnormal musculoskeletal findings in those
records are therefore not particularly probative. In addition, even
though other records pointed out by the Commissioner note that
Plaintiff had normal strength, reflexes, and gait, e.g., T.299, the
Commissioner neglects to mention that the records also contain
abnormal findings. For instance, at page 299, orthopedic surgeon
Clifford Everett, M.D. observed several abnormalities, including
“[d]iffuse
pain
with
cervical
rotation
and
extension
that
centralizes with repetitive chin tuck and extension,” “[p]ain with
lumbar spine flexion with less pain on extension,” and diffuse
upper extremity and lower extremity tenderness to superficial and
deep touch. (T.299). Notably, Dr. Clifford discussed with Plaintiff
that
complete
pain
resolution
was
not
possible
“due
to
the
chronicity of this issue.” (Id.). Subsequent imaging obtained by
Dr. Clifford revealed a C5-6 midline protrusion with mild to
moderate
central
narrowing
and
primary
neck
pain.
(T.490).
Dr. Clifford recommended surgery or at least injections, but
Plaintiff remained “steadfast” in his rejection of these options.
(Id.). Instead, Plaintiff elected to pursue physical therapy;
Dr. Clifford prescribed a McKenzie program which he thought would
allow Plaintiff to “functionally be able to overcome the issue.”
(T.299). Thus, even though Plaintiff had normal gait and strength
-13-
in his upper and lower extremities, he nevertheless had neck and
back issues that were sufficiently severe to warrant surgical
intervention.
In
short,
the
Court
does
not
accept
the
Commissioner’s attempt to supply after-the-fact justifications for
the ALJ’s weighing of Dr. Fine’s opinion.
The Court notes that the ALJ also cited to Dr. Eurenius’
consultative
restrictive
report
2014
as
being
opinion.
inconsistent
While
the
ALJ’s
with
Dr.
citation
Fine’s
to
the
consultative examiner’s report is not overbroad, it refers only to
selective clinical findings (normal gait, strength, and reflexes),
and ignores the multiple abnormal clinical findings observed by
Dr. Eurenius, including the ability to squat only one-quarter way
due to
back
approximately
pain; cervical flexion
30
degrees
and
and
cervical
extension
limited
to
rotation
limited
to
approximately 45 degrees, all of which ware associated with pain
felt in the posterior neck and also into the left posterior; lumbar
spine flexion limited to approximately 30 degrees with pain and
tenderness in the low mid back; lumbar spine extension limited to
0 degrees with similar pain; lateral flexion and rotation were
limited to 20 degrees in each direction with pain in the low mid
back; and straight-leg raising was positive at 45 degrees on the
left with pain in the low mid back and at 60 degrees on the right
with pain in the low mid back. (T.379).
It is true that Dr. Eurenius did not assign any limitations on
Plaintiff’s ability to sit, stand, or walk, which does contrast
-14-
with the extreme limitations assigned by Dr. Fine in those areas.
However, Dr. Eurenius found that Plaintiff “is moderately limited
in bending, lifting, carrying, pushing, and pulling, due to chronic
low back pain with neuropathic symptoms” and “is also moderately
limited in lifting, carrying, and reaching above his head due to
neck and left shoulder pain, status post cervical spine disease
with
neuropathic
symptoms.”
(T.380).
The
ALJ
found
Plaintiff
capable of light work, but work at this level requires “frequent
lifting or carrying of objects weighing up to 10 pounds.” SSR
83-10, 1983 WL 31251, at *5 (S.S.A. 1983). “[T]he frequent lifting
or carrying of objects weighing up to 10 pounds (which is required
for the full range of light work) implies that the worker is able
to do occasional bending of the stooping type; i.e., for no more
than one-third of the workday to bend the body downward and forward
by bending the spine at the waist.” SSR 83-14, at *4 (S.S.A. 1983).
The ALJ did not actually weigh Dr. Eurenius’ complete medical
source statement as required by the regulations applicable to
Plaintiff’s claim. See 20 C.F.R. § 416.927(c) (“We will evaluate
every medical opinion . . . receive[d].”) (applicable to claims
filed before Mar. 27, 2017). Instead, the ALJ stated somewhat
cryptically as follows: “The findings of sciatica pain, ‘moderate’
levels of restriction by the consultative examiner [Dr. Eurenius],
and ‘mild to moderate’ levels of damage to the neck also restrict
his exertional activities; however, consistent findings of his
ability to maintain a normal gait and not require an assistive
-15-
device indicate that his exertional level is properly placed at
light.” (T.23). Thus, the implication from this statement is that
the ALJ recognized that Dr. Eurenius’ opinion supported some degree
of limitation in Plaintiff’s RFC. However, the ALJ did not explain
how
the
moderate
limitations
pushing,
pulling,
and
reaching
in
bending,
assigned
by
lifting,
Dr.
carrying,
Eurenius
are
accommodated by an RFC for light work which, as noted above,
requires frequent lifting or carrying of objects weighing up to
10 pounds and occasional stooping. Furthermore, it is unclear how
Plaintiff’s ability to “maintain a normal gait” and walk without an
assistive device translate in an ability to perform frequent
lifting or carrying of objects weighing up to 10 pounds and
occasional stooping.
In sum, the Court finds several legal errors in connection
with the ALJ’s weighing of Dr. Fine’s opinions. First, the ALJ
failed to acknowledge that Dr. Fine qualified as a “treating
physician” and did not provide “good reasons,” set forth with
sufficient particularity to allow meaningful appellate review, for
discounting Dr. Fine’s 2014 opinion. E.g., Marthe v. Colvin,
No. 6:15-CV-06436(MAT), 2016 WL 3514126, at *9 (W.D.N.Y. June 28,
2016) (remanding where ALJ failed to provide good reasons for not
crediting the opinion of a claimant’s treating physician) (citing
Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999); Richardson v.
Barnhart, 443 F. Supp.2d 411, 424–25 (W.D.N.Y. 2006) (remanding for
a second time where the ALJ’s decision “did not give good reasons,
-16-
supported
by
substantial
evidence,
for
failing
to
assign
controlling weight to the opinion of a treating source”). Second,
the
ALJ
completely
Questionnaire.
failed
Third,
the
to
ALJ
weigh
failed
Dr.
to
Fine’s
weigh
2015
HIV
consultative
physician Dr. Eurenius’ complete medical source statement. These
omissions provide another basis for remand.
B.
Failure to Weigh Treating Therapists’ Opinions
Two
of
Plaintiff’s
mental
health
care
providers,
Rachel
Zielinski, LCSW (“LCSW Zielinski”), and Wendy Garrett-Barnes, PMHNP
(“PMHNP Garrett-Barnes”), completed a Monroe County Department of
Human
Services
Physical
Assessment
for
Determination
of
Employability form on his behalf on August 21, 2015. The ALJ
commented that Plaintiff’s “social worker believed that his mental
impairments
had
a
moderate
to
severe
impact
on
his
mental
abilities,” (T.24), citing LCSW Zielinski and PMHNP Garrett-Barnes’
assessment. However, the ALJ failed to recognize it as opinion
evidence
and
weigh
it
in
accordance
with
the
Commissioner’s
regulations and policy rulings. This is legal error warranting
remand. See, e.g., Barrett v. Colvin, 211 F. Supp.3d 567, 582
(W.D.N.Y. 2016) (remanding where ALJ “failed to explicitly weigh
[treating chiropractor]’s opinions”) (citing SSR 06–03p, 2006 WL
2329939, at *4 (S.S.A. Aug. 9, 2006) (“Opinions from these medical
sources,
who
are
not
technically
deemed
‘acceptable
medical
sources’ under our rules, are important and should be evaluated on
key issues such as impairment severity and functional effects,
-17-
along with the other relevant evidence in the file.”); other
citation omitted).
C.
Erroneous Credibility Assessment
1.
The Applicable Regulations
The Commissioner’s regulations in effect at the time of the
ALJ’s decision set forth a two-step process for evaluating symptoms
such as pain, fatigue, weakness, depression, and nervousness. See
20 C.F.R. § 416.929(c). First, the ALJ must determine whether the
claimant
has
a
medically
determinable
impairment
that
could
reasonably be expected to produce the claimant’s symptoms; if so,
the ALJ must then evaluate the intensity and persistence of the
claimant’s symptoms to determine the extent to which they limit the
claimant’s capacity for work. 20 C.F.R. § 416.929(c)(1). Thus,
while an ALJ is required to consider a claimant’s reports about her
symptoms and limitations, see 20 C.F.R. § 416.929(a), an ALJ is
“not
required
to
accept
the
claimant’s
subjective
complaints
without question; he may exercise discretion in weighing the
credibility of the claimant’s testimony in light of the other
evidence in the record[.]” Genier v. Astrue, 606 F.3d 46, 49 (2d
Cir. 2010). “While it is ‘not sufficient for the [ALJ] to make a
single, conclusory statement that’ the claimant is not credible or
simply to recite the relevant factors, remand is not required where
‘the evidence of record permits us to glean the rationale of an
ALJ’s decision,”’ Cichocki v. Astrue, 534 F. App’x 71, 76 (2d Cir.
2013) (unpublished opn.) (quoting Mongeur v. Heckler, 722 F.2d
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1033, 1040 (2d Cir. 1983); internal citation omitted; alteration in
original).
2.
The ALJ’s Credibility Assessment
The ALJ first found that “the medical evidence of record did
not support his allegations” but “[i]nstead, the record indicated
that [Plaintiff]’s back impairments did not greatly inhibit his
ability
to
get
around,
lift
objects,
and
maneuver
since
he
maintained a normal gait and musculoskeletal strength in his
upper/lower extremities throughout the disability period.” (T.25).
In addition, the ALJ noted, “physical examinations . . . revealed
his ability to perform maneuvers such as heel walking, toe walking,
and an ability to rise from a chair without difficulty[,]” and he
“did not need the use of an assistive device to get around.” (T.25
citations to record omitted)). Plaintiff does not take issue with
this aspect of the ALJ’s credibility assessment.
Next, the ALJ found that Plaintiff’s “noncompliance with
medication and treatment indicate that he is not attempting to
maximize
his
improvement
potential,
with
especially
compliance[.]”
when
(T.25
there
(citing
was
documented
Exhibits
14F
(Progress Notes dated 05/21/2015 to 07/23/2015, T.527-79) & 15F
(Outpatient/Inpatient Rehabilitation Records; various dates in 2014
and 2015, T.580-629)). Under the policy ruling in effect at the
time of the ALJ’s decision, a claimant’s “statements may be less
credible if the level or frequency of treatment is inconsistent
with the level of complaints, or if the medical reports or records
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show
that
the
individual
is
not
following
the
treatment
as
prescribed and there are no good reasons for this failure. Social
Security Ruling (“SSR”) 96-7p, 1996 WL 374186, at *7 (S.S.A.
July 2, 1996). However, an ALJ “must not draw any inferences about
an individual's symptoms and their functional effects from a
failure to seek or pursue regular medical treatment without first
considering any explanations that the individual may provide, or
other information in the case record, that may explain infrequent
or irregular medical visits or failure to seek medical treatment.”
Id.
The
Court
finds
that
there
is
substantial
evidence
of
Plaintiff’s failure to follow his medical provider’s treatment
recommendations in the exhibits cited by the ALJ.5 For instance, on
May 21, 2015, Plaintiff informed Dr. Fine that he “did not keep his
followup with orthopedics, [or] physical therapy. Because he is not
feeling doing anything.” (T.527). He also discontinued his pain
medications as prescribed (tramadol, Naprosyn, gabapentin), because
he does not feel they helped him at all; instead, he “feels the
only thing that helps him is oxycodone that was given to him by a
friend.” (Id.). In addition, Plaintiff had “stopped taking his
antiretroviral
medication
because
he
doesn’t
feel
like
doing
anything.” (Id.). Plaintiff asserts that the ALJ erred by drawing
5
Plaintiff’s non-compliance with treatment recommendations and medication
regimens also is documented elsewhere in the record. For instance, Plaintiff
admitted to Dr. Fine on multiple occasions that he was not taking any medications
for pain, for his mental health symptoms, or for his HIV. (T.404, 406, 409,
413-14, 416-17, 419, 421, 423-25, 430-31, 433, 435-36, 523, 572-73).
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an adverse inference based on his noncompliance before failing to
consider whether it may be a function of his mental impairments and
thus justifiable. (See Pl.’s Br. at 29-30). As Plaintiff notes, SSR
96-7p states that an ALJ “must not draw any inferences about an
individual's symptoms and their functional effects from a failure
to
seek
or
pursue
regular
medical
treatment
without
first
considering any explanations that the individual may provide, or
other information in the case record, that may explain infrequent
or irregular medical visits or failure to seek medical treatment.”
1996 WL 374186, at *7. There is conflicting evidence in the record
on this topic.
At times, Plaintiff was able to be compliant with
treatment recommendations, even when he was having active symptoms
of depression; at others, Plaintiff’s depression, in particular
concerning his HIV positive status, interfered with his judgment.
The ALJ did not perform the inquiry required by SSR 96-7p, and for
this reason, remand is required.
The
living,
ALJ
which
next
considered
“demonstrated
Plaintiff’s
[his]
broad
activities
range
of
of
daily
functional
capabilities.” (T.25). The ALJ cited Exhibit B2E, a function
questionnaire dated December 31, 2013, and noted that Plaintiff
“reported being able to tend to his personal care with little to no
mental difficulties, preparing/cooking meals, shopping in the store
for groceries, managing his finances, and tending to hobbies (such
as cooking, reading, and socializing with friends).” (T.25). The
ALJ characterized “[s]uch activities [as] . . . indicative of a
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comprehensive
ability
to
function
in
the
workplace.”
(Id.).
However, Plaintiff’s more recent statements, namely, his testimony
at the hearing, reflect daily activities that are more limited in
scope.
Also,
as
Plaintiff
notes,
“[c]ourts
in
this
Circuit
repeatedly have recognized that ‘[a] claimant’s participation in
the activities of daily living will not rebut his or her subjective
statements of pain or impairment unless there is proof that the
claimant engaged in those activities for sustained periods of time
comparable to those required to hold a sedentary job.’” Harris v.
Colvin, 149 F. Supp.3d 435, 445 (W.D.N.Y. 2016) (quoting Polidoro
v. Apfel, No. 98 CIV.2071(RPP), 1999 WL 203350, at *8 (S.D.N.Y.
1999) (citing Carroll v. Sec’y of Health and Human Servs., 705 F.2d
638, 643 (2d Cir. 1983)).
VI.
Conclusion
For
the
Commissioner’s
foregoing
decision
reasons,
is
marred
the
by
Court
finds
several
that
legal
the
errors.
Accordingly, it must be reversed and the case remanded for further
administrative proceedings consistent with this Decision and Order.
In particular, the ALJ is directed to weigh, in the first instance,
Dr. Fine’s 2015 HIV Questionnaire and Dr. Eurenius’ consultative
report, applying the appropriate regulatory factors; the ALJ is
directed to re-weigh Dr. Fine’s 2014 Physical Assessment, applying
the appropriate regulatory factors; the ALJ is directed to weigh,
in the first instance, the 2015 opinion of LCSW Zielinski and PMHNP
Garrett-Barnes; and the ALJ is directed to re-evaluate Plaintiff’s
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credibility and perform the inquiry required under SSR 96-7p
relative to Plaintiff’s noncompliance with treatment. Plaintiff’s
Motion for Judgment on the Pleadings is granted to the extent that,
as set forth above, the Commissioner’s decision is reversed, and
the claim is remanded for further administrative proceedings.
Defendant’s Motion for Judgment on the Pleadings is denied. The
Clerk of Court is directed to close this case.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
July 12, 2018
Rochester, New York.
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