Freeman v. Commissioner of Social Security
Filing
14
DECISION & ORDER The Commissioner's motion for judgment on the pleadings 13 is denied, and Freeman's motion for judgment on the pleadings 10 is granted to the extent that the Commissioner's decision is reversed, and this case is remanded to the Commissioner pursuant to 42 U.S.C. § 405(g), sentence four, for further administrative proceedings consistent with this decision. Signed by Hon. Marian W. Payson on 5/8/2019. (KAH)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
JASON FREEMAN,
DECISION & ORDER
Plaintiff,
18-CV-6008P
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_______________________________________
PRELIMINARY STATEMENT
Plaintiff Jason Freeman (“Freeman”) brings this action pursuant to Section 205(g)
of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision of the
Commissioner of Social Security (the “Commissioner”) denying his application for
Supplemental Security Income (“SSI”) and Disability Insurance Benefits (“DIB”). Pursuant to
28 U.S.C. § 636(c), the parties have consented to the disposition of this case by a United States
magistrate judge. (Docket # 6).
Currently before the Court are the parties’ motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket ## 10, 13). For the
reasons set forth below, I hereby vacate the decision of the Commissioner and remand this claim
for further administrative proceedings consistent with this decision.
DISCUSSION
I.
Standard of Review
This Court’s scope of review is limited to whether the Commissioner’s
determination is supported by substantial evidence in the record and whether the Commissioner
applied the correct legal standards. See Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004)
(“[i]n reviewing a final decision of the Commissioner, a district court must determine whether
the correct legal standards were applied and whether substantial evidence supports the
decision”), reh’g granted in part and denied in part, 416 F.3d 101 (2d Cir. 2005); see also
Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (“it is not our function to determine de novo
whether plaintiff is disabled[;] . . . [r]ather, we must determine whether the Commissioner’s
conclusions are supported by substantial evidence in the record as a whole or are based on an
erroneous legal standard”) (internal citation and quotation omitted). Pursuant to 42 U.S.C.
§ 405(g), a district court reviewing the Commissioner’s determination to deny disability benefits
is directed to accept the Commissioner’s findings of fact unless they are not supported by
“substantial evidence.” See 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner . . . as to
any fact, if supported by substantial evidence, shall be conclusive”). Substantial evidence is
defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (internal quotation omitted).
To determine whether substantial evidence exists in the record, the court must
consider the record as a whole, examining the evidence submitted by both sides, “because an
analysis of the substantiality of the evidence must also include that which detracts from its
weight.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). To the extent
2
they are supported by substantial evidence, the Commissioner’s findings of fact must be
sustained “even where substantial evidence may support the claimant’s position and despite the
fact that the [c]ourt, had it heard the evidence de novo, might have found otherwise.” Matejka v.
Barnhart, 386 F. Supp. 2d 198, 204 (W.D.N.Y. 2005) (citing Rutherford v. Schweiker, 685 F.2d
60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983)).
A person is disabled for the purposes of SSI and disability benefits if he or she 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) & 1382c(a)(3)(A). In assessing whether a claimant is disabled, the ALJ must
employ a five-step sequential analysis. See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)
(per curiam). The five steps are:
(1)
whether the claimant is currently engaged in substantial
gainful activity;
(2)
if not, whether the claimant has any “severe impairment”
that “significantly limits [the claimant’s] physical or mental
ability to do basic work activities”;
(3)
if so, whether any of the claimant’s severe impairments
meets or equals one of the impairments listed in Appendix
1 of Subpart P of Part 404 of the relevant regulations;
(4)
if not, whether despite the claimant’s severe impairments,
the claimant retains the residual functional capacity
[“RFC”] to perform his past work; and
(5)
if not, whether the claimant retains the residual functional
capacity to perform any other work that exists in significant
numbers in the national economy.
3
20 C.F.R. §§ 404.1520(a)(4)(i)-(v) & 416.920(a)(4)(i)-(v); Berry v. Schweiker, 675 F.2d at 467.
“The claimant bears the burden of proving his or her case at steps one through four[;] . . . [a]t
step five the burden shifts to the Commissioner to ‘show there is other gainful work in the
national economy [which] the claimant could perform.’” Butts v. Barnhart, 388 F.3d at 383
(quoting Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998)).
II.
Freeman’s Contentions
Freeman contends that the ALJ’s determination that he is not disabled is not
supported by substantial evidence and is the product of legal error. (Docket # 10-1). First, he
argues that the ALJ’s physical RFC assessment was not supported by substantial evidence. (Id.
at 9-19). According to Freeman, in conducting the physical RFC assessment, the ALJ
improperly substituted her own lay opinion for that of “the undisputed medical opinion of
[Freeman’s] own treating physician” – Dr. Subodh Debnath. (Id. at 9-15). In addition, Freeman
asserts that the ALJ failed to comply with the treating physician rule in discounting Debnath’s
medical opinion. (Id. at 15-17). Freeman also contends that the ALJ’s physical RFC does not
account for certain limitations opined by Debnath, including limitations concerning Freeman’s
work pace, attendance, and his need for a sit/stand option, and contradicts Debnath’s opinions
that Freeman cannot meet the demands of light work. (Id. at 17-19). Second, and relatedly,
Freeman argues that the ALJ erred at step five of the sequential analysis because “the RFC does
not properly account for [Freeman’s] true limitations.” (Id. at 19-20).
4
III.
Analysis
A.
RFC Assessment
Freeman’s challenge centers on the ALJ’s decision to give “little weight” to the
medical opinion of Freeman’s primary care physician, Dr. Debnath (“Debnath”), which is the
only medical opinion in the record. By discounting this opinion, Freeman argues, the ALJ
“arbitrarily substituted” her own lay opinion for that of an “uncontradicted” competent medical
opinion and violated the treating physician rule. (Id. at 9-17).
The Commissioner argues that the ALJ’s RFC determination is supported by
substantial evidence. (Docket # 13-1 at 13-20). Specifically, the Commissioner asserts that the
ALJ was entitled to weigh the record evidence and make a finding consistent with the record as a
whole, regardless of whether the ALJ relied upon a medical opinion in the record. (Id. at 13).
The Commissioner also argues that Debnath does not qualify as a treating physician under the
relevant regulations and, even if he did, the ALJ properly discounted his medical opinion. (Id. at
15-17).
1.
The ALJ Substituted Her Own Lay Opinion in Formulating the RFC
An individual’s RFC is his or her “maximum remaining ability to do sustained
work activities in an ordinary work setting on a regular and continuing basis.” Melville v. Apfel,
198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96-8p, 1996 WL 374184, *2 (July 2, 1996)). In
making an RFC assessment, the ALJ should consider “a claimant’s physical abilities, mental
abilities, symptomology, including pain and other limitations which could interfere with work
activities on a regular and continuing basis.” Pardee v. Astrue, 631 F. Supp. 2d 200, 221
(N.D.N.Y. 2009) (citing 20 C.F.R. § 404.1545(a)). “To determine RFC, the ALJ must consider
all the relevant evidence, including medical opinions and facts, physical and mental abilities,
5
non-severe impairments, and [p]laintiff’s subjective evidence of symptoms.” Stanton v. Astrue,
2009 WL 1940539, *9 (N.D.N.Y. 2009) (citing 20 C.F.R. §§ 404.1545(b)-(e)), aff’d, 370
F. App’x 231 (2d Cir. 2010) (summary order).
“[A]n ALJ is not qualified to assess a claimant’s RFC on the basis of bare medical
findings, and as a result an ALJ’s determination of RFC without a medical advisor’s assessment
is not supported by substantial evidence.” Wilson v. Colvin, 2015 WL 1003933, *21 (W.D.N.Y.
2015) (citation omitted). While an ALJ’s conclusion need not “perfectly correspond with any of
the opinions of medical sources cited in h[er] decision,” Matta v. Astrue, 508 F. App’x 53, 56 (2d
Cir. 2013), “an ALJ is not a medical professional, and is not qualified to assess a claimant’s RFC
on the basis of bare medical findings.” Benman v. Comm’r of Soc. Sec., 350 F. Supp. 3d 252,
257 (W.D.N.Y. 2018) (quotations omitted) (“the ALJ may not interpret raw medical data in
functional terms”). Accordingly, although the RFC determination is an issue reserved for the
Commissioner, “[w]here the medical findings in the record merely diagnose [the] claimant’s
exertional impairments and do not relate those diagnoses to specific residual functional
capabilities,” as a general rule, the Commissioner “may not make the connection [her]self.”
Nanartowich v. Comm’r of Soc. Sec., 2018 WL 2227862, *9 (W.D.N.Y. 2018) (quoting Deskin
v. Comm’r of Soc. Sec., 605 F. Supp. 2d 908, 912 (N.D. Ohio 2008)). Although under certain
circumstances, particularly where the medical evidence shows relatively minor physical
impairment, “an ALJ permissibly can render a common sense judgment about functional
capacity even without a physician’s assessment,” House v. Astrue, 2013 WL 422058, *4
(N.D.N.Y. 2013) (internal quotation omitted), I conclude that those circumstances are not present
here.
6
In this case, the ALJ determined at step two that Freeman had the severe
impairments of “brachial plexus disorders, right shoulder pain, and obesity.” (Tr. 12). The only
opinion evidence in the record is a March 2016 “Questionnaire” completed by Debnath.
(Tr. 515-16). In that report, Debnath indicated that he treated Freeman for brachial neuritis,
shoulder pain, cervical disc disease, muscle atrophy, and gastroesophageal reflux disease.
(Tr. 515). Debnath opined that these conditions would cause Freeman pain, fatigue, diminished
concentration and work pace, the need to rest at work, and would result in Freeman being
off-task for more than one-third of the day. (Id.). In Debnath’s view, these conditions would be
expected to cause Freeman good days and bad days, and the bad days would lead Freeman to be
absent from work more than four days a month. (Id. at 515-16). Debnath also indicated that the
medications taken by Freeman, including oxycodone, could cause fatigue, upset stomach,
increased pain, and drowsiness. (Id. at 516).
In addition, Debnath opined that Freeman could sit for approximately thirty
minutes out of an eight-hour day, should change positions between sitting and standing every
twenty minutes, and could stand/walk for about one hour out of an eight-hour day. (Id.).
Finally, Debnath opined that Freeman could occasionally – meaning “up to [one-third] of the
[work]day” – lift zero to five pounds, five to ten pounds, and over ten pounds. (Id.).
In making her RFC assessment, the ALJ gave “little weight” to Debnath’s opinion
that Freeman was able to stand for only one hour in an eight-hour workday and only occasionally
lift greater than ten pounds. (Tr. 15). According to the ALJ, Debnath “did not specify whether
lifting limitations [were] particular to [Freeman’s] right hand . . . [and] there [was] no basis for
such an extreme standing limitation.” (Id.). The ALJ did not mention the other limitations in
Debnath’s opinion.
7
The ALJ determined that Freeman could perform light work, provided the work
could be done either “sitting or standing and would allow [Freeman] to alternate between the two
positions without stopping work activity.” (Tr. 13). Moreover, the ALJ limited Freeman to
work that “does not require working above the shoulder level or lifting more than ten pounds
with the dominant right hand.” (Id.). In making this RFC determination, the ALJ summarized
portions of the medical evidence and Freeman’s hearing testimony and noted that Freeman could
perform activities of daily living, such as bathing and dressing, mowing the lawn, helping wash
the dishes, walking, using public transportation, and shopping. (Tr. 14-15). The ALJ
acknowledged Freeman’s complaints of right shoulder pain and, without citing any medical
evidence, “limited [Freeman] to lifting or carrying not more than 10 pounds with [his] right
dominant hand.” (Tr. 15).
The Court agrees with Freeman that this RFC assessment is at odds with
Debnath’s March 2016 opinion. (Docket # 10-1 at 10-11). Specifically, although the RFC
allows Freeman to alternate positions between sitting and standing, it does not account for
Debnath’s opinion that Freeman needs to rest during the workday. In addition, contrary to
Debnath’s opinion that Freeman could only occasionally lift or carry objects weighing up to ten
pounds, the ALJ concluded that he could perform light work and thereby found that Freeman
could frequently engage in such lifting. (Tr. 13, 516); see also 20 C.F.R. §§ 404.1567(b),
416.967(b) (“[l]ight work involves lifting no more than 20 pounds at a time with frequent lifting
or carrying of objects weighing up to 10 pounds”). Moreover, the ALJ did not address
Debnath’s opinion that Freeman would be off-task for more than one-third of the workday and
would be absent from work more than four days a month. (Tr. 515-16). As the vocational expert
testified, these limitations would preclude competitive employment. (Tr. 59-62).
8
Apart from Debnath’s opinion, the record does not contain a useful assessment
from any medical source of Freeman’s physical limitations. Indeed, the ALJ cites no contrary
medical evidence in discounting Debnath’s opinion; rather, she states, “[n]othing in [Freeman’s]
clinical signs suggest[ed] that the [RFC] assessment was unreasonable[, and the] medical record
[does not] reflect a treatment regimen inconsistent with such limitations.” (Tr. 15). This
statement hardly explains the ALJ’s reasons for discounting much of Debnath’s opinion.
It is unclear how the ALJ arrived at her RFC determination and why she
completely disregarded certain of the limitations assessed by Debnath, such as Freeman’s need to
rest at work, his work pace, and his potential to be absent from work because of his impairments.
By rejecting Debnath’s opinion, the ALJ improperly relied on her own lay interpretation of the
medical evidence, and remand is warranted on this basis. See, e.g., Benman v. Comm’r of Soc.
Sec., 350 F. Supp. 3d at 260 (“in this case, the RFC finding is at odds with the only medical
opinion of record regarding [p]laintiff’s physical capabilities, and that leaves the [c]ourt at a loss
as to how the ALJ assessed [p]laintiff’s physical limitations[;] [t]he ALJ’s failure to rely on
sufficient evidence in assessing [p]laintiff’s physical limitations requires remand”); see also
Lowe v. Colvin, 2016 WL 624922, *7 (W.D.N.Y. 2016) (“[b]ecause [the treating physician] is
the only medical opinion in the record to assess [p]laintiff’s ability to lift and carry with
specificity, and because the ALJ ultimately gave little evidentiary weight to that opinion, the
[c]ourt is left with the circumstances of the ALJ interpreting raw medical data to arrive at a
[RFC] determination, without the benefit of an expert medical opinion”) (quotations omitted).
“In some circumstances, an ALJ may make an RFC finding without treating
source opinion evidence.” Benman, 350 F. Supp. 3d at 259 (citing Muhammad v. Colvin, 2017
WL 4837583, *4 (W.D.N.Y. 2017)). See Monroe v. Comm’r of Soc. Sec., 676 F. App’x 5, 8 (2d
9
Cir. 2017) (where “the record contains sufficient evidence from which an ALJ can assess the
claimant’s [RFC], . . . a medical source statement or formal medical opinion is not necessarily
required”) (internal quotation and citations omitted). In those circumstances, however, “the RFC
assessment will be sufficient only when the record is ‘clear’ and contains ‘some useful
assessment of the claimant’s limitations from a medical source.’” Benman, 350 F. Supp. 3d at
259 (quoting Muhammad v. Colvin, 2017 WL 4837583 at *4). In other words, an ALJ “may not
interpret raw medical data in functional terms.” Militello v. Comm’r of Soc. Sec., 2019 WL
1409711, *3 (W.D.N.Y. 2019) (internal quotations and citations omitted). Where the record
lacks a “useful assessment” of the claimant’s limitations, remand is appropriate. See, e.g.,
Militello v. Comm’r of Soc. Sec., 2019 WL 1409711 at *3-4; Benman, 350 F. Supp. 3d at 260;
Smith v. Comm’r of Soc. Sec., 337 F. Supp. 3d 216, 226-27 (W.D.N.Y. 2018); Kain v. Colvin,
2017 WL 2059806, *4 (W.D.N.Y. 2017).
Here, although the record contains treatment notes, including some from
specialists, those records generally contain bare medical findings and do not address or shed light
on how Freeman’s impairments affect his physical ability to perform work-related functions. For
these reasons, the cases cited by the Commissioner (Docket # 13-1 at 14) are distinguishable
from the instant case. See, e.g., Smith v. Berryhill, 740 F. App’x 721, 725 (2d Cir. 2018) (ALJ
did not improperly rely on his own lay judgment in determining RFC; although ALJ rejected
certain medical source opinions, “[t]he ALJ relied upon the findings and conclusions of other
treating physicians . . . , and numerous consulting physicians . . . in concluding that [plaintiff]
had the capacity for simple sedentary work”); Johnson v. Colvin, 669 F. App’x 44, 46 (2d Cir.
2016) (“because the record contained sufficient other evidence [besides a brief letter from
plaintiff’s physician] supporting the ALJ’s determination and because the ALJ weighed all of
10
that evidence when making his [RFC] finding, there was no gap in the record and the ALJ did
not rely on his own lay opinion”) (internal quotation omitted). “Without some explanation from”
the ALJ “as to the tether between her RFC” and the record evidence, “the RFC appears to be
based upon her lay analysis of [Freeman’s] limitations, which is not permitted and requires
remand.” Jordan v. Berryhill, 2018 WL 5993366, *3 (W.D.N.Y. 2018).
“As a general rule, where the transcript contains only diagnostic evidence and no
opinion from a medical source about functional limitations . . . , to fulfill the responsibility to
develop a complete record, the ALJ must recontact the treating source, order a consultative
examination, or have a medical expert testify at the hearing.” See Gross v. Astrue, 2014 WL
1806779, *18 (W.D.N.Y. 2014) (quoting Deskin v. Comm’r of Soc. Sec., 605 F. Supp. 2d at 912).
Review of the record leads me to conclude that remand is appropriate to allow the ALJ to do so
here.
2.
The ALJ Improperly Weighed Debnath’s Medical Opinion
Freeman also argues that the ALJ erred by failing to comply with the treating
physician rule, specifically because she failed to provide “good reasons” for discounting
Debnath’s opinion. (Docket # 10-1 at 15-17). The Commissioner disputes that Debnath
qualifies as a treating source because he only saw Freeman twice during the relevant period of
disability and only a limited number of times prior to the alleged onset date, and he “did not
really treat [Freeman] for his allegedly disabling impairments.” (Docket # 13-1 at 15, 19).
Before discounting any medical opinion, an ALJ must consider:
(1)
the frequency of examination and length, nature, and extent
of the treatment relationship;
(2)
the evidence in support of the physician’s opinion;
(3)
the consistency of the opinion with the record as a whole;
11
(4)
whether the opinion is from a specialist; and
(5)
whatever other factors tend to support or contradict the
opinion.
Gunter v. Comm’r of Soc. Sec., 361 F. App’x 197, 199 (2d Cir. 2010) (summary order); see also
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (“[a]n ALJ who refuses to accord
controlling weight to the medical opinion of a treating physician must consider [the above-listed
factors] to determine how much weight to give to the opinion”); Andrew L. v. Berryhill, 2019
WL 1081460, *4 (N.D.N.Y. 2019) (“[t]he factors for considering opinions from non-treating
medical sources are the same as those for assessing treating sources, with the consideration of
whether the source examined the claimant or not replacing the consideration of the treatment
relationship between the source and the claimant”) (quotations omitted); Benman, 350
F. Supp. 3d at 258 (“before discounting any medical opinion, including those by consultative
examiners, the ALJ must consider the [above-listed] factors”). As to treating physicians, the
regulations also direct the ALJ to “give good reasons in [her] notice of determination or decision
for the weight [she] give[s] [claimant’s] treating source’s opinion.” Halloran v. Barnhart, 362
F.3d at 32; see also 20 C.F.R. §§ 404.1527(c)(2) & 416.927(c)(2);1 Burgess v. Astrue, 537 F.3d
117, 129-30 (2d Cir. 2008) (“[a]fter considering the above factors, the ALJ must
comprehensively set forth [her] reasons for the weight assigned to a treating physician’s opinion
. . . [f]ailure to provide such ‘good reasons’ for not crediting the opinion of a claimant’s treating
physician is a ground for remand”) (citations and quotations omitted).
The Court “offers no view as to whether [Debnath] is a treating physician under
the applicable regulations or what weight should ultimately be accorded to his opinion.” Andrew
1
These regulations apply to claims filed before March 27, 2017. For claims filed on or after March 27,
2017, the rules in C.F.R. §§ 404.1520c & 416.920c apply.
12
L. v. Berryhill, 2019 WL 1081460 at *5. On remand, “[i]t is ultimately the ALJ’s obligation to
weigh the evidence and resolve conflicts in it, but in doing so the ALJ [should] provide ‘a more
comprehensive explanation than the one given here.’” Id. (quoting Marrese v. Colvin, 2016 WL
5081481, *3 (W.D.N.Y. 2016)). The ALJ’s explanation should make clear whether she
considers Debnath as a treating physician and should explain more fully the reasons for the
weight, if any, she accords Debnath’s opinion.
B.
Remaining Contentions
In light of my determination that remand is warranted, I decline to address
Freeman’s remaining contentions related to the RFC determination and the ALJ’s step five
determination. See, e.g., Benman, 350 F. Supp. 3d at 260-61 (collecting cases); see also Stein v.
Colvin, 2016 WL 7334760, *3 n.2 (W.D.N.Y. 2016) (remanding where RFC determination was
not supported by substantial evidence because ALJ based RFC on raw medical evidence and his
own lay opinion; “[plaintiff] advances other arguments that she believes require reversal of the
Commissioner’s decision[;] [h]owever, because this [c]ourt disposes of this matter on the
improper RFC determination, those arguments need not be reached”).
CONCLUSION
For the reasons stated above, the Commissioner’s motion for judgment on the
pleadings (Docket # 13) is DENIED, and Freeman’s motion for judgment on the pleadings
(Docket # 10) is GRANTED to the extent that the Commissioner’s decision is reversed, and this
13
case is remanded to the Commissioner pursuant to 42 U.S.C. § 405(g), sentence four, for further
administrative proceedings consistent with this decision.
IT IS SO ORDERED.
s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
May 8, 2019
14
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?