Hofman v. Commissioner of Social Security
Filing
24
ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER granting 16 Motion for Judgment on the Pleadings; denying 22 Motion for Judgment on the Pleadings Plaintiff's Motion (Docket No. 16) is gran ted; defendant's Motion (Docket No. 22) is denied. This matter is remanded to defendant Commissioner for further proceedings consistent with this Order.The Court Clerk to enter judgment consistent with this Order.So Ordered. Signed by Hon. Hugh B. Scott on 6/13/2019. (DRH)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MARION JOHN HOFMAN,
Plaintiff,
Hon. Hugh B. Scott
18CV6382
v.
CONSENT
Order
COMMISSIONER,
Defendant.
Before the Court are the parties’ respective motions for judgment on the pleadings
(Docket Nos. 16 (plaintiff), 22 (defendant Commissioner)). The parties consent to proceed
before a Magistrate Judge (see Docket No. 9). Having considered the Administrative Record,
filed as Docket No. 8 (references noted as “[R. __]”), and the papers of both sides, this Court
reserved decision without oral argument and reaches the following decision.
INTRODUCTION
This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination
of the Commissioner of Social Security that plaintiff is not disabled and, therefore, is not entitled
to Supplemental Security Income benefits.
PROCEDURAL BACKGROUND
The plaintiff (Mr. “Marion Hofman” or “plaintiff”) filed an application for disability
insurance benefits on January 20, 2015 [R. 10], alleging disability from January 1, 2008. That
application was denied initially. The plaintiff appeared before an Administrative Law Judge
(“ALJ”), who considered the case de novo and concluded, in a written decision dated April 14,
2017, that the plaintiff was not disabled within the meaning of the Social Security Act. The
ALJ’s decision became the final decision of the Commissioner on March 26, 2018 [R. 1], when
the Appeals Council denied plaintiff’s request for review.
Plaintiff commenced this action on May 23, 2018 (Docket No. 1). The parties moved
for judgment on the pleadings (Docket Nos. 16, 22), and plaintiff duly replied (Docket No. 23)
by June 6, 2019, deadline (Docket No. 21). Upon further consideration, this Court then
determined that the motions could be decided on the papers.
FACTUAL BACKGROUND
Plaintiff, a 47-year-old with a limited education, had no past relevant work [R. 18], but he
reported work experience doing masonry work and as a pizza maker and roofer (Docket No. 16,
Pl. Memo. at 5; [R. 169]). Plaintiff had no earnings since 2002 (Docket No. 22, Def. Memo. at
2; [R. 162]). He contends that he was disabled as of January 1, 2008, following a 2007
automobile accident. Plaintiff applied for disability in 2009, which was granted for neck and
back impairments [R. 76-81], but the ALJ found that plaintiff was now claiming different
impairments in the 2015 application from the 2009 application, thus denying res judicata effect
to the 2009 decision [R. 10]. Plaintiff was incarcerated in August 2012 to January 2015 and lost
Social Security disability benefits [R. 194; see R. 18].
Plaintiff reapplied for disability benefits following his release in 2015 [R. 194] in the
present application. The following impairments were deemed to be severe by the present
Administrative Law Judge (or “ALJ”): degenerative disc disease, cervical and lumbar [R. 12].
Plaintiff also claimed asthma, hypertension, hepatitis C, and a history of polysubstance abuse, all
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found not to be severe by the ALJ. Plaintiff’s 2015 application was denied initially. Plaintiff
appeared before the ALJ who considered the case de novo and concluded, in a written decision
dated April 14, 2017, that the plaintiff was not disabled within the meaning of the Social Security
Act. The ALJ’s decision became the final decision of the Commissioner on March 26, 2018,
when the Appeals Council denied plaintiff’s request for administrative review.
MEDICAL AND VOCATIONAL EVIDENCE
During his November 1, 2016, hearing, plaintiff argued that his cervical spine surgery
was ineffective and that he still had severe spinal impairments [R. 30].
After declining to give a November 2009 disability finding for back injury [R. 76, 78-80]
preclusive effect [R. 10], the ALJ in this application found that medical evidence fell short of
indicating a back impairment under Listing 1.00, musculoskeletal system impairment [R. 14].
The ALJ then found that plaintiff had a residual functional capacity to perform light
work, limited to occasional pushing and pulling with upper extremities and occasional overhead
reaching bilaterally. Claimant’s capacity prohibited him from climbing ladders, ropes, and
scaffolds; limited him to occasional climbing of ramps and stairs, balancing, stooping, kneeling,
crouching, and crawling, among other limitations. [R. 14.] With this capacity, plaintiff was
deemed unable to perform most light work. The ALJ posed hypotheticals to the vocational
expert posing a claimant with plaintiff’s age, education, work experience, and residual functional
capacity and the expert opined that a claimant like plaintiff could work as an information clerk,
routing clerk, and a furniture rental consultant, all light exertion work [R. 19, 53-54]. With that
hypothetical modified to a claimant with sedentary exertional level, the expert opined that this
claimant could work as an order clerk, telephone quotation clerk, or an addresser [R. 54-55]. If
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a hypothetical claimant had to be off task beyond ten percent or absent for more than two days
per month, the vocational expert found that there was not work at a competitive rate and not any
work available to such a claimant [R. 55-56]. Plaintiff then asked the vocational expert if a
claimant with plaintiff’s age, education, and limited work history needed to sit for four hours a
day but stand for only two hours a day whether the opined positions still would be available; the
expert concluded that such a claimant would not be working full time or at a competitive rate
[R. 56]. Because of these opinions, the ALJ found that plaintiff not to be disabled [R. 20].
DISCUSSION
The only issue to be determined by this Court is whether the ALJ’s decision that the
plaintiff was not under a disability is supported by substantial evidence. See 42 U.S.C.
§ 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). 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)
(quoting Consolidated Edison Co. v. National Labor Relations Bd., 305 U.S. 197, 229 (1938)).
Standards
A.
General Standards and Five-Step Analysis
For purposes of both Social Security Insurance and disability insurance benefits, a person
is disabled when 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).
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Such a disability will be found to exist only if an individual’s “physical or mental
impairment or impairments are of such severity that [he or she] is not only unable to do [his or
her] previous work but cannot, considering [his or her] age, education, and work experience,
engage in any other kind of substantial gainful work which exists in the national economy . . . .”
42 U.S.C. §§ 423(d)(2)(A) & 1382c(a)(3)(B).
The plaintiff bears the initial burden of showing that the impairment prevents the
claimant from returning to his or her previous type of employment. Berry v. Schweiker,
675 F.2d 464, 467 (2d Cir. 1982). Once this burden has been met, “the burden shifts to the
[Commissioner] to prove the existence of alternative substantial gainful work which exists in the
national economy and which the plaintiff could perform.” Id.; see also Dumas v. Schweiker,
712 F.2d 1545, 1551 (2d Cir. 1983); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980).
In order to determine whether the plaintiff is suffering from a disability, the ALJ must
employ a five-step inquiry:
(1) whether the plaintiff is currently working;
(2) whether the plaintiff suffers from a severe impairment;
(3) whether the impairment is listed in Appendix 1 of the relevant regulations;
(4) whether the impairment prevents the plaintiff from continuing past relevant
work; and
(5) whether the impairment prevents the plaintiff from doing any kind of work.
20 C.F.R. §§ 404.1520 & 416.920; Berry, supra, 675 F.2d at 467. If a plaintiff is found to be
either disabled or not disabled at any step in this sequential inquiry, the ALJ’s review ends.
20 C.F.R. §§ 404.1520(a) & 416.920(a); Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir.
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1992). However, it should be noted that the ALJ has an affirmative duty to fully develop the
record. Gold v. Secretary, 463 F.2d 38, 43 (2d Cir. 1972).
To determine whether an admitted impairment prevents a claimant from performing past
work, the ALJ is required to review the plaintiff’s residual functional capacity and the physical
and mental demands of the work that has done in the past. 20 C.F.R. §§ 404.1520(e) &
416.920(e). The ALJ must then determine the individual’s ability to return to past relevant work
given the claimant’s residual functional capacity. Washington v. Shalala, 37 F.3d 1437, 1442
(10th Cir. 1994).
B.
Treating Physician Rule for pre-March 2017 Claim
Plaintiff’s January 2015 claim predates changes to the treating opinion regulations.
The treating physician rule applies to claims filed before March 27, 2017, 20 C.F.R. § 416.927
(2017), such as this one. The current version of the SSA’s regulations eliminates the treating
physician’s rule, but for applications filed on or after March 27, 2017, 20 C.F.R. § 416.920c (see
also Docket No. 22, Def. Memo. at 17 n.2). E.g., Barco v. Comm’r, 330 F. Supp. 3d 913, 918
n.2 (W.D.N.Y. 2018) (Wolford, J.) (treating physician rule applies for claim filed in
December 2013); Tuper v. Berryhill, No. 17CV6288, 2018 U.S. Dist. LEXIS 149125, at *2, 8 &
n.2 (W.D.N.Y. Aug. 31, 2018) (Payson, Mag. J.) (treating physician rule applies to claim filed
May 2013). The treating physician rule provided that
A treating physician is entitled to controlling weight if it is well supported by
clinical and laboratory techniques and is not inconsistent with other substantial
evidence. See 20 C.F.R. § 404.1527; see also Clark v. Comm’r of Soc. Sec.,
143 F.3d 115, 118 (2d Cir. 1998) (discussing application of the treating physician
rule). Additionally, “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) (quoting 20 C.F.R. § 404.1527(d)(2); citing 20 C.F.R.
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§ 416.927(d)(2)). While an ALJ may give less than controlling weight to a
treating physician’s opinion, he or she must “comprehensively set forth [his or
her] reasons for the weight assigned to a treating physician's opinion.” Halloran,
362 F.3d at 33. “Those good reasons must be ‘supported by the evidence in the
case record, and must be sufficiently specific. . . .’” Blakley v. Comm’r of Soc.
Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Social Security Ruling (“SSR”)
96-2p, 1996 SSR LEXIS 9 at *12, 1996 WL 374188, at *5 (S.S.A. July 2, 1996)
[(rescinded 2017)].
Taillon v. Comm’r, No. 17CV6812, 2019 U.S. Dist. LEXIS 53376, at *5 (W.D.N.Y. Mar. 28,
2019) (Telesca, J.).
C.
Estoppel Effect of Prior Disability Findings and Rulings
Under Social Security regulations, the ALJ must give collateral effect to findings made in
an earlier application, 20 C.F.R. § 416.1450(f). Under that provision, “an issue at your hearing
may be a fact that has already been decided in one of our previous determinations or decisions in
a claim involving the same parties,” the ALJ will not consider the issue again “but will accept the
factual finding made in the previous determination or decision unless there are reasons to believe
that it was wrong,” id. (see Docket No. 16, Pl. Memo. at 13). The ALJ needs to defer to the
finding of fact made in a previous determination involving the same parties unless there are
reasons to believe that the former finding was wrong, Chiaramonte v. Sullivan, No. 90 C 2618,
1991 U.S. Dist. LEXIS 5193, at *9 (N.D. Ill. Apr. 19, 1991).
Application
In the instant case, the issue is whether the ALJ had substantial evidence to support the
decision rendered denying disability coverage. A preliminary issue is the impact of a prior
disability finding on a condition now claimed by plaintiff in this application.
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I.
Collateral Estoppel
At Step Four of the five-step analysis, plaintiff contends that the ALJ erred in not
granting his 2009 decision granting disability estoppel effect in the present 2015 application
(Docket No. 16, Pl. Memo. at 13-15; see also Docket No. 23, Pl. Reply Memo. at 7 (relying upon
this argument)). Plaintiff argues that he claimed the same impairments in 2009 and 2015 for
cervical impairments, thus the finding of disability in 2009 should have estoppel effect on his
2015 application. Plaintiff’s spinal impairments were found in 2009 [R. 78-80] and had to be
accepted for his 2015 application. (Docket No. 16, Pl. Memo. at 14-15.) Defendant
Commissioner responds that plaintiff’s prior case was an SSI application from February 2008
through November 2009 and the present application was plaintiff’s claim from 2015, with
different timeframes, that preclude res judicata and collateral estoppel (Docket No. 22, Def.
Memo. at 25). Given the different timeframes, defendant argues that the ALJ properly did not
give collateral effect to the 2009 decision on the 2015 claims because the medical facts differed
(id.). Plaintiff alleged mental health issues in 2015 that differ from the physical ailments
claimed in 2009 (id.).
Defendant is correct that most of plaintiff’s 2015 impairments are not estopped by the
2009 decision because different conditions are claimed in 2009 and 2015. Plaintiff’s present
arguments, in fact, only focus on his back impairments, the one common claim arising from the
2007 accident that was deemed to be disabling in 2009.
Brief review of the first ALJ’s decision in 2009 reveals that the ALJ reviewed MRI
examinations of plaintiff’s cervical spine before and after surgery following the 2007 accident
[R. 78-79]. This ALJ noted that plaintiff wore a neck collar and used a cane [R. 79], that he was
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treated with physical therapy, chiropractic treatment, and pain medications “but he continues to
suffer from pain despite treatment” [R. 79]. This ALJ concluded that “the record as a whole
clearly shows that the claimant has very significant medical problems causing an inability to
perform substantial gainful activity” [R. 79]. The ALJ then considered the finding of nondisability by the state agency medical consultants, but relied upon treating sources and plaintiff’s
testimony that he was far more significantly limited [R. 79].
The second ALJ, however, implicitly found that the 2009 finding as to plaintiff’s spinal
limitations was wrong [R. 10, 14-16]. Instead, the ALJ argued that the same facts and same
issues were not presented in plaintiff’s 2015 application [R. 10]. This is in error. As noted by
another district court, “the Commissioner’s regulations do not permit an ALJ in a subsequent
decision to simply ignore or reconsider earlier decisions, or reweigh the factors or evidence that
was previously considered and resolved as final in the earlier finding unless her good cause is
satisfied,” Hoffman v. Colvin, No. 2:11-cv-2338 EFB, 2014 U.S. Dist. LEXIS 88171, at *20
(E.D. Cal. June 25, 2014) (Brennan, Mag. J.). Here, the ALJ in 2015 has reweighed the 2009
evidence and determined that plaintiff’s cervical condition was not disabling.
While plaintiff raises other impairments (including mental health ailments) in this new
application that were not considered before, the impairment that should have collateral effect is
his spinal impairments. The only reason plaintiff’s back impairment was at issue in 2015 was
because of the termination of his 2009 back disability benefits upon his incarceration in 2012,
see 20 C.F.R. §§ 416.1325(a) (benefits suspended when claimant resides in a public institution,
defined in § 416.201), 416.1335 (terminated after over twelve months in residence); StubbsDanielson v. Astrue, 539 F.3d 1169, 1172 (9th Cir. 2008) (incarceration is in public institution for
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§ 416.1325). Plaintiff was in a “public institution” during his incarceration from August 2012 to
January 2015 [R. 194], thus could not have automatic renewal of his cervical disability benefits
after his discharge, see Stubbs-Danielson, supra, 539 F.3d at 1172 (no resumption of benefits for
claimant in public institution beyond twelve months). Another court, considering an
incarcerated beneficiary who filed a new application to reinstate her benefits upon release, found
that the ALJ properly used the five-step sequential analysis rather than the seven-step medical
improvement analysis, Brennan v. Astrue, 501 F. Supp. 2d 1303, 1309 (D. Kan.) (Reid, Mag. J.)
(Report & Rec.), adopted, 501 F. Supp. 2d 1303 (D. Kan. 2007). Courts in the Second Circuit
(including this district) recognize that our Circuit has not ruled “whether a claimant whose
disability benefits are terminated for non-medical reasons is entitled to a presumption that his
disability has continued,” Richardson v. Astrue, No. 10 Civ. 9356, 2011 U.S. Dist. LEXIS
73429, at *42-43 (S.D.N.Y. July 8, 2011) (citing Singletary v. Astrue, No. 07CV6025, 2008 U.S.
Dist. LEXIS 28638, at *6 (W.D.N.Y. Jan. 22, 2008) (Siragusa, J.)); Nelson v. Comm’r,
No. 8:14CV983, 2015 U.S. Dist. LEXIS 82971, at *21 (N.D.N.Y. June 26, 2015).
Judge Siragusa in Singletary held that the Commissioner was bound by res judicata principles to
the earlier grant of benefits to a claimant who (like the plaintiff here) was later incarcerated and
had those benefits terminated, 2008 U.S. Dist. LEXIS 28638, at *4-12.
In the present case, the second ALJ in 2015 applied the five-step analysis to plaintiff’s
new application rather than the seven-step medical improvement standard from the 2009 grant of
benefits. Furthermore, that ALJ found that in March 2009 that plaintiff had full range of motion
of the cervical spine [R. 16, 258] and did not need to use a cane [R. 16], which was contrary to
allegations of deterioration of the cervical spine that led to the earlier disability finding [cf. R.
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79]. That report, however, noted that plaintiff used a “significant amount of OxyContin for
persistent neck pain” and found that plaintiff had “significant neck pain and is taking Percocet
and OxyContin” [R. 258]. That report also found that there was “no obvious structural cause for
his pain” and had not prescribed narcotic pain medication since September 2008 [R. 258]. But
in November 2009, that ALJ found that plaintiff was disabled due to spinal limitations, noting
plaintiff’s pain and use of a cane and cervical collar [R. 72, 78-79], concluding that the record
then “as a whole clearly shows that the claimant has very significant medical problems causing
an inability to perform substantial gainful activity” [R. 79]. The 2009 finding of disability
cannot be refuted by the ALJ in 2015 based on the same 2009 medical evidence and opinion and
the second ALJ cannot render new findings of disability contrary to those found by the first ALJ.
As for subsequent evidence for the 2015 application, the ALJ reviewed plaintiff’s 2015
medical record and, while noting reports of moderate degenerative changes, decreased range of
motion noted by the consultative examiner, Dr. Harbinder Toor, and tenderness in the cervical
and lumbar spine [R. 370, 330, 355, 358, 421-22, 542], the ALJ found that plaintiff’s gait was
normal and concluded that plaintiff did not need a cane or other assistive devices [R. 16, 390
(April 14, 2015, examination, noting normal gait), 392 (same), 454 (cervical spine tender in
Oct. 29, 2015, examination)]. The ALJ does not explain how plaintiff in 2015 did not need to
use a cane. Plaintiff also argues that the ALJ failed to reconcile Dr. Toor’s opinion and the RFC
(Docket No. 16, Pl. Memo. at 18-23, 19-20).
Defendant cites this Court’s decision in Lipp v. Berryhill, No. 16CV124, 2018 WL
2901332, at *2 (W.D.N.Y. June 10, 2018) (Telesca, J.) (Docket No. 22, Def. Memo. at 25),
focusing on res judicata applying only to deny a claim previously decided by the ALJ. Estoppel
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under these regulations does not apply merely to deny a claim (but cf. id.). In Lipp, plaintiff
argued that the ALJ erred in not allowing that claimant to amend the onset date, id. Plaintiff
next asserted a different onset date before the Court that fell outside of prior ALJ determinations,
id. at *3. Plaintiff there was arguing that res judicata did not apply or that an exception to res
judicata applied where new and material evidence related to the previously adjudicated issue, id.
The ALJ found that this objection was barred by the doctrine of res judicata, with which
Judge Telesca agreed, id. at *2-3, finding that the Commissioner had considered medical
evidence after plaintiff’s proposed onset date in the ALJ’s first denial and any misstatement of
the onset date was harmless error, id. at *3. Judge Telesca also found that there was not new
and material evidence tending to show disability, id.
In the case before this Court, there was no new evidence from 2009 denying plaintiff’s
spinal limitation; instead, the second ALJ reviewed the same evidence from 2009 and came to a
different finding than the first ALJ on plaintiff’s cervical condition. Again, the only reason for
the 2015 application was plaintiff’s incarceration from August 2012 to January 2015 terminated
his 2009 disability benefits. Under the rules for res judicata, however, the first ALJ’s finding of
disability is binding upon the second ALJ, 20 C.F.R. § 416.1450(f). Absent new and material
evidence that plaintiff’s spinal impairment differed from 2009 to 2015 or that his condition
significantly changed since 2009, the ALJ was bound by the finding of disability as to that
condition. Therefore, plaintiff’s motion (Docket No. 16) on this ground is granted. Again,
this grant is limited to his cervical condition and not to other physical and mental impairments
claimed by plaintiff in 2015.
II.
ALJ Consideration of Medical Opinions
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For completeness, this Court next considers plaintiff’s other arguments. These other
objections also are focused on plaintiff’s cervical limitations. The three medical sources or
consultative source opined on plaintiff’s back limitations. The ALJ, however, gave little or
some weight to these opinions [R. 17, 18].
A.
Treating Medical Source Opinions
Plaintiff next argues that the ALJ did not correctly evaluate the opinions of treating
medical sources (Docket No. 16, Pl. Memo. at 15-18). Plaintiff contends that the ALJ rejected
these opinions with only conclusory reasons without citing supporting evidence (id. at 15).
Dr. Berthollet Bavibidila treated plaintiff from February to November 2015 ([R. 493-96, 497500, 501-04]; Docket No. 16, Pl. Memo. at 6-7) and Dr. Stephen Lurie treated him for
cervical/lumbar pain from October 2016 ([R. 486-91]; Docket No. 16, Pl. Memo. at 5-6). As
noted by the ALJ [R. 17], Dr. Bavibidila opined that plaintiff could walk, stand, and sit for two
to four hours [R. 496], while he could lift, carry, push, pull, and bend for one to two hours
[R. 496]. Dr. Bavibidila concluded plaintiff was permanently disabled with severe lumbar
stenosis and cervicalgia [R. 494]. According to the ALJ [R. 18], Dr. Lurie found that plaintiff
could stand and walk for less than two hours, sit for about four hours in an eight-hour workday
with breaks in the intervening periods [R. 489].
The ALJ assigned little weight to Dr. Bavibidila’s opinion because it was not consistent
with findings and failed “to give adequate consideration to the evidence of effective treatment,
opiate behavior, and non-compliance” [R. 17]. The ALJ then found Dr. Lurie’s mental
functioning assessment was not reliable [R. 14] and his physical assessment also was not
consistent with findings and did not consider effective treatment, opiate seeking behavior, and
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non-compliance [R. 18]. While Dr. Lurie’s opinions were reportedly based on monthly
treatment, the ALJ also did not find that Dr. Lurie’s opinions reflected this frequent treatment
relationship [R. 18].
Plaintiff argues these rejections were based on conclusory grounds (Docket No. 16, Pl.
Memo. at 16, 17, 18; Docket No. 23, Pl. Reply Memo. at 1-4) and without discussing
Dr. Bavibidila’s March and November 2015 opinions (Docket No. 16, Pl. Memo. at 16-17).
Defendant Commissioner contends the ALJ properly analyzed the medical and opinion
evidence in establishing the RFC (Docket No. 22, Def. Memo. at 17). Defendant points out
from the record effective treatment, opiate seeking behavior, and non-compliance (id. at 20;
[R. 16, 333, 347, 436]), with plaintiff’s excessive use of OxyContin and his mother’s Percocet
(Docket No. 22, Def. Memo. at 20; [R. 16, 258, 345, 433, 442-43, 448, 451, 500]) and plaintiff’s
prison conduct in seeking medication (Docket No. 22, Def. Memo. at 20; [R. 620]). Plaintiff
canceled appointments and failed to attend consultations and pain management treatment
appointments (Docket No. 22, Def. Memo. at 22; [R. 16, 363, 423, 448]). Defendant argues that
the ALJ properly discounted these opinions because they were inconsistent other evidence and
with plaintiff’s testimony (Docket No. 22, Def. Memo. at 21) but without citation to plaintiff’s
contrary testimony.
Plaintiff also replied that his treatment may not have been as effective as the ALJ found
[R. 16] because pain specialist Dr. Kevin Walter conducted a myelogram on September 29,
2015, that revealed cervical stenosis and recommended surgery as a result (Docket No. 23, Pl.
Reply Memo. at 3; [R. 448]). While the ALJ noted Dr. Walter’s comments on plaintiff’s desire
for opiates [R. 16], the ALJ did not comment on Dr. Walter’s observation of cervical stenosis or
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the recommendation for surgery, concluding that Dr. Walter’s opinions were not supported
sufficiently by the medical record, assigning little weight to that opinion [R. 17], as he
dismissively considered the opinions of Drs. Bavibidila and Lurie.
While the RFC need not correspond to a medical source opinion, see Rudd v. Comm’r,
531 Fed. App’x 719, 728 (6th Cir. 2013); Wilson v. Colvin, No. 16CV6509, 2017 WL 2821560,
at *5 (W.D.N.Y. June 30, 2017) (Telesca, J.), that assessment must be based upon all the relevant
medical and other evidence in the record, 20 C.F.R. § 416.920(e). The ALJ considers treating
source opinions on the claimant’s residual functional capacity, but the ultimate decision on that
assessment rests with the ALJ, id., § 416.927(d)(2). Under these same regulations, the ALJ has
several factors to weigh medical source opinions, particularly from treating sources, id.
§ 416.927(c)(2). These factors include whether that treating source examined the claimant, the
treatment relationship with the source, including the length of the treatment relationship, the
nature and extent of treatment, and consistency of the opinion with the record, id.
§ 416.927(c)(1)-(6).
The 2015 medical record indicated plaintiff addressed his pain with medication, including
using his mother’s medication [R. 16, 333 (symptoms relieved by pain medication), 347, 436].
Given the remand for giving estoppel effect of the 2009 disability determination, the ALJ’s
consideration of plaintiff’s 2015 treating physicians is less relevant absent a finding that his
condition improved since 2009 to repudiate the first ALJ’s decision. Plaintiff’s objections here
are thus moot. Alternatively, on remand, the ALJ should reconsider the medical opinions in the
record, particularly the post-2009 opinions.
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B.
State Agency Examiner’s Opinions and RFC
Plaintiff also contends that the ALJ should reconcile the conflict between state agency
examiner Dr. Toor’s May 2015 opinion [R. 368] and the residual functional capacity
determination [R. 14, 18] (Docket No. 16, Pl. Memo. at 18-23). This is notwithstanding
defendant’s current arguments from the medical record which plaintiff deems to be post hoc
rationalizations (Docket No. 23, Pl. Reply Memo. at 5), Shelley v. Berryhill, No. 16CV6360,
2017 U.S. Dist. LEXIS 181702, at *11-12 (W.D.N.Y. Nov. 2, 2017) (Telesca, J.).
In April 17, 2008, Dr. Toor found that plaintiff had a difficulty in twisting his neck due to
his injury, he had moderate limitations for standing, walking, pushing, pulling, lifting, or
reaching, with a guarded prognosis [R. 224]. In 2015, Toor again concluded that plaintiff had a
guarded prognosis, with moderate to marked limitation for standing, walking, bending, lifting,
moderate limitation for sitting for long time [R. 371]. The residual functional capacity found
that plaintiff could perform light work.
The ALJ found that Dr. Toor’s April 2008 and May 2015 opinions were based on
“isolated examinations of the claimant’s condition,” but concluded that these opinions “are
reasonably consistent with each other as well as the treatment findings throughout the record,”
and the ALJ assigned “some weight” to these opinions [R. 18]. Plaintiff argues that the ALJ did
not consider the limitations found by Dr. Toor by concluding that plaintiff could perform light
work (Docket No. 16, Pl. Memo. at 20).
Defendant argues the ALJ properly weighed Dr. Toor’s opinion (Docket No. 22, Def.
Memo. at 17-20). Dr. Toor examined plaintiff in 2008 and found plaintiff had difficulty in
twisting, bending or extending his neck [R. 224] but found in 2015 that plaintiff had a normal
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gait [R. 369] (Docket No. 22, Def. Memo. at 18). Dr. Toor found in 2015 that plaintiff was in
moderate pain [R. 369].
By assigning only “some weight” to Dr. Toor’s opinion, it is not clear which parts of that
opinion were accepted and which were not. Again, with the collateral effect on the first ALJ’s
decision, plaintiff now should be deemed disabled and Dr. Toor’s opinion is consistent with that
earlier finding. Plaintiff’s motion on this ground also is mooted with the collateral estoppel
effect of the 2009 disability decision.
CONCLUSION
For the foregoing reasons, plaintiff’s motion (Docket No. 9) judgment on the pleadings is
GRANTED, and defendant’s motion (Docket No. 13) for judgment on the pleadings is
DENIED. Thus, the decision of the defendant Commissioner is vacated and remanded for
further proceedings consistent with the above decision to find additional facts, pursuant to
sentence four of 42 U.S.C. § 405(g), see Curry v. Apfel, 209 F.3d 117, 124 (2d Cir. 2000). The
Clerk of the Court shall close this case.
So Ordered.
s/Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge
Buffalo, New York
June 13, 2019
17
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