Acly-Blakeslee v. Commissioner of Social Security

Filing 17

DECISION AND ORDER granting 9 Motion for Judgment on the Pleadings to the extent that the Commissioners decision is reversed, and the matter is remanded for further proceedings consistent with this Decision and Order; denying 14 Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 12/23/19. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
SHARON ACLY-BLAKESLEE,
Plaintiff,

6:18-cv-06461-MAT
DECISION AND ORDER

-vCommissioner of Social Security,
Defendant.
____________________________________

INTRODUCTION
Sharon Acly-Blakeslee (“Plaintiff”), represented by counsel,
brings this action under Titles II and XVI of the Social Security
Act (“the Act”), seeking review of the final decision of the
Commissioner

of

Social

Security

(“the

Commissioner”

or

“Defendant”), denying her applications for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”).
No. 1.

Docket

The Court has jurisdiction over the matter pursuant to

42 U.S.C. § 405(g).
competing

motions

Presently before the Court are the parties’
for

judgment

on

the

pleadings

Rule 12(c) of the Federal Rules of Civil Procedure.
Nos. 9, 14, 15.

pursuant

to

See Docket

For the reasons set forth below, Plaintiff’s

motion for judgment on the pleadings (Docket No. 9) is granted, and
Defendant’s motion (Docket No. 14) is denied. The case is remanded
to the Commissioner for further proceedings consistent with this
Decision and Order.

PROCEDURAL BACKGROUND
On

December

4,

2014,

Plaintiff

protectively

filed

applications for DIB and SSI, alleging disability as of June 1,
2014, due to a surgical plate in her neck, disc pain, foot pain and
multiple

surgeries,

left

ear

surgery,

and

depression.

Administrative Transcript (“T.”) 102, 156-57, 168-69, 180-81.
claims were initially denied on April 9, 2015.

T. 102, 182-87.

The
At

Plaintiff’s request, a hearing was conducted on April 18, 2017, by
administrative law judge (“ALJ”) Gretchen Mary Greisler.
121-55.

T. 102,

The ALJ issued an unfavorable decision on July 19, 2017.

T. 99-113. Plaintiff appealed the decision to the Appeals Council,
which denied her request for review on April 19, 2018, making the
ALJ’s

decision

T. 1-4.

the

final

determination

of

the

Commissioner.

This action followed.

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. §§ 404.1520(a), 416.920(a). The ALJ initially found
that Plaintiff met the insured status requirements of the Act
through June 30, 2019.
evaluation,

the

ALJ

T. 104.

found

that

At step one of the sequential
Plaintiff

had

not

engaged

in

substantial gainful activity since June 1, 2014, the alleged onset
date.

Id.

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At

step

two,

the

ALJ

determined

that

Plaintiff

had

the

following “severe” impairments: plantar fascial fibromatosis; mild
plantar fasciitis; morbid obesity; depression; anxiety disorder;
cervical myofascial pain syndrome; and carpal tunnel syndrome
disorder.

Id.

The ALJ also determined that Plaintiff’s medically

determinable impairments of diabetes mellitus, post concussive
syndrome, and left ear pain did not cause significant work-related
functional limitations and thus were non-severe.

T. 104-05.

At step three, the ALJ found that Plaintiff’s impairments did
not singularly or in combination meet or medically equal the
severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1.

T. 105.

The ALJ specifically considered

Listings 1.02, 1.04, 11.14, 12.04, and 12.06.

T. 105-06.

Before proceeding to step four, the ALJ found that Plaintiff
retained
sedentary

the

residual

work,

as

functional

defined

in

20

capacity
C.F.R.

(“RFC”)
§§

to

perform

404.1567(a)

and

416.967(a), except that she: “can stand for up to 1 hour in a day
and walk for up to 2 hours in a day; the claimant can walk or stand
for up to 30 minutes before needing to change position for at least
10 minutes, but retains the ability to remain on task; the claimant
can occasionally climb stairs and ramps, but can never climb
ladders, ropes or scaffolds; the claimant can frequently reach in
all directions and can frequently handle, finger and feel; the
claimant can frequently rotate his or her head at the neck; the
claimant cannot work at unprotected heights, climb ladders, ropes

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or scaffolds or work in close proximity to dangerous machinery or
moving mechanical parts of equipment; the claimant can perform
simple, routine and repetitive tasks in a work environment free of
fast paced production requirements, involving only simple, workrelated decisions and few, if any, workplace changes.”

T. 107.

At step four, the ALJ concluded that Plaintiff was unable to
perform any past relevant work.

T. 111.

At step five, the ALJ found that, considering Plaintiff’s age,
education, work experience, and RFC, there are jobs that exist in
significant numbers in the national economy that Plaintiff could
perform, including the representative occupations of order clerk
food and beverage, charge account clerk, and call out operator.
T. 112-13.

The ALJ accordingly found that Plaintiff was not

disabled as defined in the Act.

T. 113.

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.

42 U.S.C. § 405(g); see also

Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). The
district court must accept the Commissioner’s findings of fact,
provided that such findings are supported by “substantial evidence”
in the record. See 42 U.S.C. § 405(g) (the Commissioner’s findings
“as to any fact, if supported by substantial evidence, shall be
conclusive”).

“Substantial evidence means ‘such relevant evidence

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as

a

reasonable

conclusion.’”
(quotation

mind

might

accept

as

adequate

to

support

a

Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)

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).
review

for

substantial

“The deferential standard of

evidence

does

Commissioner’s conclusions of law.”

not

apply

to

the

Byam v. Barnhart, 336 F.3d

172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109,
112 (2d Cir. 1984)).

DISCUSSION
Plaintiff contends that remand is warranted because (1) the
Appeals Council erred in determining that the additional evidence
submitted by Plaintiff did not show a reasonable probability that
it would change the outcome of the decision, and (2) the RFC
determination is not supported by substantial evidence, as the ALJ
failed to

give

proper

weight

to

the

opinions

of

Plaintiff’s

treating podiatrist, Dr. Hatef.

See Docket No. 11 at 18-28.

For

the

the

ALJ

reasons

explained

below,

Court

finds

that

the

improperly evaluated the opinion evidence in the record.
error

requires

remand

to

the

administrative proceedings.

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Commissioner

for

This

further

I.

The ALJ Failed to Evaluate Opinion Evidence, and Remand is
Required.
In assessing a disability claim, an ALJ must consider and

weigh the various medical opinions of record.

The Commissioner’s

regulations provide that “[r]egardless of its source, [the ALJ]
will evaluate every medical opinion [she] receive[s].”
§ 404.1527(c).

20 C.F.R.

The failure to do so is an error warranting remand.

See, e.g., Wider v. Colvin, 245 F. Supp. 3d 381, 388 (E.D.N.Y.
2017) (“ALJs are required to weigh and evaluate ‘every medical
opinion.’”) (citation omitted); Harvey v. Astrue, No. 09-CV-00020
TJM, 2010 WL 4806985, at *4 (N.D.N.Y. Sept. 7, 2010) (“[T]he ALJ
failed to evaluate, or even mention, Dr. Greenky’s August 2007
opinion. . . .

Indeed, the ALJ’s discussion of Dr. Greenky’s

lengthy treatment history with Plaintiff consisted entirely of
mentioning a few treatment notes in 2001.

The ALJ’s complete

failure to evaluate Dr. Greenky’s opinions amounts to error worthy
of remand.”) (internal citation omitted), adopted, 2010 WL 4791588
(N.D.N.Y. Nov. 18, 2010).
Dr. Hatef is Plaintiff’s treating podiatrist.

See T. 110.

The treating physician rule requires an ALJ to give controlling
weight to a treating physician’s opinion when that opinion is
“well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial

evidence

in

[the]

20

C.F.R.

§ 404.1527(c)(2); see also Green-Younger, 335 F.3d at 106.

An ALJ

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case

record[.]”

may give less than controlling weight to a treating physician’s
opinion if it does not meet this standard, but the ALJ must
“comprehensively set forth [his or her] reasons for the weight
assigned to a treating physician’s opinion.” Halloran v. Barnhart,
362 F.3d 28, 33 (2d Cir. 2004).

The ALJ is required to consider

“the length of the treatment relationship and the frequency of
examination; the nature and extent of the treatment relationship;
the relevant evidence, particularly medical signs and laboratory
findings, supporting the opinion; the consistency of the opinion
with the record as a whole; and whether the physician is a
specialist in the area covering the particular medical issues” in
determining how much weight to afford a treating physician’s
opinion.

Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008)

(quotation marks, alterations, and citations omitted); see also
20 C.F.R. §§ 404.1527(c)(1)-(6).

“The regulations also specify

that the Commissioner ‘will always give good reasons in [her]
notice of determination or decision for the weight [she] give[s]
[claimant’s] treating source’s opinion.’” Halloran, 362 F.3d at 32
(quoting 20 C.F.R. § 404.1527(d)(2)) (alterations in original).
Dr. Hatef offered several opinions relating to Plaintiff’s
functional

capacity,

including:

a

“Medical

assessment

of

individual’s capacity,” on March 21, 2016 (T. 937); a “Medical
Statement

Regarding

Ankle

Problem”

and

a

“Medical

Statement

Regarding Foot Problems,” on July 14, 2016 (T. 1003-04); a letter
statement, opining

on Plaintiff’s ability to walk and stand, on

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July 21, 2016 (T. 1072); and an opinion on Plaintiff’s physical
functional limitations, on March 28, 20181 (T. 68); see also Docket
No. 11 at 15-17.

The ALJ discussed the opinion evidence offered by

Dr. Hatef, affording it “little weight.”

T. 110.

The ALJ

explained:
Treating podiatrist Joseph Hatef, DPM, concluded in
October 2014 that the claimant could return to work with
limited hours and duties. July 2016 that the claimant
could stand for 30 minutes at one time. He further noted
“patient is unable to function in retail on any level as
far as being on her feet for extended period of time”.
In a separate note, Dr. Hatef reported “[s]he is unable
to ambulate for more than one hour or stand on her feet
for more than one hour without considerable pain, I see
no reason to believe the situation will improve. In my
medical opinion it is unlikely she will be able to return
to her current job or do any job requiring weight bearing
for any extended period due to her foot pathology. I
give little weight to these opinions because they are
vague and inconsistent with the medical evidence of
record.
In addition, these opinions contradict Dr.
Dollinger’s opinions.
Id. (internal citations omitted).
Plaintiff contends that the ALJ did not consider certain
opinion

evidence

offered

by

Dr.

Hatef,

including

mentioned March 21, 2016 medical assessment form.
No. 11 at 15.

the

above-

See Docket

On that date, Dr. Hatef opined that Plaintiff would

“frequently” experience pain severe enough to interfere with her

1

The March 2018 opinion offered by Dr. Hatef post-dates the
ALJ’s July 14, 2017 written determination. Therefore, it is not
discussed in the written determination. Plaintiff submitted this
evidence to the Appeals Council, which declined to consider it,
because it “[did] not relate to the period at issue,” and therefore
“[did] not affect the decision about whether [Plaintiff] [was]
disabled beginning on or before July 19, 2017.” See T. 2.

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attention

and

concentration,

and

“frequently”

experience

severe enough to interfere with her quality of sleep.

pain

T. 937.

Dr. Hatef further opined that Plaintiff’s physical impairments were
likely to produce good days and bad days, and that as a result, she
would be absent, on average, more than four days per month.
Any

discussion

of

this

opinion

is

absent

from

the

Id.

written

determination.
The ALJ also failed to address a March 21, 2017 medical source
statement

completed

by

Dr.

Kim

Rickert,

Plaintiff’s

treating

neurosurgeon, in which Dr. Rickert opined that Plaintiff was “very
limited” in her ability to lift, carry, push, pull, and bend, and
was “moderately limited” in her ability to walk and use her hands.
See T. 1383.

Dr. Rickert further opined that Plaintiff was unable

to work, and could not move her neck or arms to perform more than
her activities of daily living.

Id.

While the ALJ addressed

opinion evidence offered by Dr. Rickert in April and July 2016 (see
T. 110), she did not address the more recent and more restrictive
March

2017

medical

source

statement.

The

ALJ’s

failure

to

adequately address the opinion evidence offered by Drs. Hatif and
Rickert is particularly problematic because they would appear to
preclude work and are inconsistent with the assessed RFC.
Defendant argues that the ALJ properly weighed Dr. Hatef’s
opinions.

Docket No. 14-1 at 16.

With regard to the ALJ’s failure

to consider Dr. Hatef’s March 2016 opinion, Defendant contends that
it “suffers from the same vagueness and lack of support that caused

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the ALJ to discount Dr. Hatef’s other opinions.

It is also

significant that Dr. Hatef had not examined Plaintiff for 15 months
at the time he completed this assessment.
this assessment is misplaced.”
omitted).

Defendant’s

Plaintiff’s reliance on

Id. at 20 (internal citation

argument

amounts

to

a

post-hoc

rationalization of agency action, and the Court will not consider
it in evaluating the ALJ’s decision.

See Newbury v. Astrue, 321 F.

App’x 16, 18 (2d Cir. 2009) (“A reviewing court may not accept
appellate counsel’s post hoc rationalizations for agency action.”)
(internal quotations and citation omitted).
In

sum,

both

Dr.

Hatef

and

Dr.

Rickert

are

treating

physicians, and the ALJ was required to evaluate their opinions
pursuant to the treating physician rule.
properly
medical

evaluate
sources

regulations.

certain

falls

far

opinions
short

of

The ALJ’s failure to

offered
what

by
is

Accordingly, remand is required.

these
required

treating
by

the

On remand, the ALJ

is directed to consider, discuss, and properly weigh all of the
opinion evidence in the record, including the above-mentioned
treating opinions offered by Drs. Hatef and Rickert.

The ALJ

should explain her reasoning for adopting or rejecting these
opinions, so that the Court may conduct a meaningful review of the
decision.

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II. Plaintiff’s Remaining Argument
Finding remand necessary for the reasons explained above, the
Court will not address Plaintiff’s remaining argument concerning
the Appeals Council’s failure to consider additional evidence.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on
the pleadings (Docket No. 9) is granted to the extent that the
Commissioner’s decision is reversed, and the matter is remanded for
further proceedings consistent with this Decision and Order. In
particular, the ALJ is directed to (1) evaluate all of the opinions
offered by

treating

physicians

Dr.

Hatef

and

Dr.

Rickert

in

accordance with the relevant statutory factors and the guidelines
set forth

in

the

treating

physician

rule;

(2)

provide

“good

reasons” for her decision to reject or credit these opinions; and
(3) re-assess Plaintiff’s RFC in light of the opinion evidence
offered by Dr. Hatef and Dr. Rickert.

Defendant’s motion for

judgment on the pleadings (Docket No. 14) is denied.

The Clerk of

Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
_____________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:

December 23, 2019
Rochester, New York

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