McDowell v. Commissioner of Social Security
Filing
11
OPINION AND ORDER: The Court GRANTS Plaintiff's 6 MOTION for Order Reversing the Decision of the Commissioner and DENIES Defendant's 9 MOTION for Order Affirming the Decision of the Commissioner. Signed by Judge John M. Conroy on 5/4/2016. (hbc)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Karen Joan McDowell,
Plaintiff,
v.
Civil Action No. 2:15-cv-87
Carolyn W. Colvin, Acting Commissioner
of Social Security Administration,
Defendant.
OPINION AND ORDER
(Docs. 6, 9)
Plaintiff Karen McDowell brings this action pursuant to 42 U.S.C. § 405(g) of the
Social Security Act, requesting review and remand of the decision of the Commissioner
of Social Security denying her applications for Disability Insurance Benefits (DIB) and
Supplemental Security Income (SSI). Pending before the Court are McDowell’s motion
to reverse the Commissioner’s decision (Doc. 6), and the Commissioner’s motion to
affirm the same (Doc. 9). For the reasons stated below, McDowell’s motion is
GRANTED; the Commissioner’s motion is DENIED; and the matter is REMANDED for
further proceedings and a new decision.
Background
McDowell was 45 years old on her alleged disability onset date of February 27,
2012. She attended college for three years, and thereafter obtained her paralegal
certificate. (AR 30, 32.) She has work experience as an accounts payable supervisor, an
asset controller, a payroll director, an accounting and benefits manager, a staff
accountant, and an office manager. (AR 33–34, 155.) She is divorced, and has three
adult children. (AR 30.) She lives in Bradford, Vermont with her fiancé and her 20-year
old daughter. (AR 30–31.)
On February 27, 2012, McDowell underwent a surgical hysterectomy. (AR 33,
311–36.) Around that time, she stopped working at her job as an accounts payable
supervisor with Green Mountain Coffee. (AR 31–33.) Within “a couple of weeks” after
having the surgery (AR 37), McDowell began experiencing vertigo symptoms, including
feeling “very foggy,” “slightly disoriented,” and off balance (AR 36). She also
experienced chronic nausea, headaches, dizziness, inability to focus or concentrate, and
forgetfulness. (AR 36–39.) Although McDowell testified at the December 2013
administrative hearing that she has had “some improvement” in her symptoms (AR 40),
she still experiences vertigo symptoms—including nausea, dizziness, and headaches—
when riding in a car, scrolling with a computer mouse, and doing any visually oriented
activities such as reading, watching television, and viewing movement on a computer
screen (AR 41–42).
In August 2012 and January 2013, respectively, McDowell filed applications for
SSI and DIB, alleging disability beginning on the date of her hysterectomy, February 27,
2012. In her disability application, McDowell alleges that she has been unable to work as
a result of her hysterectomy, vertigo symptoms, and migraine headaches. (AR 138.) Her
applications were denied initially and upon reconsideration, and she timely requested an
administrative hearing. On December 3, 2013, Administrative Law Judge (ALJ)
2
Matthew Levin conducted a hearing on the disability application. (AR 29–53.)
McDowell appeared and testified, and was represented by counsel. A vocational expert
(VE) also testified at the hearing. On December 17, 2013, the ALJ issued a decision
finding that McDowell was disabled from February 27, 2012 through October 31, 2013,
but was not disabled from November 1, 2013 through the date of the decision. (AR
11–22.) Thereafter, the Appeals Council denied McDowell’s request for review,
rendering the ALJ’s decision the final decision of the Commissioner. (AR 1–3.) Having
exhausted her administrative remedies, McDowell filed the Complaint in this action on
April 21, 2015. (Doc. 3.)
ALJ Decision
The Commissioner uses a five-step sequential process to evaluate disability
claims. See Butts v. Barnhart, 388 F.3d 377, 380–81 (2d Cir. 2004). The first step
requires the ALJ to determine whether the claimant is presently engaging in “substantial
gainful activity.” 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not so
engaged, step two requires the ALJ to determine whether the claimant has a “severe
impairment.” 20 C.F.R. §§ 404.1520(c), 416.920(c). If the ALJ finds that the claimant
has a severe impairment, the third step requires the ALJ to make a determination as to
whether that impairment “meets or equals” an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (“the Listings”). 20 C.F.R. §§ 404.1520(d), 416.920(d). The
claimant is presumptively disabled if his or her impairment meets or equals a listed
impairment. Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984).
3
If the claimant is not presumptively disabled, the ALJ is required to determine the
claimant’s residual functional capacity (RFC), which means the most the claimant can
still do despite his or her mental and physical limitations based on all the relevant
medical and other evidence in the record. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1),
416.920(e), 416.945(a)(1). The fourth step requires the ALJ to consider whether the
claimant’s RFC precludes the performance of his or her past relevant work. 20 C.F.R.
§§ 404.1520(f), 416.920(f). Finally, at the fifth step, the ALJ determines whether the
claimant can do “any other work.” 20 C.F.R. §§ 404.1520(g), 416.920(g). The claimant
bears the burden of proving his or her case at steps one through four, Butts, 388 F.3d
at 383; and at step five, there is a “limited burden shift to the Commissioner” to “show
that there is work in the national economy that the claimant can do,” Poupore v. Astrue,
566 F.3d 303, 306 (2d Cir. 2009) (clarifying that the burden shift to the Commissioner at
step five is limited, and the Commissioner “need not provide additional evidence of the
claimant’s [RFC]”).
Employing this sequential analysis, ALJ Levin determined that McDowell was
disabled from February 27, 2012 through October 31, 2013, due to the severe
impairments of vertigo and headaches. (AR 11, 15, 18.) The ALJ further found that, on
November 1, 2013, “medical improvement” occurred and McDowell’s disability ended.
(AR 19.) The ALJ explained that, although McDowell still had the severe impairments
of vertigo and headaches from November 2013 forward, she had the RFC to perform
“light work,” as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), during that period,
except as follows:
4
[McDowell] can occasionally climb, balance, crouch, stoop, crawl, and
kneel. [She] can perform simple, unskilled work, and can maintain
attention and concentration for two-hour increments over an 8-hour
workday and 40-hour workweek. She can perform limited reading of either
printed or computer material, meaning less than 10 percent of the workday.
(Id.) Given this RFC, the ALJ found that McDowell was unable to perform her past
relevant work. (AR 20.) Based on testimony from the VE, however, the ALJ determined
that there were jobs existing in significant numbers in the national economy that
McDowell could perform, including the jobs of cleaner, sales attendant, and collator
operator. (AR 21.) The ALJ concluded that, although McDowell was disabled from
February 27, 2012 through October 31, 2013, the disability ended on November 1, 2013,
when she was capable of making a successful adjustment to work. (AR 21–22.)
Standard of Review
The Social Security Act defines the term “disability” as the “inability 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). A person will be found disabled only if it is determined that his
“impairments are of such severity that he is not only unable to do his previous work[,] but
cannot, considering his 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).
In considering a Commissioner’s disability decision, the court “review[s] the
administrative record de novo to determine whether there is substantial evidence
5
supporting the . . . decision and whether the Commissioner applied the correct legal
standard.” Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v. Chater,
221 F.3d 126, 131 (2d Cir. 2000)); see 42 U.S.C. § 405(g). The court’s factual review of
the Commissioner’s decision is thus limited to determining whether “substantial
evidence” exists in the record to support such decision. 42 U.S.C. § 405(g); Rivera v.
Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); see Alston v. Sullivan, 904 F.2d 122, 126
(2d Cir. 1990) (“Where there is substantial evidence to support either position, the
determination is one to be made by the factfinder.”). “Substantial evidence” is 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);
Poupore, 566 F.3d at 305. In its deliberations, the court should bear in mind that the
Social Security Act is “a remedial statute to be broadly construed and liberally applied.”
Dousewicz v. Harris, 646 F.2d 771, 773 (2d Cir. 1981).
Analysis
I.
Medical Improvement
McDowell argues that the ALJ erred in his assignment of a closed period of
disability, ending on October 31, 2013, because substantial evidence does not support the
finding that McDowell has medically improved such that she is able to work. The Court
agrees.
Termination of disability benefits can occur when medical improvement restores a
recipient’s ability to work. 42 U.S.C. 423(f); 20 C.F.R. §§ 404.1594, 416.994; see also
Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); De Leon v. Sec’y of Health &
6
Human Servs., 734 F.2d 930, 937 (2d Cir. 1984) (“If the claimant’s condition improves to
the point where he or she is able to engage in substantial activity, benefits are no longer
justified, and may be terminated by the [Commissioner].”); Baker v. Comm’r of Soc. Sec.,
No. 3:12-CV-1715, 2014 WL 1280306, at *4 (N.D.N.Y. Mar. 27, 2014) (“[B]enefits can
only be terminated if there is substantial evidence demonstrating a ‘medical
improvement’ which enables the individual to engage in substantial gainful activity.”)
(internal quotation marks omitted). “Medical improvement” means “any decrease in the
medical severity of [the claimant’s] impairment(s) which was present at the time of the
most recent favorable medical decision that [the claimant] w[as] disabled or continued to
be disabled.” 20 C.F.R. §§ 404.1594(b)(1), 416.994(b)(1)(i). “A determination that there
has been a decrease in medical severity must be based on changes (improvement) in the
symptoms, signs and/or laboratory findings associated with [the claimant’s]
impairment(s).” Id. Before terminating previously awarded benefits, the Commissioner
“must compare ‘the current medical severity of th[e] impairment[ ] . . . to the medical
severity of that impairment[ ] at th[e] time’ of the most recent favorable medical
decision.” Veino, 312 F.3d at 586–87 (alterations in original) (quoting 20 C.F.R. §
404.1594(b)(7)).
To determine whether or when to terminate previously awarded benefits due to
medical improvement, the Commissioner uses an eight-step sequential analysis instead of
the usual five-step analysis set forth above. See 20 C.F.R. §§ 404.1594(f)(1)–(8),
416.994(b)(5)(i)–(vii). Although this analysis is used most commonly at subsequent
“continuing disability review” proceedings, several circuits have held that it is also
7
appropriate for initial-application determinations resulting in benefits awards for closed
periods. Deronde v. Astrue, Civil Action No. 7:11-998, 2013 WL 869489, at *2
(N.D.N.Y. Feb. 11, 2013), report and recommendation adopted, No. 7:11-CV-0998
(GTS/ESH), 2013 WL 868076 (N.D.N.Y. Mar. 7, 2013) (listing cases). The Second
Circuit has not confirmed whether this eight-step process is appropriate for closed-period
disability cases like this one, but district courts in this Circuit have noted that it is an
appropriate standard. Id. (citing Chavis v. Astrue, No. 5:07–CV–0018 (LEK/VEB), 2010
WL 624039, at *6 (N.D.N.Y. Feb. 18, 2010); Abrams v. Astrue, No. 06-CV-0689-JTC,
2008 WL 4239996, at *2 (W.D.N.Y. Sept. 12, 2008)). The Commissioner has the burden
of proving each step of the analysis under the medical improvement standard. Deronde,
2013 WL 869489, at *3; see 20 C.F.R. §§ 404.1594(f)(1)–(8), 416.994(b)(5)(i)–(vii); see
also Chavis, 2010 WL 624039, at *4 (“medical improvement standard requires the
Commissioner [to] meet a burden of showing, by substantial evidence, that a medical
improvement has taken place in a claimant’s ability to perform work activity”) (alteration
in original) (internal quotation marks omitted); Abrams, 2008 WL 4239996, at *2 (“The
Commissioner has the burden of persuasion to demonstrate medical improvement, in
accordance with the eight-step sequential evaluation process set forth in the
Regulations.”); Suriel v. Comm’r of Soc. Sec., No. CV-05-1218 (FB), 2006 WL 2516429,
at *4 (E.D.N.Y. Aug. 29, 2006) (“The Commissioner has the burden of persuasion to
prove that the individual is currently able to engage in substantial gainful activity.”).
The Commissioner asserts that, regardless of whether the usual five-step
sequential analysis or the eight-step medical improvement analysis is followed, “the
8
ALJ’s ultimate determination satisfies the requirement that it be supported by substantial
evidence of record.” (Doc. 9 at 15.) The Court disagrees, and finds that the ALJ’s
justification for the determination of medical improvement is not supported by substantial
evidence. Specifically, substantial evidence does not support the ALJ’s finding that on or
around November 1, 2013, McDowell improved to the point of no longer being disabled.
The evidence cited by the ALJ in support of his finding that McDowell showed
“[m]edical improvement” “as of November 1, 2013” (AR 19) consists of: (1) three
medical records, (2) McDowell’s hearing testimony, and (3) McDowell’s appearance and
conduct at the administrative hearing. The medical records cited by the ALJ (see AR 19
(citing AR 418, 558, 576–77)) do not indicate improvement in McDowell’s condition.
One of the records cited–a treatment note prepared by neurologist Dr. Morris Levin—is
particularly unhelpful in demonstrating McDowell’s medical improvement as of
November 2013, because it was prepared in March 2013, a date falling well within the
period that the ALJ found McDowell to be disabled. (AR 418.) Another of the records
cited by the ALJ—a progress note prepared by occupational therapist Megan Todd—is
similarly unhelpful for the same reason: it was prepared in October 2013, a date falling
within the period that the ALJ found McDowell to be disabled. (AR 558–59.) Moreover,
Todd’s progress note merely states that there was “some improvement in [McDowell’s]
nausea” (AR 558) and “good progress with cognitive skills” (AR 560), not that there was
overall improvement such that McDowell no longer required treatment for her vertigo
symptoms and was able to work. The note states that McDowell’s visual deficits
persisted (AR 558); that there were “new issues with slight numbness in her hands and
9
decrease in fine motor coordination” (id.); and that McDowell presented with “limited
functional performance due to impaired visual tracking, intermittent symptoms of
diplopia (‘shadowing’ of print), nausea with eye motion, and cognitive impairments
including impaired shifting attention” (AR 560). The note concludes by recommending
that McDowell continue occupational therapy “to address her visual scanning and to
assess her fine coordination and high-level cognitive skills.” (Id.)
The third medical record relied on by the ALJ in support of his finding of medical
improvement is a treatment note written by neurologist Dr. Elijah Stommel in October
2013. (AR 576–66.) Like the above-described medical records, this treatment note was
prepared within the period that the ALJ found McDowell to be disabled (prior to
November 1, 2013), and thus is not helpful in showing McDowell’s medical
improvement after that period. The ALJ cites the treatment note to support the
proposition that McDowell “experienced only some occasional mental fogginess by
October of 2013.” (AR 19 (citing AR 576).) But reading the note as a whole, it does not
indicate that Dr. Stommel believed McDowell had experienced medical improvement.
Rather, the Doctor recorded that his 14-point review of McDowell’s systems was
“remarkable for some occasional fogginess,” headaches including a history of chronic
migraines, vertigo, and weight gain. (AR 576.) In sum, the three medical records cited
by the ALJ in support of his medical improvement finding do not constitute substantial
evidence to support that finding.
As stated above, the ALJ also relies on McDowell’s testimony and behavior at the
administrative hearing to support his finding of medical improvement. (See AR 19–20.)
10
This evidence, like the medical records relied on by the ALJ, is also not sufficient to meet
the Commissioner’s burden of demonstrating McDowell’s medical improvement as of
November 1, 2013. Although McDowell testified at the hearing that she experienced
“some improvement” in certain areas, including “motion tolerance” (AR 40), she
explained that she still suffers from dizziness, nausea, disorientation, and headaches
(AR 41–42). The ALJ’s statement that McDowell testified about “the vast improvements
she had made since beginning treatment for her symptoms” is not supported. (AR 20.)
Nor is the ALJ’s statement that McDowell’s testimony “confirmed that she had improved
by [November 1, 2013].” (AR 19.) Finally, the ALJ observed that McDowell “appeared
to have no difficulty offering a full medical and vocational history as well as sustain
focus throughout questioning” during the administrative hearing. (Id.) This finding is
not entitled to significant weight, given that the ALJ was not qualified to form an opinion
about McDowell’s medical condition based merely on her testimony at a hearing which
lasted less than 40 minutes including vocational expert testimony. (AR 29, 53.) See
Carroll v. Sec’y of Health & Human Servs., 705 F.2d 638, 643 (2d Cir. 1983) (“ALJ’s
observation that [claimant] sat through the hearing without apparent pain, being that of a
lay person, is entitled to but limited weight, and since only a 40-minute period was
involved[,] it is not inconsistent with the medical evidence and [claimant’s] own
testimony”) (citation omitted).
For these reasons, the ALJ erred in his determination that McDowell experienced
“medical improvement” as of November 1, 2013, such that McDowell’s disability ended
on that date.
11
II.
Treating Physician Opinions
The ALJ also erred in his analysis of the opinions of treating neurologist
Dr. Stephen Lee. After treating McDowell for approximately 18 months, Dr. Lee opined
in November 2013 that, due to her vertigo and migraine headaches, McDowell would
need to take unscheduled one-to-two-hour breaks during an eight-hour workday
(AR 549), would be “off task” for “25% or more” of a typical workday (AR 554), and
would be absent from work for “[m]ore than four days per month” (AR 555). (See AR
552.) Dr. Lee further opined that, due to “daily impairment of attention and
concentration,” McDowell would be incapable of even low-stress jobs. (AR 548.) The
ALJ gave “great weight” to these opinions, “as applied to the period prior to October 31,
2013,” finding them to be “generally consistent with the totality of the medical evidence
on record.” (AR 17 (emphasis added).) Yet for the period beginning on November 1,
2013, the ALJ gave these same opinions “little weight,” “as [they] are inconsistent with
[McDowell’s] hearing testimony regarding her improvements as well as the medical
evidence from October of 2013 moving forward.” (AR 20.)
The treating physician rule requires ALJs to give “controlling weight” to the
opinions of a claimant’s treating physicians regarding the nature and severity of the
claimant’s impairments, provided that those opinions are “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and [are] not inconsistent with
the other substantial evidence in [the] case record.” 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2); Halloran v. Barnhart, 362 F.3d 28, 31–32 (2d Cir. 2004); Shaw, 221 F.3d
at 134. When controlling weight is not given to a treating physician’s opinions (because
12
they are not “well-supported” by other medical evidence or are “inconsistent” with other
substantial evidence), the ALJ must consider the following factors in determining how
much weight, if any, to give the opinions: (1) the length of the treatment relationship and
the frequency of examination; (2) the nature and extent of the treatment relationship;
(3) the evidence that supports the treating physician’s report; (4) how consistent the
treating physician’s opinions are with the record as a whole; (5) the specialization of the
physician in contrast to the condition being treated; and (6) any other factors which may
be significant. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see also Halloran, 362 F.3d
at 32; Shaw, 221 F.3d at 134.
Treating physician opinions may be rejected based on the ALJ’s proper
consideration of any of these factors, and the ALJ need not expressly recite each factor in
his decision. Atwater v. Astrue, 512 F. App’x 67, 70 (2d Cir. 2013) (“We require no such
slavish recitation of each and every factor where the ALJ’s reasoning and adherence to
the regulation are clear.”) (citing Halloran, 362 F.3d at 31–32). Nonetheless, ALJs must
“always give good reasons” for the weight they assign to a treating source’s opinions,
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2), and failure to do so is ground for remand,
Halloran, 362 F.3d at 33 (“We do not hesitate to remand when the Commissioner has not
provided ‘good reasons’ for the weight given to a treating physician[’]s opinion[s] and
we will continue remanding when we encounter opinions from ALJ[]s that do not
comprehensively set forth reasons for the weight assigned to a treating physician’s
opinion[s].”). Examples of “good reasons” to discount the opinions of a treating
physician include the following: the opinions are inconsistent with the bulk of the other
13
substantial evidence, such as the opinions of other medical sources, see Williams v.
Comm’r of Soc. Sec., 236 F. App’x 641, 643–44 (2d Cir. 2007); Veino, 312 F.3d at 588;
the opinions are internally inconsistent, see Micheli v. Astrue, 501 F. App’x 26, 28
(2d Cir. 2012); the physician’s relationship to the claimant is “limited and remote,” see
Petrie v. Astrue, 412 F. App’x 401, 405 (2d Cir. 2011); and the treating source lacked
underlying expertise and gave only brief, conclusory opinions unsupported by clinical
findings or other evidence, see 20 C.F.R. § 404.1527(c)(3), (5).
In assigning weight to Dr. Lee’s opinions, the ALJ neglected to consider that
Dr. Lee had treated McDowell from June 2012 through the date of his opinions in
November 2013, and that Dr. Lee specialized in neurology, making him uniquely
qualified to opine about McDowell’s mostly neurologic symptoms. More importantly,
the ALJ failed to give good reasons for affording great weight to Dr. Lee’s opinions for
the period before November 1, 2013 but only little weight to those same opinions for the
period beginning on that date. The ALJ provides very little explanation for this critical
distinction, other than to state as follows: “as applied to the period prior to October 31,
2013,” Dr. Lee’s opinions are “generally consistent with the totality of the medical
evidence on record, which indicates severe symptoms of dizziness, imbalance, nausea,
mental fogginess, and headaches” (AR 17); but, “as applied to the period beginning on
October 31, 2013,” Dr. Lee’s opinions are “inconsistent with [McDowell’s] hearing
testimony regarding her improvements as well as the medical evidence from October of
2013 moving forward” (AR 20). The evidence relied on by the ALJ in support of the
post-October 2013 finding is the same evidence that the ALJ relied on in support of his
14
medical improvement finding—three medical records dated prior to November 1, 2013
(and thus prior to the period when the ALJ found McDowell to have experienced medical
improvement) and McDowell’s testimony and appearance at the administrative hearing.
For the reasons explained above, that evidence does not support the ALJ’s finding of
medical improvement. Furthermore, Dr. Lee’s opinions are dated November 21, 2013,
and they make no mention of medical improvement starting around that time or earlier.
Thus, the ALJ erred in his analysis of the opinions of treating physician Dr. Lee.
Conclusion
The ALJ determined that McDowell was disabled through October 31, 2013, but
that she experienced medical improvement on November 1, 2013, to an extent that she
was no longer disabled. In a case like this, where the claimant’s “medical improvement”
is the critical issue, the reviewing court must focus on the narrow question of whether
substantial evidence supports the ALJ’s finding of medical improvement. Importantly, it
is the Commissioner’s burden to show, by substantial evidence, that the claimant
medically improved to an extent that she was able to engage in substantial gainful
activity. As explained above, the Commissioner has not made that showing, i.e., the
ALJ’s finding of medical improvement starting on November 1, 2013 is not supported by
substantial evidence. Moreover, the ALJ erred in his analysis of the treating physician’s
opinions.
Therefore, the Court GRANTS McDowell’s motion (Doc. 6), DENIES the
Commissioner’s motion (Doc. 9), and REMANDS for further proceedings and a new
decision.
15
Dated at Burlington, in the District of Vermont, this 4th day of May, 2016.
/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge
16
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?