Sweet v. Commissioner of Social Security

Filing 23

OPINION AND ORDER granting in part and denying in part 13 MOTION for Order Reversing the Decision of the Commissioner; denying 17 MOTION for Order Affirming the Decision of the Commissioner. Signed by Chief Judge Christina Reiss on 6/16/2017. (law)

U.S. OtSTR!CT COJ.JlT
DISTRICT OF V£ttMGMT
FILED

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
TINA MARIE SWEET,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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Case No. 2:16-cv-110

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION FOR AN ORDER REVERSING THE
COMMISSIONER'S DECISION AND DENYING THE COMMISSIONER'S
MOTION TO AFFIRM
(Docs. 13 & 17)
Plaintiff Tina Marie Sweet is a claimant for Social Security Disability Insurance
("SSDI") and Supplemental Security Income ("SSI'') benefits under the Social Security
Act. She brings this action pursuant to 42 U.S.C. § 405(g) to reverse the decision of the
Social Security Commissioner that she is not disabled. 1 On November 2, 2016, Plaintiff
filed her motion to reverse (Doc. 13). On February 2, 2017, the Commissioner moved to
affirm (Doc. 17). Plaintiff replied to the Commissioner's motion on March 20, 2017,
whereupon the court took the pending motions under advisement.
Plaintiff identifies the following errors in the Commissioner's decision: ( 1)
Administrative Law Judge ("ALJ") Thomas Merrill failed to find that Plaintiff had severe
impairments including affective disorder and anxiety-related disorder and failed to
1

Disability is defined 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)(l)(A), 1382c(a)(3)(A). A claimant's "physical or mental
impairment or impairments" must be "of such severity" that the claimant is not only unable to do
any previous work but cannot, considering the claimant's 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).

include any mental health limitations in Plaintiffs residual functional capacity ("RFC");
(2) his error regarding the severity of Plaintiffs mental health impairments was not
harmless because his subsequent findings improperly relied on testimony by vocational
expert ("VE") James Parker; (3) his RFC finding was not supported by substantial
evidence; and (4) he erred in according only limited weight to the opinions of Plaintiffs
primary care provider, Deborah Thompson, P.A.
Arthur P. Anderson, Esq. represents Plaintiff. Special Assistant United States
Attorneys Lorie E. Lupkin and Susan J. Reiss represent the Commissioner.
I.

Procedural History.
Plaintiff applied for SSDI and SSI benefits on January 3, 2013, alleging a

disability onset date of January 5, 2010. The Commissioner denied Plaintiffs claims
initially, and upon reconsideration. Plaintiff thereafter filed a timely request for a hearing
before an ALJ.
At an October 29, 2014 video conference hearing before ALJ Merrill, Plaintiff
2

appeared with non-attorney representative Meriam Hamada, and testified. VE Parker
also testified. In a decision dated January 14, 2015, ALJ Merrill found that Plaintiff did
not establish that she was disabled within the meaning of the Social Security Act.
Plaintiff filed a timely appeal, which the Appeals Council denied on February 26, 2016.
As a result, ALJ Merrill's decision stands as the Commissioner's final decision.
II.

Factual Background.
Plaintiff resides in Colchester, Vermont and was born in 1973. She received a

general equivalency diploma. Her past employment includes work as a line supervisor
and machine packer at a soap factory, a customer service employee at American
International Distribution Center, and an admitting clerk at a hospital. She claims
disability on the basis of"[b]ack injury[,]" "[d]epression[,]" and "arthritis." (AR 212.)

2

The transcript of the hearing before ALJ Merrill refers to Plaintiffs representative as "Miriam
Hermado." The court adopts the spelling proffered in Plaintiffs motion ("Meriam Hamada").
2

A.

Plaintifrs Physical Health.

In June 1987, Plaintiff suffered a lumbar compression deformity at L1, L2, and L3
and underwent a thoracolumbar fusion. Several months later, she sustained injuries in a
motor vehicle accident that required the implantation of metal rods which were
subsequently removed. She has experienced back pain since that time.
On September 15, 2010, Plaintiff visited P.A. Thompson, her primary care
provider, to receive treatment for chronic back pain. She complained that her back pain
had worsened and was radiating to her right leg, and reported that she had difficulty
driving, sitting, or standing longer than fifteen minutes without shifting positions, and
was limited in her ability to perform household chores. P .A. Thompson recorded that
Plaintiff was taking OxyContin, Percocet, Flexeril, and Ibuprofen for pain. She further
observed that Plaintiff"moves cautiously" and "shifts positions frequently[.]" (AR 427.)
P .A. Thompson referred Plaintiff to a pain clinic.
Between December 2010 and July 2011, Plaintiff received treatment from several
physicians at the Tilley Pain Clinic at Fletcher Allen Health Care. On December 9, 2010,
Daniel Gianoli, M.D. documented that Plaintiff had full range of motion in her neck, full
strength in her lower extremities, and normal sensation. Neurological and
musculoskeletal examinations were normal except for tenderness in Plaintiffs back.
Approximately one month later, Tiffini Lake, M.D. administered lumbar facet joint
injections and recorded that Plaintiff"denies depression." (AR 620.) On April27, 2011,
Melissa Covington, M.D. administered lumbar medical branch block injections. During
these visits, Plaintiffs providers documented that she had a normal gait and ambulated
without an assistive device.
Plaintiff received additional treatment from Dr. Covington on June 24, 2011 and
July 22, 2011, reporting that she had developed neck pain, which was alleviated but not
eliminated by medication. Dr. Covington noted that Plaintiff had a mildly antalgic gait,
but was alert and oriented. Neurological examinations were normal on both treatment
dates. Dr. Covington documented "tenderness with palpation over lower thoracic and
upper lumbar paraspinallevels" and that there "appear to be multiple trigger points along
3

her surgical incisional site" and noted decreased forward bending and range of motion in
Plaintiff's back. (AR 614.) Dr. Covington administered trigger point injections into
Plaintiff's lumbar paraspinal muscles. In treatment notes dated November 29, 2011, P.A.
Thompson documented that the injections did not provide relief, but also noted that
Plaintiff was alert and appeared to be in no distress. On January 2, 2012, P.A. Thompson
examined Plaintiff, who had complained of stiff and sore hands, and recorded that
Plaintiff exhibited no redness or swelling.
Beginning in February 2012, Plaintiff visited rheumatologist James Trice, M.D.
for treatment for stiffness and soreness in her hands that she had experienced for the
previous two to three months, and for which she was taking Ibuprofen. On February 9,
2012, Dr. Trice assessed that Plaintiff exhibited normal strength, gait, and station,
recorded that a joint examination revealed no swelling or pain, and that Plaintiff's wrists,
elbows, shoulders, hips, knees and ankles "reveal[ ed] no pain with passive motion." (AR
758.) He determined that Plaintiff had "[j]oint pain with a mildly elevated rheumatoid
factor and antinuclear antibody but without other clinical evidence and no significant
synovitis on exam to implicate either rheumatoid arthritis[,] systemic lupus
erythematosus, or a related autoimmune inflammatory connective tissue disease." (AR
760.) One month later, on March 15, 2012, Dr. Trice detected tenderness and swelling in
Plaintiff's hands, slight swelling in both wrists, and slight tenderness in her right wrist.
Hand x-rays revealed a "questionable cyst" (AR 746) at the base of one phalanx in
Plaintiff's left hand which was not confirmed on a different view. Dr. Trice diagnosed
Plaintiff with inflammatory arthropathy, but could not confirm a diagnosis of either
rheumatoid arthritis or systemic lupus erythematosus.
Throughout the remainder of 20 12 and into February 20 13, Plaintiff continued to
visit P .A. Thompson for medication management and for back pain treatment. During
these visits, Plaintiff was oriented and exhibited normal mood, affect, and behavior. 3 On
February 20, 2013, Dr. Trice recorded that Plaintiff had "inflammatory arthropathy with
3

During this timeframe, Plaintiff also received treatment for Bell's palsy. However, Plaintiff has
not alleged disability on the basis of this impairment.
4

low titer ANA and rheumatoid factor positivity" and ruled out rheumatoid disease and
lupus. (AR 301.) Plaintiff's joint examination was normal. Dr. Trice posited that
Plaintiff's swelling was "likely infectious, probably viral" (AR 305) and assessed that her
inflammatory arthropathy improved with medication. Six months later, Dr. Trice's
examination revealed that Plaintiff's inflammatory polyarthritis had improved with
medication.
On May 24, 2013, Plaintiff reported to P.A. Thompson that she had begun using a
cane and had recently experienced increased pain in her left side. She was referred to a
spine clinic for further examination. Thereafter, Plaintiff received treatment from
physician assistant Robert Hemond at the Fletcher Allen Spine Institute. P.A. Hemond
observed on June 21, 20 13 that Plaintiff exhibited an antalgic gait favoring her left leg,
but could heel to toe walk. P.A. Hemond made the following diagnosis:
[m]usculoskeletal facetogenic back pain, lower extremity symptoms not
clearly concordant with lumbar radiculopathy. She may possibly have an
L5-S 1 nerve root impingement. Her physical exam reveals 5/5 Waddell
signs, reflective of psychosocial overlay in her pain. The patient is also
very sedentary throughout the day and lays down nearly half the day.
Certainly a component of her discomfort is a result of deconditioning.
(AR 600.) P.A. Hemond referred Plaintiff for physical therapy and Plaintiff thereafter
underwent an MRI of her lumbar spine. On July 3, 2013, P.A. Hemond noted that the
MRI revealed:
post -surgical changes L 1-2 and 3, no sign of significant foramina!
narrowing. At 3-4 there is a mild disk bulge and disk degeneration,
although the disk height is well-preserved. At 4-5 she has a broad-based
disk bulge but no central stenosis. She does have some moderate foramina!
narrowing on the left, although there is epidural fat around the nerve root
and at 5-1 she has moderate to severe foramina! narrowing on the left,
although disk space height is well preserved.
(AR 602.) P.A. Hemond again opined that Plaintiff's back pain is "likely
musculoskeletal discogenic and related to deconditioning, while the left lower
extremity's symptoms may be a mild intermittent L5 radiculopathy." !d. P.A. Hemond
further noted that Plaintiff had not attended physical therapy and was not interested in

5

pursuing injection therapy, and therefore concluded he had "little else to offer" Plaintiff.
!d.

Fallowing Plaintiffs March 21, 2014 visit, P .A. Thompson recorded that Plaintiff
was "feeling more pain" and was limping and using her cane more, but experienced some
relief from using a Transcutaneous Electrical Nerve Stimulation ("TENS") unit either
daily or every other day for fifteen minutes. (AR 675.) P.A. Thompson documented that
Plaintiff had "a hard time getting from sitting to standing" and "can't stand or sit for any
length of time without increased pain." !d. One week later, P.A. Hemond noted that
Plaintiff had "really no significant discomfort" in her back, although she had experienced
a moderate amount of discomfort in her left side over the previous three days. (AR 80 1.)
He assessed that Plaintiff had "very infrequent left lower extremity symptoms and overall
is doing fairly well" (id.) and recorded that Plaintiff had attended physical therapy on a
number of occasions since he had last treated her. As a result, P.A. Hemond
recommended that Plaintiff continue using her TENS unit, begin a home exercise
program, and suggested that she consider weaning off of her medication for pain
management.
Plaintiff visited Dr. Trice on June 13, 2014, complaining again of pain in her
hands and left elbow. A joint examination revealed no tenderness in her hands and feet
and mild tenderness on palpation of her left elbow and full ranges of motion in her
remaining joints and lower extremities. Dr. Trice concluded that Plaintiffs inflammatory
arthropathy was "reasonably well controlled" and prescribed her Meloxicam. (AR 711.)
On or about September 10, 2014, P .A. Thompson completed a Medical Source
Statement of Ability to Do Work-Related Activities (Physical) ("Physical Assessment"),
wherein she opined that Plaintiffs impairments and pain therefrom would markedly
interfere with her ability to concentrate and focus on job-related tasks to the extent that
she could not perform such tasks for continuous two-hour periods throughout an eighthour workday and five-day workweek. P .A. Thompson further expected that Plaintiffs
working pace would likely be reduced more than twenty percent from a normal pace.
Due to Plaintiffs fatigue, P .A. Thompson assessed that Plaintiff could perform work
6

activities for one hour before needing to rest for fifteen minutes. She opined that
Plaintiffs lifting, carrying, standing and walking abilities were affected by her
impairments, but did not indicate the degree of such limitations.
B.

Plaintifrs Mental Health.

Plaintiff received treatment and prescribed medication from P .A. Thompson to
treat a diagnosis of depression. On November 5, 2010, P.A. Thompson documented that
Plaintiff had a "history of depression and recently her symptoms have been worse[,]"
noting that plaintiff felt "very stressed partly dealing with this worsening pain, which has
been more disruptive to her life, dealing with the fact that she is not working and
therefore has financial stresses[.]" (AR 423.) P.A. Thompson noted that Plaintiff
enjoyed playing bingo when she was financially able to do so, but was otherwise "pretty
isolated." !d. P.A. Thompson prescribed Zoloft. Three weeks later, P.A. Thompson
recorded that Plaintiff was tolerating that medication well and had experienced less
anger, fewer outbursts, and "let go of stressors and frustrations easier." (AR 422.)
During both visits, P .A. Thompson noted that Plaintiff appeared in no distress with the
exception of occasionally appearing tearful during the November 5, 2010 visit.
Plaintiff continued to visit P .A. Thompson in January and May of 20 11, and
reported that her prescribed Zoloft was "helping emotionally" (AR 421 ), but that she still
experienced stress. P.A. Thompson documented that Plaintiff exhibited a depressed
mood and was tearful. On January 2, 20 12, P .A. Thompson recorded that Plaintiff had
begun counseling and observed that Plaintiffs "primary symptoms include dysphoric
mood and negative symptoms. This is a chronic problem. Suicidal ideas: occasional
fleeting thought. She does not have a plan to commit suicide." (AR 402.) P.A.
Thompson again noted that Plaintiff was tolerating Zoloft well and was well oriented
during September 12, 2012 and December 3, 2012 visits. Following the latter visit, in
which Plaintiff exhibited a "depressed mood" (AR 388), P.A. Thompson prescribed
Cymbalta to replace Zoloft. P.A. Thompson's January 2, 2013 treatment notes indicated
that Plaintiffs transition to prescribed Cymbalta was successful, as she "fe[lt] better but

7

has some reduction in stress too" with "[l]ess crying" and "[n]o suicidal thoughts." (AR
384.)
P.A. Thompson's treatment notes from August 14, 2013, November 4, 2013,
December 19, 20 13, and March 21, 20 14 reveal that Plaintiff continued to take prescribed
Cymbalta, in increasing dosages. On each occasion, P .A. Thompson observed that
Plaintiff exhibited normal behavior and mood, and was oriented to person, place, and
time.
On or about October 14, 2014, P .A. Thompson completed a Medical Source
Statement of Ability to Do Work-Related Activities (Mental) ("Mental Assessment"),
wherein she concluded that Plaintiff suffered from anxiety-related disorder and affective
disorder. P .A. Thompson opined that Plaintiff suffered "marked" difficulties in
maintaining social functioning and concentration, persistence or pace; "moderate"
restrictions in the activities of daily living. (AR 814.) She further opined that Plaintiff
would respond inappropriately to criticism from coworkers and supervisors and be unable
to focus on job-related tasks for two-hour periods of time during an eight-hour workday.
She expected that Plaintiff would miss two days of work per month because of her mental
health impairments.

C.

Plaintifrs Function Report.

On or about February 25, 2013, Plaintiff completed a Function Report in support
of her application for SSDI and SSI benefits. She reported that she had difficulty
managing her personal care, could no longer prepare non-microwaveable meals, and
could not sleep for more than a couple of hours at a time. She stated that she could still
perform certain household chores, drive, and manage her personal finances. Regarding
her hobbies and interests, she reported that she "watch[ es] tv all the time, bingo maybe
once or twice a month" but could not go bowling anymore. (AR 207.) She spent time
with her family on a weekly basis.
Plaintiff explained that she had problems interacting with others, as she "fe[lt] like
people [we ]re talking about me all the time" and "get[ s] anxious around a lot of
people[.]" (AR 208.) She recounted having arguments with "a few bosses" (AR 209) in
8

the past and stated that she could no longer adequately follow spoken instructions unless
she wrote them down. Plaintiff stated that she used a cane and had been prescribed
Cymbalta, Lyrica, Roxicodone, Percocet, Flexeril, and Plaquenil. In summary, Plaintiff
wrote that she:
get[ s] a lot of confusion, feel[ s] depressed all the time, and ha[ s] noticed
that I have a lot of anxiety over the past few years d[ ue] to feeling helpless
and hopeless because of my pain and make a lot of mistakes when I never
did before. My hands don't work anymore they hurt [j]ust opening [and]
closing them. I can only write a few lines before my hand cramps up on
me.
(AR 210.)

D.

State Consultants' Assessments.
1.

March 2013 Disability Evaluation.

On March 14, 2013, Plaintiff met with State Medical Consultant Barbara
Richmond, M.A. for a confidential disability evaluation. Ms. Richmond's report
indicates that she is a "Licensed Clinical Psychologist- Master." (AR 576.) Ms.
Richmond recorded that Plaintiff arrived on time and was appropriately dressed, but
"displayed a sad affect, crying intermittently during the evaluation." !d. She nonetheless
maintained eye contact, exhibited well organized thoughts, and displayed no cognitive
deficits. Ms. Richmond noted that Plaintiff sat "stiffly and wincing at times[,]" walked
with a slow gait and a limp, and winced when reaching for a piece of paper. !d.
Plaintiff completed a Mini-Mental Status Exam ("MMSE") and received a score
of thirty, indicating no cognitive impairment. Ms. Richmond observed that Plaintiff was
oriented to time and place, and "successfully performed tasks demonstrating immediate
and delayed recall" and demonstrated reading, naming, repetition, and copying skills.
(AR 578.) The remainder of Ms. Richmond's evaluation documents Plaintiffs selfreports regarding her background and medical history, including arthritis, insomnia, low
energy, suicidal ideation, and irritability. Based on this evaluation, Ms. Richmond

9

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recorded a diagnosis of "major depressive disorder, recurrent episodes, moderate" and
social anxiety, and assigned Plaintiff a GAF score of 50. 4 (AR 578-79.)
2.

March 2013 State Consultants' Assessments.

On March 25, 2013, State Medical Consultant Howard Goldberg, Ph.D. submitted
a Medically Determinable Impairments ("MDI") and a Mental RFC analysis as part of
the Social Security Administration's ("SSA") evaluation of Plaintiffs disability
application. Dr. Goldberg did not examine Plaintiff, but rendered his opinions based
upon Plaintiffs medical records and Ms. Richmond's consultative examination. Dr.
Goldberg found that Plaintiff had affective disorder and anxiety disorder, assessing that
Plaintiff had "moderately limited" (AR 64) abilities to carry out detailed instructions and
maintain attention and concentration for extended periods, but retained the capacity for
one to three step tasks. Dr. Goldberg further opined that Plaintiff could not perform fourstep tasks or "timed or productivity standards" and was restricted from "intensive and
frequent social interactions" but could engage in ordinary and routine social interactions.
(AR 65-66.) Dr. Goldberg found that Plaintiff exhibited no marked restrictions in any
functional area.
On April15, 2013, non-examining State Medical Consultant Leslie Abramson,
M.D. rendered an opinion as to Plaintiffs physical RFC. Dr. Abramson opined that
Plaintiff could sit, stand and/or walk for six hours in an eight-hour workday, lift ten
pounds "frequently" and twenty pounds "occasionally," and stoop. (AR 63.) Dr.

4

"The GAF is a scale promulgated by the American Psychiatric Association to assist 'in tracking
the clinical progress of individuals [with psychological problems] in global terms."' Kohler v.
Astrue, 546 F.3d 260,262 n.1 (2d Cir. 2008) (quoting Am. Psychiatric Ass'n, Diagnostic and
Statistical Manual of Mental Disorders 32 (4th ed. 2000) (hereafter "DSM-IV")). GAF scores
rate the overall psychological functioning of an individual on a scale of 0 to 100, with higher
scores reflecting greater functioning. See Corporan v. Comm 'r ofSoc. Sec., 2015 WL 321832, at
*12 n.9 (S.D.N.Y. Jan. 23, 2015). "A GAF score in the range of 41 to 50 indicates '[s]erious
symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious
impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a
job)."' Zabala v. Astrue, 595 F.3d 402,406 n.2 (2d Cir. 2010) (quoting DSM-IV at 34). The
GAF scale has been removed from the latest version ofthe DSM. See Corporan, 2015 WL
321832, at *12 n.9.
10

Abramson further assessed that Plaintiff had no other postural limitations and had no
manipulative limitations.
3.

July 2013 State Consultants' Assessments.

On July 30, 2013, upon reconsideration, non-examining State Medical Consultant
Ellen Atkins, Ph.D. submitted MDI and Mental RFC analyses to the SSA. Her findings
were identical to those of Dr. Goldberg. On or about the same day, non-examining State
Medical Consultant Geoffrey Knisely, M.D. submitted a physical RFC assessment to the
SSA upon reconsideration of Plaintiffs application. Dr. Knisely found that Plaintiff
could sit, stand and/or walk for six hours in an eight-hour workday, and would need to
change positions for three to five minutes per hour. He determined that Plaintiff could
"frequently" lift ten pounds, climb ramps and stairs, and crawl; and "occasionally" lift
twenty pounds, climb ladders, ropes, or scaffolds, stoop, and crouch. (AR 90-91.) Dr.
Knisely further concluded that Plaintiff had no balancing, pushing, or pulling limitations.
Regarding Plaintiffs reported hand stiffness, Dr. Knisely opined that "the actual
objective evidence does not support limitations in manipulative category" and that her
pain had been taken into consideration in this RFC assessment. (AR 91.)
Dr. Knisely assessed that Plaintiffs statements regarding her symptoms were only
"[p]artially credible" because they were "not fully supported by the objective evidence or
by her actual activities reported on the function report." (AR 90.) Dr. Knisely cited
Plaintiffs need for a cane, but observed that "the evidenc[ e] does not support that this is
required" and that Plaintiffs "5/5 Waddell signs ... indicate Psych overlay on physical
exam." !d.
E.

Plaintiff's Testimony at the October 29, 2014 Hearing.

Plaintiff testified that shortly before her alleged onset date, her medication
regimen had changed and as a result, she could no longer concentrate at work and made
many errors. Due to her performance, she was "let go" by her employer. (AR 42.)
Plaintiff testified that she had difficulty standing and sitting for long periods of time,
which she attributed to back pain. She further stated that she has arthritis, which limits
her ability to write, and Bell's Palsy, which impacts her vision.
11

On a typical day, Plaintiff rises at six o'clock in the morning to take medication,
returns to sleep until nine o'clock, and remains in bed until approximately ten o'clock,
whereupon she uses her TENS unit for twenty minutes and watches television or
occasionally vacuums her bedroom. She testified that she uses the Internet in order to
maintain contact with family members through Facebook.
In response to questioning by her representative, Plaintiff testified that she has
difficulty cooking, performing household chores including washing dishes and
vacuuming, shopping, sleeping, and driving. She testified that she uses a cane when she
performs housework or has to walk long distances in a parking lot. She stated she is
"lucky if I sleep for an hour and a half, two hours at a time, and then it takes me a while
to try and fall back to sleep. I'm tired all the time because I don't sleep." (AR 45.) She
explained that the pain in her hands prevents her from opening jars, and that injections
have not ameliorated the pain. She testified that she has back pain every day, which on
many occasions prevents her from getting out of bed, and that she can only remain in a
seated position for approximately two hours before she requires a break.
Plaintiff recounted problems at her prior jobs, including missing time due to back
pain, depression, "wanting to commit suicide, and not being around people. I have a
problem, I feel like people are talking about me all the time and I don't know if I just
jump to conclusions, but I get angry and then don't talk to anyone." (AR 48.) She
further testified that when she watches television, she experiences difficulty
comprehending what she is watching and remembering what she had just finished
watching.
III.

ALJ Merrill's Application of the Five-Step, Sequential Evaluation Process.

In order to receive SSDI or SSI benefits, a claimant must be disabled on or before
his or her date last insured. SSA regulations set forth the following five-step, sequential
evaluation process to determine whether a claimant is disabled:
( 1) whether the claimant is currently engaged in substantial gainful activity;
(2) whether the claimant has a severe impairment or combination of
impairments; (3) whether the impairment meets or equals the severity of the
specified impairments in the Listing of Impairments; (4) based on a
12

"residual functional capacity" assessment, whether the claimant can
perform any of his or her past relevant work despite the impairment; and
(5) whether there are significant numbers of jobs in the national economy
that the claimant can perform given the claimant's residual functional
capacity, age, education, and work experience.

Mcintyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing 20 C.P.R.
§§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v)). "The claimant has the general burden of
proving that he or she has a disability within the meaning of the Act, and bears the burden
of proving his or her case at [S]teps [O]ne through [F]our of the sequential five-step
framework established in the SSA regulations[.]" Burgess v. Astrue, 537 F.3d 117, 128
(2d Cir. 2008) (internal quotation marks and citation omitted). At Step Five, "the burden
shift[s] to the Commissioner to show there is other work that [the claimant] can perform."

Mcintyre, 758 F.3d at 150 (alterations in original) (internal quotation marks omitted).
In this case, ALJ Merrill determined that Plaintiffs date last insured was June 30,
2015, and that Plaintiff had not engaged in substantial gainful activity since January 5,
2010. At Step Two, ALJ Merrill found that Plaintiff had the following severe
impairment: "degenerative disc disease (lumbar spine, thoracic spine)" (AR 12). While
noting that Plaintiff alleged disability due to depression, ALJ Merrill concluded that the
"evidence of record shows that her depression produced no more than minimal
limitations upon the claimant's ability to perform work-related activities." !d. ALJ
Merrill also concluded that Plaintiffs arthritis was non-severe, citing Plaintiffs limited
treatment for that impairment.
At Step Three, ALJ Merrill determined that Plaintiff did not have an impairment
or combination of impairments that met or equaled the severity of any listed impairment.
At Step Four, he concluded that Plaintiff had the residual functional capacity to "perform
light work as defined as in [20 C.P.R.§ 404.1567(b)] and [20 C.P.R. § 416.967(b)]" and
that "[ s]he is able to occasionally stoop, with no limitations in her ability to push and
pull." (AR 15.) ALJ Merrill observed that:
[t]he objective evidence in this claim falls short of demonstrating the
existence of pain and limitations that are so severe that the claimant cannot
perform any work on a regular and continuing basis. The claimant testified
13

to an extremely limited range of functional abilities. However, the
objective medical evidence of record does not fully support those
allegations. Therefore, because the claimant has failed to establish a
correlation between the allegations and the objective medical evidence, the
undersigned finds the claimant's symptom complaints not credible to the
extent alleged[.]
(AR 17.) Based in part on VE Parker's testimony, ALJ Merrill determined that Plaintiff
was capable of performing her past relevant work as a customer service worker and
admitting clerk, and thus concluded that Plaintiff was not disabled within the meaning of
the Social Security Act. ALJ Merrill did not undertake a Step Five analysis, but noted
that "with mental health assumed as severe, and with the mental residual function as
opined by Dr. Goldberg, PhD, adopted by Ellen Atkins, PhD, the impartial vocational
expert opined that the claimant would still be able to perform other jobs available in
significant numbers within the national economy[.]" (AR 14.)
IV.

Conclusions of Law and Analysis.
A.

Standard of Review.

In reviewing the Commissioner's decision, the court "'conduct[s] a plenary review
of the administrative record to determine if there is substantial evidence, considering the
record as a whole, to support the Commissioner's decision and if the correct legal
standards have been applied."' Cichocki v. Astrue, 729 F.3d 172, 175-76 (2d Cir. 2013)
(quoting Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008)). 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."' Selian v. Astrue, 708 F.3d 409,417 (2d Cir.
2013) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Even if the court could draw different conclusions after an independent review of
the record, the court must uphold the Commissioner's decision when it is supported by
substantial evidence and when the proper legal principles have been applied. See 42
U.S.C. § 405(g). It is the Commissioner that resolves evidentiary conflicts and
determines credibility issues, and the court may not substitute its own judgment for that
of the Commissioner. See Aponte v. Sec y, Dep 't of Health & Human Servs. of US., 728

14

F.2d 588, 591 (2d Cir. 1984) ("It is the function of the [Commissioner], not the reviewing
courts, to resolve evidentiary conflicts and to appraise the credibility of witnesses.")
(internal quotation marks omitted).
"[T]he [Social Security Administration] recognizes a treating physician rule of
deference to the views of the physician who has engaged in the primary treatment of the
claimant[.]" Burgess, 537 F.3d at 128 (internal quotation marks omitted). Under this
rule, the opinions of "treating sources" 5 are "binding if ... supported by medical
evidence and not contradicted by substantial evidence in the record." Selian, 708 F.3d at
418. However, a treating source's "statement that the claimant is disabled cannot itself
be determinative." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999).
To weigh the opinion of a treating source, an ALJ must consider, among other
things, the length, frequency, nature, and extent of the treatment relationship; the
consistency of the opinion offered with the "record as a whole"; and whether it is "of a
specialist about medical issues related to his or her area of specialty[.]" 20 C.P.R.
§§ 404.1527(c)(2), (4), (5) & 416.927(c)(2), (4), (5). An ALJ is "required either to give
[the opinions of a claimant's treating source] controlling weight or to provide good
reasons for discounting them." Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010).
SSA regulations further distinguish between "acceptable medical sources" and
other health care providers who are not "acceptable medical sources." SSR 06-03p, 2006
WL 2329939, at *2 (Aug. 9, 2006). "[O]nly 'acceptable medical sources' can be
considered treating sources ... whose medical opinions may be entitled to controlling
weight." !d. Evidence submitted by non-acceptable medical sources "cannot establish
the existence of a medically determinable impairment" but "may provide insight into the
severity of the impairment(s) and how it affects the individual's ability to function." !d.
5

"Treating source means your own acceptable medical source who provides you, or has
provided you, with medical treatment or evaluation and who has, or has had, an ongoing
treatment relationship with you. Generally, we will consider that you have an ongoing treatment
relationship with an acceptable medical source when the medical evidence establishes that you
see, or have seen, the source with a frequency consistent with accepted medical practice for the
type of treatment and/or evaluation considered for your medical condition(s)." 20 C.F.R.
§ 404.1527(a)(2).
15

In evaluating the opinions of non-acceptable medical sources, the ALJ considers the same
factors applicable to medical opinions rendered by "acceptable medical sources" pursuant
to 20 C.F.R. § 404.1527. !d. at *4 ("Although the factors in 20 C.F.R. § 404.1527(d) and
§ 416.927(d) explicitly apply only to the evaluation of medical opinions from 'acceptable

medical sources,' these same factors can be applied to opinion evidence from 'other
sources."').
B.

Whether ALJ Merrill Erred in Failing to Find That Plaintiff Had
Severe Mental Health Impairments.

Plaintiff argues that ALJ Merrill committed reversible error by failing to find that
she suffered severe mental health impairments of affective disorder and anxiety-related
disorder and failing to reflect these impairments in his RFC determination. The
government contends that ALJ Merrill properly found that Plaintiff's mental health
impairments were not severe and, in any event, considered her mental health limitations
in rendering Plaintiff's RFC.
In order for an impairment to be "severe" pursuant to Step Two of the sequential
analysis of a claimant's application for benefits, SSA regulations provide that the
claimant's impairment must "significantly limit[] [his or her] physical or mental ability to
do basic work activities[.]" 20 C.F.R. § 404.1520(c). If the ALJ "rate[s] the degrees of
[the claimant's] limitation as 'none' or 'mild,' [the ALJ] will generally conclude that
[the] impairment( s) is not severe, unless the evidence otherwise indicates that there is
more than a minimal limitation in [the claimant's] ability to do basic work activities[.]"

!d. § 404.1520a(d)(l). The Second Circuit has held that the ALJ's Step Two analysis is
"applied to screen out de minimis claims[.]" Dixon v. Shalala, 54 F.3d 1019, 1030 (2d
Cir. 1995) (holding that "the severity regulation is valid only if applied to screen out de
minimis claims").

In this case, ALJ Merrill analyzed the functional areas set forth under applicable
regulations for evaluating Plaintiff's alleged mental impairments and found that Plaintiff
had only a "mild limitation" (AR 12-13) in the activities of daily living, social
functioning, and in her ability to maintain concentration, persistence, and pace. In
16

support of those findings, he cited her MMSE score indicating no cognitive impairments,
Plaintiffs abilities to perform housework, meals, go shopping, and manage her personal
finances, and her social interactions with friends and family both in person and online
and her outings to play bingo. ALJ Merrill further concluded that Plaintiff had
experienced no episodes of decompensation of extended duration.
Plaintiff points out, however, that three medical sources diagnosed her with mental
health impairments, and argues that ALJ Merrill did not provide good reasons for
discounting these opinions in his severity analysis. He assigned only limited weight to
the opinions of Ms. Richmond, who diagnosed Plaintiff with major depressive disorder,
recurrent episodes, social anxiety, and assigned her a GAF score of 50. 6 ALJ Merrill's
explanation for the degree of weight he accorded Ms. Richmond's opinions was as
follows: (1) Ms. Richmond's report was "based upon the self-reported symptoms of the
claimant, with apparently no other records reviewed and no other objective evidence
relied upon" (AR 13); (2) she rendered her opinions without performing a "function-byfunction analysis of the claimant's abilities, but instead merely list[ed] her reported
symptoms" (id.); and (3) she "d[id] not indicate whether the claimant has had past
psychiatric treatment or note whether the claimant's treatment has been limited, or
whether the claimant would benefit from additional treatment" (id. ). 7

6

Plaintiff correctly points out that Ms. Richmond identifies herself as a "Licensed Clinical
Psychologist- Master" in her report (AR 576), and therefore ALJ Merrill should have
designated her an acceptable medical source. See Martell v. Comm 'r ofSoc. Sec., 2013 WL
1429459, at *4-5 (D. Vt. Mar. 22, 2013) (citing the SSA's Program Operations Manual DI
22505.004(A)(3) and holding that the ALJ erred in not recognizing that a licensed or certified
psychologist was an acceptable medical source), report and recommendation adopted by 2013
WL 1429457 (D. Vt. Apr. 9, 2013).
7

Plaintiff faults ALJ Merrill for failing to address Plaintiff's GAF score. While the better
practice would be to acknowledge the consistency of Plaintiff's GAF scores, "the utility of [a
GAF score] is debatable, particularly after its exclusion from the fifth edition ofthe Diagnostic
and Statistical Manual of Mental Disorders." Berry v. Comm 'r ofSoc. Sec., 2015 WL 4557374,
at *3 n.10 (S.D.N.Y. July 29, 2015); see also Schneider v. Colvin, 2014 WL 4269083, at *4 (D.
Conn. Aug. 29, 2014) ("Even prior to the release of the DSM-V in 2013, courts have held that an
ALI's failure to consider every GAF score is not a reversible error.").
17

While these reasons accurately characterize Ms. Richmond's report, ALJ Merrill
did not note Ms. Richmond's observations that Plaintiff exhibited a sad affect, displayed
pain behavior, and cried intermittently during her consultative examination. He also
discounted the opinions of Dr. Goldberg and Dr. Atkins, who reviewed Ms. Richmond's
report and the remainder of Plaintiffs medical record, and diagnosed Plaintiff with both
affective disorder and anxiety disorder. ALJ Merrill assigned "some weight" to Dr.
Goldberg's and Dr. Atkins's opinions but did not credit their assessments that Plaintiff
exhibited "moderate" (AR 14) limitations in social functioning and in concentration,
persistence and pace because they relied in large part on Ms. Richmond's report and were
purportedly inconsistent with the record as a whole. Neither of these justifications,
however, constitutes a "good reason" to discount the opinions of Dr. Goldberg and Dr.
Atkins. Their reports were based upon a review of Plaintiffs entire medical record at the
time of their respective reviews, not simply Ms. Richmond's consultative examination.
In addition, their endorsement of Ms. Richmond's diagnoses, rather than discrediting
their own opinions, bolsters Ms. Richmond's opinions by providing additional,
independent support for the conclusion that Plaintiff has medically determinable mental
health impairments. By contrast, no medical source in the record has endorsed ALJ
Merrill's conclusion that Plaintiff lacks severe mental health impairments. See Balsamo
v. Chater, 142 F .3d 75, 81 (2d Cir.1998) ("In the absence of a medical opinion to support
the ALJ's finding ... , the ALJ cannot arbitrarily substitute his own judgment for
competent medical opinion.") (internal quotation marks omitted).
Nor are Dr. Goldberg's and Dr. Atkins's diagnoses inconsistent with the record as
a whole. Plaintiff has cited significant evidence of mental health impairments that ALJ
Merrill did not analyze, including her medication regimen to treat anxiety and depression,
P .A. Thompson's treatment notes documenting Plaintiffs suicidal ideation, and
Plaintiffs "Job Screening Questionnaires" which summarize her difficulty interacting
with others in a work environment. While ALJ Merrill was not required to discuss every
piece of evidence in his decision, these undisputed portions of the record demonstrate that

18

the opinions of Dr. Goldberg and Dr. Atkins are in fact supported by substantial evidence
and consistent with the record as a whole.
Assessed as a totality, the opinions and diagnoses of three acceptable medical
sources and other record evidence cited by Plaintiff establish that her mental health
"significantly limits [her] mental ability to do basic work activities[.]" 20 C.F .R.
§ 404.1520(c); see also Keitt v. Barnhart, 2005 WL 1258918, at *5 n.3 (E.D.N.Y. May
27, 2005) (noting that "the step-two severity test functions simply to weed out de minimis
claims"). As a result, ALJ Merrill erred in his Step Two analysis to the extent he found
that Plaintiff lacked any severe mental health impairments.

C.

Whether ALJ Merrill's Step Two Error Was Harmless.

The government contends that any error at Step Two was harmless because "the
ALJ continued with the sequential analysis, considered all of [Plaintiffs] impairments,
including her alleged psychological symptoms, and properly assessed her RFC including
no restrictions on mental work activities." (Doc. 17 at 19.) Plaintiff counters that
because ALJ Merrill's subsequent analysis was based upon VE Parker's testimony which
reflected his Step Two error, the error was not harmless.
At the October 29, 2014 hearing, VE Parker testified that Plaintiffs past relevant
work consisted of three occupations, as defined in the Dictionary of Occupational Titles:
line supervisor, a "mixed" occupation that entailed both "hands on" and supervisory
work; customer service clerk; and admitting clerk. (AR 51.) ALJ Merrill thereafter
questioned VE Parker as follows:
[Q.] I would like you to assume that we have a 41 year old with aGED,
has the ability to lift 20 pounds occasionally, 10 pounds frequently, can
stand or walk for six, sit for six, unlimited use of her hands and feet to
operate controls and push and pull, can occasionally stoop. The remaining
of her posturals are unlimited. There's no other limitations. If we assume
that as hypothetical number one, do you have an opinion as to whether she
could perform any of the prior work?
A.
Your Honor, the past work as a customer service clerk and the
hospital admitting clerk could be performed. The other one is a mixed
position, I don't believe that's relevant when it's a mixed position. But the
other two positions could be performed.
19

Q.
If we add to the first hypothetical that she is limited to one to three
step instructions, has the ability to persist, concentrate, and pace for two
hour blocks of time during a typical work day and work week, and has the
ability to handle ordinary and routine social interactions with the public,
coworkers, and supervisors. If we assume that as the second hypothetical,
does that change your opinion with regard to these jobs that she can do?
It does, Your Honor. The customer service position and admitting
A.
clerk position could no longer be performed because those are midrange
semi-skilled and the limitation to one to three step instructions would
eliminate those positions. Positions that would be appropriate from that
would include assembler, small products ... , packing line worker ... , [and]
price marker[.]"

(AR 52-53.)
As the hearing transcript reveals, ALJ Merrill's first hypothetical question
assumes an RFC that is bereft of mental limitations, including Dr. Goldberg's opinion
that Plaintiff cannot perform "timed or productivity standards," carry out detailed
instructions and maintain attention and concentration for extended periods, and is
restricted from "intensive and frequent social interactions." (AR 65-66.) As a result, the
court cannot determine whether, if ALJ Merrill had correctly incorporated the limitations
arising from Plaintiffs severe mental impairments within her RFC, his conclusion that
Plaintiff can perform her past relevant work would remain unchanged. See Concepcion

v. Astrue, 2010 WL 4038769, at *4 (D. Conn. Sept. 30, 2010) (holding that "[w]ithout the
ALJ' s analysis of the relevant evidence, the court cannot determine whether his
conclusion would have been different if he had considered all factors" in his RFC
determination). VE Parker's testimony suggests that the result could well have been
different. See AR 52-53 (testifying that if Plaintiff were limited to work involving one to
three step instructions she could not perform two of her prior positions). For this reason,
ALJ Merrill's finding that Plaintiff could perform her past relevant work does not render
his error at Step Two harmless.
Plaintiff further argues that ALJ Merrill's comment that "with the mental residual
function as opined by [Dr. Goldberg and Dr. Atkins], the impartial vocational expert
opined" that Plaintiff would be able to perform other jobs that exist in significant

20

numbers in the national economy (AR 14) does not render his Step Two error harmless.
Plaintiff contends that ALJ Merrill's description ofVE Parker's testimony, without more,
does not constitute an alternative finding. She further maintains that, assuming arguendo
that this comment constitutes an alternative finding, ALJ Merrill's second hypothetical
question to VE Parker did not actually assume the mental health limitations ascribed to
Plaintiff by the state agency consultants, but instead posited an entirely new set of
limitations which no medical source in the record had endorsed. The court agrees.
When ALJ Merrill asked VE Parker to assume that Plaintiff could only follow one
to three step instructions, he did not ask VE Parker if the alternative occupations he
identified would involve "intensive and frequent social interactions" and "timed or
productivity standards[,]" which Dr. Goldberg and Dr. Atkins opined were restrictions.
(AR 77, 107.) As a result, the hypothetical question to which VE Parker responded
contained assumptions that did not accurately reflect the limitations arising from
Plaintiffs severe mental health impairments. See Mcintyre, 758 F.3d 146, 151 (2d Cir.
2014) (stating that "[a]n ALJ may rely on a vocational expert's testimony regarding a
hypothetical as long as there is substantial record evidence to support the assumptions
upon which the vocational expert based his opinion") (brackets and internal quotation
marks omitted). VE Parker's testimony therefore does not address whether Plaintiffs
mental limitations prevent her from performing alternative work. See Aubeufv.

Schweiker, 649 F.2d 107, 114 (2d Cir. 1981) ("The vocational expert's testimony is only
useful if it addresses whether the particular claimant, with his limitations and capabilities,
can realistically perform a particular job.").
Because ALJ Merrill's failure to find that Plaintiff has severe mental health
impairments was not harmless error, as any limitations resulting from those impairments
were not reflected in her RFC or in the ALJ' s hypothetical questions to VE Parker, the
court GRANTS Plaintiffs motion for an Order reversing the Commissioner's decision on
this basis.

21

D.

Whether ALJ Merrill's RFC Determination Was Supported by
Substantial Evidence.

Plaintiff asserts that the ALJ's RFC finding that Plaintiff could perform light work
subject to a postural limitation of occasional stooping was not supported by substantial
evidence. In rendering that assessment, ALJ Merrill accorded "substantial weight" to the
opinions of Dr. Abramson, who opined that plaintiff was limited to light exertional work
with occasional stooping due to her back pain. (AR 18.} ALJ Merrill provided several
reasons for this decision, including Dr. Abramson's medical expertise, knowledge of SSA
regulations, and the consistency of her opinion with Plaintiffs generally mild physical
limitations which reveal "persistent and chronic back pain, but also ... some relief of
pain with a TENS unit and injections, and no significant neurological findings upon
exam." !d. The well-supported opinions of a non-examining state agency consultant
may constitute substantial evidence sufficient to support an ALJ' s disability
determination. See Graham v. Colvin, 2014 WL 5645460, at *3 (W.D.N.Y. Oct. 28,
2014) (noting that "the opinions of consultative physicians and State agency consultants
can constitute substantial evidence where, as here, they are consistent with the other
evidence in the record").
Plaintiff next argues that ALJ Merrill improperly rejected Dr. Knisely's additional
postural limitation that Plaintiff would need to change positions for three to five minutes
per hour. Regarding that limitation, ALJ Merrill observed that "Dr. Knisely opine[ d] that
the claimant's alleged limitations are not fully supported by the objective evidence or by
her actual activities reported on the function report. He notes that the claimant ... states
she requires a cane to ambulate, but the evidence does not support this requirement."
(AR 18.) ALJ Merrill failed to explain, however, why Dr. Knisely's misgivings
regarding Plaintiffs purported need to use a cane provides a basis to reject a postural
limitation that Dr. Knisely also identified. The medical record reveals that Plaintiff
began using a cane shortly before Dr. Knisely submitted his July 2013 report and
continued to use a cane throughout the remainder of2013 and 2014. The treatment notes

22

of several providers, including P.A. Thompson, Dr. Covington, and P.A. Hemond,
documented that Plaintiff exhibited an antalgic gait.
ALJ Merrill further found that Plaintiff's 5/5 Waddell signs on exam suggested
that "the back pain has no physical cause" and that "three or more are usually considered
sufficient to make a diagnosis of functional disorder or deliberate deception
(malingering) and to rule out physical abnormality." !d. (citing Ghio v. Astrue, 2011 WL
923419, at *19 n.4 (D. Vt. Mar. 1, 2011)) (italics omitted). The medical evidence in the
record does not support ALJ Merrill's conclusion. As Plaintiff points out, Dr. Knisely
did not draw such an inference from Plaintiff's Waddell signs and P.A. Hemond
concluded that this exam suggested a "psychosocial overlay" to Plaintiff's pain (AR 600)
rather than any adverse reflection upon Plaintiff's credibility.
An ALJ "is not qualified to analyze raw medical data, and must interpret the
medical evidence through the expert opinion of a physician." Alexander v. Comm 'r of
Soc. Sec., 2014 WL 7392112, at *8 (D. Vt. Dec. 29, 2014). ALJ Merrill's opinion that

Plaintiff's Waddell signs exam suggests that her pain has no physical cause or that she
has exaggerated her pain is not supported by the opinion of any medical source. His
interpretation of the raw medical data therefore does not constitute a good reason to
exclude Dr. Knisely's postural limitation from Plaintiff's RFC.
Based on the foregoing, ALJ Merrill erred in his identification of the physical
limitations in Plaintiff's RFC, which are not supported by substantial evidence.
Accordingly, the court GRANTS Plaintiff's motion for remand on this additional ground.

E.

Whether ALJ Merrill Erred in Evaluating the Opinions of P.A.
Thompson.

Plaintiff also seeks remand because ALJ Merrill purportedly erred in evaluating
the opinions ofP.A. Thompson, her primary care provider. She does not dispute that
P.A. Thompson, as a physician assistant, is a non-acceptable medical source under SSA
regulations. See SSR 06-03p, 2006 WL 2329939, at *2 (providing that physician

23

assistants are "[m ]edical sources who are not 'acceptable medical sources"'). 8 As a
result, her opinions are not entitled to controlling weight. See id. However, Plaintiff
contends that ALJ Merrill failed to provide good reasons for affording "limited weight"
or "no weight" (AR 12, 19) to P.A. Thompson's opinions. Plaintiff identifies the
following "important opinions" (Doc. 13-1 at 16) rendered by P .A. Thompson that
purportedly supported her disability application: that Plaintiff would have difficulty
responding appropriately to supervisors and co-workers, would be expected to perform
tasks more than 20% reduced from a normal pace, and that fatigue would result in her
having to rest for fifteen minutes after performing work activities for one hour.
ALJ Merrill's decision reflects that he provided the following reasons for
according limited weight to P.A. Thompson's opinions. First, P.A. Thompson's opinions
regarding Plaintiffs psychological limitations were inconsistent with her treatment notes
which reflect a "normal neurological exam and no disabling level of pain." (AR 19.) See
20 C.P.R. § 404.1527(c)(4) ("Generally, the more consistent a medical opinion is with the
record as a whole, the more weight we will give to that medical opinion."). This
conclusion is supported by Plaintiffs MMSE, which revealed no cognitive impairments.
Second, ALJ Merrill noted that Plaintiff underwent only "minimal treatment for
psychological symptoms" (id.) which were "mostly stable" during the relevant period and
that long periods of time elapsed during which Plaintiff reported no psychological
symptoms. However, he did not identify those periods where Plaintiff reported no
psychological symptoms, and did not evaluate the extensive medication regimen Plaintiff
underwent to treat her psychological symptoms, which included increasing dosages of
Cymbalta and Zoloft over a period of several years. See Hall v. As true, 677 F. Supp. 2d
617, 632 (W.D.N.Y. 2009) (noting that the ALJ"s "omitt[ing] any mention of plaintiffs
medication history ... raise[ ed] doubt as to whether the entire record was considered").
8

Pursuant to 20 C.F.R. § 404.1502(a)(8), a licensed physician assistant is considered an
acceptable medical source "for impairments within his or her licensed scope of practice[.]"
However, this provision is applicable "only with respect to claims filed ... on or after March 27,
2017." !d. As Plaintiffs claim was filed prior to that date, this provision does not apply to the
instant action.
24

The record further discloses that P.A. Thompson noted worsening symptoms of
depression in November of 2010, that Plaintiff continued to experience stress through
2011 and

exhibi~ed

dysphoric mood and occasional suicidal ideation throughout 2012. It

was not until2013 that P.A. Thompson observed that Plaintiffs psychological symptoms
had consistently improved as a result of her prescribed use of medication. Against this
backdrop, ALJ Merrill's conclusion that Plaintiffs psychological symptoms were
"mostly stable" is not well supported by the record.
Third, ALJ Merrill reasoned that Plaintiffs daily routine contradicted P .A.
Thompson's opinions that Plaintiff had moderate limitations in the activities of daily
living and marked limitations in social functioning and in maintaining concentration,
persistence and pace. These conclusions are supported by the record which reveals that
Plaintiff drives, uses Facebook, socializes with friends and family, watches television,
occasionally performs household chores, and prepares microwaved meals. See Scitney v.

Colvin, 41 F. Supp. 3d 289, 302 (W.D.N.Y. 2014) (holding that the inconsistency
between the medical source's opinion and the medical record are "good reasons" for the
ALJ's decision to reject that source's opinion).
Finally, ALJ Merrill recognized that P.A. Thompson does not specialize in
psychology, a factor that lessened the weight to which her opinions were entitled
regarding Plaintiffs psychological limitations. See 20 C.F.R. § 404.1527(c)(5) ("We
generally give more weight to the medical opinion of a specialist about medical issues
related to his or her area of specialty than to the medical opinion of a source who is not a
specialist.").
ALJ Merrill similarly concluded that P.A. Thompson's opinions regarding
Plaintiffs physical limitations were "overstated" (AR 19) and that Plaintiffs medical
records "do not reflect disabling pain or functional limitations due to back pain and
related symptoms" (AR 17) because her clinical examinations were largely normal and
her radiating pain occurred only sporadically. These conclusions are partly supported by
the record, which indicate that, notwithstanding Dr. Trice's diagnosis of inflammatory
arthropathy, Plaintiff experienced radiating pain on an infrequent basis and maintained
25

good ranges of motion in her extremities with only occasional swelling and tenderness.
They are also consistent with the treatment notes of P .A. Hemond, who attributed
Plaintiffs discomfort to "deconditioning" (AR 600), recommended she visit a physical
therapist and continue the use of a TENS unit, and recorded that, in any event, Plaintiff
did not experience significant discomfort. However, ALJ Merrill's conclusion that
Plaintiff did not sustain significant functional limitations is inconsistent with Dr.
Abramson's opinion that Plaintiff was limited to performing light work due to her back
pain and Dr. Knisely's opinion that Plaintiff must change positions to ease her discomfort
for three to five minutes each hour. ALJ Merrill, rather than this court, was authorized to
resolve this conflict in the evidence. See Cage v. Comm 'r ofSoc. Sec., 692 F.3d 118, 122
(2d Cir. 20 12) ("In our review, we defer to the Commissioner's resolution of conflicting
evidence").
Although a close question, ALJ Merrill provided sufficient "good reasons" for
according little weight to P.A. Thompson's opinions regarding the extent of both
Plaintiffs physical and psychological limitations. While ALJ Merrill could have
provided a more detailed analysis under§ 404.1527(c), "the substance of the treating
physician rule was not traversed." Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)
(per curiam).
CONCLUSION

For the foregoing reasons, the court GRANTS IN PART AND DENIES IN PART
Plaintiffs motion for an Order reversing the Commissioner's decision (Doc. 13) and
DENIES the Commissioner's motion to affirm (Doc. 17). On remand, the ALJ is
directed to render a new RFC determination reflecting the limitations stemming from
Plaintiffs severe mental health impairments. His RFC determination must also reflect
Plaintiffs physical limitations, which include a requirement that she change positions for
an aggregate of three to five minutes per hour. In the alternative, the ALJ must provide
good reasons for rejecting that limitation. Based upon his RFC determination, the ALJ
shall decide whether Plaintiff is capable of performing her past relevant work and/or
work that exists in substantial numbers in the national economy.
26

I'(..

SO ORDERED.
Dated at Burlington, in the District of Vermont, this

/6 day of June, 2017.

c~

United States District Court

27