Hanley v. Commissioner of Social Security

Filing 15

OPINION AND ORDER Granting 10 Plaintiff's Motion for an Order Reversing the Commissioner's Decision and Denying 11 the Commissioner's Motion to Affirm. Signed by Judge Christina Reiss on 3/29/2018. (pac)

U.S. DiS El CT COURT
DISTRICT OF VEF:MOMT
FILED

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
AUSTIN HANLEY, on behalf of
HEATHER LEGER, deceased,
Plaintiff,
V.

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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2018 MAR 29 PH 12: 50
CL[fm

BY- ~ . u - M - - !1f.PUTY CLERK

Case No. 2:17-cv-00013

OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR AN ORDER
REVERSING THE COMMISSIONER'S DECISION AND DENYING THE
COMMISSIONER'S MOTION TO AFFIRM
(Docs. 10 & 11)
Plaintiff Austin Hanley brings this action, on behalf of the deceased claimant,
Heather Leger, for Social Security Disability Insurance Benefits ("DIB") and
Supplemental Security Income ("SSI") under the Social Security Act ("SSA"), seeking
reversal of the Social Security Commissioner's decision that Ms. Leger is not disabled.
On July 31, 2017, Plaintiff filed his motion to reverse (Doc. 10), and, on August 22,
2017, the Commissioner filed her motion to affirm (Doc. 11 ). Plaintiff replied on
September 21, 201 7, at which point the court took the pending motions under
advisement.
Plaintiff is represented by Arthur P. Anderson, Esq. The Commissioner is
represented by Special Assistant United States Attorney Andreea Lechleitner.
Plaintiff raises the following issues: (1) whether Administrative Law Judge
("ALJ") Joshua Menard violated the treating physician rule; (2) whether the ALJ erred in
determining Ms. Leger's residual functional capacity ("RFC"); and (3) whether remand is
required for the ALJ to consider Ms. Leger's death certificate.

I.

Procedural Background.
On May 12, 2015 and May 15, 2015, Ms. Leger filed applications for DIB benefits

and SSI, respectively. In both applications, Ms. Leger alleged that she was disabled as of
November 30, 2014. The Commissioner denied her applications initially on August 18,
2015 and on reconsideration on February 12, 2016. Thereafter, Ms. Leger filed a written
request for a hearing on March 22, 2016. On July 26, 2016, she testified at a
videoconference hearing before ALJ Menard. 1 Louis A. Laplante, a vocational expert
("VE"), also testified. On August 17, 2016, ALJ Menard issued a decision finding Ms.
Leger was not disabled. The Appeals Council denied Plaintiffs request for review on
December 1, 2016. As a result, ALJ Menard's decision stands as the Commissioner's
final decision.

II.

Factual Background.
When she passed away on September 11, 2016, Ms. Leger was a thirty-nine-year-

old woman. At the time of her alleged disability onset date of November 30, 2014, she
was thirty-seven years old. She is survived by an adult son, Austin Hanley, who proceeds
as the plaintiff in this case on her behalf. Ms. Leger had a high school education and
completed a cosmetology program. Her past work experience includes prep cook, pizza
deliverer, waitress, machinist, and hairdresser.

A.

Ms. Leger's Medical History.

Ms. Leger alleged disability from chronic liver disease, with symptoms of ascites 2
and edema, hepatitis, gastroesophageal reflux disease ("GERD"), depression, anxiety
disorder, and post-traumatic stress disorder ("PTSD"). She also suffered from
osteoarthritis of the hips, bilateral carpel tunnel syndrome ("CTS"), and symptoms of
obsessive-compulsive disorder ("OCD"), attention deficit disorder ("ADD"), and

1

At the hearing, Ms. Leger was represented by Meriam Hamada, a non-attorney representative
from Attorney Anderson's firm.
2

"Ascites" is an abdominal condition characterized by "[a]ccumulation of serous fluid in the
peritoneal cavity." Stedmans Medical Dictionary (28th ed. 2006), available at Westlaw
STEDMANS 78480.
2

attention deficit hyperactivity disorder ("ADHD"). Her medical records reveal a history
of alcohol and marijuana use.
1.

Ms. Leger's Psychological Traumas.

Ms. Leger described her childhood environment as "very chaotic." (AR 360.) She
stated that her father drank and used illegal drugs throughout her youth and physically
abused her, her mother, and her sister. As a fourteen-year-old sophomore in high school,
she ran away from home to live with a twenty-five-year-old man whom she had
befriended. This man abducted her for a period of seven months, during which he
physically and sexually abused her. Ms. Leger was eventually able to escape from him
and call the authorities, at which point the man was arrested, convicted, and imprisoned.
Ms. Leger testified that her year-and-a-half relationship with the father of her son was
also abusive. Her next serious relationship was a four-and-a-half year relationship with
her ex-fiance, who, in 2007, shot himself in front of her and died in her lap. She stated
that "after the suicide[,] she took to drinking which led to an episode where her son was
taken into his father's custody for a period of time." (AR 361.)

2.

Ms. Leger's Treatment for Liver Disease.

On April 8, 2015, Ms. Leger was admitted to the University of Vermont Medical
Center ("UVM-MC"), complaining of abdominal pain. Nellie Wirsing, M.D. noted that
Ms. Leger had decompensated liver failure with cirrhosis and alcoholic hepatitis and
performed an ultrasound, which showed moderate ascites. A physical exam revealed that
Ms. Leger had normal gait, coordination, reflexes, motor strength, and range of motion in
her joints. A mental status examination documented her mood and affect as normal and
noted that she was pleasant, cooperative, and alert. Dr. Wirsing's prognosis was that Ms.
Leger had less than one year to live and, on that basis, had an end-of-life discussion with
her. According to subsequent medical reports, Ms. Leger was told that she had three
months to live. See, e.g., AR 703, 1312. On April 13, 2015, she left the emergency room
against medical advice. "Upon leaving [UVM-MC,] [Ms. Leger] missed medication
doses[,] got a new tatto[o][,] and became symptomatic again with increased ascites and
abdominal pain." (AR 740.)
3

On April 15, 2015, Ms. Leger was admitted to Dartmouth-Hitchcock Medical
Center and treated for her liver condition. Her symptoms improved over the course of
her three-day stay, and she was discharged on April 18, 2015 with multiple prescriptions
to manage her symptoms. She subsequently moved to Maine to live closer to her family.
On April 19, 2015, Ms. Leger was admitted to the emergency room at the Eastern
Maine Medical Center ("EMMC"), stating that she was unable to get her liver medication
prescriptions filled because she was unable to afford them. A physical exam revealed
that she had normal range of motion, motor strength, and no neurological deficits. Ms.
Leger was described as cooperative and fully oriented with appropriate mood and affect
during her visit. She was given a single dose of her medications and advised to return on
a weekday to see a social worker.
On May 3, 2015, Ms. Leger saw EEMC emergency room physician David R.
Saquet, D.O. for her liver condition. He performed a physical examination and
determined that she had normal gait, no neurological deficits, and was conscious,
oriented, and alert. Dr. Saquet found that "there was nothing to be done for [Ms. Leger]"
because there was no evidence of an ongoing infection, her white blood count had
improved, and, after her pain was controlled with medication, she "was actually quite
comfortable." (AR 650.) Ms. Leger declined hospital admission for intravenous fluids
and pain control, preferring to return home and convalesce. On May 6, 2015, she
returned to the hospital and was admitted to the emergency room for her end-stage liver
disease, complaining of diffuse abdominal pain due to "medical noncompliance as she
was not able to obtain several of her medications secondary to cost." (AR 680.) When
Ms. Leger was discharged the next day, the discharge note reported that she was
independent in her activities of daily living and that her cognition was unimpaired.
On May 12, 2015, Ms. Leger met with Joseph E. Harkins, M.D., a
gastroenterologist, regarding her acute alcoholic hepatitis. She reported that she was
doing better and avoiding alcohol. In Dr. Harkins's assessment, Ms. Leger's gait was
"good" and she had "good get up and go." (AR 685.) During a follow-up appointment
on July 14, 2015, she admitted that she had consumed alcohol on two occasions in the
4

last three months, but that she was "trying very hard to remain abstinent." (AR 802.) At
this appointment, Dr. Harkins reviewed Ms. Leger's liver imaging, which failed to show
cirrhosis. Her liver function tests demonstrated improvement in her condition. Dr.
Harkins noted normal bowel sounds, no jaundice, and no asterixis. 3
On November 6, 2015, Anthony R. Williams, M.D. from UVM-MC met with Ms.
Leger regarding her liver condition and arthritis. Ms. Leger described her alcohol use as
"2-3 times a week" during the appointment. (AR 1274) (internal quotation marks
omitted). Dr. Williams found no signs or symptoms of worsening liver failure and noted
that Ms. Leger was not on any medications for her liver condition or arthritis at the time
of the appointment. Dr. Williams advised her to take ibuprofen to manage pain
symptoms and recommended she follow a daily exercise regimen.
On January 20, 2016, Ovais Ahmed, M.D. from UVM-MC, evaluated Ms. Leger's
liver disease. Dr. Ahmed noted that Ms. Leger "still continues to drink on occasion" and
that her physicians "have stressed the importance of complete alcohol cessation."
(AR 1178.) He recommended that she postpone all elective surgical procedures for her
other impairments until she "remove[d] alcohol from her lifestyle." Id. On February 13,
2016, Nicholas Ferrentino, M.D., a gastroenterologist, provided a medical source
statement, indicating that Ms. Leger did not have end-stage liver disease with a chronic
liver disease score of twenty-two or greater pursuant to Listing 5.00D.1.

3.

Treatment History with Amanda Grafstein, M.D.

After an initial meeting on November 24, 2015, Amanda Grafstein, M.D. became
Ms. Leger's primary care physician. She identified Ms. Leger's impairments as cirrhosis
of the liver, ascites, PTSD, arthritis, depression, and ADHD. On December 23, 2015, Dr.
Grafstein conducted a physical examination, finding that Ms. Leger had a decreased
range of motion bilaterally in the hips and abnormalities in the groin area and prescribed
her a cane "as she states she uses a cane to walk secondary to pain and her cane is too

3

"Asterixis" is defined as "[i]nvoluntary jerking movements, especially in the hands" and is
synonymous with a "flapping tremor[.]" Stedmans Medical Dictionary (28th ed. 2006),
available at Westlaw STEDMANS 80400.
5

short [and she] cannot afford a new one[.]" (AR 1333.) During a February 17, 2016
appointment, Ms. Leger admitted that she was "still drinking one glass of wine most
weekends" and that she "uses alcohol as a means of relaxation" despite knowing "that she
needs to abstain." (AR 1351.) She stated that she regularly attended Alcoholics
Anonymous meetings with a relative. Describing her mental health treatment with Dr.
Elizabeth Pierson and Louise George, LCSW, Ms. Leger stated it was "going well" and
that she believed she was "on a good medication regimen." (AR 1352.)
Regarding her physical impairments, Ms. Leger described "significant bilateral
wrist pain." (AR 13 51.) She also reported bilateral hip pain, but stated that she did not
want to pursue physical therapy because she had "too much on her plate[]" at the time.
(AR 1352.) Dr. Grafstein's physical examination of Ms. Leger revealed no jaundice and
normal muscle tone. A mental examination demonstrated that Ms. Leger had normal
mood, affect, thought content, and behavior, although she presented as nervous and
anxious.
In completing two forms exempting Ms. Leger from training or work requirements
to receive Vermont General Assistance benefits, Dr. Grafstein checked a box indicating
that Ms. Leger was unable to work at her usual occupation and could not "work in any
other type of employment[.]" (AR 1137, 1200.) She did not provide an explanation as to
why she reached these conclusions.

4.

Ms. Leger's Testing for CTS.

In 2012 and 2016, Ms. Leger underwent electromyography testing ("EMG") to
evaluate the severity of her CTS. The 2012 EMG demonstrated that she had "moderate
to severe right and moderate to severe left [CTS]." (AR 1151.) A second EMG in April
2016 was still abnormal, but showed improvement, with mild to moderate right and mild
left CTS. In 2016, both a Tinel's sign and Durkin's sign were positive bilaterally for
CTS.

5.

Mental Health Treatment History.

On November 24, 2015, Ms. Leger met with Elizabeth Pierson, M.D., a
psychiatrist at UVM-MC, on referral from Dr. Williams. Dr. Pierson treated Ms. Leger
6

for anxiety, PTSD, ADHD, panic disorder, and depression. She also noted Ms. Leger's
"alcohol use disorder[,]" describing it as "severe" and "sustained" but currently in
remission due to continued sobriety. (AR 1308.)
During the initial appointment, Dr. Pierson found that Ms. Leger's "[t]hought
processes are coherent and goal directed," although "she has some difficulty with dates
and focus[.]" (AR 1284.) Dr. Pierson observed that Ms. Leger's "memory, concentration
and attention [are] grossly intact." Id.; see also AR 1307, 1365 (noting Ms. Leger's
memory was "grossly intact"). Dr. Pierson described Ms. Leger as "cooperative" with
"good eye contact" though "intermittently tearful[,]" and, notwithstanding her congruent
affect, Ms. Leger's mood was "dysphoric" and anxious. (AR 1284.) She reported
constant restlessness related to her ADHD, such that she tried "to watch movies for
distraction, but has a difficult time attending [to them]." (AR 1286.) Dr. Pierson
prescribed Adderall for ADHD, Lorazepam for panic symptoms, Prazosin for PTSDrelated nightmares, and Effexor XR and Lamictal for depression.
After starting Adderall, Ms. Leger reported that she felt calmer, "less
fidgety, ... less anxious[,]" and capable of finishing a movie without having to review it
several times to understand it. (AR 1319.) When she began experiencing fewer benefits
from Adderall, Dr. Pierson increased the dosage, resulting in a "very good response" in
treating Ms. Leger's ADHD symptoms. (AR 1323.) Dr. Pierson also noted that the
Prazosin reduced Ms. Leger's PTSD-induced nightmares. Nevertheless, Ms. Leger's
panic symptoms persisted "daily" and worsened if she needed to leave her home.
(AR 1305.) During Ms. Leger's April 11, 2016 appointment, Dr. Pierson observed that
Ms. Leger had "started to feel more depressed[]" in the two weeks prior to the
appointment. (AR 1363.)
On July 12, 2016, Dr. Pierson completed a medical source statement. She opined
that Ms. Leger suffered from depression, anxiety, and affective disorder as well as
recurrent severe panic attacks and recurrent intrusive recollections of traumatic
experience. Dr. Pierson opined that Ms. Leger had "marked" difficulties maintaining
social functioning and concentration, persistence, or pace, as well as "extreme"
7

restrictions in her activities of daily living. (AR 1370.) She reported that Ms. Leger
experienced four or more episodes of decompensation. In finding that Ms. Leger had
difficulty responding appropriately to criticism from supervisors and experienced
conflicts with coworkers, Dr. Pierson explained that Ms. Leger would respond with
"avoidance, [increased] panic, [and] agoraphobia." (AR 1371.) She expected Ms. Leger
would have incidents responding inappropriately to coworkers and supervisors five times
a week, "perhaps daily[.]" Id. Workplace quality control standards, production quotas,
and deadlines would increase her anxiety.
Dr. Pierson opined that Ms. Leger would have "perhaps daily" absences from
work due to her impairments. (AR 1372.) "[She] believe[d] [Ms. Leger] is fully
impaired/disabled outside of her home environment, attending appointments, [and] basic
[activities of daily living]." (AR 1373.)

B.

State Agency Consultants' Assessments.
1.

Physical Health Assessments.

At the request of Vermont Disability Determination Services, Alan D. Lilly, M.D.
examined Ms. Leger and provided a physical evaluation on January 26, 2016. In
evaluating Ms. Leger's extremities, he found the following:
In the upper extremities, which appear normal with good circulation, there
is a brace to the right wrist. She states that she does have some pain and
sensory changes in the thumb, index, and long finger of the right hand, but
she is able to use the hand quite normally. As to the hands, ... she states
that she does have some mild arthritis. As stated, both hands move well
with no evidence of a carpal tunnel problem in the left wrist at this time.
The lower extremities reveal some soreness generally in her legs, knees,
and thighs but again full range of motion. No real swelling. The lower
extremities are equal and symmetrical without deformity, [and with] good
circulation.
(AR 1182.) Dr. Lilly noted that Ms. Leger could make a fist with both hands, extend her
fingers, and oppose her thumbs.
Assessing Ms. Leger's other limitations, he reported:
She moves reasonably well. She is able to stand with difficulty using her
cane. She is able to walk slowly and carefully, but she is able to walk and
8

has good balance without tremor. The cranial nerves are intact. Motor
wise, there may be some generalized muscle weakness due to her condition
necessitating the use of a cane, but she is able to stand and move about
without evidence of atrophy or tremor. Sensation is only abnormal in the
distribution of the median nerve to the right hand, [involving] some minor
sensory changes. Deep tendon reflexes are reduced at the biceps. Patella
and Achilles absent bilaterally.... Motor examination in upper extremities
- She moves well with good strength in the upper extremities. Lower
extremities -There may be some mild weakness in her lower extremities
due to some back and hip pain, but once she is able to stand and use her
cane she is able to move reasonably well.
(AR 1182-83.)
Other than mildly diminished sensation in her right hand, sensation was normal
throughout Ms. Leger's body. Despite finding Ms. Leger had "some generalized muscle
weakness" (AR 1183), Dr. Lilly observed that she was "able to stand with difficulty
utilizing her cane[]" and could walk "slowly and carefully[.]" (AR 1182.) While she
could flex and extend, her range of motion was restricted "to about 50% due to some low
back weakness" and pain. (AR 1183.)
On February 12, 2016, Geoffrey Knisely, M.D. assessed Ms. Leger's physical
RFC on reconsideration of Plaintiffs DIB claim. He determined that Ms. Leger could
occasionally lift twenty pounds and frequently lift ten pounds. He concluded that, over
the course of an eight-hour workday, she could sit or stand for approximately six hours
and that she had no manipulative or postural limitations.

2.

Mental Health Assessments.

On March 19, 2013, State agency consultant Benjamin Skolnik, Psy.D. assessed
Ms. Leger's mental health. He found her "friendly, engaged, and cooperative throughout
the interview and [that] there was nothing notably unusual about her posture, gait, or
motor behavior." (AR 359.) After reviewing Ms. Leger's mental health history, he
concluded that Ms. Leger had an adjustment disorder with anxiety and depressed mood,
PTSD, and a generalized anxiety disorder. Dr. Skolnik administered the Mini-Mental
State Exam ("MMSE") in which Ms. Leger received a score of twenty-nine out of thirty.
Based on this result, Dr. Skolnik stated that there was no indication that Ms. Leger had
9

"any significant difficulties with attention, concentration, immediate, or short term
memory." (AR 362.) However, in light of the physical abuse and trauma she had
experienced, Dr. Skolnik opined:
[Ms. Leger] has been through an unspeakably horrific series of events
beginning in childhood and extending into the present day .... Given [the
multitude of abusive and traumatic relationships and a life threatening
medical condition], she appears to manifest a significant amount of
resilience which has enabled her for most of her life to carry on
employment without significant impairment. At the present time her
physical limitations as well as the extreme stress of her recent relational and
medical traumas have made it difficult for her to continue to function in the
way that she used to. I think her resilience has a limit and that she appears
to have come close to reaching hers.
(AR 362-63.)
On July 22, 2015, State agency psychologist John Hale, Ed. D. interviewed Ms.
Leger to conduct a mental health assessment. Dr. Hale noted that Ms. Leger "reports
liking people and is extroverted and tends to seek people out but more in the past. There
are times now [when] she typically tends to isolate [herself]. She has always been
comfortable socially and has never felt awkward and has felt as if she has fit in."
(AR 853.) He further found her to be "engaging and sociable but often intense" and
observed that she "was focused and displayed positive concentration" during the
examination. (AR 855.) In providing his medical source statement, Dr. Hale opined that:
Notwithstanding her physical limitations and extreme vulnerability
physically, she seems to have the ability to follow work-related rules and
authority. She also again, notwithstanding the chronicity of her liver
damage, likely could be dependable and reliable. Her coping skills at this
time appear to be somewhat limited. She is overwhelmed affectively and is
experiencing ongoing flashbacks and reliving of memories related to her
trauma history. She likely would have difficulties interacting in a
comfortable and effective manner with others in a work environment.
Again, due to what seemed to be valid physical problems she likely would
have problems with concentration, adaptability, and being able to persist at
a reasonable rate in a work environment. Certainly, [this] examiner needs
to defer to a physician to further assess her physical condition and
prognosis.
(AR 856.)
10

On November 30, 2015, Pamela Nash, Psy.D. interviewed Ms. Leger and
completed a consultative psychological diagnostic report at the request of Vermont
Disability Determination Services. She concluded that diagnoses of PTSD, depressive
disorder, panic disorder, and generalized anxiety disorder for Ms. Leger were indicated.
During the mental status examination, Dr. Nash noticed that Ms. Leger "appeared to be in
visible pain as evidenced by [her] needing to shift her position several times and
grimacing as she did this[]" and that she "kept rubbing her wrists and elbows as if they
were causing her discomfort without realizing she was doing it." (AR 1097.) Dr. Nash
further observed that:
[Ms. Leger] was tearful on and off throughout the evaluation and at two
points began to exhibit panic symptoms. Her breathing increased and we
had to take a few minutes to help her calm down. She was visibly
trembling as well. She did appear to have some trouble concentrating and
appeared to be exhausted after each detailed question she was asked.
Id.

Despite these concerns, Dr. Nash found Ms. Leger cooperative and fully oriented
throughout the examination and assigned her a score of thirty out of thirty on the MMSE,
indicating no deficits in concentration, memory, and attention.
On July 27, 2015, Leigh Haskell, Ph.D. completed a mental RFC assessment. Dr.
Haskell found Ms. Leger mildly restricted in activities of daily living, but that she had
"[m]arked" difficulties in maintaining social functioning, concentration, persistence, or
pace. (AR 99.) She additionally opined that the medical evidence in the record
supported a finding that Ms. Leger's depressive and anxiety disorders met Listing 12.06.
On August 11, 2015, Joseph Patalano, Ph.D. provided a mental RFC assessment,
finding that Ms. Leger had "[m]ild" restrictions in activities of daily living and
difficulties maintaining social functioning. (AR 121.) He also found her
"[m]oderate[ly]" restricted in maintaining concentration, persistence, or pace. Id. In
explaining these limitations, Dr. Patalano determined that Ms. Leger may have episodic
limitations in persistence and pace from an occasional health and environmental
standpoint, but she could nonetheless retain the capacity to sustain concentration,

11

persistence, or pace for two-hour periods over an eight-hour day. He further stated that
she was capable of getting along with others and could follow simple instructions.
On December 14, 2015, Howard Goldberg, Ph.D. completed a mental RFC
assessment and opined that Ms. Leger had "[m]oderate" difficulties in maintaining social
functioning and in maintaining concentration, persistence, or pace and "[m]ild"
restrictions in activities of daily living. (AR 159.) He concluded that she would be
"[l]imited for complex tasks and high production norm tasks[]" and"[ e]pisodic
exacerbations in psychiatric symptoms [would] temporarily undermine [her] cognitive
efficiency[,]" but that she could sustain concentration, persistence, or pace for two-hour
periods for "simple 1-3 step tasks in [a] low production norm setting, with social and
adaptive limitations." (AR 162.) He further opined that Ms. Leger would be "restricted
from intense and/or frequent social interaction with the public, co-workers, and
supervisors." Id.

C.

Ms. Leger's Function Reports.

In 2015, Ms. Leger completed three Function Reports describing how her physical
and mental condition impacted her activities of daily living. In all three Function
Reports, she stated that constant pain affects her ability to perform personal care tasks
and described her difficulties with getting dressed, taking a shower, and using stairs. In
the May 24, 2015 Report, she stated that she can prepare simple meals, however, both the
October 15, 2015 and December 8, 2015 Reports stated that her son cooked meals for
her. In the May 2015 Report, Ms. Leger stated that she could drive, whereas in the latter
two Reports she indicated that driving was no longer possible. In terms of her capacity to
perform house and yard work, Ms. Leger stated that while she can clean and wash dishes,
she "[could not] do much else[.]" (AR 320.) When describing her limitations walking,
she related that she could walk to the mailbox and back to her house, a distance of
approximately 110 feet, before needing to stop and rest. She reported that she was
capable of buying groceries while using her cane, but needed "help carrying heavy
bags[.]" (AR 286.) In completing the October 15, 2015 Function Report, Ms. Leger
related that her "hands always get cramped and stuck[,]" that she "always drop[ s] things,"
12

and that "writing this [Function Report] is cramping [her] fingers [and] forearm."
(AR310.)
Regarding her ability to work with supervisors and coworkers, Ms. Leger stated
that she "never had a proble[m]" (AR 324) and got along "fine" with authority figures
(AR 316), maintaining that she never lost a job because of disputes with supervisors or
co-workers. However, when asked if she had any problems getting along with others, she
responded that "[ s]ometimes[] [she] get[ s] frustrated eas[ily ]" and, in such situations, she
"just stay[s] to [her]self." (AR 315.) While she described herself as capable of following
written instructions if she did not get distracted, she also admitted to having "a hard time
remembering" spoken instructions. (AR 288.) Ms. Leger further stated that she cannot
"handle stress at all" in that she "shut[ s] down[] with anxiety[] [and] depression[.]"
(AR 316.) When experiencing stress, she related that she "goes into a panic attack[,]
hide[s] in her room[,] [and] cries[.]" (AR 324.)

D.

Ms. Leger's Testimony at the July 26, 2016 Hearing Before ALJ
Menard.

At the July 26, 2016 hearing before ALJ Menard, Ms. Leger testified that she
stopped working in 2014 due to her CTS, which prevented her from completing
necessary tasks for working at a restaurant, including picking up bowls and putting pans
into an oven. She stated that she can no longer "pour a gallon of milk one-handed or
carry stuff in from the car," such as groceries. (AR 59.) She also cannot take out the
trash or walk her dog. When ALJ Menard asked about her second EMG in 2016, which
showed improvement in her CTS, Ms. Leger stated that she did not understand the result
because she felt "two times worse than" when the previous EMG was performed in 2012.
(AR 60.) She further explained that her physicians delayed surgery for her CTS because
they "wanted to make sure that [her] liver was good enough to be able to handle a
surgery." (AR 61.)
Regarding her liver condition, Ms. Leger reported that she was recently
hospitalized due to low potassium levels. Although doctors gave her three months to live
over a year ago, she described her condition as "stable[,]" stating that it was "not getting
13

worse but [it is] not getting that much better, either." (AR 62.) Ms. Leger averred that
she had stopped drinking alcohol.
Ms. Leger explained that arthritis in her hips, which began bothering her in 2015,
did not derive from a specific injury, but rather her hips "just started aching" around that
time. (AR 63 .) She added that she treated the pain caused by her hips with over-thecounter ibuprofen. After she was prescribed a cane, she used it at all times inside and
outside of her home. At the time of the hearing, Ms. Leger had not yet discussed with a
rheumatologist whether hip surgery would be appropriate.
In describing her mental health, including her PTSD, depression, anxiety, OCD,
and ADHD, Ms. Leger testified that the medications prescribed by Dr. Pierson were
"definitely helping[]" her symptoms (AR 68) and noted that, although she had been
suffering from PTSD since she was approximately fourteen years old, witnessing the
suicide of her ex-fiance in 2007 exacerbated her symptoms. Regarding her other mental
health conditions, she agreed with ALJ Menard that she had been experiencing these
conditions for "quite a while" before her alleged onset date in 2014. (AR 67.)
With regard to her physical RFC, Ms. Leger stated that she had difficulty standing
for more than five minutes at a time due to her hips. She described her fear of walking
"because [her] hip goes out[,]" causing a "piercing" or "stabbing" pain. (AR 69.) When
using stairs, she stated that she could only climb three to four stairs while using the
railing and her cane before stopping. She further stated that sitting for more than ten
minutes was uncomfortable. In terms of lifting or carrying, Ms. Leger related that she
could no longer carry groceries due to her hips and CTS. As of March 2015, she was
unable to drive a car due to the pain in her hips, neck, and hands, testifying that she
"literally pick[ ed] up [her] leg to get in and out of the car[]" which "makes it really hard
for [her] to drive." (AR 47.)
Regarding her mental RFC, she admitted difficulties with concentration, stating
that she encountered challenges in watching a movie or reading a book. While she
testified that she was capable of attending church, taking care of her personal needs, and
playing on her computer, Ms. Leger stated that her son took care of the household chores.
14

III.

ALJ Menard's August 17, 2016 Decision.

In order to receive disability benefits under the SSA, a claimant must be disabled
on or before the claimant's date last insured. A five-step, sequential-evaluation process
determines 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
"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.F.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).
On August 17, 2016, ALJ Menard denied Ms. Leger's application for benefits,
finding she was not disabled. In so ruling, he determined that she had not engaged in
substantial gainful activity since November 30, 2014. At Step Two, he found the
following severe medically determinable impairments: "chronic liver disease, hepatitis,
osteoarthritis of the hips, major depressive disorder, anxiety disorder/posttraumatic stress
disorder, panic disorder, and an alcohol use disorder in current remission[.]" (AR 19.)
Notwithstanding the medical evidence in the record which established that Ms.
Leger also "suffer[ed] from gastroesophageal reflux disease ('GERD'), endometriosis,
carpel tunnel syndrome in her hands and symptoms of obsessive-compulsive disorder and
attention deficit disorder/ADHD," ALJ Menard found these impairments were non-severe

15

because "there is no substantial medical evidence in the record establishing the claimant
has significant work-related limitations" arising from them. (AR 20) (emphasis omitted).
At Step Three, he concluded that none of Ms. Leger's severe impairments, either
independently or collectively, met or exceeded the severity of one of the Listings.
At Step Four, ALJ Menard determined that Ms. Leger had the RFC to "perform
light work as defined in 20 CFR [§§] 404.1567(b) and 416.967(b) except that she is
limited to performing simple routine tasks. She can have frequent interaction with
supervisors, but only occasional interaction with coworkers and the general public."
(AR 24.) He found that "[t]he medical evidence of record does not support the claimant's
allegations [that] she would be incapable of performing a light range of exertion level
work." (AR 25.)
At Step Five, ALJ Menard concluded that while Ms. Leger is unable to perform
any past relevant work, she could perform a significant number of jobs in the national
economy such as "marker[,]" "mail clerk[,]" and "laundry sorter[.]" (AR 33.) For these
reasons, ALJ Menard found Ms. Leger was not disabled from November 30, 2014 to
August 17, 2016, the date of his decision.

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)
(internal quotation marks omitted) (quoting Kohler v. Astrue, 546 F .3d 260, 265 (2d Cir.
2008)). "Substantial evidence is 'more than a mere scintilla' and 'means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion."'

Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d Cir. 2015) (quoting Richardson v. Perales,
402 U.S. 389,401 (1971)). "If evidence is susceptible to more than one rational
interpretation, the Commissioner's conclusion must be upheld." McIntyre, 758 F.3d
at 149. "It is the function of the Secretary, not [the reviewing courts], to resolve
16

evidentiary conflicts and to appraise the credibility of witnesses, including the claimant."

Aponte v. Sec'y, Dep't ofHealth & Human Servs. of US., 728 F.2d 588,591 (2d Cir.
1984) (internal quotation marks omitted) (alteration in original).

B.

Whether ALJ Menard Violated the Treating Physician Rule.

Plaintiff argues that the ALJ erred in assigning "little weight" to the opinions of
Ms. Leger's treating psychiatrist, Dr. Pierson, and her primary care physician, Dr.
Grafstein. (AR 31, 32.) "[T]he SSA 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).
Treating source means [the claimant's] own acceptable medical source who
provides [the claimant], or has provided [the claimant], with medical
treatment or evaluation and who has, or has had, an ongoing treatment
relationship with [the claimant]. Generally, we will consider that [the
claimant has] an ongoing treatment relationship with an acceptable medical
source when the medical evidence establishes that [the claimant] see[s], or
[has] seen, the source with a frequency consistent with accepted medical
practice for the type of treatment and/or evaluation required for [the
claimant's] medical condition(s).
20 C.F.R. § 404.1527(a)(2). Treating physicians "are likely ... most able to provide a
detailed, longitudinal picture of [a claimant's] medical impairment(s)" and they "may
bring a unique perspective to the medical evidence that cannot be obtained from the
objective medical findings alone or from reports of individual examinations, such as
consultative examinations or brief hospitalizations." 20 C.F.R. § 404.1527(c)(2).
"[T]he opinion of a claimant's treating physician as to the nature and severity of
the impairment is given 'controlling weight' so long as it 'is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in [the] record."' Burgess, 537 F.3d at 128 (alteration in
original) (quoting 20 C.F.R. § 404.1527(c)(2)). If an ALJ does not accord a treating
physician's opinion "controlling weight," he or she is required to give "good reasons" for
the lesser weight assigned. 20 C.F.R. § 404.1527(c)(2); Burgess, 537 F.3d at 129. "The
requirement of reason-giving exists, in part, to let claimants understand the disposition of

17

their cases, even-and perhaps especially-when those dispositions are unfavorable."

Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999). "[F]ailure to provide good reasons for
not crediting the opinion of a claimant's treating physician is a ground for remand."

Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (internal quotation marks omitted).
If a medical opinion from a treating physician is given less than controlling
weight, the ALJ must consider: ( 1) the length of the treatment relationship and the
frequency of examination; (2) the nature and extent of the treatment relationship; (3) the
"relevant evidence" provided in support of the opinion, "particularly medical signs and
laboratory findings"; (4) the consistency of the opinion with the record as a whole;
(5) whether the treating physician is giving an opinion "about medical issues related to
his or her area of specialty"; and (6) any other relevant factors which tend to support or
contradict the opinion. 20 C.F.R. § 404.1527(c)(l)-(6) (explaining that "[u]nless we give
a treating source's medical opinion controlling weight ... , we consider all of the
following factors in deciding the weight we give to any medical opinion").
1.

Whether ALJ Menard Properly Assigned "Little Weight" to Dr.
Pierson's Opinions.

Plaintiff argues that ALJ Menard violated the treating physician rule in assigning
Dr. Pierson's opinions less than controlling weight, reasoning that the ALJ selectively
cited to Ms. Leger's Function Reports and the findings of consultative examiners in
evaluating Dr. Pierson's opinions. An ALJ may consider the relevant evidence provided
in support of the physician's opinion as well as the consistency of that opinion with the
physician's own treatment notes and other evidence in the record. See 20 C.F.R. §
404.1527(c)(3)-(4). In her medical source statement, Dr. Pierson opined that Ms. Leger
had marked difficulties in maintaining social functioning and concentration, persistence,
or pace and extreme restrictions in activities of daily living due to her mental
impairments. She also indicated Ms. Leger could not "focus and concentrate on job tasks
for 2[-]hour periods of time during an 8-hour workday[.]" (AR 1371.) Although Dr.
Pierson is a treating source with a specialty in psychiatry, ALJ Menard found her
opinions on Ms. Leger's mental RFC inconsistent with other evidence in the record. For
18

example, he found Dr. Pierson's conclusion that Ms. Leger would have difficulty
responding appropriately to criticism from supervisors and to conflicts with coworkers
inconsistent with Ms. Leger's own assessment that she had "never had a proble[m]" and
got along "fine" with authority figures and that she had never lost a job because of
problems getting along with others. (AR 324, 316.) There is no error in the ALJ's
determinations with regard to this aspect of Dr. Pierson's opinions.
However, in assigning "little weight" to Dr. Pierson's opinion that Ms. Leger had
marked restrictions in social functioning and in maintaining concentration, persistence, or
pace, ALJ Menard did not fully address the challenges Ms. Leger would face in a
competitive work environment and the ample evidence that she would have them. SSR
85-15 recognizes that:
Individuals with mental disorders often adopt a highly restricted and/or
inflexible lifestyle within which they appear to function well. ... The
reaction to the demands of work (stress) is highly individualized, and
mental illness is characterized by adverse responses to seemingly trivial
circumstances. The mentally impaired may cease to function effectively
when facing such demands as getting to work regularly, having their
performance supervised, and remaining in the workplace for a full day.
SSR 85-15, 1985 WL 56857, at *6 (Jan. 1, 1985).
In addition to Dr. Pierson, Drs. Hale, Nash, Patalano, and Goldberg all noted Ms.
Leger would experience significant difficulties in a competitive work environment with
Dr. Haskell finding Ms. Leger's medical conditions met Listing 12.06 for depressive and
anxiety disorders. An ALJ's "failure to explain why no stress limitation were included in
the RFC was an error that requires remand." Ross v. Astrue, 2013 WL 935786, at *7
(N.D.N.Y. Feb. 11, 2013), report and recommendation adopted, 2013 WL 935771
(N.D.N.Y. Mar. 11, 2013); see also Stadler v. Barnhart, 464 F. Supp. 2d 183, 188-89
(W.D.N.Y. 2006) ("Because stress is 'highly individualized,' mentally impaired
individuals 'may have difficulty meeting the requirements of even so-called 'low-stress
jobs,' and the Commissioner must therefore make specific findings about the nature of a
claimant's stress, the circumstances that trigger it, and how those factors affect his ability
to work.") (quoting SSR 85-15). Because the ALJ did not provide "good reasons" for
19

failing to assign controlling weight Dr. Pierson's opinion that Ms. Leger had marked
restrictions in social functioning and in maintaining concentration, persistence, or pace,
remand is required. Selian, 708 F.3d at 419; see also Schaal v. Apfel, 134 F.3d 496, 505
(2d Cir. 1998) (remanding "to allow the ALJ to reweigh the evidence" and "develop[] the
record as may be needed" because the ALJ "failed to provide plaintiff with 'good
reasons' for the lack of weight attributed to her treating physician's opinion"). 4
In contrast, ALJ Menard properly found that Dr. Pierson's conclusion that Ms.
Leger's activities of daily living were extremely restricted by her mental impairments
was inconsistent with substantial evidence in the record. In her Function Reports, Ms.
Leger acknowledged she could perform personal care tasks, shop, pay bills, or handle her
own finances. She attributed difficulties in other activities of daily living to her physical
conditions. Drs. Patalano and Goldberg both found that Ms. Leger had only mild mental
health limitations affecting her activities of daily living. There was no error in ALJ
Menard reaching a similar conclusion.
Finally, ALJ Menard erred in failing to accord controlling weight to Dr. Pierson's
opinion regarding Ms. Leger's absenteeism. Despite Dr. Pierson's finding that Ms. Leger
experienced four or more episodes of decompensation, each of extended duration, and her
conclusion that Ms. Leger would be absent from work "perhaps daily" due to her mental
health (AR 1372), ALJ Menard's RFC determination did not reflect any limitations
arising from absences from work. In support of ALJ Menard's conclusion, Dr. Patalano
found that Plaintiff suffered no episodes of decompensation, but there is no explanation
as to why ALJ Menard credited the opinion of a non-examining State agency consultant
over the opinion of Plaintiff's treating physician. See Hidalgo v. Bowen, 822 F.2d 294,
297 (2d Cir. 1987) ("A corollary to the treating physician rule is that the opinion of a

4

Plaintiff contends that ALJ Menard further erred by failing to address the conclusions of nonexamining, State agency consultant Dr. Haskell, whose opinions were consistent with Dr.
Pierson's opinion that Ms. Leger was markedly restricted in maintaining social functioning and
concentration, persistence, or pace. Because remand is required in this case, the ALJ should
consider Dr. Haskell's opinions in evaluating Dr. Pierson's opinions and in determining Ms.
Leger's RFC.

20

non-examining doctor by itself cannot constitute the contrary substantial evidence
required to override the treating physician's diagnosis."). Any error was not harmless
because there was substantial evidence in the record to support Dr. Pierson's opinion.
Dr. Goldberg found Ms. Leger would experience "[e]pisodic exacerbations in psychiatric
symptoms" which would "temporarily undermine [her] cognitive efficiency[,]" (AR 162),
and Dr. Skolnik opined that "her resilience has a limit and that [Ms. Leger] appears to
have come close to reaching hers." (AR 363.) Moreover, in light of her physical end-oflife prognosis, Ms. Leger could reasonably be expected to have excessive absenteeism
related to medical appointments and hospitalizations.
By not addressing her expected absentee rate, ALJ Menard did not provide "good
reasons" as to why Dr. Pierson's opinion regarding Ms. Leger's "perhaps daily" absences
should not be given controlling weight. On remand, the ALJ must consider the impact of
absenteeism on Ms. Leger's RFC. See Kelly v. Astrue, 2011 WL 817507, at* 10
(N.D.N.Y. Jan. 18, 2011), report and recommendation adopted, Kelly v. Comm 'r ofSoc.

Sec., 2011 WL 807398 (N.D.N.Y. Mar. 2, 2011) (concluding that the ALJ erred by
making "no attempt to reconcile this conflict[] [by] explain[ing] why the treating
physician's assessment was not entitled to controlling weight, and/or to justify his
decision to credit the conclusion of a non-examining review consultant[]" in assessing the
plaintiffs RFC).
The court therefore REMANDS the case for an ALJ to explain why Dr. Pierson's
opinions regarding workplace stress and absences should not be afforded controlling
weight consistent with the treating physician rule. See Burgess, 537 F.3d at 129 ("Failure
to provide such 'good reasons' for not crediting the opinion of a claimant's treating
physician is a ground for remand.") (internal quotation marks omitted). 5

5

Plaintiff also argues that ALJ Menard improperly found that Ms. Leger could frequently
interact with supervisors but only occasionally interact with coworkers and the general public
and erred by not asking the VE if the jobs he identified were considered "low production work."
(Doc. 10-1 at 20) (internal quotation marks omitted). Because the ALJ's assessment of
Plaintiffs mental RFC requires a remand, the court need not reach these issues. See Greek v.
21

2.

Whether ALJ Menard Properly Assigned "Little Weight" to Dr.
Grafstein's Opinions.

Plaintiff asserts that ALJ Menard failed to properly weigh the opinions of Dr.
Grafstein, Ms. Leger's primary care physician, who completed two questionnaires
relating to Ms. Leger's requests to be exempted from training or work requirements as a
condition to her receipt of Vermont General Assistance benefits. Plaintiff maintains that
the "only reason" the ALJ provided in affording Dr. Grafstein's opinion "little weight" is
that her prognosis in the two reports regarding the amount of time Plaintiff had to live
was inconsistent. (Doc. 10-1 at 21.)
In response to the questionnaires, Dr. Grafstein checked a box indicating that Ms.
Leger was unable to work at her usual occupation and could not "work in any other type
of employment[.]" (AR 1137, 1200.) By assigning "little weight" to these opinions, ALJ
Menard did not err in noting that "determinations of disability" are reserved to the
Commissioner, and conclusions as to whether a claimant can perform her past work, or
other types of employment, are better reserved for the VE. (AR 32.) He also properly
stated that because disability determinations from state agencies are "based on [their]
own rules, [such decisions] are not binding on [the ALJ][.]" 20 C.F.R. §§ 404.1504,
416.904. Although medical opinions rendered for state agency disability determinations
are "entitled to some weight and should be considered[,]" Hankerson v. Harris, 636 F.2d
893, 897 (2d Cir.1980) (internal quotation marks omitted), checklist findings without
explanation "are of limited evidentiary value." Slattery v. Colvin, 111 F. Supp. 3d 360,
373 (W.D.N.Y. June 29, 2015). Here, Dr. Grafstein did not support her conclusions with
an explanation as to how she reached them. Thus, ALJ Menard provided "good reasons"
for assigning Dr. Grafstein's opinions "little weight."

C.

Whether ALJ Menard Erred in Determining Ms. Leger's RFC.

In evaluating Ms. Leger's RFC, ALJ Menard concluded she could perform light
work, "except she is limited to performing simple routine tasks." (AR 24.) Because ALJ

Colvin, 802 F.3d 370, 372 n.1 (2d Cir. 2015) (declining to reach additional issues where the ALJ
erred in giving little weight to a treating physician, requiring remand).
22

Menard violated the treating physician rule in weighing the opinions of her treating
psychiatrist, Dr. Pierson, his RFC determination must be remanded. See Mortise v.
Astrue, 713 F. Supp. 2d 111, 127 (N.D.N.Y. 2010) (finding the ALJ's RFC analysis
"necessarily flawed" because the court found the ALJ erred in applying the treating
physician rule). 6 In doing so, the ALJ should address any limitations due to Ms. Leger's
need to use a cane. 7

D.

Whether Errors in Determining Ms. Leger's RFC are Harmless.

The Commissioner argues that Ms. Leger elected not to pursue physical therapy
for her hip pain because she had "too much on her plate" (AR 1352), and that the failure
6

While Plaintiff contends that ALJ Menard erred by not including limitations arising from her
CTS in her RFC, substantial evidence supports the ALJ' s determination in this respect, as Ms.
Leger's most recent, April 2016 EMG, revealed moderate right and mild left CTS, and Dr.
Lilly's 2016 examination demonstrated that she could move both hands well, use her right hand
"quite normally[,]" and that there was "no evidence" of CTS in her left wrist. (AR 1182.) Dr.
Lilly further found that she could make a fist bilaterally, extend her fingers, oppose her thumbs,
and that she had mildly diminished sensation in her right hand and normal sensation elsewhere.
After reviewing the evidence in the record, Dr. Knisely did not assess any manipulative
limitations to Ms. Leger's physical RFC. Accordingly, ALJ Menard did not err by not including
limitations arising from Ms. Leger's CTS in his RFC determination.
7

As Plaintiff points out, SSR 96-9p provides that:
To find that a hand-held assistive device is medically required, there must be
medical documentation establishing the need for a hand-held assistive device to
aid in walking or standing, and describing the circumstances for which it is
needed (i.e., whether all the time, periodically, or only in certain situations;
distance and terrain; and any other relevant information).

SSR 96-9p, 1996 WL 374185, at *7 (July 2, 1996). SSR 96-9p "does not mandate that the handheld assistive device be prescribed to be considered medically necessary[.]" Hoke v. Colvin,
2015 WL 3901807, at *14 (N.D.N.Y. June 25, 2015). In determining whether the use of a cane
is medically necessary, the ALJ "must always consider the particular facts of a case." Clyburn v.
Berryhill, 2017 WL 6014452, at *3 (W.D.N.Y. Dec. 5, 2017) (internal quotation marks omitted)
(citing SSR 96-9p, 1996 WL 3 74185, at *7). The plaintiff carries the "burden to establish
medical necessity for the use of an assistive device[.]" Gordon v. Colvin, 2015 WL 4041729, at
*3 (N.D.N.Y. July 1, 2015). Plaintiff has satisfied this burden by proffering evidence that a cane
was prescribed to Ms. Leger, she used it, and through Dr. Lilly's finding that "[m]otor wise,
there may be some generalized muscle weakness due to her condition necessitating the use of a
cane[.]" AR 1182-83; see also Clyburn, 2017 WL 6014452, at *3 (finding that the opinion of a
physician that the plaintiffs cane was "necessary" "satisfies the requirements of S.S.R. 96-9p
because it (1) establishes that a cane is necessary to aid in walking or standing and (2) indicates
that the cane is needed to minimize pain.").
23

to follow "prescribed treatment without a good reason[]" precludes a finding of disability
under the regulations. 20 C.F.R. §§ 404.1530(b), 416.930(b). "[N]on-compliance with
prescribed medical treatment can be a basis for denial of benefits if the claimant is
disabled solely because he or she fails to follow prescribed treatment." Smith v. Astrue,
2011 WL 6739509, at *4 (N.D.N.Y. Nov. 4, 2011) (emphasis supplied), report and
recommendation adopted, 2011 WL 6739596 (N.D.N.Y. Dec. 22, 2011). This rule,
however, applies only if:
[T]he Commissioner has first determined that the claimant is disabled and
only when the Commissioner finds that the claimant's disability would be
remediated but for the claimant's unjustified non-compliance with
treatment. In other words, a claimant may only be denied disability
benefits if the Secretary finds that she unjustifiably failed to follow
prescribed treatment and that if she had followed the treatment, she would
not be disabled under the Act.

Id. (internal quotation marks omitted).
In noting Ms. Leger's refusal to engage in physical therapy, ALJ Menard did not
first find Ms. Leger disabled. Rather, he only noted Ms. Leger's failure to engage in
physical therapy to "suggest[] [her] condition is not of disabling severity[,]" contrary to
Ms. Leger's reported symptoms. (AR 27.) Although Ms. Leger's failure to follow her
physicians' recommendations is relevant to her RFC, this fact did not render the ALJ' s
errors in determining Ms. Leger's RFC harmless. See McIntyre, 758 F.3d at 148 (noting
that courts "apply harmless error analysis" to challenges of an ALJ's decision). 8

8

Courts of Appeals have applied two distinct tests when determining whether an ALJ's error is
harmless in an SSA case. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (stating the
"general principle that an ALJ's error is harmless where it is 'inconsequential to the ultimate
nondisability determination."') (quoting Carmickle v. Comm 'r, Soc. Sec. Admin., 533 F.3d 1155,
1162-63 (9th Cir. 2008)); see also Carmickle, 533 F.3d at 1168 (Graber, J., dissenting) (noting
that "[a]n ALJ's error is harmless if, in light of the record-supported reasons supporting the
adverse credibility finding, we can conclude that the ALJ's error did not 'affect[] the ALJ's
conclusion."') (quoting Batson v. Comm 'r ofSoc. Sec., 359 F.3d 1190, 1197 (9th Cir. 2004)).
"The Second Circuit has not squarely addressed which, if any, of these harmless error tests it
would apply in the context[.]" Cheeseman v. Berryhill, 2018 WL 1033226, at *12 (D. Vt. Feb.
23, 2018). In this case, regardless of the standard for harmless error, it is not satisfied here.
24

E.

Whether the ALJ Should Consider Ms. Leger's Death Certificate on
Remand.

Plaintiff argues that the court should remand the case so that the Commissioner
can consider Ms. Leger's death certificate, which issued less than a month after ALJ
Menard's August 17, 2016 decision and listed Ms. Leger's cause of death as respiratory
failure over a two-day period due to liver failure, cirrhosis, and alcoholism. The
Commissioner responds that the death certificate does not meet the requirements for new
evidence supporting a remand.
The court "may at any time order additional evidence to be taken before the
Commissioner of Social Security, but only upon a showing that there is new evidence
which is material and that there is good cause for the failure to incorporate such evidence
into the record in a prior proceeding[.]" 42 U.S.C. § 405(g). In applying this regulation,
the Second Circuit has developed a three-part test, allowing supplementation of the
record when evidence is:
(1) new and not merely cumulative of what is already in the record[] ...
and ... is (2) material, that is, both relevant to the [plaintiff's] condition
during the time period for which benefits were denied and probative[.] ...
Finally, [the plaintiff] must show (3) good cause for her failure to present
the evidence earlier.

Jones v. Sullivan, 949 F .2d 57, 60 (2d Cir. 1991) (internal quotation marks and citations
omitted).
On remand, the ALJ should consider Ms. Leger's death certificate in the context
of the alleged severity of her liver condition, the consistency of her reported symptoms,
and the likelihood of absenteeism from work. The parties do not dispute that Ms. Leger's
death certificate is new evidence and not merely cumulative of the evidence already in
the record. In terms of materiality, Plaintiff contends that the causes of Ms. Leger's death
demonstrate that her liver failure was "much more severe than was indicated in some of
the medical reports and in the ALJ's decision[]" (Doc. 10-1 at 23) as she passed away
less than a month after ALJ Menard's determination that she was not disabled. Material
evidence is both relevant to and probative of the plaintiff's condition during the time
period for which benefits were denied and "requires ... a reasonable possibility that the
25

new evidence would have influenced the Secretary to decide [the] claimant's application
differently." Lisa v. Secy ofDep't of Health & Human Servs. of US., 940 F.2d 40, 43
(2d Cir. 1991). That standard is met here.
The Commissioner is correct that the death certificate, by itself, does not show that
the liver failure, cirrhosis, and alcoholism were disabling at the time of ALJ Menard's
decision. See Harris ex rel. Harris v. Colvin, 2016 WL 5340662, at *7 (E.D. Cal. Sept.
23, 2016) (denying the plaintiffs motion for a remand to consider the claimant's death
certificate because "the new evidence still does not show that [the claimant] suffered any
functional limitations from the onset date until the date of the ALJ's decision[.]"). The
death certificate, however, supports a conclusion that Ms. Leger's liver condition was not
improving, contrary to ALJ Menard's finding and that ALJ Menard erroneously
discounted the prognosis that Ms. Leger was unlikely to survive the year. 9 See Pollard v.

Halter, 377 F.3d 183, 193-94 (2d Cir. 2004) ("Although the new evidence consists of
documents generated after the ALJ rendered his decision, ... the evidence directly
supports many of [the plaintiffs] earlier contentions regarding [her son's]
condition[] ... and strongly suggests that, during the relevant time period, [the] condition
was far more serious than previously thought[.]"). Ms. Leger's death certificate is thus
material to several findings critical to ALJ Menard's ultimate determination that she was
not disabled.
Finally, Plaintiff must demonstrate "good cause" for her failure to present the
evidence earlier. '"Good cause' for failing to present evidence in a prior proceeding
exists where ... the evidence surfaces after the [Commissioner's] final decision and the
claimant could not have obtained the evidence during the pendency of that proceeding."

Lisa, 940 F.2d at 44. The Commissioner argues that Ms. Leger died on September 11,
2016 and her counsel wrote to the Appeals Council on September 20, 2016 requesting
review of the ALJ' s decision without mentioning her death. On October 19, 2016, the

9

ALJ Menard noted that her liver disease "did not result in her death. Indeed, once she quit
abusing alcohol and engaged in consistent medical treatment, the evidence reflects her symptoms
improved." (AR 25.)

26

Appeals Council granted Plaintiffs request for extension of time, advising him that he
could submit new evidence, and did not issue its decision until December 1, 2016. In
response, Plaintiffs counsel represents that he did not become aware of Ms. Leger's
death until after December 1, 2016. Despite counsel's failure to communicate with his
clients, the court finds that "good cause" warrants consideration of Ms. Leger's death
certificate on remand.

F.

Whether Ms. Leger's Alcoholism was a Material Contributing Factor
to her Disability.

The Commissioner argues that, even assuming that Ms. Leger's liver condition
was a disabling impairment, she would not be entitled to benefits because the death
certificate does not make clear whether her alcoholism was a contributing factor material
to her disability. See 42 U.S.C. §§ 423(d)(2)(C), 1382c(a)(3)(J) ("An individual shall not
be considered to be disabled ... if alcoholism or drug addiction would ... be a
contributing factor material to the Commissioner's determination that the individual is
disabled."). If the Commissioner finds that a plaintiff is disabled and has "medical
evidence of [a plaintiffs] drug addiction or alcoholism, [the Commissioner] must
determine whether [her] drug addiction or alcoholism is a contributing factor material to
the determination of disability." 20 C.F.R. §§ 404.1535(a), 416.935.
Although the record demonstrates that Ms. Leger continued to drink contrary to
medical advice, ALJ Menard did not find that she was disabled. He therefore did not
address the issue of whether her alcoholism was a material contributing factor to her
claim for disability. The court cannot make this determination in the first instance and
remands the issue to the ALJ for his or her determination. See Quinones ex rel. Quinones

v. Chafer, 117 F.3d 29, 36 (2d Cir. 1997) ("As the ALJ did not address this evidence, we
think it best to remand the case so that he can consider in the first instance what weight to
accord it.").

27

CONCLUSION
For the foregoing reasons, the court GRANTS Plaintiffs motion to reverse
(Doc. 10), DENIES the Commissioner's motion to affirm (Doc. 11 ), and REMANDS the
case for proceedings consistent with this Opinion and Order.

tfi-

SO ORDERED.

Dated at Burlington, in the District of Vermont, this ;:J'1 day of March, 2018.

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1stma e1ss, 1stnct u
~ dge
United States District Court

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