Katon v. Commissioner of Social Security
Filing
16
OPINION AND ORDER granting 9 Plaintiff's Motion for an Order Reversing the Commissioner's Decision and Denying 15 the Commissioner's Motion to Affirm. ALJ Merrill's decision is VACATED and the matter is REMANDED to the Commissioner for a new hearing before a different ALJ to determine whether Plaintiff is illiterate, to re-evaluate Dr. Sher's treating physician opinion, and to re-consider Plaintiff's RFC. Signed by Judge Christina Reiss on 8/10/2018. (pac)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
MARIEK.,
Plaintiff,
V.
NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,
Defendant.
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U.S. Ors~·RICT COU RT
DISTRI CT Of VER MONT
FI LED
2618 A GIO PH I: I0
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DEPUTY CLERK
gy _ _ ______
Case No. 2:17-cv-00071
OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR AN ORDER
REVERSING THE COMMISSIONER'S DECISION AND DENYING THE
COMMISSIONER'S MOTION TO AFFIRM
(Docs. 9 & 15)
Plaintiff Marie K. is a claimant for Social Security Disability Insurance ("SSDI")
benefits under the Social Security Act. She brings this action pursuant to 42 U.S.C.
§ 405(g) and moves to reverse the decision of the Social Security Commissioner (the
"Commissioner") that she is not disabled. 1 The Commissioner moves to affirm. The
court took the pending motions under advisement on February 10, 2018.
After her SSDI application was initially denied by the Social Security
Administration ("SSA"), Administrative Law Judge ("ALJ") Thomas Merrill found
Plaintiff ineligible for benefits based on his conclusion that she can perform her prior
work as a housekeeper and was therefore not disabled at any time after her alleged onset
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).
date of June 1, 2012. ALJ Merrill also concluded that Plaintiff is capable of performing
other jobs which exist in significant numbers within the national economy, and therefore
concluded that she was not disabled within the meaning of the Social Security Act on this
basis as well.
Plaintiff identifies three errors in the disability determination: ( 1) the ALJ erred in
concluding that Plaintiff is not illiterate; (2) the ALJ erred by discounting the opinion of
Plaintiff's treating physician without good reasons; and (3) the ALJ erred in determining
that her mental health impairments were not severe under the Social Security Act.
Plaintiff is represented by D. Lance Tillinghast, Esq. The Commissioner is
represented by Special Assistant United States Attorneys Jeremy A. Linden and Kristina
D. Cohn.
I.
Procedural History.
Plaintiff filed an application for SSDI benefits with the SSA on August 1, 2013 .
Her application was initially denied on September 18, 2013 and again on reconsideration
on December 18, 2013. Plaintiff timely requested a hearing before an ALJ on January 2,
2014.
On June 24, 2015, ALJ Merrill presided over Plaintiff's hearing from Manchester,
New Hampshire. Plaintiff testified at the hearing from Saint Johnsbury, Vermont, where
she appeared together with her attorney. Vocational Expert ("VE") Lynn Paulson also
testified. On September 14, 2015, ALJ Merrill issued a written decision finding Plaintiff
ineligible for benefits.
Thereafter, Plaintiff filed a request for review with the SSA' s Office of Disability
Adjudication and Review Appeals Council ("Appeals Council"), which denied her
request on February 24, 2017. ALJ Merrill' s September 14, 2015 determination therefore
stands as the Commissioner's final decision.
II.
Factual Background.
Plaintiff was born in 1964 and resides in Woodbury, Vermont. She completed
twelfth grade but asserts that she was enrolled in special education classes throughout her
primary schooling, has a learning disability, and has difficulty with reading and writing.
2
She previously worked as a licensed nurse's assistant ("LNA") and a housekeeper, but
has not had gainful employment since June 1, 2012.
A.
Medical History.
Plaintiff alleges a disability onset date of June 1, 2012. Prior to that date, on
October 23, 2009, she was involved in a motor vehicle accident during which she was
rear-ended. She was transported by ambulance to Copley Hospital, where she
complained of back and neck pain. Physical examination revealed diffuse tenderness in
both her back and neck, but reflected otherwise normal sensation, motor function, and
mental status. X-rays of her cervical and lumbar spines were normal with no evidence of
fracture. The attending radiologist observed "subtle narrowing of the L4-5 and L5-S 1
disc interspace. There is a grade I LS on S 1 spondylolisthesis ... which appears to be
chronic." (AR at 349.) An emergency room physician described Plaintiffs symptoms as
a "vague neck ache[,]" (AR at 34 7), and his clinical impression was that Plaintiff suffered
from a neck and lower back strain. Upon discharge, Plaintiff was prescribed Vicodin for
her pain.
Following her October 2009 motor vehicle accident, Plaintiff attended thirty-four
physical therapy appointments at Copley Hospital Rehabilitation Services between
November 3, 2009 and June 22, 2010. At her initial physical therapy evaluation, Plaintiff
explained that her vehicle was hit by a Green Mountain Power truck at approximately
fifty miles per hour and that she was taken to the hospital. She reported that her neck
pain had improved in the week and a half following the accident, but that she was still
experiencing lower back pain. She indicated that this pain was exacerbated by walking
or standing for long periods, in addition to bending, and that her pain was an eight out of
ten at its worst. She rated her neck pain as a five to six out of ten. She stated that she
experienced difficulty sleeping and was "unable to get comfortable[.]" (AR at 628.)
Physical examination revealed that Plaintiffs posterior cervical spine was tender
to palpation, as was her bilateral lumbar paraspinal region. Her cervical spine range of
motion was thirty-five degrees of flexion and five degrees of extension, with forty-five
degrees of rotation bilaterally. Her lumbar spine had forty degrees of flexion, ten degrees
3
of extension, and forty degrees of rotation bilaterally. Plaintiffs physical therapist noted
that her "evaluation was limited by [Plaintiffs] pain level" but observed that Plaintiff
possessed decreased range of motion and muscle tenderness and exhibited guarding and
altered posture. (AR at 630.) Plaintiff was scheduled for biweekly appointments focused
on manual therapy and the development of a home exercise program.
On July 29, 2010, Plaintiff saw Mary Flimlin, M.D. at the Spine Institute of New
England for a consulting examination following her course of physical therapy. She
reported to Dr. Flimlin that she continued to experience pain at the base of her neck
which occasionally radiated into her right arm. Plaintiff also indicated that she continued
to suffer from pain "in the middle of her back" which "sometimes radiat[ ed] up towards
[the] thoracic area. It is a level [nine], made worse by walking and pulling, better with
ice and cold." (AR at 360.) Dr. Flimlin reviewed an MRI of Plaintiffs cervical spine
taken at Copley Hospital which revealed "bilateral neural foraminal narrowing, C5-C6
secondary to uncovertebral and facet joint arthropathy." Id. She also noted "an ovalshaped focused Tl-2 in the right STRIP muscles above the vallecular, suggestive of
thyroglossal duct cyst." Id. Physical examination demonstrated Plaintiffs normal gait
and ability to heel and toe walk over short distances. She had negative results for straight
leg raises and Spurling' s sign, and maintained grossly intact strength and sensory
function through her upper and lower extremities. "With gentle palpation, [Plaintiff had]
tenderness across the back of the cervical spine and splenius capitis[.]" (AR at 361.)
Dr. Flimlin obtained x-rays of Plaintiffs lumbar spine which revealed "grade 1
anterolisthesis ofL5 onto Sl " which was "stable inflexion/extension." Id. There were
also "bilateral pars defects" and "findings consistent with some mild degenerative disk at
the L3-4 level." Id. Dr. Flimlin noted that Plaintiffs clinical examination was
"significant for obtunded reflexes increased tone in the gluteal and hamstrings and
centralized pain made worse with flexion and extension." Id. Despite obtaining imaging,
Dr. Flimlin was "unable to determine if this is an acute spondylitic spondylolisthesis."
Id. She recommended an additional MRI of Plaintiffs lumbar spine, continued physical
4
therapy, and prescribed gabapentin. Dr. Flimlin restricted Plaintiffs lifting to up to 10
pounds.
On August 16, 2010, Plaintiff underwent an MRI at Fletcher Allen Health Care
which revealed multilevel degenerative osteoarthritis. The attending radiologist noted
facet joint hypertrophic osteophytes and multilevel degenerative disc disease with loss of
disc space height and abnormal disc signal. The MRI also confirmed Plaintiffs bilateral
pars defects at L5-S 1, in addition to a concentric disc bulge at L3-L4 with mild spinal
canal stenosis and bilateral neuroforaminal narrowing. At the L4-L5 level, the radiologist
noted an "abnormal hyperintense T2 signal" which was "consistent with an annular tear."
(AR at 376.) The radiologist' s impression was that Plaintiff suffered from multi-level
degenerative disc disease with no focal disc herniation but concentric disc bulges at L2L3 , L3-L4, L4-L5 , and L5-Sl, in addition to mild facet osteoarthropathy and mild spinal
canal stenosis at the L3-L4 and L4-L5 levels. Plaintiff met with Dr. Flimlin on
September 17, 2010 to discuss the results of her MRI. Dr. Flimlin recommended an
epidural steroid injection, however, Plaintiff indicated that she was "experiencing funding
issues and [was] unable to pursue this plan." (AR at 364.) Dr. Flimlin noted that
Plaintiff had not filled her prescription for gabapentin, but agreed that she would continue
with physical therapy and follow up with Dr. Flimlin as necessary.
Plaintiff returned to Dr. Flimlin on July 6, 2011 with "worsening leg pain." (AR
at 366.) She reported that the pain was most severe at night, radiating from her "low
back to the buttocks, into the side of the thigh and calf." Id. Dr. Flimlin observed that
Plaintiff "look[ ed] uncomfortable[,]" but could easily transition from sitting to standing
and possessed a normal gait. Id. Physical examination revealed a positive left straight
leg raising test with grossly intact strength. Dr. Flimlin noted Plaintiffs prior imaging
results and her earlier diagnosis of bilateral pars defects and grade one anterolisthesis at
L5-S 1, and opined that "there is nerve root traction at this level." Id. She counseled
Plaintiff on possible treatment options, including medication, injections, physical therapy,
acupuncture, chiropractic, and hydrotherapy. Dr. Flimlin also suggested a possible TENS
unit trial in combination with axial decompression and lumbar stabilization.
5
Plaintiff returned to Dr. Flimlin on March 15, 2012, and reported continued pain
exacerbated by medial branch block procedures performed in January 2012. Dr. Flimlin
noted that an epidural steroid injection provided Plaintiff with twenty-five percent relief
for approximately two to three weeks. Dr. Flimlin noted that Plaintiff had not attended
physical therapy in the past six months and was not exercising on a regular basis.
Physical examination revealed that Plaintiff could transition easily from sitting to
standing and possessed a "relatively normal" gait. (AR at 368.) Lumber flexion and
extension caused Plaintiff pain, as did lateral bending and rotation. She possessed
grossly intact strength with the exception of her left hip flexor, as well as grossly intact
sensory function. A SPECT/CT scan confirmed Plaintiffs prior diagnoses and indicated
"increased uptake in the pars on the right at LS. There [was] also significant facet
arthropathy L3-4 with increased uptake." Id. Dr. Flimlin suggested additional epidural
steroid injections which Plaintiff declined.
In January 2013, Plaintiff began another course of physical therapy at Copley
Hospital. At her intake assessment on January 7, 2013, Plaintiffs gait, reflexes, balance,
and coordination were observed as normal. Her lumbar spine, however, was
"hypersensitive" to palpation and her range of motion was decreased. (AR at 322.)
Plaintiffs physical therapist noted that she had "limited ability to perform A[ ctivities of
]D[aily ]L[iving], difficulty sleeping, and endurance." Id. The therapist concluded that
Plaintiff would benefit from electrical stimulation, trial of a TENS unit, manual therapy,
and therapeutic home exercises. Following her intake assessment, Plaintiff attended ten
physical therapy sessions prior to her discharge on April 16, 2013.
On March 15, 2013, Plaintiff saw Dr. Flimlin for an annual follow-up
appointment. At this visit, Plaintiff reported that her pain was now exclusively in her
back and rated it an eight out of ten. She had been attending physical therapy prior to her
appointment, and indicated that she found it helpful. Plaintiff again declined additional
epidural steroid injections and instead elected to continue with physical therapy and
stretching. Dr. Flimlin prescribed a trial dose of Meloxicam.
6
On October 30, 2013, Plaintiff began mental health counseling at Hardwick Health
Center ("HHC") with Kate M. Culver, a licensed clinical social worker. At this initial
appointment, Plaintiff reported that she could not "stop crying" and that she desired to
"get where I'm not crying all the time." (AR at 487.) She stated that she did not
"understand why [she felt] this way." Id. Ms. Culver observed Plaintiff's depressed
mood and tearful affect, but noted that Plaintiff had no problems with thinking or
cognition. Plaintiff's recent experience of multiple deaths of individuals close to her and
the loss of her prior work as a care provider were cited as possible sources of her
depression. Ms. Culver diagnosed Plaintiff with a depressive disorder not otherwise
specified in the Diagnostic and Statistical Manual and assessed her prognosis as fair.
Plaintiff saw Ms. Culver again on January 8, 2014. At this visit, Ms. Culver
recorded that Plaintiff "present[ed] with moderate to severe depressive symptoms." (AR
at 519.) Plaintiff reported that she did not "do much[,]" that she did not "really leave the
house[,]" and that she experienced isolation, as well as diminished energy and
motivation. Id. Ms. Culver observed Plaintiff's depressed mood, blunted affect, and
depressed thought processes. She indicated, however, that Plaintiff had no "[ c]ognition
problems[.]" Id. Plaintiff expressed a desire to "connect" with vocational rehabilitation
services, in part due to anxiety stemming from learning challenges including difficulty
reading and writing.
On January 16, 2014, following Plaintiff's appointment with Ms. Culver, she saw
her primary care physician at HHC, Peter Sher, M.D. for additional care related to her
depression, back pain, and diabetes. Dr. Sher began his subjective assessment with the
observation that Plaintiff was "more depressed than [he] had thought," (AR at 517), an
observation based on Ms. Culver's note reflecting that Plaintiff almost never left her
home. Dr. Sher observed that "anxiety, sadness, [and] back pain" were contributing
factors to Plaintiff's inability to leave her home, noting that physical therapy did not
"really help" her back problems. Id. Dr. Sher's progress note reflected Plaintiff's history
of hypertrophic cardiomyopathy, endometrial adenocarcinoma, grade I spondylolisthesis,
and illiteracy. Physical examination revealed mild diffuse tenderness over Plaintiff's
7
back. Dr. Sher expressed a desire to "start her on Cymbalta" but he was "fairly certain
her insurance [would not] pay for it." (AR at 518.) He therefore prescribed sertraline to
treat her depression which in turn would positively impact her pain and her history of
poorly controlled diabetes. He indicated that Plaintiff's plans to pursue vocational
rehabilitation were a positive development. He increased Plaintiff' s insulin dosage and
refilled her prescription.
On June 10, 2014, Plaintiff saw Dr. Sher who recorded symptoms of dyspnea on
exertion and generalized fatigue, blood glucose levels in excess of normal limits, and
back pain which occasionally radiated into her lower legs. The results of a physical
examination were normal. With regard to Plaintiff's elevated blood sugar levels, Dr.
Sher opined that he thought she was "not cognitively capable to self[-]titrate [her insulin
medication.] " (AR at 553.) He noted that there were "[r]ecords documenting [her
illiteracy] dating to high school [but] they are no longer available." Id. He "encouraged
her to see a counselor who could help objectively confirm this for disability, as well as to
see [physical therapy] for functional evaluation." Id. He further opined that "given
[Plaintiff's] multiple medical problems, pain, and cognitive limitations, she is unable to
work." Id.
On July 10, 2014, Juliann R. Ambroz, M.Ed., a licensed clinical mental health
counselor, authored a letter wherein she reported that Plaintiff began mental health
treatment with her on June 17, 2014 and attended appointments on a weekly basis. Ms.
Ambroz recorded that Plaintiff cited depression and anxiety as reasons for obtaining
treatment and explained that her back and leg pain prohibited her from doing her prior
work as a LNA. Ms. Ambroz also noted that Plaintiff "indicated that she has a learning
disability of unknown type and the she is unable to read or write. This fact also affects
her search for employment." (AR at 560.) Plaintiff related to Ms. Ambroz that she "used
to enjoy work and seem[ed] eager for Voc[ational] Rehab[ilitation] to find her
meaningful employment." Id. ,Ms. Ambroz opined that "[i]f vocational Rehabilitation
can find appropriate work for [Plaintiff] , this could be quite useful for her." Id.
8
On August 13, 2014, Dr. Sher treated Plaintiff for her diabetes and back pain. His
progress notes from this appointment acknowledged that Plaintiff was "seeking
disability" at the time of her visit, and had reported that "they do not believe that she is
illiterate." (AR at 567.) He asserted in the note, however, that Plaintiff "has been
illiterate for her whole life and has been coming here for a long time. She was in special
education classes, and I do not think she can learn to read." Id. 2 Dr. Sher further
recorded Plaintiffs history of back pain and diabetes. On August 13, 2014, he completed
a rehabilitation medical request form which diagnosed Plaintiff with "back pain" and
"illiteracy[.]" (AR at 562.) Dr. Sher indicated that he was not qualified to assess
Plaintiffs functional limitations with regards to her ability to work, but opined that she
could not perform physical labor or read and was unlikely to be able to do so.
On August 16, 2014, Vermont Rehabilitation Services ("YRS") certified that
Plaintiffs "disabilit[ies] result[] in a substantial impediment to employment[.]" (AR at
601.) On October 10, 2014, she attended an appointment with a YRS counselor who
"read [a document] aloud to [Plaintiff] and asked ifthere was someone at home that
could help her with filling it out." (AR at 602.) She also inquired if someone could assist
Plaintiff in completing a resume outline, "due to her [learning disability] in reading and
writing." Id.
On October 14, 2014, Plaintiff visited the Fletcher Allen Health Care Center for
Pain Medicine. Kristie Oliver, P.A. -C evaluated Plaintiff under the supervision of a
medical doctor, and noted that Plaintiff had last visited the Center for Pain Medicine in
January 2012 when she received a medial branch block. Plaintiff complained of pain
radiating down her leg and thigh as well as across her lower back, and reported that she
had not found any treatment that improved her symptoms. She further reported that
climbing stairs exacerbated her pain. Physical examination revealed a mildly antalgic
gait but no difficulty rising from a seated position. Plaintiff could walk without an
2
A letter from the registrar at Lamoille Union High School states that Plaintiff was enrolled
there in a program called "Community Based[,]" but no records or transcripts of her education
are available. See AR at 289.
9
assistive device. Because Plaintiff was "a poor historian and [was] unable to provide an
accurate medication list[,]" Ms. Oliver "discussed a variety of medication
recommendations" in addition to possible conservative measures that might address
Plaintiffs symptoms. (AR at 586.) Ms. Oliver also recommended that Plaintiff resume
physical therapy and consider a Flector patch.
On December 29, 2014, Plaintiff visited Dr. Sher for management of her diabetes,
which remained poorly controlled, as well as for her chronic pain. He noted that
Plaintiffs mood was improved and that Flexeril had eased her leg pain, but she had a
positive straight leg raising test on her left side at ninety degrees. A physical examination
was otherwise normal. Dr. Sher indicated that Plaintiff was interested in resuming
physical therapy. He increased Plaintiffs insulin dose, "cautiously" increased her
Flexeril dose, and referred her to physical therapy.
On January 6, 2015 , Ms. Ambroz provided an "updated treatment summary" of
Plaintiffs counseling for the period between July 11 , 2014 and the date of her letter.
During that time period, Plaintiff attended fourteen therapy sessions, after which Ms.
Ambroz diagnosed her with "Trauma and Stressor Related Disorder[.]" (AR at 624.)
She identified a number of traumatic events underlying Plaintiffs symptoms. Ms.
Ambroz noted that Plaintiff was unable to read or write and that she reported "a learning
disability of ' unknown type. '" Id. Ms. Ambroz further noted that Plaintiff had not
returned to YRS since her October 2014 counseling session and suggested that Plaintiff
schedule an appointment for additional assistance. By January 30, 2015, Plaintiff
"reported a stable mood and relative satisfaction with her personal relationship[s]. She
felt that she had met the treatment goals that had brought her to therapy (grief,
depression[,] and anxiety)." (AR at 703.) Consequently, Ms. Ambroz discharged
Plaintiff from her care.
Beginning in January 2015, Plaintiff resumed physical therapy at Copley
Hospital ' s Rehabilitation Services. At the time of her initial assessment, Plaintiff
reported that her pain was seven out of ten, and that standing or walking for more than
five minutes at a time increased her symptoms to ten out of ten. The physical therapist
10
noted that Plaintiff could independently perform her AD Ls and care for her disabled
grandson. A physical examination revealed deficits in Plaintiffs gait and posture, limited
range of motion in her back, and a positive straight leg raising test on her left side.
Plaintiffs back was tender to palpation across her left piriformis, posterior thigh, and the
spinous processes at Ll through L5. The physical therapist concluded that Plaintiff had a
"[g]ood" prognosis and established a plan including therapeutic exercises, neuromuscular
reeducation, manual therapy, gait training, and aquatic therapy if appropriate. (AR at
658.) At a reevaluation on February 13 , 2015 , following six treatment sessions, Plaintiff
reported additional symptoms, including pain in her neck, left shoulder, and left arm. Her
physical therapist concluded that these symptoms were the result of a "left upper
trapezius muscle strain from poor posture[,]" but maintained that Plaintiffs prognosis
remained "[g]ood." (AR at 680.)
On February 19, 2015, a counselor at YRS performed a Kaufman Brief
Intelligence Test ("K-BIT II") which revealed Plaintiffs verbal score of 63 and
nonverbal score of 40, both of which were categorized as being in the "lower extreme."
(AR at 298.) Plaintiffs composite IQ was 50, which also fell "in the lower extreme
range." Id. Throughout the administration of the test, Plaintiff reported that "she had no
idea what the words meant, so [] she was just going to guess, nor could she understand
the patterns of pictures in the nonverbal portion[.]" Id.
On March 12, 2015 , Plaintiff returned to Dr. Flimlin, who noted that she had not
seen Plaintiff since 2013. Dr. Flimlin documented that Plaintiffs physical therapy and
use of TENS unit was "helpful in controlling her left leg pain." (AR at 677 .) On
physical examination, Plaintiff could easily transition from sitting to standing and could
heel and toe walk, but she exhibited mild forward flexion at the waist while walking. Her
forward flexion was somewhat limited, as was her lumbar extension. Plaintiff had
negative straight leg raising tests, a normal sensory examination, and no limitation in her
ability to bend or rotate laterally. Dr. Flimlin' s assessment was that Plaintiff "was doing
rather well[,]" and noted that stretching and physical therapy were useful. Id.
11
Subsequently, on March 23, 2015, Dr. Sher referred Plaintiff for an additional
MRI. Joseph S. Pekala, M.D. recorded early degenerative facet disease in Plaintiffs
cervical spine, and identified "a broad disc osteophyte complex effacing the CSF space
and degenerative fact disease with ligamentum flavum hypertrophy causing moderate
spinal canal narrowing" at C4-C5. (AR at 691.) He also noted "severe left neural
foraminal narrowing and mild/moderate right neural foraminal narrowing" at this
location. Id. Dr. Pekala recorded similar findings at the C5-C6 level, and observed
"early degenerative facet disease and mild bilateral neural foraminal narrowing" at the
C6-C7 level. Id. Dr. Pekala's overall impression was that of multilevel cervical spine
degenerative disc and facet disease.
Four days later, on March 27, 2015, Dr. Sher observed that Plaintiff continued to
suffer from back and neck pain which was unresolved through her current medication and
physical therapy regime. He prescribed Vicodin and had a nurse "read her the pain
contract because she is illiterate." (AR at 699.) Dr. Sher noted that Plaintiffs diabetes
remained poorly controlled, primarily because she often forgot to take her medications.
B.
Plaintiff's Function Reports.
On or about November 6, 2013, Plaintiff submitted a Function Report in
connection with her application for SSDI benefits which was completed by her attorney.
Plaintiff indicated that, "[ d]ue to back and leg pain, I have difficulty standing, walking,
sitting, bending, kneeling, climbing stairs, lifting, etc." (AR at 246.) She reported that
she uses a ramp to enter her mobile home and has difficulty climbing the stairs. She also
reported that she cannot spell or read well and has difficulty following instructions. Prior
to her motor vehicle accident, Plaintiff could work full time and take care of her children.
Plaintiff reported that she begins her day between six and nine a.m., drinks coffee,
watches television, and then showers. She prepares her own simple meals and
occasionally performs light housework including sweeping, dishwashing, dusting, and
laundry. She typically goes to bed between ten and eleven p.m., but _ndicated that her
i
back pain occasionally makes falling asleep difficult. Plaintiff stated that she sometimes
forgets to take her medication in the morning, and her doctor has recommended placing
12
the bottles in a prominent position as a reminder. She stated that she goes outside daily,
both on foot and in a car, and that she shops for groceries while she is out.
Plaintiff affirmed that she is able to pay bills, count change, handle a savings
account, and use a checkbook. Her hobbies including watching television and reading
newspapers. She speaks with family members on the telephone and visits with her
daughters, grandchildren, and sister multiple times per week.
With regards to her functional capacities, Plaintiff asserted that her impairments
impact her ability to perform a wide range of postural activities, and that she can only lift
five to ten pounds frequently, fifteen pounds occasionally, stand for fifteen to thirty
minutes at a time, and sit for half an hour in the same position. She identified challenges
with her memory affecting her ability to complete tasks, concentrate, understand, and
follow instructions. She stated that she can pay attention for between one half and one
hour, only "sometimes" finishes what she begins, and occasionally requires assistance
reading a recipe. She indicated that she does not handle stress or changes in routine well.
C.
Consulting Assessments.
On or about September 12, 2013 , Fred Rossman, M.D. performed a consulting
physical examination in connection with Plaintiffs application for SSDI benefits. He
noted Plaintiffs history of diabetes, hypertension, and back and neck pain stemming
from the 2009 motor vehicle accident. Plaintiff reported her back pain as a typically
steady five out of ten with occasional increases to seven or eight out of ten. She further
reported that she was unable to walk more than 1,000 feet and could not sit or stand for
longer than thirty minutes. Plaintiff was able to walk in and out of the office, including
climbing and descending ten steps without an assistive device, and was able to sit during
the interview and move around the office as requested. Dr. Rossman observed that
Plaintiff was cooperative throughout his examination and was able to perform most
activities "without signs of significant distress or pain[.]" (AR at 4 79.)
Dr. Rossman recorded minimal tenderness in Plaintiffs mid-lower back, the
ability to rotate her head seventy degrees to the right and left with minimal discomfort,
normal extension in her cervical spine, normal flexion forward in her lumbar spine, and
13
diminished lateral flexion to the right and left with pain in her lower back. He assessed
Plaintiffs forward shoulder flexion and abduction to be normal and observed that she
could raise her hands above her shoulder and lower them below her waist. Plaintiff had a
positive straight leg raising test on the right leg and negative on the left leg, with normal
knee flexion and extension. Plaintiff also possessed decreased deep tendon reflexes
bilaterally in her knees. Dr. Rossman noted Plaintiffs normal, non-antalgic or ataxic
gait, ability to heel and toe walk without difficulty, and intact sensation and motor
strength throughout her upper and lower extremities.
On or about September 17, 2013 , Ellen Atkins, Ph.D. completed a consulting
psychological assessment in connection with the initial review of Plaintiffs application
for SSDI benefits.3 Dr. Atkins provided her assessment of Plaintiffs mental residual
functional capacity ("RFC") but did not complete a Psychological Review Technique
("PRT") form because she concluded that Plaintiff did not suffer from any severe mental
impairments. She reviewed Plaintiffs function report which reported difficulty with
reading and spelling and noted Dr. Sher' s observations that Plaintiff struggled with
illiteracy and was previously diagnosed with a learning disability.
Dr. Atkins noted that Plaintiff did not have any difficulty interacting with doctors,
participating in examinations, or providing consent. She further observed that Plaintiff
had no difficulty completing her ADLs and indicated on her function report that she
could concentrate for between one half and two hours. She concluded that "the objective
evidence and the function [report] do not suggest the presence of a severe mental
impairment." (AR at 71.)
On or about November 8, 2013, Elizabeth White, M.D. performed a consulting
physical assessment as part of the reconsideration of Plaintiffs application for SSDI
benefits. Dr. White evaluated the evidence in the record, making note of Plaintiffs
October 2009 x-ray, June and August 2010 MRis, September 2011 CT scan, and Dr.
Rossman' s consulting examination from September 2013. Dr. White also indicated her
3
Dr. Atkins' s review of Plaintiffs medical record occurred prior to Plaintiffs first mental health
counseling appointment, which was with Ms. Culver on October 30, 2013.
14
review of Dr. Sher's treatment notes. She concluded that Plaintiffs diabetes and high
blood pressure did not create significant limitations and were therefore not severe
impairments. With regard to Plaintiffs back and neck pain, Dr. White concluded that
"cervical and lumbar pathology, with pain, exacerbated by obesity, with exams as noted,
... limited [Plaintiff] to [l]ift/[c]arry 20 lbs/10/lbs, [w]alk/[s]tand for 6 hours and [s]it 6
hours[.]" (AR at 84.) She further concluded that Plaintiff is "capable of performing at
this level on a sustained basis for normal work days/weeks." Id. Dr. White stated
definitively that "[n]o physical condition limits [Plaintiff] further." Id.
On or about November 14, 2013, Jason H. Fechter, Ed.D., a licensed psychologist,
performed a consulting psychological examination of Plaintiff. Dr. Fechter noted that
Plaintiff had not worked for one year prior to the evaluation due to worsening back and
leg pain associated with the 2009 motor vehicle accident. Plaintiff reported "feeling sad
lately and struggling with episodes of spontaneous crying. She miss[ ed] her job and the
people she used to care for." (AR at 500.) She informed Dr. Fechter that her feelings of
sadness were new to her and of an unknown origin. She mentioned occasional difficulty
sleeping, but did not report any problems with anxiety. Plaintiff also related no difficulty
performing ADLs, including cooking, cleaning, doing laundry, paying bills, and driving.
With regard to mental status and cognitive function, Plaintiff received a score of
23 on the Mini Mental State Examination-2 (SV) ("MMSE-2") scale, which Dr. Fechter
classified as below average and indicative of cognitive impairment. He observed
Plaintiffs appropriate dress and affect, her cooperation with the interview, and her
depressed mood. Plaintiff spoke softly and possessed a shuffling gait. Dr. Fechter
recorded intact thought processes with no hallucinations or delusions, and no sign of
suicidal ideation. He also noted that Plaintiffs memory was intact and that there was no
impairment in her self-perception. Dr. Fechter's primary diagnosis was chronic
adjustment disorder with depressed mood. He listed chronic pain, unemployment, and
inadequate finances as further challenges and assigned Plaintiff a Global Assessment
15
Function ("GAF") score of 55. 4
On or about December 18, 2013, Joseph Patalano, Ph.D. conducted a consulting
psychological assessment in connection with the reconsideration of Plaintiffs SSDI
benefits application. Dr. Patalano reviewed Dr. Fechter's consulting examination report,
completed a PRT form, and provided an updated mental RFC. He concluded that
Plaintiff "appears to have chronic depression which has been intensified with medical
condition and not working. She may have some mild cognitive impairment associated
with depression. He[r] ADLs are strong." (AR at 84) (capitalization omitted). Dr.
Patalano's PRT entries reflected his assessment that Plaintiff suffered from only mild
restriction in her ADLs and ability to maintain social function, moderate difficulty
maintaining concentration, persistence, or pace, and had experienced no extended
episodes of decompensation. With respect to Plaintiffs mental RFC, he assessed that she
"may have episodic[] problems with concentration/pace due to episodic increases in
depression associated with health and environmental stressors[.] Otherwise from a
psych[ ological] perspective, [she] can sustain concentration/persistence/pace for 2 hour
periods over [an] 8 hour day through [a] typical work week." (AR at 89) (capitalization
omitted).
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) (alteration in original) (quoting Am. Psychiatric
Ass'n, Diagnostic & Statistical Manual of Mental Disorders 32 (4th ed. 2000) (hereafter "DSMIV")). GAF scores rate the overall psychological functioning of an individual on a scale of zero
to 100, see Scott v. Colvin, 2016 WL 5173252, at *6 n.6 (E.D.N.Y. Sept. 21, 2016) (citing DSMIV (text revision) at 34), and are assessed using a scale that provides ratings in ten ranges, 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 score of fifty-five indicates "[s]erious symptoms
(e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious
impairment in social, occupation, or school functioning (e.g., no friends, unable to keep a job)."
Anair v. Colvin, 2015 WL 5089316, at *9 n.9 (D. Vt. Aug. 26, 2015) (alteration in original,
internal quotation marks omitted). "[T]he utility of [a GAF score] is debatable, particularly after
its exclusion from the fifth edition of the 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) (capitalization omitted).
16
D.
Testimony at the ALJ Hearing.
At the June 24, 2015 hearing before ALJ Merrill, Plaintiff testified that she was
unsure about the status of her medical records because she does not "know how to read
and write very well. " (AR at 48.) She similarly stated that she was unsure of her alleged
onset date because she is "not good with the dates." Id. Plaintiff testified that she was
"in special ed" during high school because she "was having a hard time learning." (AR
at 49-50.) She described her present ability to read and write as significantly limited and
explained that she was able to obtain her LNA certification through memorization of the
relevant material and the assistance of another person who read the examination to her.
She also stated that she had the assistance of a tutor in preparing for the test. She
explained that she is unable to navigate the internet without assistance and that she has
trouble remembering and concentrating, and difficulty understanding "how to test [her]
sugar levels and how to take the right medications[.]" (AR at 57.)
With regards to her physical impairments, Plaintiff testified that she has back pain
every day which is occasionally severe enough to preclude her from "get[ting] out of bed
in the morning." (AR at 52.) She stated that approximately three to four months prior to
the hearing, she began taking a narcotic pain medication which was "helping [her] out."
Id. When her pain was particularly acute, she was forced to lie down for approximately
three to four hours. She explained that when shopping, she holds onto a shopping cart to
steady herself and is limited to two trips up and down the length of a mall by her leg pain.
She stated that she is limited in her ability to hold her arms above her shoulders, and can
only lift approximately ten pounds. When asked by her attorney if she could lift ten
pounds for between four and six hours per day, Plaintiff responded "probably not. No."
(AR at 56.) Likewise, Plaintiff can only sit for between one half and one hour before
needing to "get up and walk around[.]" Id. Plaintiff further testified that she cannot
stand in one place for more than ten minutes and has difficulty bending and kneeling.
She explained that she cannot drive long distances because of back pain. At the time of
the hearing, Plaintiff stated that she was approximately five feet tall and weighed 174
pounds.
17
Following Plaintiffs testimony, the VE categorized Plaintiffs work history as
most closely aligned with the definitions of the following positions within the Dictionary
of Occupational Titles ("DOT"): Nurse's Aide (DOT 355.674-014); Personal Care Aide
(DOT 354.377-014); and Housekeeper (DOT 323.687-014). The VE testified that
Plaintiffs work as a nurse's aide and a personal care aide was performed at the
"[m]edium exertional level" and her work as a housekeeper was performed at the "[l]ight
exertional level." (AR at 62.)
When presented with a hypothetical individual with a twelfth grade education,
Plaintiffs work history, the ability to lift twenty pounds occasionally and ten pounds
frequently, the ability to sit for six hours, and the ability to perform a wide range of
postural activities at least occasionally, the VE testified that such an individual could
perform Plaintiffs past work as a housekeeper. The VE further testified that such a
hypothetical individual could also perform the representative occupations of a
merchandise marker, small product assembler, or a gate attendant. The VE explained that
each of those positions exists in significant numbers within the national economy. In
response to a clarifying question from the ALJ, the VE explained that a hypothetical
individual limited to tasks involving between one and three step instructions could
perform both Plaintiffs prior work as a housekeeper and the representative occupations.
Plaintiffs attorney asked the VE whether an individual with limited ability to read
could perform the representative occupations. The VE answered that, pursuant to the
DOT definition, "these are all not jobs that require much in the way of reading ability[,]"
(AR at 64 ), and that an illiterate individual would not be able to perform the
representative occupation of price marker, but could perform the role of product
assembler. The VE also stated that an individual who could not sit, stand, or walk for a
total of six hours per day would not be able to perform any of the representative
occupations. Similarly, an individual limited to using his or her left upper arm only
occasionally could not perform the representative occupations.
18
III.
ALJ Merrill's Application of the Five-Step, Sequential Framework.
In order to receive SSDI benefits, a claimant must be disabled on or before his or
her date last insured. SSA regulations set forth the following five-step, sequential
framework 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
"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).
In this case, ALJ Merrill concluded at Step One that Plaintiff had not engaged in
substantial gainful activity since June 1, 2012, her alleged onset date. At Step Two, he
concluded that Plaintiff had the severe impairment of degenerative disc disease of the
lumbar spine. In so finding, ALJ Merrill concluded that Plaintiffs diabetes was not
severe because there was no medical opinion establishing its severity and Plaintiffs
medical records related to high blood sugar "document only compliance issues." (AR at
26.) For similar reasons, he concluded that Plaintiffs high blood pressure was not
severe.
ALJ Merrill found that Plaintiff did not have a learning disability and "is not
illiterate[.]" (AR at 27.) In support of this conclusion, ALJ Merrill first noted the lack of
19
school records establishing Plaintiffs placement in special education classes, the lack of
a medically diagnosed learning disability, and Dr. Atkins's consulting assessment which
found that Plaintiff did not have any severe mental impairments. ALJ Merrill also
observed that a Job Screening Questionnaire completed by Plaintiffs last employer found
her competent to handle even some complex cases as a nurse ' s assistant. In addition,
ALJ Merrill cited a consulting vocational assessment conducted by John May, MA CRC,
ABVE, a certified rehabilitation counselor licensed in Vermont, in connection with a civil
lawsuit arising out of the 2009 motor vehicle accident. Mr. May indicated that Plaintiff
"reported some difficulties with reading and writing, [but] she stated that she never
received a diagnosis of learning disability. She stated that she was an average student in
high school." (AR at 719.)
ALJ Merrill discounted Dr. Sher' s progress notes which reflected Plaintiffs
alleged illiteracy, in part because Dr. Sher first indicated Plaintiffs illiteracy in a May 7,
2013 treatment note, approximately three months before Plaintiffs August 1, 2013
disability application. Dr. Sher' s earlier treatment notes, however, did not reflect any
reading or writing difficulties. ALJ Merill found that "there are no barriers to learning
noted throughout the record." (AR at 26.) As a result, he concluded: "the treating source
opinion of Dr. Sher, the claimant's primary care [physician] , that the claimant is unable
to work given the claimant's multiple medical problems, pain, and cognitive limitations is
given no weight." (AR at 33.) 5
5
The ALJ ascribed a potential motive for Plaintiffs treating physician' s opinion:
The possibility always exists that a doctor may express an opinion in the effort to
assist a patient with whom he or she sympathizes for one reason or another.
Patients can be quite insistent and demanding in seeking supportive notes or
reports from their physicians, who might provide such a note in order to satisfy
their patients' requests and avoid unnecessary doctor/patient tension. While it is
difficult to confirm the presence of such motives, they are more likely in
situations where the opinion in question departs substantially from the rest of the
evidence of record, as in the current case.
(AR at 32.)
20
Finally, with regard to Plaintiffs depression, ALJ Merrill found that Plaintiffs
"medically determinable mental impairment of depression does not cause more than
minimal limitation in [her] ability to perform basic mental work activities and is therefore
non[-]severe." Id. The ALJ based this conclusion on Dr. Patalano' s mental RFC
determination which was part of the reconsideration of Plaintiffs SSDI application, in
addition to Dr. Fechter's consulting examination. As part of his analysis, the ALJ
considered Plaintiffs abilities in each functional category contained within the
"paragraph b" criteria of the SSA regulations and concluded that Plaintiffs degenerative
disc disease and associated back and neck pain were her only severe impairments.
At Step Three, the ALJ determined that Plaintiffs degenerative disc disease did
not meet or medically equal the severity of a listed impairment described at 20 C.F .R.
Part 404, Subpart P, Appendix 1. The ALJ considered the criteria for listing 1.04, which
encompasses disorders of the spine. After reviewing the results of Plaintiffs imaging
and her responses in her function report, the ALJ found that "objective clinical findings
fail to support the degree of functional limitation contemplated by the listing." (AR at
29.)
At Step Four, the ALJ determined that Plaintiff retained the RFC to perform light
work as defined in the SSA regulations, with the exception that she could lift or carry
twenty pounds occasionally and ten pounds frequently. She could stand or sit for up to
six hours in an eight hour workday, and had unlimited use of her hands and feet to
manipulate controls and grasp objects. He also found that Plaintiff was capable of
performing a range of postural activities either frequently or occasionally.
To determine Plaintiffs RFC, the ALJ evaluated her subjective complaints
regarding her symptoms in light of the objective medical evidence and a series of other
criteria delineated in 20 C.F.R. § 416.929(c). ALJ Merrill found 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." (AR at 30.) In particular, he concluded that Plaintiffs "statements concerning
21
the intensity, persistence[,] and limiting effects of [her] symptoms are not entirely
credible[.]" (ARat31.)
ALJ Merrill noted that multiple physicians observed Plaintiffs ability to sit, rise to
a standing position, dress and undress, and walk up and down steps without a cane or
other assistive device. The ALJ also observed that Dr. Rossman' s physical examination
revealed normal lumbar flexion, full range of motion in Plaintiffs shoulders, and a
normal gait. With regards to Plaintiffs MRI results, the ALJ pointed out that although
there was evidence of foraminal narrowing and nerve root crowding, "there was no
evidence of actual nerve root compression that would explain [Plaintiffs] pain." (AR at
31.) Similarly, the ALJ found that Plaintiffs positive experiences with physical therapy
suggested that treatment options existed which, if pursued, would enhance Plaintiffs
functional capacity. He also concluded that Plaintiffs ADLs undermined her claim of
severe impairment.
In contrast to his evaluation of Dr. Sher' s opinion, ALJ Merrill gave substantial
weight to the evaluations of the state agency medical consultants who performed nonexamining assessments of Plaintiffs medical records in connection with her SSDI
benefits application. In particular, he found that Dr. White ' s assessment that Plaintiff is
able to perform work at the light exertional level was supported by objective clinical
findings derived from Dr. Rossman's consulting physical examination. The ALJ further
noted Plaintiffs report to Dr. Fechter that she could lift twenty pounds.
At Step Four, ALJ Merrill determined that Plaintiff is capable of performing her
past relevant work as a housekeeper because it did "not require the performance of workrelated activities precluded by [Plaintiffs RFC]." (AR at 34.) He therefore found
Plaintiff not disabled at any time after her alleged onset date.
ALJ Merrill made alternative findings at Step Five, concluding that even if
Plaintiff is not capable of returning to her prior work as a housekeeper, the Medical
Vocational Guidelines (the "Guidelines") found at 20 C.F.R. Part 404, Subpart P,
Appendix 2 dictated a finding that Plaintiff is not disabled based on her age and RFC.
The ALJ further concluded that, even if the Guidelines did not dictate a finding that
22
Plaintiff is not disabled, she is capable of performing the representative occupations of
merchandize marker, small products assembler, and gate attendant, and thus was not
disabled on that basis as well.
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 Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998); Aponte v.
Sec 'y, Dep't of Health & Human Servs. of US., 728 F.2d 588,591 (2d Cir. 1984).
B.
Whether the ALJ Erred by Concluding that Plaintiff is not Illiterate.
Plaintiff contends that the ALJ erred by concluding that Plaintiff is not illiterate.
The court agrees. While ALJ Merrill may have properly found that Plaintiff has not
proffered sufficient evidence of her illiteracy, he erred when determined that Plaintiff "is
not illiterate" without obtaining the testing the Commissioner concedes is necessary to
establish this vocational factor. See Doc. 15 at 3 (citing 20 C.F.R. §§ 404.1564,
404.1560(b)-(c); Young v. Comm 'r ofSoc. Sec., 2012 WL 3249506, at *6 (E.D. Cal. Aug.
7, 2012) ). As Plaintiff correctly notes, there is substantial evidence in the record beyond
Dr. Sher's treatment notes which suggests that Plaintiff suffers from a cognitive
23
impairment that affects her ability to read and write. For example, Dr. Fechter performed
an MMSE-2 examination which revealed a "below average" score that "suggest[ ed]
cognitive impairment." (AR at 501.)
To the extent that Plaintiffs medical record did not include a specific diagnosis of
any particular learning disability or other cognitive impairment, the ALJ had an
obligation to develop the record. See Rosa v. Callahan, 168 F .3d 72, 79 (2d Cir. 1999)
("where there are deficiencies in the record, an ALJ is under an affirmative obligation to
develop a claimant's medical history even when the claimant is represented by counsel")
(internal quotation marks omitted). While the burden to establish an impairment rests
with Plaintiff at Step Two, Burgess, 537 F.3d at 128, in this case the absence of such a
diagnosis represented an "obvious gap" in Plaintiffs records which merited further
investigation. Rosa, 168 F.3d at 79 n.5; see also SSR 96-8P, 1996 WL 374184, at *5
(Jul. 2, 1996) (the ALJ must "make every reasonable effort to ensure that the file contains
sufficient evidence to assess RFC").
"[T]he determination of whether or not a claimant is illiterate can be the deciding
factor in determining whether or not a plaintiff is disabled." Colon v. Astrue, 20 IO WL
2925969, at *2 (W.D.N.Y. Jul. 23 , 2010); see 20 C.F.R. Part 404, Subpart P, Appendix 2
(establishing literacy as a factor under the medical-vocational guidelines for determining
disability). Had the ALJ ordered a consultative intelligence examination, any question as
to Plaintiffs cognitive ability would have been resolved. See Turner v. Comm 'r ofSoc.
Sec. , 2016 WL 3597788, at* 14 (D. Vt. Jun. 27, 2016) (remanding for further
development with respect to Plaintiffs "alleged illiteracy" where Plaintiff testified that
he could not read or write); cf Tankisi v. Comm 'r ofSoc. Sec. , 521 F. App'x 29, 32 (2d
Cir. 2013) (summary disposition) (noting that " [i]t can be reversible error for an ALJ not
to order a consultative examination when an examination is required for an informed
decision" but concluding that "the ALJ was not obligated to order a consultative
intelligence examination to supplement the record in response to a few stray remarks
unsupported by other record evidence"). The ALJ's failure to develop the record at Step
Two is not harmless because it is not "inconsequential to the ultimate nondisability
24
determination." Cheeseman v. Berryhill, 2018 WL 1033226, at* 11 (D. Vt. Feb. 23 ,
2018) (internal quotation marks omitted). In this case, the record evidence of Plaintiffs
cognitive impairment was more than "a few stray remarks" and merited further
investigation. Tankisi, 521 F. App'x at 32. The ALJ's conclusion at Step Two that
Plaintiff "is not illiterate" is not supported by substantial evidence in the record.
C.
Whether the ALJ Violated the Treating Physician Rule
Plaintiff contends that the ALJ improperly discounted the opinions of her treating
physician, Dr. Sher, both when determining her severe impairments at Step Two and
when evaluating her credibility as part of the RFC determination. " [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
25
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
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").
After reviewing the regulatory framework governing the Commissioner's
evaluation of a treating physician's opinion, the ALJ observed that "the opinion of a
treating physician that a claimant is unable to work is entitled to no deference at all (as it
is not a medical opinion)." (AR at 33) (internal quotation marks omitted). He therefore
afforded no weight to Dr. Sher's opinion that Plaintiffs physical and mental impairments
precluded her ability to work because it was "an opinion of ultimate disability reserved to
the Commissioner." Id. The ALJ further found that Dr. Sher's opinion was "based in
part on such inaccuracies as [Plaintiffs] illiteracy," id., and observed that Dr. Sher
acknowledged Plaintiffs lack of a diagnosed learning disability.
Plaintiff contends that the ALJ failed to provide "good reasons" for discounting
Dr. Sher's opinions, and further failed to consider the six factors required under the
regulations when a treating opinion is afforded less than controlling weight. See 20
C.F.R. § 404.1527(c)(2)-(6). The Commissioner responds that ALJ Merrill properly
26
discounted Dr. Sher's opinions because a disability determination is properly reserved to
the Commissioner and because Dr. Sher's other opinions were not supported by objective
clinical or laboratory data and were contradicted by other evidence in the record.
"[S]ome kinds of findings - including the ultimate finding of whether a claimant is
disabled and cannot work - are 'reserved to the Commissioner. "' Snell, 177 F .3d at 133
(quoting 20 C.F.R. § 404.1527). "That means that the [SSA] considers the data that
physicians provide but draws its own conclusions as to whether those data indicate
disability. A treating physician's statement that the claimant is disabled cannot itself be
determinative." Id. ALJ Merrill properly rejected Dr. Sher's June 10, 2014 treatment
note which reflected his belief that Plaintiff is "unable to work." (AR at 553.)
Other opinions offered by Dr. Sher are properly characterized as assessments of
Plaintiffs functional limitations such as Plaintiffs inability to perform physical labor.
Because the ALJ provided "good reasons" for discounting these opinions, there was no
error in rejecting them. For example, ALJ Merrill noted discrepancies between Dr.
Sher's assessment that Plaintiff cannot perform physical labor and substantial record
evidence demonstrating Plaintiffs ability to walk, sit, stand, and lift moderate weight.
The ALJ also observed that Dr. Sher's functional assessment was directly contradicted by
Dr. White' s assessment and Dr. Rossman ' s consulting examination.
ALJ Merrill's conclusion that Dr. Sher's opinions were entitled to no weight may
have been colored by an inaccurate view of Plaintiffs illiteracy and by ascribing an
improper motive to Dr. Sher based on pure speculation. See AR at 32-33 (discounting
Dr. Sher's opinion "in part on such inaccuracies as the claimant's illiteracy" and "in order
to satisfy [his] patient[ ' s] requests and avoid unnecessary doctor/patient tension."). 6
Because "the ALJ cannot arbitrarily substitute his own judgment" when evaluating a
treating physician's medical opinion, on remand a different ALJ should reconsider what
6
Although ALJ Merrill suggested that Dr. Sher may have harbored improper motivations while
formulating his opinions, such as facilitating the disability application for a patient with whom
he sympathized, there is no evidence to support this claim which appears to be rank speculation.
27
weight, if any, to give to Dr. Sher's opinion only after Plaintiffs illiteracy or lack thereof
is determined. Rosa, 168 F.3d at 79.
D.
Whether the ALJ Erred In Assessing Plaintiff's Depression.
Plaintiff contends that the ALJ erred at Step Two in concluding that she does not
suffer from a severe mental impairment related to her depression. In support of her
argument, Plaintiff maintains that Dr. Patalano determined that she suffers from an
affective disorder that qualifies as a severe impairment. She further contends that Dr.
Sher noted worsening psychological symptoms subsequent to Dr. Patalano' s consulting
assessment and observes that she pursued mental health treatment as a result. As the
Commissioner points out, Plaintiff was discharged from mental health care on January
30, 2015 with a "stable mood" and the feeling that "she had met the treatment goals that
had brought her to therapy[.]" (AR at 703.) Ms. Culver and Ms. Ambroz both advised
Plaintiff to seek vocational rehabilitation and opined that working might benefit her
psychological symptoms. Finally, ALJ Merrill considered Dr. Patalano's assessment that
Plaintiff "may have episodic[] problems with concentration/pace due to episodic
increases in depression associated with health and environmental stressors" when
determining the severity of Plaintiffs depression. (AR at 89) (capitalization omitted).
Although an "' ALJ cannot arbitrarily substitute his own judgment for competent
medical opinion[,]'" Rosa, 168 F.3d at 79 (quoting McBrayer v. Sec'y of Health &
Human Servs., 712 F.2d 795, 799 (2d Cir. 1983)), the court may '"set aside [an] ALJ's
decision only where it is based upon legal error or is not supported by substantial
evidence."' Id. (quoting Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998)). Reversal
is warranted only in those circumstances where the ALJ "set his own expertise against
that of a physician who [submitted an opinion to or] testified before him[.]" Balsamo, 142
F.3dat81.
ALJ Merrill considered Dr. Patalano's assessment as required by the regulations,
but found that Plaintiffs "medically determinable impairment of depression does not
cause more than minimal limitation in [her] ability to perform basic mental work
activities and is therefore non[-]severe." (AR at 27 .) Substantial record evidence
28
supports this conclusion, and contrary to Plaintiffs contentions, the ALJ's finding is not
wholly inconsistent with Dr. Patalano's determination. Dr. Patalano noted that Plaintiff
had "chronic depression" but "strong" AD Ls. (AR at 84) (capitalization omitted). There
was therefore no error in the ALJ' s determination that Plaintiff does not suffer from a
severe mental impairment related to her depression. On remand, the ALJ is nonetheless
required to include any non-severe limitations in his or her consideration of Plaintiffs
RFC. See 20 C.F.R. § 404.1545(a)(2) ("We will consider all of your medically
determinable impairments of which we are aware, including your medically determinable
impairments that are not "'severe[.]"').
CONCLUSION
For the foregoing reasons, the court GRANTS Plaintiffs motion for an Order
reversing the Commissioner's decision (Doc. 9) and DENIES the Commissioner's
motion to affirm (Doc. 15). ALJ Merrill's decision is VACATED and the matter is
REMANDED to the Commissioner for a new hearing before a different ALJ to determine
whether Plaintiff is illiterate, to re-evaluate Dr. Sher's treating physician opinion, and to
re-consider Plaintiffs RFC.
SO ORDERED.
,.,,.._
Dated at Burlington, in the District of Vermont, this
16
day of August, 2018.
c~
United States District Court
29
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