Amsden v. Commissioner of Social Security
Filing
27
OPINION AND ORDER granting 13 MOTION for Order Reversing the Decision of the Commissioner; denying 16 MOTION for Order Affirming the Decision of the Commissioner; denying as moot 24 Motion to Remand. This case is REMANDED for further proceedings. Signed by Judge William K. Sessions III on 8/8/2019. (jam)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
BONNIE A.,
Plaintiff,
v.
ANDREW SAUL,
Commissioner of the Social
Security Administration
Defendant.
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Case No. 2:17-cv-78
OPINION AND ORDER
Plaintiff Bonnie A. brings this action pursuant to 42 U.S.C.
§ 405(g) for review of the Commissioner’s determination that she
is not disabled and not entitled to disability insurance benefits
(DIB) or Supplemental Security Income (SSI).
Now before the
Court are Plaintiff’s motion for judgment reversing the decision
of the Commissioner, and the Commissioner’s motion for judgment
affirming that decision.
Plaintiff also argues in a separate
motion that remand is required because the Administrative Law
Judge (ALJ) who presided over her hearing was not a properlyappointed officer of the United States.
opposed by the government.
That second motion is
For the reasons set forth below,
Plaintiff’s initial motion to remand is granted, the
Commissioner’s motion is denied, Plaintiff’s subsequent motion to
remand is denied as moot, and this case is remanded for further
proceedings.
Background
I.
Procedural History
Ms. A. filed an application for DIB on December 20, 2011,
and an application for SSI on January 6, 2012.
Her applications
were denied initially and upon reconsideration, at which time she
requested an administrative hearing.
hearing on September 11, 2013.
and testified at the hearing.
testified.
ALJ Thomas Merrill held a
Ms. A. was represented by counsel
A vocational expert (VE) also
On October 23, 2013, the ALJ issued an opinion
concluding that Ms. A. had failed to establish disability within
the meaning of the Social Security Act, and was therefore not
entitled to either DIB or SSI.
On March 18, 2015, the Appeals Council vacated the ALJ’s
order, stating:
The hearing decision found the claimant capable of
performing her past relevant work as a companion
(Finding 6). The claimant’s past relevant work as a
companion is not consistent with the claimant’s
assessed residual functional capacity (RFC). The RFC
limited the claimant to a range of medium work and she
retained “the capacity for brief and routine
interactions with the public, supervisors, and
coworkers” (Finding 5). The claimant was assessed with
severe anxiety disorder resulting in moderate
difficulties in social functioning and moderate
difficulties in concentration, persistence or pace
(Decision, page 5). However, the job of a companion
(309.677-010) requires dealing with people as an
integral part of the job functions according [to] the
Dictionary of Occupational Titles (DOT). Accordingly,
further consideration of whether the claimant is
capable of performing her past relevant work and/or
other jobs in the national economy is warranted.
2
The Appeals Council instructed that, upon remand, the ALJ must:
(1) further consider the issues in the case and continue to step
five of the sequential evaluation process, and (2) if warranted,
obtain further testimony from a VE.
The ALJ held a second hearing on August 12, 2015.
Ms. A.
did not testify, as her attorney considered her testimony at the
2013 hearing sufficient.
Counsel also amended Ms. A.’s onset
date to August 3, 2012.
The ALJ noted that material evidence
extends to one year prior to the onset date, and therefore
considered only record evidence between August 3, 2011 and Ms.
A.’s last insured date of September 30, 2014.
A VE testified at
the August 2015 hearing.
On September 16, 2015, the ALJ issued a written opinion
again concluding that Ms. A. could perform her past relevant
work.
While his 2013 opinion classified her past relevant work
as “companion,” the 2015 decision classified that work as “home
attendant.”
The ALJ also changed his assessment of Ms. A.’s
social functioning difficulties from “moderate” to “mild.”
Ms.
A. again requested review by the Appeals Council, and the Appeals
Council denied her request.
She subsequently filed the instant
action.
II.
Medical History
In March 2012, Ms. A. underwent a consultative examination
with psychologist Dr. Kathryn Rickard.
3
Ms. A. informed Dr.
Rickard that she had worked in elder care from 1979 to the
present, and that when transportation was available she was
working six and a half hour days.
She reported that she was able
to concentrate if not interrupted, and could read for an hour but
might not fully understand the content due to a language learning
disability.
She reported some impairment with short and long-
term memory, and that she needed to write things down.
Dr. Rickard noted that Ms. A. was alert and appeared to be
of average intelligence, with testing (Mini-Mental Status Exam)
showing no cognitive impairment.
She diagnosed Ms. A. with mixed
repetitive-expressive disorder and anxiety disorder.
She also
believed that Ms. A. retained an unimpaired ability to relate to
others, and continued to maintain an interest in pursuing
activities in and outside the home.
In March 2012, State agency psychological consultant Dr.
Edward Hurley reviewed Ms. A.’s records and concluded that she
retained the concentration and persistence for one-to-three step
tasks for two hours in an eight hour period, albeit with social
restrictions.
Dr. Hurley also opined that Ms. A. was capable of
brief, routine interactions with supervisors and co-workers.
In
July 2012, State agency consultant Dr. Joseph Patalano reviewed
the record and agreed with Dr. Hurley’s assessments.
In March 2013, Ms. A. underwent a neuropsychological
evaluation with psychologist Dr. Robert Roth.
4
Ms. A. reported
her lifelong difficulty with verbal learning, as well as with
expressive and receptive language.
She told Dr. Roth that those
issues had intensified in the past year due to psychological
stressors.
Testing indicated that Ms. A.’s intellectual
functioning was in the average range, with reading recognition
and sentence comprehension in the low average range.
Based on
those results, Dr. Roth concluded that Ms. A. showed relatively
intact cognitive functioning with a relative weakness in verbal
learning.
In April 2013, Ms. A.’s treating primary care physician, Dr.
Jessie Reynolds, opined that Ms. A. was markedly limited or
effectively precluded from activities related to understanding
and memory, sustained concentration and persistence, social
interaction, and adaptation.
Dr. Reynolds specifically noted
that Ms. A. “struggles with directions [and] new locations, [and]
needs constant reassurance.”
From July 2013 through May 2015, Ms. A. worked with
therapist Peter Butterfield.
Butterfield’s records show that Ms.
A.’s attendance was intermittent, due in part to her fear of bad
weather, fear of being in a car with another person driving,
fear of darkness.
and
In July 2015, Butterfield completed a Mental
Residual Functional Capacity Questionnaire indicating a diagnosis
of post-traumatic stress disorder (PTSD) and seasonal affective
disorder with specific phobias.
Butterfield also indicated that
5
Ms. A. had no useful ability to function with respect to
maintaining regular attendance or completing a normal workday or
workweek without interruptions from psychologically-based
symptoms.
More specifically, Butterfield reported that Ms. A.
would be seriously limited, but not precluded, from: remembering
work-like procedures; working in coordination with or proximity
to others without being unduly distracted; performing at a
consistent pace without an unreasonable number and length of rest
periods; responding appropriately to changes in a routine work
setting; dealing with normal work stress; and being aware of
normal hazards and taking appropriate precautions.
In the
narrative section of the Questionnaire pertaining to Ms. A.’s
ability to perform semi-skilled or skilled work, Butterfield
noted that her anxiety causes her to become confused, that she
has difficulty retaining information, and that she often has to
write things down and then refer to her notes.
Butterfield
opined that, on average, Ms. A. would be absent from work more
than four days per month.
An assessment by State agency consultant Patricia Pisanelli,
M.D., found that Ms. A. is able to work at the medium exertional
level, with lifting/carrying up to 25 pounds frequently and 50
pounds occasionally; sitting, standing or walking up to 6 hours
in an 8-hour day; and frequent stooping, crouching, and climbing
of ladders, ropes, and scaffolds.
6
Dr. Pisanelli further found
that Ms. A. could participate in regular conversation but might
have difficulty with a lot of background noise.
III. Ms. A.’s Function Report
As noted, Ms. A. did not testify at the August 2015 hearing.
The ALJ’s 2015 decision referenced a Function Report submitted by
Ms. A. on November 20, 2012.
In that Report, Ms. A. stated that
she lived at home with her daughter.
Insofar as limitations
resulting from her illness or injuries, Ms. A. reported that she
was unable to drive during the winter or during rain storms due
to anxiety.
As a result of this limitation, she would stock up
on medications in October so that she would have a six month
supply during the winter.
Ms. A. further reported that she was able to prepare meals,
clean, and do laundry.
She could shop for herself, but again
stocked up during the summer months because she could not travel
reliably during the winter.
She also reported being social with
friends and family, though less frequently during the winter.
For hobbies, she enjoyed reading, watching television, and
renting movies.
Ms. A. explained that a learning disability
affected her ability to follow instruction and complete tasks,
while her PTSD impacted her ability to concentrate, remember
things, and think clearly.
IV.
VE Testimony
A VE testified at the August 2015 hearing.
7
The ALJ asked
the VE to assume an individual with the same age, education, and
vocational profile as Ms. A. who could lift 50 pounds
occasionally and 10 pounds frequently; could stand/walk for six
hours and sit for six hours in an eight hour workday; had
unlimited use of her hands to operate controls and push and pull;
could frequently climb ladders; had an unlimited ability to
crouch, bend, kneel, and balance; should avoid concentrated
exposure to background noise; and is limited to one to three step
tasks over the typical two hour period in a typical workday and
workweek.
The VE testified that such an individual could perform
Ms. A.’s prior work as a home attendant.
The ALJ then asked the VE to assume no useful ability to
maintain regular attendance and be punctual or complete a normal
work day or work week, an inability to meet competitive standards
with regard to carrying out, understanding, or remembering
skilled work, and an inability to meet competitive standards with
respect to traveling to unfamiliar places.
The ALJ further
listed several characteristics as seriously limited but not
precluded, including: sustaining an ordinary routine without
special supervision; making simple work-related decisions;
getting along with co-workers; responding appropriately to change
in routine; dealing with normal work stress; being aware of
normal hazards and taking appropriate precautions; setting
realistic goals; making plans independent of others; and using
8
public transportation.
Given this second hypothetical, the VE
testified that the individual could not perform Ms. A.’s prior
work and could not perform any jobs on a competitive basis.
V.
The ALJ’s Decision
The Social Security regulations provide a five-step
sequential process for evaluating disability claims.
v. Barnhart, 388 F.3d 377, 380-81 (2d Cir. 2004).
See Butts
The first step
requires the ALJ to determine whether the claimant is presently
engaging in “substantial gainful activity.”
404.1520(b), 416.920(b).
20 C.F.R. §§
If the claimant is not so engaged, step
two requires the ALJ to determine whether the claimant has a
“severe impairment.”
20 C.F.R. §§ 404.1520(c), 416.920(c).
If
the ALJ finds that the claimant has a severe impairment, the
third step requires the ALJ to make a determination as to whether
that impairment “meets or equals” an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”).
C.F.R. §§ 404.1520(d), 416.920(d).
20
The claimant is presumptively
disabled if his or her impairment meets or equals a listed
impairment.
Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir.
1984).
If the claimant is not presumptively disabled, the ALJ is
required to determine the claimant’s RFC, which means the most
the claimant can still do despite his or her mental and physical
limitations based on all the relevant medical and other evidence
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in the record.
20 C.F.R. §§ 404.1520(e), 404.1545(a)(1),
416.920(e), 416.945(a)(1).
The fourth step requires the ALJ to
consider whether the claimant’s RFC precludes the performance of
his or her past relevant work.
416.920(f).
20 C.F.R. §§ 404.1520(f),
Finally, at the fifth step, the ALJ determines
whether the claimant can do “any other work.”
404.1520(g), 416.920(g).
20 C.F.R. §§
The claimant bears the burden of
proving his or her case at steps one through four, Butts, 388
F.3d at 383; and at step five, there is a “limited burden shift
to the Commissioner” to “show that there is work in the national
economy that the claimant can do,” Poupore v. Astrue, 566 F.3d
303, 306 (2d Cir. 2009) (clarifying that the burden shift to the
Commissioner at step five is limited, and the Commissioner “need
not provide additional evidence of the claimant’s [RFC]”).
In this case, the ALJ first found that although Ms. A. had
been working part-time since her alleged onset date, the work did
not rise to the level of substantial gainful activity.
At step
two, the ALJ concluded that Ms. A. has the following severe
impairments: anxiety disorder; degenerative disc disease of the
lumbar spine; bilateral sensorineural hearing loss not treated
with cochlear implant; and language disorder.
At step three, the ALJ found that Ms. A. does not have an
impairment or combination of impairments that meets or medically
equals the severity of a listed impairment.
10
With respect to
social functioning, the ALJ found only mild difficulties, noting
that Ms. A. lives with her daughter, has cared for an elderly
woman for years, talks with friends regularly, and eats meals
with friends and family.
With regard to concentration,
persistence or pace, the ALJ concluded that Ms. A. has moderate
difficulties.
While the ALJ acknowledged Ms. A.’s claims of
memory issues and difficulty concentrating and completing tasks,
the ALJ also noted that Ms. A. has reported reading, watching
television, and watching movies.
In support of his findings, the ALJ gave substantial weight
to the opinions of State agency reviewers Dr. Hurley and Dr.
Patalano with regard to their conclusions about Ms. A.’s daily
living, but less weight to their findings of (1) marked
limitation in dealing with the general public, and (2) the
requirement of brief and routine interactions with coworkers and
supervisors.
The ALJ did not give controlling weight to Ms. A.’s
treating physician, Dr. Reynolds, in part because her opinions
were indicated in a check-off form.
The ALJ also found that Dr.
Reynolds’ ratings with regard to Ms. A.’s psychological
conditions were not supported in the treatment records.
The ALJ
similarly gave treating therapist Peter Butterfield’s opinions
limited weight, finding that they were inconsistent with Ms. A.’s
treatment records and her reported daily activities.
Based upon his consideration of the evidence, and
11
particularly the conclusions of Dr. Pisanelli, the ALJ found that
Ms. A. had the RFC to lift and carry 50 pounds occasionally and
25 pounds frequently; to sit, stand, and walk for six hours in an
eight hour workday; had unlimited use of her hands to operate
controls and push and pull; could frequently climb ladders; had
an unlimited ability to crouch, bend, kneel, and balance; should
avoid concentrated exposure to background noise; and was limited
to one to three step tasks over the typical two hour period in a
typical workday and workweek.
The ALJ then considered Ms. A.’s
past relevant work as a home attendant and concluded that such
work did not exceed Ms. A.’s RFC.
Accordingly, the ALJ found
that Ms. A. is not disabled as defined in the Social Security
Act.
Standard of Review
The Social Security Act defines the term “disability” as the
“inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not
less than 12 months.”
42 U.S.C. § 423(d)(1)(A).
A person will
be found disabled only if it is determined that her “impairments
are of such severity that [s]he is not only unable to do [her]
previous work[,] but cannot, considering [her] age, education,
and work experience, engage in any other kind of substantial
12
gainful work which exists in the national economy.”
42 U.S.C. §
423(d)(2)(A).
In considering a Commissioner’s disability decision, the
court “review[s] the administrative record de novo to determine
whether there is substantial evidence supporting the . . .
decision and whether the Commissioner applied the correct legal
standard.”
Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002)
(citing Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)); see 42
U.S.C. § 405(g).
In its deliberations, a court should bear in
mind that the Social Security Act is “a remedial statute to be
broadly construed and liberally applied.”
Dousewicz v. Harris,
646 F.2d 771, 773 (2d Cir. 1981).
Discussion
Ms. A. first submits that the ALJ failed to abide by the
directive from the Appeals Council.
She contends that the
Appeals Council remanded the case to the ALJ with the instruction
that he proceed to step five of the sequential analysis.
The ALJ
instead determined at step four that Ms. A. could perform her
prior work as a home attendant.
The Appeals Council’s order was not as clear as Ms. A.
portrays.
The Appeals Council first remanded for “further
consideration of whether the claimant is capable of performing
her past relevant work and/or other jobs in the national economy
is warranted.”
Accordingly, the Appeals Council initially
13
invited the ALJ to consider both past relevant work and/or other
work in the national economy.
In a subsequent statement, the
Appeals Council directed the ALJ to proceed to step five and to
take VE testimony as necessary.
As those directives were not
entirely consistent, the Court will not remand the case solely on
the basis of the ALJ’s failure to adhere to the second portion of
the Appeals Council’s order.
Ms. A. also argues, however, that the ALJ’s most recent
findings were not supported by substantial evidence, and in fact
contradicted findings made in his initial ruling.
In both his
original 2013 ruling and his more recent 2015 ruling, the ALJ
found that Ms. A.’s anxiety disorder is a severe impairment.
However, in 2013 he assessed Ms. A.’s social functioning
difficulties as “moderate,” while in 2015 he considered them only
“mild.”
The ALJ also declined to acknowledge any limitation with
regard to Ms. A.’s ability to interact in the workplace.
In
2013, he found that Ms. A. was limited to brief, repetitive
interactions with the public.
Given the change in Ms. A.’s onset date, the record in 2015
was a somewhat different record from that considered in 2013.
Nonetheless, much of the record was established by the same group
of experts.
While the ALJ’s two opinions differed in material
ways, those differences were not supported by substantial
evidence.
14
Most notably, the ALJ largely dismissed the opinions of Ms.
A.’s treating providers.
Dr. Reynolds, who had been treating Ms.
A. for a host of medical issues over a period of years, was
obviously well acquainted with the Plaintiff.
Although Dr.
Reynolds’ evaluation was set forth primarily on a check-box form,
she opined that Ms. A. was “markedly limited” as to over half of
the listed, work-related capacities.
Those limited capacities
included remembering simple instructions, making simple, workrelated decisions, and performing at a consistent pace.
Where
the form allowed for a brief description of clinical findings,
Dr. Reynolds noted that Ms. A. struggles with directions and new
locations, and needs constant reassurance.
The ALJ downgraded Dr. Reynolds’ opinions as unsupported by
the medical records.
Those records, however, show consistent
reports of depression and PTSD.
Moreover, the majority of the
records concern medical ailments rather than psychological
issues.
The mental ability questions set forth on the check-box
form are based upon Dr. Reynolds’ long-time relationship with her
patient, and are not undermined by records of other, unrelated
physical ailments.
Furthermore, Dr. Reynolds’ assessment that
Ms. A. would have difficulty managing instructions, decisions,
and pace was consistent with the ALJ’s conclusion in 2013.
The other treating provider cited in the ALJ’s decision is
Mr. Butterfield.
Again, this provider had a professional
15
relationship with Ms. A. over a period of many months, and formed
his opinions based upon that relationship.
Nonetheless, like Dr.
Reynolds, the ALJ discounted those opinions as unsupported by the
record.
In particular, the ALJ found that Butterfield’s
treatment notes from 2014 and 2015 suggested only limited
anxiety, while his opinion about Ms. A.’s inability to make
simple decisions was undercut by Ms. A.’s ability to live
independently and perform household chores.
The ALJ also noted
that Butterfield is not considered an “acceptable medical source”
under the federal regulations (20 C.F.R. 404.1513(d)).
Social Security Rule 06–03 provides that “medical sources
who are not ‘acceptable medical sources’ . . . have increasingly
assumed a greater percentage of the treatment and evaluation
functions previously handled primarily by physicians and
psychologists.
Opinions from these medical sources, who are not
technically deemed ‘acceptable medical sources’ under our rules,
are important and should be evaluated on key issues such as
impairment severity and functional effects, along with the other
relevant evidence in the file.”
SSR 06–03p; Titles II and XVI:
Considering Opinions and Other Evidence From Sources Who Are Not
“Acceptable Medical Sources” in Disability Claims; Considering
Decisions on Disability by Other Governmental and Nongovernmental
Agencies, 71 Fed. Reg. 45593 (Aug. 9, 2006) (hereafter SSR
06–03).
In deciding how much weight to grant such an opinion,
16
the Commissioner must consider the following factors: how long
the source has known and how frequently the source has seen the
individual; how consistent the opinion is with other evidence;
the degree to which the source presents relevant evidence to
support an opinion; how well the source explains the opinion;
whether the source has a specialty or area of expertise related
to the individual’s impairment(s), and any other factors that
tend to support or refute the opinion.
SSR 06–03; see Reynard v.
Colvin, 220 F. Supp. 3d 529, 537–38 (D. Vt. 2016).
Here, the ALJ failed to acknowledge that Ms. A. was in
regular therapy with Butterfield between July 2013 and May 2015.
During those sessions, Ms. A. consistently shared her anxieties,
including her fear of driving in bad weather and fear of driving
with others.
Ms. A. also spoke with Butterfield about her memory
problems, which Butterfield opined in 2015 was typical of abuse
victims.
Accordingly, Butterfield’s conclusions about Ms. A.’s
anxieties and cognitive abilities were consistent with his
records.
The ALJ also gave only limited weight to the state agency
reviewers with respect to their conclusions about social
functioning and interactions with the general public, co-workers,
and supervisors.
In explaining his downgrade of those opinions,
the ALJ cited Dr. Rickard’s conclusion that Ms. A. had an
unimpaired ability to relate to others.
17
Elsewhere in his
decision, however, the ALJ gave Dr. Rickard’s opinion only
limited weight because her exam was conducted prior to Ms. A.’s
alleged onset date.
The Court therefore finds that the ALJ’s conclusions were
not supported by substantial evidence.
Indeed, the record
suggests that Ms. A.’s capacity for work is similar to the second
hypothetical presented to the VE.
That hypothetical portrayed an
individual with difficulty maintaining regular attendance or
completing a normal work week, an inability to carry out,
understand, or remember skilled work, and an inability to travel
to unfamiliar places.
The VE testified that such an individual
would be unable to perform any job in the national economy.
This
case must therefore be remanded for further consideration of the
evidence.
Conclusion
For the reasons set forth above, Plaintiff’s initial motion
to remand (ECF No. 13) is granted, the Commissioner’s motion to
affirm (ECF No. 16) is denied, Plaintiff’s subsequent motion to
remand (ECF No. 24) is denied as moot, and this case is remanded
for further proceedings.
On remand, in light the Plaintiff’s concern about the
validity of the ALJ’s appointment and the fact that this ALJ has
already issued two denials, the Commissioner should consider
assigning Plaintiff’s case to a different ALJ.
18
See Sutherland v.
Barnhart, 322 F. Supp. 2d 282, 292 (E.D.N.Y. 2004) (the decision
as to whether to reassign on remand is ordinarily reserved to the
Commissioner).
DATED at Burlington, in the District of Vermont, this 8th
day of August, 2019.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge
19
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