Johnson v. Commissioner of Social Security

Filing 10

OPINION AND ORDER granting 7 MOTION for Order Reversing the Decision of the Commissioner; denying 8 MOTION for Order Affirming the Decision of the Commissioner and REMANDS the case for a calculation of benefits. Signed by Judge Christina Reiss on 7/6/2020. (kp)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
KRISSY MAE JEAN J.,
Plaintiff,
V.

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COMMISSIONER OF SOCIAL SECURITY,
Defendant.

2020 JUL -6 PM 4: 48

Case No. 2: l 8-cv-00051

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OPINION AND ORDER
GRANTING PLAINTIFF'S MOTION FOR AN ORDER REVERSING THE
DECISION OF THE COMMISSIONER, DENYING THE COMMISSIONER'S
MOTION FOR AN ORDER AFFIRMING THE DECISION, AND REMANDING
FOR A CALCULATION OF BENEFITS
(Docs. 7 & 8)
Plaintiff Krissy Mae Jean Johnson is a claimant for Social Security Disability
Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social
Security Act. She brings this action pursuant to 42 U.S.C. § 405(g) to reverse the decision
of the Social Security Commissioner (the "Commissioner") that she is not disabled. The
Commissioner moves to affirm.
After Plaintiffs application was initially denied by the Social Security
Administration ("SSA"), Administrative Law Judge ("ALJ") Dory Sutker found her
ineligible for benefits based on her conclusion that Plaintiff is not disabled because she
could perform light work with certain exertional and non-exertional limitations, but could
not perform any past relevant work. Plaintiff argues the ALJ erred in according greater
weight to the opinions of non-treating, non-examining state agency medical consultants
and lesser weight to the opinions of Plaintiffs treating medical providers in violation of
the treating physician rule.
Plaintiff is represented by Phyllis E. Rubenstein, Esq. Special Assistant United
States Attorney Kathryn S. Pollack represents the Commissioner.

I.

Procedural History.
On October 14, 2014, Plaintiff filed applications for DIB and SSI, alleging a

disability onset date of November 3, 2011. Her date last insured is September 30, 2017.
The SSA initially denied her applications on March 31, 2015, and on reconsideration on
August 4, 2015. Plaintiff filed a timely request for a hearing on August 11, 2015. On
January 18, 2017, a videoconference hearing was held before ALJ Sutker at which
Plaintiff and Vocational Expert ("VE") Christine E. Spaulding testified. On March 1,
2017, the ALJ issued a written decision finding that Plaintiff was not disabled. Plaintiff
filed a timely appeal with the SSA's Office of Disability Adjudication and Review
Appeals Council (the "Appeals Council"), which denied her request for review on
January 25, 2018. The ALJ's decision thus stands as the Commissioner's final
determination.

II.

The ALJ's Application of the Five-Step, Sequential Framework.
In order to receive DIB and SSI benefits, a claimant must be disabled on or before

his or her date last insured. 1 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.

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).

2

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 citations 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 Sutker concluded at Step One that Plaintiff had not engaged in
any substantial gainful activity since November 3, 2011, her alleged onset date. At Step
Two, she concluded that Plaintiff had the severe impairments of migraines, generalized
anxiety disorder, degenerative disc disease, status post right shoulder surgery, depressive
disorder, and pain disorder.
At Step Three, the ALJ evaluated Plaintiffs impairments and concluded that none
of them met or medically equaled the severity of a listed impairment. The ALJ found that
Plaintiff had moderate limitations in understanding, remembering, or applying
information; moderate to marked limitations in interacting with others; moderate
limitations in concentrating, persisting, or maintaining pace; and moderate limitations in
managing herself.
ALJ Sutker determined that Plaintiff had the following Residual Functional
Capacity ("RFC") at Step Four:
[Plaintiff] has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) except she can occasionally
perform most postural activities, but cannot climb ladders, ropes or
scaffolds, can occasionally reach overhead with the right upper extremity,
can tolerate no more than moderate noise, cannot tolerate extremes of
temperature, cannot tolerate concentrated exposure to dust, fumes or odors,
cannot tolerate excessive vibration, is limited to uncomplicated tasks that
can typically be learned in 30 days or less, can tolerate incidental contact
with the public as long as dealing with the public is not part of her job
duties, requires an environment where tasks are generally performed in a
3

solitary manner, but could perform tandem tasks up to 10 percent of the
work day and she can collaborate with supervisors and co-workers on
routine matters.
(AR 155.)
At Step Five, the ALJ determined that Plaintiff was capable of performing other
jobs that exist in significant numbers in the national economy, such as collator operator,
price marker, document preparer, and simple sorter. On this basis, the ALJ concluded that
Plaintiff was not disabled.

III.

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) (internal brackets and quotation marks omitted) (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). The Commissioner, not the reviewing court, resolves evidentiary
conflicts and determines credibility issues, and the court may not substitute its own
judgment for that of the Commissioner. See Veino v. Barnhart, 312 F .3d 578, 586 (2d
Cir. 2002); Aponte v. Sec'y, Dep't ofHealth & Human Servs. of US., 728 F.2d 588, 591
(2d Cir. 1984).

4

B.

Whether the ALJ Erred in the Weight She Assigned to Certain
Medical Opinions Regarding Plaintiff's Physical Limitations.

Plaintiff contends the ALJ committed reversible error by according "significant
weight" to the opinions of non-examining, non-treating state agency medical consultants
Geoffrey Knisely, M.D., and Carl Runge, M.D., because they rendered their opinions in
March 2015 and July 2015 and thus did not review Plaintiffs treatment records from July
2015 through November 16, 2016. While acknowledging that the opinions of the state
agency medical consultants were rendered without the benefit of subsequent treatment
records, the ALJ noted that "[m]edical evidence subsequent to [the state agency medical
consultants'] review ... has been considered and additional limitations have been
articulated in the [RFC], viewing the claimant's allegations in the most favorable light
allowable." (AR 160.)
"In contrast [to a treating physician's opinions], in evaluating a claimant's
disability, a consulting physician's opinions or report should be given limited weight."

Cruz v. Sullivan, 912 F .2d 8, 13 (2d Cir. 1990). "This is justified because consultative
exams are often brief, are generally performed without benefit or review of claimant's
medical history and, at best, only give a glimpse of the claimant on a single day." Id.
(internal quotation marks omitted). "[T]he ALJ should weigh a consultative examiner's
opinion using the same factors used to weigh the opinion of a treating physician[.]" Elder

v. Comm'r of Soc. Sec., 2017 WL 1247923, at *11 (E.D.N.Y. Mar. 24, 2017).
"In appropriate circumstances, opinions from State agency medical and
psychological consultants and other program physicians and psychologists may be
entitled to greater weight than the opinions of treating or examining sources." SSR 96-6p,
1996 WL 374180, at *3 (July 2, 1996). Provided that the non-examining sources'
opinions "are supported by evidence in the record[,]" the ALJ may "permit the opinions
ofnon[-]examining sources to override treating sources' opinions[.]" Diaz v. Shalala, 59
F .3d 307, 313 n.5 (2d Cir. 1995) (citing Schisler v. Sullivan, 3 F .3d 563, 567-68 (2d Cir.
1993)); see also Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983) ("[T]he opinion

5

of a treating physician is not binding if it is contradicted by substantial evidence, and the
report of a consultative physician may constitute such evidence.") (citation omitted).
Ors. Knisley and Runge did not review medical records created after the dates they
rendered their opinions, many of which relate to Plaintiffs migraines and neck and back
pain, including treatment notes documenting that she received medial branch blocks (AR
1196-97, 1351), radiofrequency ablations (AR 1332, 1341, 1358, 1368), and facetjoint
injections (AR 1146-48, 1381); as well as attended physical therapy sessions for back,
neck, and shoulder pain and headaches (AR 1177-83). In addition, Plaintiff was assessed
with peripheral vertigo (AR 1396-97) and received emergency room care for migraine
headaches (AR 1458-60). In February 2016, she was prescribed oral Toradol for
headaches.
In her assessment of the record, the ALJ accounted for the limited scope of the
state agency medical consultants' review of Plaintiffs records by reviewing subsequent
medical evidence and apparently adding restrictions based on that review. Although an
atypical and arguably improper approach, any error was harmless because the restrictions
the ALJ imposed based upon the subsequent treatment records were supported by
substantial evidence. For example, with respect to Plaintiffs migraines, the ALJ
recounted a "rarity of a few visits to emergent care [which] were not sufficiently often to
support a debilitating impairment." (AR 156.) Numerous treatment records indicated that
Plaintiffs headaches improved with medication and occurred less frequently over time.
See AR 771 ("Denies any new onset of headaches, she does have p.r.n. headaches less

than once a month. Indocin resolve[s] these."); AR 1019 ("She notes that when she first
started the Fluoxetine her headaches increased, but now they seem to be decreasing and
they are relieved with the Indocin."); AR 1241 ("Had a medial branch block done in neck
on 1/29. Plans to have [a radio frequency ablation ("RF A")] of this in the not too distant
future. May have helped with headache frequency but she is not sure. Improved
dramatically when she had steroid injection."); AR 1381 ("Negative for ... headaches").
The ALJ thus properly found subsequent migraine treatment records did not undermine
the state agency medical consultants' opinions.
6

Similarly, ALJ Sutker noted that a February 2014 MRI found only minor facet
degenerative change that was otherwise unremarkable. A January 28, 2015 treatment
record recounted that Plaintiff had "not tried PT, CHIRO or injections[,]" (AR 1106) and
on February 4, 2015, it was observed that Plaintiff had a normal gait, was able to stand
and walk without difficulty, had mild tenderness to palpation of the lumbar spine, normal
strength upon examination of the lower extremities, and no gross sensory deficits. (AR
1055.) Also in February of 2015, she had a "quite complete" range of motion in her
shoulders, could raise her arms above her head, and had no significant pain when
pressure was applied to her lower back other than in her previous injection sites and no
sciatic notch tenderness. (AR 1069.) Straight leg tests were negative, although Plaintiff
exhibited slowness and some difficulty bending down and touching the floor and
returning to a seated position after lying down. In reporting increased back pain in June
of 2015, Plaintiff revealed that she had been riding on an ATV and had plans to drive to
Georgia eight weeks later. At that time, she did not have any neurological deficits, had
moderate tenderness in her back, and full (5/5) strength in her lower extremities.
In October of 2015, Plaintiff's neck had a normal range of motion, and her gait,
station, and coordination were normal. In June of 2016, Plaintiff reported sharp, burning
pain that became progressively worse with a pain level of 8/10. She further reported
requiring assistance to get out of bed in the morning or out of her recliner due to severe
pain with a numb feeling in the left side of her neck from the base of her skull radiating
down between her shoulder blades. Despite these reports, Plaintiff also reported caring
for her great nephews because her mother, who normally cared for them, had health
problems. On March 7, 2017, Plaintiff received a cervical epidural injection, and two
weeks later she reported a seventy percent improvement in her neck pain. Following
lumbar RF As on March 29, 2017, and April 13, 2017, Plaintiff indicated to her treatment
provider that she experienced relief for approximately six months.
At the January 18, 201 7 hearing, the VE opined that Plaintiff was qualified for
employment as a collator; price marker; document preparer to scan documents; and a
simple sorter, which the VE further opined Plaintiff could learn in a "30-day period of
7

time or less." (AR 286.) The ALJ took Plaintiffs physical limitations into consideration,
limiting Plaintiff to light work and incorporating the following restrictions into her RFC
determination: occasionally perform most postural activities; never climb ladders, ropes,
or scaffolds; occasionally reach overhead with the right upper extremity; tolerate no more
than moderate noise, or excessive vibration; and have no exposure to extreme
temperatures. See AR 155.
Because "[n]o case or regulation ... imposes an unqualified rule that a medical
opinion is superseded by additional material in the record," Camille v. Colvin, 652 F.
App'x 25, 28 n.4 (2d Cir. 2016), ALJ Sutker's decision to assign "significant weight" to
the state agency medical consultants' opinions regarding Plaintiffs physical impairments,
which was supported by substantial evidence in the record, was not erroneous particularly
where, as here, the ALJ appropriately reflected Plaintiffs physical limitations in her
RFC. See Fuller v. Berryhill, 2018 WL 1419795, at *5 (D. Conn. Mar. 22, 2018)
(concluding "the ALJ did not err in giving the consultants' opinions significant weight
despite their not having viewed the supplementary records."); see also Sanborn v.

Berryhill, 2017 WL 923248, at *14 (D. Vt. Mar. 8, 2017) (affirming ALJ's decision to
accord great weight to non-examining medical consultant's opinion that relied on "a
substantial portion of Plaintiffs medical records[]" where the assessment was "supported
by the record, when considered as a whole, and especially in light of the lack of objective
testing or scans that support the claimant's debilitating pain as described") (internal
quotation marks omitted).

C.

Whether the ALJ Erred in the Weight She Assigned to Certain
Medical Opinions Regarding Plaintiff's Mental Limitations.

Although Plaintiff acknowledges that "[t]he opinions of a nurse practitioner or
counselor are not evaluated under the treating physician rule because they are not
... acceptable sources, but are rather one of the 'other sources[,]'" she argues that, with
regard to her mental limitations, the ALJ erred in according "greater weight" to the
opinions of state agency medical consultants Ellen Atkins, Ph.D., and Edward Hurley,
Ph.D., and "lesser weight" to the opinions of Nurse Practitioner Naomi Badger, FNP, and

8

Pamela Fadness, M.D., Plaintiff's treating psychiatrist. She points out that not only were
her treating providers' opinions supported by lengthy treating relationships and frequent
exams, but they were corroborated by other relevant medical evidence including the
opinions of Martin Brutus, Ph.D., Richard Edelstein, M.D., and Jessica Terrien, PMHP,
who treated Plaintiff during 2014 and 2015 for major depressive disorder, anxiety
disorder, and post-traumatic stress disorder ("PTSD"). (Doc. 7-2 at 3) (citing 20 C.F.R.
§ 404.1513( a)). The Commissioner responds that ALJ Sutker properly accorded Nurse
Practitioner Badger's and Dr. Fadness's opinions lesser weight because they concluded
Plaintiff could not work at all, a determination reserved to the Commissioner. In addition,
the ALJ found their opinions insufficiently supported by the record.
SSA regulations define "medical opinions" as "statements from acceptable
medical sources that reflect judgments about the nature and severity" of the claimant's
impairments, including "symptoms, diagnosis and prognosis," what the claimant "can
still do despite impairment(s)," and the claimant's "physical or mental restrictions." 20
C.F.R. §§ 404.1527(a)(l), 416.927(a)(l). Under the treating physician rule, an ALJ
considering the opinion of a claimant's treating source first must decide "whether the
opinion is entitled to controlling weight." Estrella v. Berryhill, 925 F .3d 90, 95 (2d Cir.
2019). A treating physician's opinion is entitled to "controlling weight" if it is "wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the] case record[.]" 20 C.F.R.
§ 404.1527(c)(2).
[I]f the ALJ decides the opinion is not entitled to controlling weight, it must
determine how much weight, if any, to give it. In doing so, it must
explicitly consider the following, nonexclusive Burgess factors: (1) the
frequen[cy], length, nature, and extent of treatment; (2) the amount of
medical evidence supporting the opinion; (3) the consistency of the opinion
with the remaining medical evidence; and (4) whether the physician is a
specialist.

Estrella, 925 F .3d at 95-96 (internal quotation marks omitted) (second alteration in
original). "At both steps, the ALJ must give good reasons ... for the weight [it gives the]
treating source's [medical] opinion." Id. at 96 (alterations in original) (internal quotation
9

marks omitted). However, "slavish recitation of each and every factor" is not required so
long as "the ALJ's reasoning and adherence to the regulation are clear[.]" Rivera v.
Comm 'r ofSoc. Sec., 394 F. Supp. 3d 486,494 (S.D.N.Y. 2019) (internal brackets
omitted) (quoting Atwater v. Astrue, 512 F. App'x 67, 70 (2d Cir. 2013)). "An ALJ's
failure to explicitly apply the Burgess factors when assigning weight" to a treating
physician's opinion "is a procedural error" that is harmless only if "a searching review of
the record assures [the court] that the substance of the treating physician rule was not
traversed[.]" Estrella, 925 F.3d at 96 (citations and internal quotation marks omitted).
Because Nurse Practitioner Badger is an "other source[]" rather than an
"acceptable medical source[]," SSR 06-03P, 2006 WL 2329939, at *2 (Aug. 9, 2006)
(internal quotation marks omitted), 2 the ALJ had "discretion to determine the appropriate
weight to accord [her] opinion based on all the evidence before [her.]" Diaz, 59 F.3d at
314. "Other source" opinions are evaluated using the same factors as other non-treating
source medical opinions because they "may reflect the source's judgment about some of
the same issues addressed in medical opinions from acceptable medical sources." 20
C.F.R. § 404.1527(±)(1). Those factors include: (1) "[h]ow long the source has known
and how frequently the source has seen the individual;" (2) "[h]ow consistent the opinion
is with other evidence;" (3) "[t]he degree to which the source presents relevant evidence
to support an opinion;" (4) "[h]ow well the source explains the opinion;" (5) "[w]hether
the source has a specialty or area of expertise related to the individual's impairment(s);"
and (6) "[a]ny other factors that tend to support or refute the opinion." SSR 06-03P, 2006
WL 2329939, at *4-5; see also 20 C.F.R. § 404.1527(c).

2

SSR 06-03P was rescinded effective March 27, 2017. See Rescission of Soc. Sec. Rulings 962p, 96-5p, and 06-03p, Fed. Reg. 82, 15,263 (Mar. 27, 2017). Because Plaintiff filed her
applications prior to March 27, 2017, SSR 06-03P applies to her claim. See id. ("This rescission
will be effective for claims filed on or after March 27, 2017."); Harrison v. Comm 'r ofSoc. Sec.,
2018 WL 3153399, at *3 n.4 (W.D.N.Y. June 28, 2018) ("SSR 06-03p has been rescinded by
Federal Register Notice Vol. 82, No. 57, page 15263, but remains in effect for claims filed
before March 27, 2017.").

10

"[D]epending on the particular facts in a case, and after applying the factors for
weighing opinion evidence, an opinion from a medical source who is not an 'acceptable
medical source' may outweigh the opinion of an 'acceptable medical source,"'
particularly if "he or she has seen the individual more often" and "has provided better
supporting evidence and a better explanation for his or her opinion." SSR 06-03P, 2006
WL 2329939, at *5; accord20 C.F.R. § 404.1527(±)(1).
The treating physician rule does not require the ALI to defer to a physician's
opinion on an issue reserved for the Commissioner's judgment, "including the ultimate
finding of whether a claimant is disabled and cannot work[.]" Snell v. Apfel, 177 F.3d
128, 133 (2d Cir. 1999); see 20 C.F.R. §§ 404.1527(d)(l), 416.927(d)(l) ("A statement
by a medical source that you are 'disabled' or 'unable to work' does not mean that we
will determine that you are disabled."). However, the Commissioner's prerogative to
determine disability "does not exempt administrative decisionmakers from their
obligation ... to explain why a treating physician's opinions are not being credited."

Snell, 177 F.3d at 134 (remanding to Appeals Council "for a statement of the reasons on
the basis of which [plaintiff's treating physician's] finding of disability was rejected").
In this case, Nurse Practitioner Badger began treating Plaintiff in November of
2013 and in May 2014 opined that Plaintiff was "[n]ot at all ... released to work[]" due
to chronic pain and depression. She explained that Plaintiff's treatment includes "[h]ome
exercises/stretching, muscle relaxants, anti-inflammatories, and antidepressants. Working
on counselling & seeing psychiatry." (AR 1279.) She stated Plaintiff could participate in
career or life skills workshops, engage in a trial work experience, or participate in
voluntary work for fifteen to twenty hours per week but required the "[a]bility to take
breaks when needed due to physical & mental health." Id. Nurse Practitioner Badger
found that Plaintiff "has a lot of chronic pain that is worsened by depression[]" and
"[m]ay have days where she finds just getting out of bed difficult." Id. In September
2014, Nurse Practitioner Badger again opined that Plaintiff was "unable to work at ...
her usual occupation, [and] could [not] work in any other type of employment[]" due to

11

major depression, for which she was prescribed medication and had only a fair prognosis.
(AR 1278.)
In December 2016, after an approximate seven-month course of treatment, Dr.
Fadness diagnosed Plaintiff with major depressive disorder, recurrent, moderate, as well
as PTSD, pain disorder associated with psychological and physical factors, and sleep
disorder. She opined that Plaintiffs prognosis was guarded due to Plaintiff "undergoing
investigations, treatments, & medication trials." (AR 1277.) Dr. Fadness noted that
Plaintiff had previously been prescribed:
Zoloft, Wellbutrin .... She previously trialed Effexor XR 225 mg daily
with fairly good response, however, she felt abnormally numb/with lack of
emotions. She does not wish to take Effexor dose that high again. She notes
big improvement from Hydroxyzine for anxiety. She started psychotherapy,
is getting more support & more frequent follow up with FPA therapist.
(AR 1449.) To treat Plaintiffs PTSD, Dr. Fadness increased Plaintiffs dosage of
clonidine and continued hydroxyzine and hydrochloride. She noted that a "[t]rial of
Prazosin to target sleep, nightmares, and to decrease sympathetic NS tone did not agree
with her d/t increased irritability, increase in some strange experiences of possible
dissociation and de-personalization ... [and] did not decrease[] nightmares or improve[]
sleep." (AR 1450.) Dr. Fadness changed Plaintiffs dosage of oxcarbazepine for her pain
disorder.
Dr. Fadness noted that Plaintiff has extreme difficulty interacting with the public
based on her tendency to avoid interpersonal interactions, as well as avoidance of
speaking directly to people and on the phone. Dr. Fadness observed that Plaintiff has a
"[l]ow frustration tolerance, easily becomes irritable. Very low selfI-]esteem, feels not
capable, and develops extreme anxiety related to interacting on her own. Anger, lashes
out." (AR 1440.)
Dr. Fadness opined that Plaintiff had marked difficulty making judgments on
simple work-related decisions and noted Plaintiff exhibited"[ a]cute signs/symptoms of
increased anxiety associated with even thinking about making decisions. Anticipatory
anxiety: elevated heart rate, shortness of breath, [shaky], catastrophizes, overly focused

12

on making a mistake, can't think clearly about anything else." (AR 1439) (emphasis in
original). Dr. Fadness noted that Plaintiff has marked difficulty interacting appropriately
with supervisors and co-workers and responding appropriately to typical work situations
and to changes in a routine work setting and identified the following additional
limitations:
Unable to be consistent, would find ways to leave or wouldn't show up,
could not be dependable or reliable. Panics, feels trapped, urges to flee ....
Isolates, interacts with family as little as possible and then only by
electronic messaging. Strained relationships, poor interpersonal skills.
Anxiety becomes exhausting. Insomnia. Adverse reactions to psychotropic
medications. Migraines interfere with working. Has fallen asleep at work.
Drowsy driving.
(AR 1440.)
The ALJ dismissed these comprehensive opinions as providing "no genuine
rationale[,] seemingly based on the claimant[' s] self1-]report[,]" and inconsistent with
other evidence in the record. (AR 160.) The ALJ apparently accorded no weight to Dr.
Fadness's status as a specialist, the lengthy treatment relationship, and the similarities
between Dr. Fadness's opinion and those ofNurse Practitioner Badger. The ALJ's further
conclusion that Dr. Fadness's opinions conflicted with the record appears to ignore the
opinion of state agency examining counselor Terry Padilla, LCMHC, who assessed
generalized anxiety disorder, depressive disorder NOS, and Axis III and IV problems and
assigned Plaintiff a GAF score of 48. 3 In a March 2015 Mini- Mental Status Exam,
Counselor Padilla observed:

3

"The GAF is a scale promulgated by the American Psychiatric Association to assist 'in tracking
the clinical progress of individuals [with psychological problems] in global terms.'" Kohler v.
Astrue, 546 F.3d 260,262 n.1 (2d Cir. 2008) (quoting Am. Psychiatric Ass'n, Diagnostic &
Statistical Manual of Mental Disorders 32 (4th ed. 2000) (hereafter "DSM-IV")). GAF scores
rate the overall psychological functioning of an individual on a scale of zero to 100, see Scott v.
Colvin, 2016 WL 5173252, at *6 (E.D.N.Y. Sept. 21, 2016) (citing DSM-IV (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 of Soc. Sec., 2015 WL 321832, at *12
(S.D.N.Y. Jan. 23, 2015). "A GAF in the range of 41 to 50 indicates '[s]erious symptoms (e.g.,
suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in
social, occupational, OR school functioning (e.g., no friends, unable to keep a job).'" Zabala v.

13

[Plaintiff] has a difficult time clearly answering questions, mumbles, and
states, "I don't know how to say it." This behavior could be a result of
anxiety. She exhibits no signs of frank psychological disturbance and affect
is full range. Upon asking how she would describe the way she feels most
of the time, she replies, "Depressed and afraid (mostly of the dark). I'm
also afraid of people. I always feel like I'm doing it wrong." Memory:
"Sucks." Concentration: "Not very good either." Task to completion: "It
takes me all day." Judgment: "I'm always telling myself I'm doing it
wrong."
(AR 1073.) Counselor Padilla asked Plaintiff to write a sentence, and she wrote, "I want
to go home." (AR 1074) (internal quotation marks omitted).
In summarizing the exam, Counselor Padilla concluded:
[Plaintiff] exhibits anxious behavior with difficulty formulating her speech.
There is no reason to doubt her claim that she is also depressed. She and
the enclosed reports indicate she is in chronic pain. [Plaintiff] reports that
she was raped 3 times and is "scared to death of the dark." She also has
trouble sleeping. It is very possible that she has posttraumatic stress
disorder. She is strongly encouraged to seek out counseling ofDBT or
CBT to help correct some of the distortions that hamper [her] life. In
[Plaintiffs] current condition, both emotional and physical, she is not able
to manage employment.
Id. (emphasis supplied).

Counselor Padilla's opinions comport with diagnoses made by other providers as
well. In a February 3, 2014 intake evaluation at Northeast Kingdom Human Services, Dr.
Brutus diagnosed Plaintiff with major depressive disorder, recurrent, moderate; anxiety
disorder; and assigned a GAF score of 55. On May 8, 2014, Dr. Edelstein conducted a
psychiatric consultation at North Country Hospital and diagnosed dysthymia, panic
disorder, chronic pain, and inability to work and assigned a GAF score of 5 5. He noted

Astrue, 595 F.3d 402,406 n.2 (2d Cir. 2010) (quoting DSM-IV at 34). "GAF scores in the 51-60
range signify moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic
attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends,
conflicts with peers or co-workers)." Daniel v. Astrue, 2012 WL 3537019, at *7 n.3 (E.D.N.Y.
Aug. 14, 2012) (quoting DSM-IV at 32) (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).

14

Plaintiffs long history of chronic depression, which was beginning to respond to Effexor,
her occasional panic attacks, and her significant insomnia and concluded Plaintiffs
conditions were in the context of childhood and adult trauma and PTSD. On April 13,
2015, Plaintiff initiated care at Community Health Services of Lamoille Valley with Ms.
Terrien, who diagnosed depression with symptoms dating back to childhood and
difficulty sleeping for the prior two years.
In deciding to accord both "lesser weight" and "significant weight" to Dr.
Fadness's assessments of Plaintiffs mental impairments, the ALJ described her reasons
as follows:
The opinion of treating source Pamela Fadness, MD, of Family Psychiatry
CVMC, dated August 2016 that the claimant cannot work due to her mental
health symptoms (Exhibit 44F) is given lesser weight because the opinion
is articulated merely in a check-off list form, providing no genuine rationale
and is seemingly based on the claimant-self report. Further, the same
treatment notes documenting the claimant's depressive symptoms, also
document that her symptoms have responded to and have improved by
appropriate treatment with psychotherapy and such medications as Effexor
(Exhibit 56F). Under those evidentiary circumstances, this treating source
opinion is given lesser weight.
The opinion of treating source, Pamela Fadness, MD, of Family Psychiatry
CVMC, dated December 2016, that the claimant's mental health
impairments are of listing level severity, manifested by extreme functional
limitations understanding, remembering and carrying out complex task[ s]
(Exhibit 53F), is given significant weight. However, the opinion that the
claimant has extreme functional limitations appropriately interacting with
the public is given lesser weight. The extreme limitation in public
interaction is not supported and is inconsistent with the evidence consisting
of attending examinations without incident, having a relationship with a
boyfriend and doing some shopping even at off hours. Given the evidence
as a whole, the claimant's difficulty in this functional area does not clearly
rise to an extreme level of functional limitation. Further, the residual
functional capacity articulates functional limitations that appropriately
reflect the claimant degree of limitation supported by the substantial
medical evidence of record.
(AR 160-61.)

Although the ALJ correctly observed that Plaintiff is in a relationship, there is no
"rule or regulation requiring that a claimant seeking disability on the basis of a mental
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impairment[] be precluded from having friends, a spouse, or a companion." McAninch v.

Astrue, 2011 WL 4744411, at *21 (W.D.N.Y. Oct. 6, 2011). Similarly, Plaintiffs ability
to shop and attend appointments does not negate the existence of a disability because "it
is well-settled that the performance of basic daily activities does not necessarily
contradict allegations of disability, 'as people should not be penalized for enduring the
pain of their disability in order to care for themselves.'" Stoesser v. Comm 'r ofSoc. Sec.,
2011 WL 381949, at *7 (N.D.N.Y. Jan. 19, 2011) (quoting Woodfordv. Apfel, 93 F.
Supp. 2d 521, 529 (S.D.N.Y. 2000) (concluding ALJ erred in concluding claimant could
perform sedentary work because she cooked, shopped for herself, and used public
transportation)); see also Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (stating "on
numerous occasions that 'a claimant need not be an invalid to be found disabled' under
the Social Security Act.").
On balance, the court has no difficulty in determining that the ALJ failed to
provide good reasons for failing to accord controlling weight to Dr. Fadness's opinion
and for further finding the treating physician rule was violated.

D.

Whether Remand for the Calculation of Benefits is Warranted.

In deciding to accord Dr. Fadness's opinions less than controlling weight, the ALJ
did not provide "good reasons" and she did not analyze the opinions in accordance with
the Burgess factors. Instead, she substituted her judgment for that of the medical
providers and concluded that Plaintiffs treatment had been effective and her relative
minimal public interaction was sufficient evidence that employment with incidental
contact with the public could be tolerated. Notably, ALJ Sutker does not cite a single
medical opinion in support of her conclusion that Plaintiff is able to maintain full-time
employment and to interact appropriately with supervisors, coworkers, and the public.
The error was not harmless as the VE was not asked if Plaintiff could perform the
identified positions if contact with others was significantly limited.
Where there is "no apparent basis to conclude that a more complete record might
support the Commissioner's decision," a remand for a calculation of benefits is
appropriate. Rosa v. Callahan, 168 F.3d 72, 83 (2d Cir. 1999); see also Jennifer W v.
16

Comm'r of Soc. Sec., 2020 WL 549357, at *19 (D. Vt. Feb. 4, 2020) ("Since there is no
apparent basis to conclude that a more complete record might support the
Commissioner's decision, the court will remand for calculation of benefits."). A treating
physician's opinion in this case was supported by substantial evidence in the record and
uncontradicted by any other evidence. Consistent with the treating physician rule, the
ALJ was required to afford it controlling weight. Had she done so, she would have been
compelled to reach the conclusion that Plaintiff's mental impairments rendered her
disabled. See Williams v. Apfel, 204 F .3d 48, 50 (2d Cir. 1999) (remanding for calculation
of benefits where "the records provided persuasive evidence of total disability that
rendered any further proceedings pointless."); see also Vargas v. Sullivan, 898 F .2d 293,
296 (2d Cir. 1990) (remanding for calculation of benefits where there was an
"infinitesimal likelihood that employment of any kind would be available" to claimant).

CONCLUSION
For the foregoing reasons, the court GRANTS Plaintiff's motion for an order
reversing the Commissioner's decision (Doc. 7), DENIES the Commissioner's motion for
an order affirming the decision (Doc. 8), and REMANDS the case for a calculation of
benefits.

(h_

SO ORDERED.

1

Dated at Burlington, in the District of Vermont, this~ day of July, 2020.
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{~--__.===-~-=-. .
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Christina Reiss, District Judge
United States District Court

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