Titolo v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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:

NICOLO TITOLO, on behalf of Rachel M. See,

:

Plaintiff,

: MEMORANDUM DECISION AND

– against –

ORDER

:

20-CV-3721 (AMD)

COMMISSIONER OF SOCIAL SECURITY, :

Defendant. :

:

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ANN M. DONNELLY, United States District Judge:

The plaintiff1 challenges the decision of the Social Security Commissioner that the

claimant was not disabled for the purpose of receiving Disability Insurance Benefits (“DIB”)

under Title II of the Social Security Act. Before the C ourt are the parties’ motions for judgment

on the pleadings. (ECF Nos. 14, 18.) For the reasons explained below, I grant in part the

plaintiff’s motion, and deny the defendant’s motion.

BACKGROU ND

On July 14, 2015, the claimant, Rachel M. See, applied for disability insurance benefits,

alleging disability beginning June 1, 2015, caused by bipolar condition, fibromyalgia and a back

problem. (Tr. 64, 187-188.) The Social Security Administration (“SSA”) denied her claim after

initial review on December 17, 2015. (Tr. 83-88.) The claimant requested a hearing before an

ALJ on February 12, 2016. (Tr. 90-91.) The claimant passed away on March 4, 2017, before the

hearing could take place. (Tr. 445.) On July 12, 2017, ALJ Sheena Barr found that there was no

valid party to the proceeding, and dismissed the request for a hearing. (Tr. 77.) On July 25,

1 The claimant’s son, Nicolo Titolo, is an eligible substitute party, and filed this action on behalf of his

mother.

2018, the Appeals Council remanded the case for the ALJ to determine whether there was a

substitute party who could proceed with the claim. (Tr. 78-82.) On February 13, 2019, ALJ Barr

found that the claimant’s children were eligible substitute parties in this case, but that the

claimant was not disabled at any time from June 1, 2015, until she passed away on March 4,

2017. (Tr. 7-27.)

ALJ Barr found that the claimant did not engage in substantial gainful activity during the

period from her alleged onset date of June 1, 2015, through her last insured date of December 31,

2020, and had the following severe impairments: bipolar disorder, fibromyalgia, and a back

impairment. (Tr. 13.) However, she determined that the claimant’s severe impairments did not

meet or equal the severity of impairments listed in the applicable Social Security regulations.

(Id.) The ALJ concluded that the claimant had the residual functional capacity (“RFC”) to

perform sedentary work, except that she could only “occasionally climb, balance, stoop, kneel,

crouch and crawl,” she was “limited to unskilled work,” and could have “occasional contact with

supervisors, co-workers and the public.” (Tr. 15.) Finally, the ALJ found that although the

claimant could not perform any past relevant work as a supervisor, coordinator, or college

teacher, there were jobs in the national economy including “table worker” and “press operator”

that she could perform. (Tr. 19-20.) The Appeals Council denied the plaintiff’s application for

review on June 17, 2020. (Tr. 1-6.)

STANDARD OF REVIEW

A district court reviewing a final decision of the Commissioner must determine “whether

the correct legal standards were applied and whether substantial evidence supports the decision.”

Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004), as amended on reh’g in part, 416 F.3d 101

(2d Cir. 2005). The court must uphold the Commissioner’s factual findings if there is substantial

evidence in the record to support them. 42 U.S.C. § 405(g). “[S]ubstantial evidence” is “more

than a mere scintilla” and “means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal

quotation marks and citation omitted). “Although factual findings by the Commissioner are

‘binding’ when ‘supported by substantial evidence,’ ‘[w]here an error of law has been made that

might have affected the disposition of the case,’” the court will not defer to the ALJ’s

determination. Pollard v. Halter, 377 F.3d 183, 188-89 (2d Cir. 2004) (quoting Townley v.

Heckler, 748 F.2d 109, 112 (2d Cir. 1984)). Thus, “[e]ven if the Commissioner’s decision is

supported by substantial evidence, legal error alone can be enough to overturn the ALJ’s

decision.” Ellington v. Astrue, 641 F. Supp. 2d 322, 328 (S.D.N.Y. 2009) (citing Johnson v.

Bowen, 817 F.2d 983, 986 (2d Cir. 1987)).

DISCUSSION

The plaintiff argues that the ALJ did not apply the treating physician rule, did not give

appropriate weight to the claimant’s subjective statements about the intensity, persistence, and

limiting effects of her symptoms, and that the ALJ’s RFC determination did not reflect all the

claimant’s limitations. In addition, the plaintiff asks the Court to remand solely for the

calculation of benefits, arguing that a finding of physical and mental disability is amply

supported by the treatment record, and that the ALJ failed to rely on any credible evidence to the

contrary.

The defendant maintains that the ALJ properly evaluated the medical evidence and the

claimant’s subjective complaints, and that the case should not be remanded for calculation of

benefits.

RFC Determination

a. The ALJ’s Evaluation of the Medical Evidence

The treating physician rule requires an ALJ to give a “treating source’s opinion on the

issue(s) of the nature and severity” of a claimant’s impairment “controlling weight” if the

opinion is “well supported by medically acceptable clinical and laboratory diagnostic techniques

and is not inconsistent with the other substantial evidence in [the claimant’s] case record.”2

Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (citing 20 C.F.R. § 404.1527(d)(2)

and Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000)). When an ALJ does not give a treating

physician’s opinion controlling weight, she must “comprehensively set forth [her] reasons for the

weight assigned to a treating physician’s opinion.” Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir.

2008) (citations omitted). Failure to give “good reasons” for the weight assigned to a treating

physician’s opinion is grounds for remand. See Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir.

2004) (“We do not hesitate to remand when the Commissioner has not provided ‘good reasons’

for the weight given to a treating physician’s opinion.”).

If the ALJ decides the treating doctor’s opinion is not entitled to controlling weight, she

must determine how much weight, if any, to give it, and must “explicitly consider” the

Burgess factors: “(1) the frequency, 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.” Selian v. Astrue, 708 F.3d 409,

418 (2d Cir. 2013) (per curiam) (citing Burgess, 537 F.3d at 129). The ALJ must “give good

reasons in her notice of determination or decision for the weight she gives [the] claimant’s

treating source’s opinion.” Halloran, 362 F.3d at 32 (quoting 20 C.F.R. § 404.1527(c)(2))

2 The treating physician rule applies because the claimant filed her claim before March 27, 2017. See 20

C.F.R. § 404.1527.

(internal quotation marks and alterations omitted); Estrella v. Berryhill, 925 F.3d 90, 95-96 (2d

Cir. 2019).

The ALJ assigned partial weight to the opinions of treating psychiatrist Lorna Avila and

consultive psychologist Dana Jackson. (Tr. 17.) The ALJ assigned little weight to the opinions

of examining psychologist Ronald Sherman and treating physician Joseph Mosak. (Tr. 18.) The

plaintiff challenges the ALJ’s determinations about Dr. Avila’s and Dr. Mosak’s opinions.

i. Dr. Avila

Although psychiatrist Lorna Avila treated the claimant beginning in 2006, the earliest

note in the record is from an office visit on June 3, 2015, where the claimant discussed a January

2015 fall that caused post concussive syndrome.3 (Tr. 392.) After a follow-up visit, Dr. Avila

diagnosed the claimant with bipolar disorder. (Tr. 323.) The claimant’s symptoms included a

“depressed mood, tearfulness, no energy, anxiety, [and] lack of concentration.” (Tr. 323.) Dr.

Avila also noted that the claimant sometimes did not bathe because of “lack of motivation.” (Tr.

324.) According to Dr. Avila, the claimant’s “[u]nderstanding and [m]emory” was “[l]imited,”

as was her ability to “[s]ustain[] [c]oncentration and [p]ersistence” in social interactions, and she

had a “[l]imited” ability to “[a]dapt[] . . . to changes in the work setting.” (Tr. 324-25.) In a

mental impairments questionnaire, Dr. Avila noted that the claimant had “[m]oderate”

limitations in her ability to (1) “[u]nderstand and remember detailed instructions;” (2) “[c]arry

out detailed instructions;” (3) “[m]aintain attention and concentration for extended periods;” (4)

“[p]erform activities within a schedule and consistently be punctual;” (5) “[w]ork in coordination

with or near others without being distracted by them;” (6) “[c]omplete a workday without

interruptions from psychological symptoms;” (7) “[a]ccept instructions and respond

3 After the fall, Dr. Germaine Rowe diagnosed the claimant with lumbar pain, post concussive syndrome,

depression and anxiety. (Tr. 345.)

appropriately to criticism from supervisors;” (8) “[g]et along with coworkers or peers without

distracting them;” and (9) “[s]et realistic goals.” (Tr. 384.) In Dr. Avila’s view, the claimant

was “limited in all domains of work related mental functioning,” and would miss work two to

three times a month because of her impairments. (Tr. 17, 384, 386.) In an opinion dated January

2016, Dr. Avila wrote that the claimant “had a recurrence of her symptoms for the past year in

that her mood has been depressed with dysphoric affect, she has psychomotor retardation and has

difficulty focusing and has poor concentration.” (Tr. 368.)

ALJ Barr assigned only partial weight to Dr. Avila’s 2015 opinion because it was “non-

descriptive, and does not provide a clear understanding of the claimant[’s] functional capacity.”

(Tr. 17.) She also assigned only partial weight to Dr. Avila’s May 2016 opinion because “the

record does not support moderate findings in all areas.” (Id.) She found that Dr. Avila’s

conclusions that the claimant was “generally, capable of tending to her own grooming and

hygiene, . . . had good insight and judgment . . . [and was] able to manage her own finances”

were inconsistent with the doctor’s conclusion that “the claimant demonstrate[d] moderate

limitations in adaptation due to an impairment in setting realistic goals.” (Id.) The ALJ assigned

little weight to Dr. Avila’s January 2016 opinion, because it was “unsupported by Dr. Avila’s

mental impairment questionnaire of the claimant where she indicated that the claimant did not

exhibit more than moderate limitations in all domains of work related mental functioning.” (Tr.

18.)

In assigning Dr. Avila’s opinions less than controlling weight, the ALJ did not consider

all the Burgess factors. Although the ALJ noted some divergence between Dr. Avila’s opinion

and the medical evidence in the record, she did not consider the frequency and nature of Dr.

Avila’s treatment, the extent to which medical evidence supported her opinion, or that Dr. Avila

is a specialist.

The treating physician’s opinion is especially important in cases of mental illness,

because the treating physician is able to give “a more complete picture than a ‘one-time snapshot

of a claimant’s status [which] may not be indicative of [her] longitudinal mental health.’”

Marrero v. Comm’r of Soc. Sec., No. 19-CV-01369, 2020 WL 3868709, at *3 (E.D.N.Y. July 9,

2020) (quoting Estrella, 925 F.3d at 98). “Mental health patients have good days and bad days;

they may respond to different stressors that are not always active.” Pagan v. Saul, No. 18-CV-

7012, 2020 WL 2793023, at *6 (S.D.N.Y. May 29, 2020) (internal quotation marks omitted).

Indeed, the ALJ gave the same weight to the opinion of a consultative examiner,

psychologist Dana Jackson, who examined the claimant only once. According to the plaintiff,

the Administration did not provide Dr. Jackson with the claimant’s prior psychiatric treatment

records. (ECF No. 15 at 10.) Based on the single examination, Dr. Jackson opined that the

claimant had “the ability to follow and understand simple instructions and directions; . . .

perform simple tasks; . . . maintain her concentration and attention at a marginal-to-fair level

depending on what the environmental stimulus is; . . . maintain a regular schedule; . . . learn and

perform complex tasks independently; . . . [and] relate to others in a social situation.” (Tr. 361.)

The ALJ assigned partial weight to this opinion based on its consistency with the record. (Tr.

17.) But Dr. Jackson’s conclusion that the claimant could maintain a regular schedule and could

learn and perform complex tasks independently conflicted with the conclusions of treating

physicians Dr. Avila and Dr. Mosak, and with Dr. Sherman’s opinion. (Tr. 381-86, 403-04, 411-

14); see also Vargas v. Sullivan, 898 F.2d 293, 295 (2d Cir. 1990) (The ALJ’s decision to

“elevat[e] the opinion of the medical adviser, who had never examined [the claimant], over that

of . . . her treating physician” was improper). “[T]he longitudinal relationship between a mental

health patient and her treating doctor provides the physician with a rich and nuanced

understanding of the patient’s health that cannot be readily achieved by a single consultative

examination.” Pagan, 2020 WL 2793023, at *6 (quoting Bodden v. Colvin, No. 14-CV-08731,

2015 WL 8757129, at *9 (S.D.N.Y. Dec. 14, 2015)).

Dr. Avila, a specialist, treated the claimant for at least ten years, beginning in 2006.4

(Tr. 323.) In her reports, Dr. Avila noted multiple symptoms of mental impairments, including

“depressed moods, tearfulness, no energy, anxiety and lack of concentration.” (Tr. 323.)

Moreover, to the extent the ALJ afforded Dr. Avila’s opinions less weight because of

inconsistencies between her opinions and the rest of the claimant’s record, or because there were

insufficient explanations for Dr. Avila’s conclusions, the ALJ should have sought clarification

from Dr. Avila, or additional records from her years of treating the claimant. See McGill v. Saul,

No. 18-CV-6430, 2020 WL 729774, at *4 (E.D.N.Y. Feb. 13, 2020) (“[S]ince the ALJ deemed

the treating physicians’ opinions lacking in support, the ALJ should have sought clarification

from them regarding the deficiencies she perceived in their opinions.”); Quinto v. Berryhill, No.

17-CV-24, 2017 WL 6017931, at *14 (D. Conn. Dec. 1, 2017) (“The ALJ is not permitted to

cherry pick from the treatment record only evidence that is inconsistent with the treating source’s

opinion in order to conclude that the opinion should be accorded less weight.” (citation

omitted)).

4 “Generally, the longer a treating source has treated you and the more times you have been seen by a

treating source, the more weight we will give to the source’s medical opinion.” 20 C.F.R.

§ 404.1527(c)(2)(i).

On remand, the ALJ should determine the extent to which the record should be

supplemented, and address all the Burgess factors after obtaining the necessary information. The

ALJ should then determine the appropriate weight to assign to Dr. Avila’s opinions.5

ii. Dr. Mosak

Rheumatologist Joseph Mosak first treated the claimant on December 30, 2015. (Tr.

369.) After a physical examination, he documented tender points in 18 out of 18 locations, pain

with motion in the right ankle and knee, left ankle tenderness, and left knee pain with flexion.

(Tr. 371.) He diagnosed the claimant with fibromyalgia, and estimated that on average she

would miss work more than three times a month due to her impairments or treatment. (Tr. 372,

414.)

Nevertheless, the ALJ assigned Dr. Mosak’s medical opinion little weight because it

“d[id] not provide a function-by-function analysis of the claimant’s abilities based on her

impairments,” made “a conclusory determination regarding the claimant’s ability to work,” and

because his “treatment of the claimant was generally conservative, consisting of medication and

recommendations for exercise and stretching.” (Tr. 18.)

In assigning Dr. Mosak’s opinion less than controlling weight, the ALJ did not consider

all the relevant Burgess factors, including the frequency, length, nature, and extent of treatment,

whether medical evidence supported the opinion, the consistency of the opinion with the

remaining medical evidence, and whether Dr. Mosak is a specialist. Like Dr. Avila, Dr. Mosak

5 Psychologist Ronald Sherman evaluated the plaintiff on October 16, 2016. (Tr. 407.) He diagnosed the

plaintiff with “Bipolar, depressed type,” “Panic Disorder with Agoraphobia” and “Alcohol abuse in

remission for more than 20 years”—conditions she had since June 2015. (Tr. 409.) Dr. Sherman opined

that the plaintiff was “totally disabled emotionally and unable to function in any job in any capacity.”

(Id.) The ALJ assigned Dr. Sherman’s opinion little weight because he examined the plaintiff only

once, his examination results did not support his opinion, and his findings were inconsistent with Dr.

Avila’s. (Tr. 18.)

is a specialist; he is a board-certified internist with a specialty in rheumatology. (ECF No. 15 at

5.) He concluded that the claimant met the American College of Rheumatology criteria for

fibromyalgia and based his opinions about the claimant’s limitations on physical examinations,

as well as evidence of 18 out of 18 positive tender points and widespread pain in all quadrants of

the body including her lower and upper back, arms, legs and hips. (Tr. 411-12.)

Moreover, while the ALJ found that Dr. Mosak made legal conclusions with little support

for his opinion about the claimant’s condition, nothing in the record shows that she sought

additional information from Dr. Mosak. “If the ALJ is not able to fully credit a treating

physician’s opinion because the medical records from the physician are incomplete or do not

contain detailed support for the opinions expressed, the ALJ is obligated to request such missing

information from the physician.” Calzada v. Astrue, 753 F. Supp. 2d 250, 277 (S.D.N.Y.

2010) (citing Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996)); see also Shaw, 221 F.3d at 134

(“For the ALJ to conclude that plaintiff presented no evidence of disability at the relevant time

period, yet to simultaneously discount the medical opinion of [her] treating physician, violates

h[er] duty to develop the factual record.”).

Accordingly, on remand, the ALJ should seek whatever additional information she needs

from Dr. Mosak, and address the Burgess factors in determining the appropriate weight to assign

his opinion.

b. The Plaintiff’s Subjective Statements

The plaintiff argues that the ALJ’s evaluation of the claimant’s subjective statements

about her physical and mental impairments is not supported by substantial evidence. As

explained above, the ALJ did not have the opportunity to evaluate the claimant in person,

because the claimant died before the hearing. Accordingly, the ALJ had to rely on the claimant’s

statements in a functional report from September 2015.

“Administrative law judges (who usually have the only opportunity to observe witnesses’

demeanor, candor, fairness, intelligence and manner of testifying) obviously are best-positioned”

to evaluate the plaintiff’s subjective statements. Whiting v. Astrue, No. 12-CV-274, 2013 WL

427171, at *6 (N.D.N.Y. Jan. 15, 2013), report and recommendation adopted, No. 12-CV-274,

2013 WL 427166 (N.D.N.Y. Feb. 4, 2013) (citations omitted); see also Carroll v. Sec’y of

Health and Human Servs., 705 F.2d 638, 642 (2d Cir. 1982) (“It is the function of the Secretary,

not [the reviewing courts], to resolve evidentiary conflicts and to appraise the credibility of

witnesses, including the claimant.”); see also Snell v. Apfel, 177 F.3d 128, 135 (2d Cir.

1999) (holding that the ALJ is in the best position to assess the claimant’s credibility). While an

ALJ must take a claimant’s reports of pain and other limitations into account, she is “not

required to accept the claimant’s subjective complaints without question.” Genier v. Astrue, 606

F.3d 46, 49 (2d Cir. 2010). The ALJ first must determine that there is a “medically determinable

impairment that could reasonably be expected to produce [the claimant’s] symptoms.” 20 C.F.R.

§ 404.1529(b). If the ALJ concludes that a claimant has an underlying impairment, the ALJ

must evaluate the intensity, persistence and limiting effects of the claimant’s symptoms on the

claimant’s ability to work. 20 C.F.R. § 404.1529(c). If the “allegations of pain ‘are not

substantiated by the objective medical evidence, the ALJ must engage in a credibility

inquiry.’” Gallagher v. Colvin, 243 F. Supp. 3d 299, 306 (E.D.N.Y. 2017) (citations

omitted); see also 20 C.F.R. § 404.1529(c)(4).

In evaluating the plaintiff’s subjective statements, the ALJ must consider seven factors:

(1) the claimant’s daily activities; (2) the location, duration, frequency and intensity of

claimant’s pain and other symptoms; (3) precipitating and aggravating factors; (4) the type,

dosage, effectiveness and side effects of any medication the claimant takes or has taken to

alleviate pain or other symptoms; (5) any treatment, other than medication, the claimant has

received; (6) any other measures the claimant employs to relieve pain or other symptoms; and (7)

other factors concerning the claimant’s functional limitations and restrictions as a result of pain

or other symptoms. 20 C.F.R. § 404.1529(c)(3); see also Gallagher, 243 F. Supp. 3d at 306. An

ALJ need not review each factor in her opinion. See Cichocki v. Astrue, 729 F.3d 172, 178 (2d

Cir. 2013) (upholding an ALJ’s determination even though it “did not include an explicit

function-by-function analysis of all possible limitations but did address all relevant

limitations.”).

The ALJ found that “the claimant’s medically determinable impairments could

reasonably be expected to cause the alleged symptoms,” but concluded that the claimant’s

“statements concerning the intensity, persistence and limiting effects of these symptoms [were]

not entirely consistent with the medical evidence and other evidence in the record.” (Tr. 15-16.)

The ALJ made these conclusions based on the claimant’s descriptions of her daily activities—

which included swimming—her travel history, MRIs, and physical examinations that showed

that she had full range of motion, no joint swelling and no deformities. (Tr. 16.)

Evidence that the claimant “gamely chooses to endure pain in order to pursue important

goals, such as attending church and . . . shopping for [her] family” is not evidence that she “is

capable of working.” Balsamo v. Chater, 142 F.3d 75, 81-82 (2d Cir. 1998) (internal quotation

marks and citation omitted). “[A] finding that a claimant is capable of undertaking basic

activities of daily life cannot stand in for a determination of whether that person is capable of

maintaining employment, at least where there is no evidence that the claimant ‘engaged in any of

these activities for sustained periods comparable to those required to hold a sedentary

job.’” Vasquez v. Barnhart, No. 02-CV-6751, 2004 WL 725322, at *11 (E.D.N.Y. Mar. 2,

2004) (quoting Carroll, 705 F.32d at 643).

The ALJ’s evaluation of the claimant’s subjective statements is not supported by

substantial evidence, especially since the ALJ never had the opportunity to assess the claimant in

person. An ALJ should not “disregard an individual’s statements about the intensity, persistence,

and limiting effects of symptoms solely because the objective medical evidence does not

substantiate the degree of impairment-related symptoms alleged by the individual. A report of

minimal or negative findings or inconsistencies in the objective medical evidence is one of the

many factors [she] must consider in evaluating the intensity, persistence, and limiting effects of

an individual’s symptoms.” S.S.R. 16-3P, 2016 WL 1119029, at *5. The ALJ relied on medical

evidence that the claimant’s symptoms improved (Tr. 16), but did not consider that the

claimant’s daily life was limited. For example, while she could pick her son up from school, she

indicated that others helped look after her children, and that she could not exercise every day, get

out of bed easily, or shower regularly. (Tr. 228.) She said that she had difficulty getting out of

the house because of her severe depression and fibromyalgia. (Tr. 230.) On remand, the ALJ

should consider the claimant’s subjective statements, taking into account all of the medical

evidence in the record.

Remand

The plaintiff urges the Court to remand this action only for the calculation of benefits.

(ECF No. 15 at 27.) According to the plaintiff, the record makes clear that the claimant was

disabled within the meaning of the Social Security Act. (Id.)

Reversal and remand solely for the calculation of benefits is appropriate “when the record

provides persuasive proof of disability and a remand for further evidentiary proceedings would

serve no purpose.” Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980); accord Rosa v.

Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999). On the other hand, “[r]emand for further

proceedings is appropriate in cases in which the Commissioner has failed to provide a full and

fair hearing, to make explicit findings, or to have correctly applied the application and

regulations.” Manago v. Barnhart, 321 F. Supp. 2d 559, 568 (E.D.N.Y. 2004). The record

before this Court does not provide persuasive proof of disability, and further proceedings are

necessary so that the ALJ can reevaluate the medical opinions, in particular the opinions of the

claimant’s treating physicians and the claimant’s subjective statements.

CONCLUSION

For these reasons, this case is remanded for further proceedings consistent with this

opinion.

SO ORDERED.

s/Ann M. Donnelly

___________________________

ANN M. DONNELLY

United States District Judge

Dated: Brooklyn, New York

December 8, 2021