Brown v. Saul

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________

BARBARA B.,

Plaintiff,

v. 3:18-CV-878 (ATB)

COMM’R OF SOC. SEC.,

Defendant.

____________________________________

APPEARANCES: OF COUNSEL:

LACHMAN & GORTON PETER A. GORTON, ESQ.

Counsel for Plaintiff

P.O. Box 89

1500 East Main St.

Endicott, NY 13761-0089

U.S. SOCIAL SECURITY ADMIN. KATHRYN S. POLLACK, ESQ.

OFFICE OF REG’L GEN. COUNSEL

REGION II

Counsel for Defendant

26 Federal Plaza - Room 3904

New York, NY 10278

ANDREW T. BAXTER, United States Magistrate Judge

DECISION and ORDER

Currently before the Court, is this Social Security action filed by Barbara B. (“Plaintiff”)

against the Commissioner of Social Security (“Defendant” or “the Commissioner”) pursuant to

42 U.S.C. §§ 405(g) and 1383(c)(3). This matter was referred to me, for all proceedings and

entry of a final judgment, pursuant to N.D.N.Y. General Order No. 18, and in accordance with

the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, N.D.N.Y. Local Rule 73.1, and the

consent of the parties. (Dkt. Nos. 4, 6.) The parties have each filed briefs (Dkt. Nos. 14 and 19)

addressing the administrative record of the proceedings before the Commissioner. (Dkt. No. 9.)1

I. RELEVANT BACKGROUND

A. Procedural History

On January 22, 2013, Plaintiff applied for Disability Insurance Benefits (“DIB”) and

Supplemental Security Income (“SSI”), alleging a disability onset date of January 26, 2011. (T.

10, 108, 128-29, 224-31, 822.) She subsequently amended her onset date to December 13,

2012.2 (T. 241, 822.) Plaintiff was born in 1970, making her 42 years old as of the amended

alleged onset date and 48 years old on the date of the ALJ’s May 2018 decision. At the initial

level, Plaintiff alleged disability due to fibromyalgia, depression, anxiety, posttraumatic stress

disorder, asthma, back and neck pain, a traumatic brain injury, post-concussive disorder,

degenerative disc disease, osteoarthritis, joint dysfunction, sciatica, and gastroesophageal reflux

disease.

Plaintiff’s applications were initially denied on June 3, 2013, after which she requested a

hearing before an Administrative Law Judge (“ALJ”). Plaintiff appeared at two hearings before

ALJ Elizabeth Koennecke on September 24, 2014, and February 4, 2015. (T. 31-61, 940-70.)

On February 10, 2015, ALJ Koennecke issued a written decision finding that Plaintiff was not

disabled under the Social Security Act. (T. 7-28, 860-81.) On July 14, 2016, the Appeals

Council denied Plaintiff’s request for review. (T. 1-6, 882-87.) Plaintiff challenged the denial of

1 Citations to the Administrative Transcript, found at Dkt. No. 9, will be referenced as “T.” and

the Bates-stamped page numbers as set forth therein will be used rather than the page numbers

assigned by the Court’s CM/ECF electronic filing system.

2 The record reflects Plaintiff had a previous application for disability insurance benefits filed in

April 2011 alleging disability beginning January 26, 2011, with an unfavorable decision by ALJ

Elizabeth Koennecke dated December 12, 2012. (T. 62-107, 891, n. 1.)

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her claims for disability in the United States District Court for the Northern District of New

York. On July 17, 2017, Magistrate Judge William B. Carter ordered remand for further

administrative proceedings, pursuant to Sentence Four of 42 U.S.C. § 405(g). (T. 888-907.) The

Appeals Council directed that, on remand, the ALJ should offer Plaintiff the opportunity for a

hearing, address the additional evidence submitted, take any further action needed to complete

the administrative record, and issue a new decision. (T. 910-15.)

Plaintiff appeared at a subsequent administrative hearing before ALJ Koennecke on

March 28, 2018, at which a vocational expert (“VE”) also testified. (T. 847-59.) On May 21,

2018, ALJ Koennecke issued a partially favorable written decision finding that Plaintiff was not

disabled prior to June 6, 2017, but was disabled from that date through the date of the ALJ’s

decision. (T. 817-46.) Plaintiff initiated this action in the United States District Court for the

Northern District of New York on July 27, 2018. (Dkt. No. 1.)

B. ALJ Koennecke’s May 2018 Decision

In her decision, the ALJ found that Plaintiff last met the insured status requirements of

the Social Security Act on December 31, 2016. (T. 825.) The ALJ determined that Plaintiff had

not engaged in substantial gainful activity since December 13, 2012, the amended onset date.

(Id.) The ALJ further found that, since the alleged onset date of disability, Plaintiff had severe

impairments including degenerative disc disease of the cervical and lumbar spine, trochanteric

bursitis, fibromyalgia, obesity, and a mental impairment. (Id.) The ALJ determined that

Plaintiff did not have an impairment or combination of impairments that met or medically

equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix

1 since the alleged onset date. (T. 826-27.) Specifically, the ALJ considered Listings 1.02

(major dysfunction of a joint), 1.04 (disorders of the spine), and 12.04 (depressive, bipolar and

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related disorders). (Id.) The ALJ found that, prior to June 6, 2017, the date Plaintiff became

disabled, she had the RFC

to lift any weight up to three hours per day, frequently lift and/or

carry less than 10 pounds, sit for six hours out of an eight-hour

workday, and stand and/or walk for two hours out of an eight-hour

workday. She retained the ability to understand and follow simple

directions; perform simple tasks independently; maintain attention

and concentration for simple tasks; regularly attend to a routine and

maintain a schedule; relate to and interact appropriately with all

others to the extent necessary to carry out simple tasks; and handle

simple, repetitive work-related stress in that she can make

occasional decisions directly related to the performance of simple

tasks involving goal-oriented work rather than work involving a

production rate pace.

Beginning on June 6, 2017, [she] has the [RFC] to lift any weight

up to three hours per day, frequently lift and/or carry less than 10

pounds, sit for three hours out of an eight-hour workday, and stand

and/or walk for less than two hours out of an eight-hour workday

with the use of a cane. She retains the ability to understand and

follow simple instructions and directions; perform simple tasks

independently; maintain attention and concentration for simple

tasks; regularly attend to a routine and maintain a schedule; relate to

and interact appropriately with all others to the extent necessary to

carry out simple tasks; and handle simple, repetitive work-related

stress in that she can make occasional decisions directly related to

the performance of simple tasks involving goal-oriented work rather

than work involving a production rate pace.

(T. 827-28.) The ALJ further found that Plaintiff had been unable to perform any past

relevant work since December 13, 2012,3 but that there were jobs existing in significant numbers

in the national economy that she could perform prior to June 6, 2017. (T. 834.) The ALJ

therefore determined that Plaintiff was not under a disability within the meaning of the Social

Security Act at any time through December 31, 2016, the date last insured for DIB. (Id.)

3 Plaintiff obtained an associate degree in medical assisting, and previously worked as a licensed

practical nurse, medical assistant, and data entry clerk.

4

The ALJ found that, beginning on June 6, 2017, there were no jobs existing in significant

numbers in the national economy that Plaintiff could perform. (T. 352-53.) The ALJ concluded

that Plaintiff became disabled on June 6, 2017, and that her disability was expected to last twelve

months past the onset date. (T. 836.)

C. Issues in Contention

In her brief, Plaintiff argues that the ALJ’s choice of June 6, 2017 as the disability onset

date was arbitrary and capricious. (Dkt. No. 14, at 20-22.) Plaintiff also contends that the ALJ

failed to properly assess her fibromyalgia (Id. at 22-23), and that the ALJ erred in her evaluation

of the opinions of treating rheumatologist, Thomas Oven, M.D., and treating physician Darlene

Denzien, D.O. (Id. at 23-25). Plaintiff also contends that the ALJ’s RFC findings and her Step

Five determination that Plaintiff was not disabled prior to June 6, 2017, were not supported by

substantial evidence. (Id. at 25-29.)

Defendant argues that the ALJ’s RFC determination is supported by substantial evidence

because the ALJ properly evaluated the medical opinion and other evidence of record, including

the evidence relating to Plaintiff’s fibromyalgia. (Dkt. No. 19, at 7-18.) Defendant contends that

the ALJ’s finding that Plaintiff became disabled as of June 6, 2017, but was not disabled before

that date, is supported by substantial evidence. (Id. at 18-21.) For the reasons stated below, the

Court agrees with many of Plaintiff’s arguments and orders a remand of this case.

II. RELEVANT LEGAL STANDARD

A. Standard of Review

A court reviewing a denial of disability benefits may not determine de novo whether an

individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health & Human Servs., 906 F.2d

856, 860 (2d Cir. 1990). Rather, the Commissioner’s determination will be reversed only if the

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correct legal standards were not applied, or it was not supported by substantial evidence. See,

e.g., Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013); Johnson v. Bowen, 817 F.2d 983, 986

(2d Cir. 1987). “Substantial evidence” is evidence that amounts to “more than a mere scintilla,”

and has been defined as “such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” Selian, 708 F.3d at 417 (citing Richardson v. Perales, 402 U.S. 389,

401, 91 S. Ct. 1420, 1427 (1971)). Where evidence is deemed susceptible to more than one

rational interpretation, the Commissioner’s conclusion must be upheld. Rutherford v. Schweiker,

685 F.2d 60, 62 (2d Cir. 1982).

“To determine on appeal whether the ALJ’s findings are supported by substantial

evidence, a reviewing court considers the whole record, examining evidence from both sides,

because an analysis of the substantiality of the evidence must also include that which detracts

from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by

substantial evidence, the Commissioner’s finding must be sustained “even where substantial

evidence may support the plaintiff’s position and despite that the court’s independent analysis of

the evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153

(S.D.N.Y. 1992). In other words, this Court must afford the Commissioner’s determination

considerable deference, and may not substitute “its own judgment for that of the

[Commissioner], even if it might justifiably have reached a different result upon a de novo

review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

B. Standard to Determine Disability

The Commissioner has established a five-step evaluation process to determine whether an

individual is disabled as defined by the Social Security Act. 20 C.F.R. §§ 404.1520, 416.920.

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The Supreme Court has recognized the validity of this sequential evaluation process. Bowen v.

Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987). The five-step process is as follows:

First, the [Commissioner] considers whether the claimant is

currently engaged in substantial gainful activity. If he is not, the

[Commissioner] next considers whether the claimant has a “severe

impairment” which significantly limits his physical or mental ability

to do basic work activities. If the claimant suffers such an

impairment, the third inquiry is whether, based solely on medical

evidence, the claimant has an impairment which is listed in

Appendix 1 of the regulations. If the claimant has such an

impairment, the [Commissioner] will consider him disabled without

considering vocational factors such as age, education, and work

experience; the [Commissioner] presumes that a claimant who is

afflicted with a “listed” impairment is unable to perform substantial

gainful activity. Assuming the claimant does not have a listed

impairment, the fourth inquiry is whether, despite the claimant’s

severe impairment, he has the residual functional capacity to

perform his past work. Finally, if the claimant is unable to perform

his past work, the [Commissioner] then determines whether there is

other work which the claimant could perform. Under the cases

previously discussed, the claimant bears the burden of the proof as

to the first four steps, while the [Commissioner] must prove the final

one.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord McIntyre v. Colvin, 758 F.3d 146,

150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can be made, the SSA

will not review the claim further.” Barnhart v. Thompson, 540 U.S. 20, 24 (2003).

III. ANALYSIS

A. Substantial Evidence Does Not Support the ALJ’s Choice of the Disability

Onset Date of June 6, 2017

1. Applicable Law

“‘[I]t is essential that the onset date be correctly established and supported by the

evidence.’” Hamilton v. Astrue, 11-CV-954 (GLS), 2012 WL 5303338, at *2 (N.D.N.Y. Oct. 25,

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2012) (quoting Social Security Ruling (“SSR”) 83-20, 1983 WL 31249, at *1 (1983)).4 In

Hamilton, the Court stated that, where

the alleged disability is nontraumatic in origin, the ALJ must

consider the following relevant factors: (1) the individual's

allegation of onset; (2) her work history; and (3) the medical and

other evidence concerning impairment severity. The individual's

allegation is “[t]he starting point” from which the ALJ determines

the onset date; the alleged onset date “or the date of work stoppage

is significant . . . only if it is consistent with the severity of the

condition(s) shown by the medical evidence.” The medical

evidence, however, is the “primary element in the onset

determination.” While the date alleged by the claimant should be

used if it is consistent with all the record evidence, “[w]hen the

medical or work evidence is not consistent with the allegation,

additional development may be needed to reconcile the

discrepancy.” Ultimately, the date selected by the ALJ “can never

be inconsistent with the medical evidence of record.” Slowly

progressive impairments are such that “it is sometimes impossible

to obtain medical evidence establishing the precise date an

impairment became disabling.” If the ALJ reasonably questions the

alleged onset date, “the best practice may be to solicit the views of

a medical expert.”

Hamilton, 2012 WL 5303338, at *2 (quoting SSR 83-20; Monette v. Astrue, 269 F. App'x 109,

112 (2d Cir. 2008) (internal citations omitted). “‘Where the ALJ determines that the date of

onset is other than what the claimant alleges, the ALJ has an affirmative obligation to ‘adduce

substantial evidence to support his [finding].’” Corbett v. Comm’r of Soc. Sec., 08-CV-1248

(TJM), 2009 WL 5216954, at *13 (N.D.N.Y. Dec. 30, 2009) (quoting Moses v. Sullivan, 91-CV-

6980, 1993 WL 26766, at *4 (S.D.N.Y. Jan.19, 1993)).

There is a difference between analyzing medical records to determine what the weight of

the evidence supports and interpreting raw medical data that would require the expertise of a

physician or other trained medical source; the ALJ is precluded from doing only the latter. See

4 The Court notes that SSR 83-20 was rescinded and replaced October 2, 2018, following ALJ

Koennecke’s May 2018 decision. 1983 WL 31249.

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Hanson v. Comm’r of Soc. Sec., 15-CV-0150 (GTS/WBC), 2016 WL 3960486, at *9 (N.D.N.Y.

June 29, 2016), Report and Recommendations adopted by 2016 WL 3951150 (N.D.N.Y. July 20,

2016)) (noting that, while it is impermissible for an ALJ to interpret “raw medical data” and

substitute his own opinion for that of a medical source, it is within the ALJ’s power to resolve

conflicts in the medical record).

Additionally, the ALJ is required to provide a rationale in the written decision sufficient

to allow this Court to conduct an adequate review of her findings. Hamedallah ex rel. E.B. v.

Astrue, 876 F. Supp. 2d 133, 142 (N.D.N.Y. 2012) (“A court ‘cannot . . . conduct a review that is

both limited and meaningful if the ALJ does not state with sufficient clarity the legal rules being

applied and the weight accorded the evidence considered.’”) (citation omitted)); Hickman ex rel.

M.A.H. v. Astrue, 728 F. Supp. 2d 168, 173 (N.D.N.Y. 2010) (“The ALJ must ‘build an accurate

and logical bridge from the evidence to [his] conclusion to enable a meaningful review.’”)

(citation omitted).

2. Analysis

The ALJ found that Plaintiff’s allegations regarding her symptoms and limitations “are

more consistent with the evidence” beginning on June 6, 2017. (T. 833.) On that date, Plaintiff

“complained of a significant increase in her neck pain while at physical therapy,” describing her

pain as constant and unbearable, which the ALJ concluded indicated a worsening of her

condition. (T. 833, 1045.) The ALJ also referenced an August 2017 cervical spine MRI that

reportedly showed progression of Plaintiff’s osteoarthritis compared to a prior MRI; a September

2017 EMG that revealed a mild right chronic C6-C7 radiculopathy; and a December 2017

lumbar spine MRI that reportedly documented disc herniation at L4-L5, with osteoarthritis of the

lumbar spine. (T. 833-34, 1279, 1296-99.) The ALJ observed that Plaintiff had had a few

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months of worsening right hip pain in August 2017, and received repeat injections after a return

of hip pain. The ALJ also noted that Plaintiff had neck injections in January 2018, at which time

she appeared uncomfortable and was not able to ambulate without the use of a cane. (T. 834,

1157, 1286-95, 1339.)

Plaintiff argues that the ALJ’s choice of June 6, 2017, as Plaintiff’s disability onset date

is arbitrary and capricious. (Dkt. No. 14, at 20-22.) Plaintiff contends that the June 6 treatment

note referenced by the ALJ actually indicates a significant increase in neck pain three months

earlier. (Id. at 21; T. 833, 1045.) Plaintiff also notes that other records indicated worsening

symptoms of cervical radiculopathy, of non-traumatic onset, three months prior and, otherwise

suggested the onset of Plaintiff’s disability well before June 6, 2017. (Id.; T. 1049, 1157, 1382,

1384.) Plaintiff maintains there was no acute deterioration of Plaintiff’s condition on June 6, but,

rather, a worsening of her condition over the course of years with prior evidence of significant

cervical pain and radiculopathy. (Id. at 21-22; T. 834, 1157, 1277, 1296.)

The ALJ’s analysis, which was not supported by medical opinion evidence, did not

provide substantial evidence to warrant the finding that Plaintiff’s disability began no earlier than

June 6, 2017. The ALJ’s cited some medical evidence to explain her choice of this onset date,

but did not support her conclusions about when Plaintiff’s physical abilities changed to the extent

that she became disabled. For example, the ALJ explicitly pointed to Plaintiff’s complaint of a

significant increase in her neck pain on the selected onset date, without any explanation or

citation to any medical source indicating how this increase in pain affected Plaintiff’s

functioning. (T. 833, 1045.) Further, the ALJ does not adequately account for the considerable

medical opinion and other evidence indicating that Plaintiff’s symptoms and limitations

worsened well before June 6, 2017. The ALJ’s citation to a sampling of data points from the

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medical evidence, without the benefit of the testimony of a medical expert to substantiate the

onset date, crossed the line between analyzing the evidence and interpreting it. See Hamilton,

2012 WL 5303338, at *2 (quoting SSR 83-20); Hanson, 2016 WL 3960486, at *9.

The longitudinal nature of Plaintiff’s neck pain and other impairments undermines the

ALJ’s analysis regarding the disability onset date. For example, the record indicates that

Plaintiff was involved in a motor vehicle accident on approximately January 17, 2011, (with a

significant increase in pain on January 26, 2011), and that Plaintiff continued with low back and

neck pain following this incident. (T. 375-76, 417, 421, 423, 499-502.) In August 2011,

Plaintiff’s primary care provider reported low back and cervical pain secondary to a motor

vehicle accident, with a history of osteoarthritis and restless leg syndrome. (T. 408.) In

December 2012, Plaintiff reported a slip-and-fall with resulting back pain. (T. 394.) In May

2013, Plaintiff reportedly fell over toys and hurt her right shoulder, right hip, lower back, and

both her knees. (T. 589.) In June 2013, Plaintiff reported another fall and, between 2013 and

2018, continued to experience chronic back pain as well as neck, right shoulder, knee, and hip

pain. (T. 609, 613, 632, 645, 629, 614-25, 77, 799-804, 1319, 1324, 1328, 1334-35.)

In choosing an onset date, the ALJ failed to address portions of treating source opinions

that suggested earlier onset dates. Dr. Denzien opined that Plaintiff’s conditions (including

traumatic brain injury, low back pain, and chronic fibromyalgia) had caused various limitations

since January 2011.5 Dr. Oven with Elizabeth Schlitz Hull, FNP, observed that Plaintiff’s

5 As noted above, Plaintiff’s alleged onset date was originally January 26, 2011, which was

subsequently amended to December 13, 2012--the day after the previous unfavorable decision

from ALJ Koennecke, which bars a finding of disability before the date of decision. (T. 10, 62-

108, 241, 822, 916-39.) Although the relevant time period for this Court’s analysis starts from

the amended onset date, medical evidence prior to that date is cited for the purpose of

documenting the longitudinal record and how it may indicate that Plaintiff’s condition

substantially worsened at a point after the amended onset date, but well before June 6, 2017.

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conditions (including fibromyalgia and trochanteric bursitis) had been present since August

2011. (T. 677, 747.) Although the ALJ discussed these opinions in analyzing Plaintiff’s RFC,

her decision does not discuss the onset date indicated by the treating source opinions, or what, if

any weight, was given to these opinions. (T. 827-34.)

Without further explanation from the ALJ documenting a logical bridge between the

evidence and her choice of an onset date, meaningful judicial review is not possible. For the

reasons discussed above, as well as those discussed below regarding Plaintiff’s impairments and

RFC, the Court is unable to conclude that substantial evidence supports the disability onset date

of June 6, 2017. See Hickman, 728 F. Supp. 2d at 173. The Court therefore finds that remand is

required for further consideration of Plaintiff’s disability onset date, particularly whether

Plaintiff was disabled at some point prior to June 6, 2017.6 On remand, the Commissioner

should consider using a medical expert to provide guidance with respect to an onset date.

B. Substantial Evidence Does Not Support the ALJ’s Analysis of Plaintiff’s

Fibromyalgia or her RFC Findings With Respect to the Period Before June

6, 2017.

This Court has determined that this case must be remanded for further consideration of

the disability onset date. In further support of that determination, and in order to provide

additional guidance to the Commissioner on remand, the Court will address Plaintiff’s arguments

regarding errors in the ALJ’s review of the medical opinion evidence, her RFC analysis, and her

consideration of Plaintiff’s fibromyalgia.

6 The ALJ’s choice of onset date would preclude Plaintiff from receiving Title II DIB benefits for

the period before her application was filed, because the onset date post-dates her date last insured

by approximately six months. (T. 108, 118.)

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1. Applicable Law

a. RFC

RFC is “what [the] individual can still do despite his or her limitations. Ordinarily, RFC

is the individual’s maximum remaining ability to do sustained work activities in an ordinary

work setting on a regular and continuing basis . . . .” A “regular and continuing basis” means

eight hours a day, for five days a week, or an equivalent work schedule. Balles v. Astrue, 11-

CV-1386 (MAD), 2013 WL 252970, at *2 (N.D.N.Y. Jan. 23, 2013) (citing Melville v. Apfel,

198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96-8p, 1996 WL 374184, at *2)).

In rendering an RFC determination, the ALJ must consider objective medical facts,

diagnoses and medical opinions based on such facts, as well as a plaintiff’s subjective symptoms,

including pain and descriptions of other limitations. 20 C.F.R. § 416.945. See Martone v. Apfel,

70 F. Supp. 2d 145, 150 (N.D.N.Y. 1999) (citing LaPorta v. Bowen, 737 F. Supp. 180, 183

(N.D.N.Y. 1990)). An ALJ must specify the functions that a plaintiff is capable of performing,

and may not simply make conclusory statements regarding a plaintiff’s capacities. Martone, 70

F. Supp. 2d at 150 (citing Ferraris, 728 F.2d at 588; LaPorta, 737 F. Supp. at 183; Sullivan v.

Sec’y of HHS, 666 F. Supp. 456, 460 (W.D.N.Y. 1987)). The RFC assessment must also include

a narrative discussion, describing how the evidence supports the ALJ’s conclusions, citing

specific medical facts, and non-medical evidence. Trail v. Astrue, 09-CV-1120 (DNH/GHL),

2010 WL 3825629, *6 (N.D.N.Y. Aug. 17, 2010) (citing SSR 96-8p, 1996 WL 374184, at *7).

b. Treating Physician

The Second Circuit has long recognized the ‘treating physician rule’ set out in 20 C.F.R.

§§ 404.1527(c), 416.927(c). “‘[T]he opinion of a claimant’s treating physician as to the nature

and severity of the impairment is given ‘controlling weight’ so long as it is ‘well-supported by

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medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with

the other substantial evidence in the case record.’” Greek v. Colvin, 802 F.3d 370, 375 (2d Cir.

2015) (quoting Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)). However, “ . . . the opinion

of the treating physician is not afforded controlling weight where . . . the treating physician

issued opinions that are not consistent with other substantial evidence in the record, such as the

opinions of other medical experts.” Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).

In deciding how much weight to afford the opinion of a treating physician, the ALJ must

“explicitly consider, inter alia: (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.’” Greek, 802 F.3d at

375 (quoting Selian, 708 F.3d at 418). However, where the ALJ’s reasoning and adherence to

the regulation is clear, and it is obvious that the “substance of the treating physician rule was not

traversed,” no “slavish recitation of each and every factor” of 20 C.F.R. § 404.1527(c) is

required. Atwater v. Astrue, 512 F. App’x 67, 70 (2d Cir. 2013) (citing Halloran, 362 F.3d at 31-

32). The factors for considering opinions from non-treating medical sources are the same as

those for assessing treating sources, with the consideration of whether the source examined the

claimant replacing the consideration of the treatment relationship between the source and the

claimant. 20 C.F.R. §§ 404.1527(c)(1)-(6), 416.927(c)(1)-(6).

2. Relevant Treating Source Opinions

In August 2014, treating providers, Dr. Oven and FNP Schlitz Hull, stated that Plaintiff’s

fibromyalgia and trochanteric bursitis would cause pain, fatigue, diminished concentration and

work pace, and the need to rest at work. (T. 676.) They opined that Plaintiff had the following

limitations, present since August 2011: she would be off-task more than 20 percent, but less than

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33 percent of the workday and absent more than four days per month; she could sit for four to six

hours out of an eight-hour day and stand/walk for one hour; and she could lift over 10 pounds for

up to three hours per day. (T. 676-77.) The ALJ afforded some weight to the lifting, carrying,

and sitting limitations found by Dr. Oven and FNP Schlitz Hull, but stated “the limitations

associated with standing, walking, being off task, being absent from work, and alternating

between positions is given limited weight because FNP Hull evaluated her every three months

and Dr. Oven treated her every six months.” (T. 832.) The ALJ concluded that “[s]uch

infrequent treatment does not support such significant functional limitations.” (Id.)

In November 2014, Dr. Denzien found that Plaintiff’s traumatic brain injury, low back

pain, and chronic fibromyalgia would cause pain, fatigue, diminished concentration and work

pace, and the need to rest at work. (T. 746.) Dr. Denzien opined that Plaintiff had the following

restrictions, which had been present since January 2011: she would be off-task more than 33

percent of the day and absent more than four days per month; she could sit for four hours out of

an eight-hour workday, would need to change positions every 15 minutes, and could stand/walk

for one hour; and she should not lift any weight at all. (T. 746-47.) In a November 2014

treatment note, Dr. Denzien stated:

Based on the history, review of chart and medical records, the

patient is fully disabled permanently from meaningful employment.

She would be unable to maintain any meaningful work. Her

collective disabilities, traumatic brain injury and back injury would

make it impossible for her to be fully attendant at any job. Her brain

injury makes it impossible for her to put her previous education to

meaningful[] use because of issues of poor concentration and poor

memory.

(T. 772.)

The ALJ gave limited weight to Dr. Denzien’s assessments because they were not fully

supported by her own treatment notes. (T. 832.) The ALJ noted that Dr. Denzien’s conclusions

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were based in part on a traumatic brain injury, but concluded that the record did not document a

severe traumatic brain injury. The ALJ also observed that treatment notes from Dr. Denzien’s

office did not document evidence of attention and concentration deficits. (Id.) The ALJ further

cited treatment notes indicating the absence of dizziness, migraine headaches, syncope, weakness

and memory loss, as well as a lack of clinical findings associated with Plaintiff’s lumbar or

cervical disorder. (T. 454-55, 832.) The ALJ concluded that objective evidence in the record did

not support Dr. Denzien’s assessment, noting that an EMG/nerve conduction study was negative

for lumbar radiculopathy.

In April 2015, treating provider Christopher Yanusas, Ph.D., assessed Plaintiff’s

concussion/post-concussion syndrome with continuing fatigue, anxiety/depression, and

concentration/memory problems. (T. 814.) Dr. Yanusas found medium limitations in

maintaining attention and concentration and marked limitations in performing activities within a

schedule, maintaining regular attendance and/or being punctual within customary tolerances,

completing a normal workday and workweek without interruptions from psychological-based

symptoms, and performing at a consistent pace without an unreasonable number and length of

rest periods. (Id.) He indicated Plaintiff would be off-task more than 33 percent of the workday

and absent three or more days per month, with her restrictions being present since December

2011. (T. 815-16.) The ALJ gave little weight to the assessment by Dr. Yanusas, “who reported

[Plaintiff] has limitations related to a motor vehicle accident despite not having ever seen [her]

until approximately one year thereafter.” (T. 833.) The ALJ noted that Dr. Yanusas had detailed

that Plaintiff’s “stress over her daughter and caring for her grandchildren is really what causes

any limitations, which supports a conclusion that [she] has no significant post-concussion issues

related to her motor vehicle accident.” (T. 833, 1217-56.)

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In February 2018, Dr. Denzien submitted an addendum to her November 2014

assessment stating that Plaintiff’s condition had worsened and her limitations were more severe.

(T. 1296.) Dr. Denzien noted lumbar pain with a December 2017 MRI confirming disc

herniation at L4-L5, with osteoarthritis of the lumbar spine; an August 2017 cervical spine MRI

showing progression of osteoarthritis compared with an August 2010 MRI; and celiac disease

with malabsorption requiring infusions for anemia. (Id.) The ALJ gave this assessment limited

weight, “as the record is supportive of a showing of some degree of worsening, although Dr.

Denzien’s report cannot be given greater weight” because the ALJ’s request for an explanation

for the basis of this assessment was not completed by Dr. Denzien. (T. 834.) The ALJ also

noted that a May 2017 x-ray of the cervical spine did not indicate significant worsening of

Plaintiff’s condition. (T. 834, 1160.)

In March 2018, Dr. Yanusas opined that Plaintiff’s condition and limitations were about

the same. (T. 1343.) The ALJ found that this opinion was generally consistent with earlier

indications that Plaintiff’s issues were more related to psychiatric conditions, rather than a head

injury. The ALJ concluded that Plaintiff was limited to unskilled work with no production pace

based on Dr. Yanusas’ reports. (T. 834.) The ALJ gave no weight to any conclusory statements

regarding Plaintiff being disabled, because these were conclusions reserved to the

Commissioner. (Id.)

3. Analysis

a. The ALJ’s Evaluation of the Medical Opinion Evidence

Plaintiff argues the ALJ’s evaluation of the opinions from treating rheumatologist, Dr.

Oven, and treating primary care physician, Dr. Denzien, reflects the same error that caused

Magistrate Judge Carter’s prior remand in this case. (Dkt. No. 14, at 23-25.) Plaintiff also

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contends the RFC determination is not supported by substantial evidence because she cannot

stand/walk two hours per day, the ALJ failed to include limitations to work pace and/or

attendance, and the ALJ failed to include Plaintiff’s need to frequently change positions. (Id. at

25-27.) The Court finds these arguments persuasive for the following reasons.

Multiple treating physicians opined that, as a result of Plaintiff’s symptoms from

fibromyalgia, bursitis, traumatic brain injury, and/or post-concussion syndrome, she would be

off-task greater than 20% to 33% of the workday, would have three or four or more absences per

month, and could only stand/walk for one hour per eight-hour workday. The ALJ did not adopt

these limitations in his RFC findings for the period before June 6, 2017, but cited no medical

opinion evidence that contradicted the opinions of Plaintiff’s treating physicians with respect to

that time period. “[W]hen a medical opinion stands uncontradicted, ‘[a] circumstantial critique

by nonphysicians, however thorough or responsible, must be overwhelmingly compelling in

order to overcome’ it.” Giddings v. Astrue, 333 F. App'x 649, 652 (2d Cir. 2009) (quoting

Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008)); Flynn v. Comm’r of Soc. Sec., 729 F.

App'x 119, 121 (2d Cir. July 6, 2018) (“[W]hile a physician’s opinion might contain

inconsistencies and be subject to attack, a circumstantial critique by non-physicians, however

thorough or responsible, must be overwhelmingly compelling in order to overcome a medical

opinion.”) (citing Shaw v. Chater, 221 F.3d 126, 135 (2d Cir. 2000)). See also Balsamo v.

Chater, 142 F.3d 75, 81 (2d Cir. 1998) (“While an [ALJ] is free to resolve issues of credibility as

to lay testimony or to choose between properly submitted medical opinions, he is not free to set

his own expertise against that of a physician who [submitted a medical opinion to] or testified

before him.’”).

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The ALJ discounted Dr. Oven’s August 2014 opinion (T. 676-77) because FNP Schlitz

Hull evaluated Plaintiff every three months and Dr. Oven treated her every six months, stating

that such infrequent treatment did not support such significant functional limitations. (T. 832.)

This analysis was similar to that employed by the ALJ in her February 2015 opinion, which

analysis Magistrate Judge Carter rejected because it was belied by the record. (Id. at 23-24; T.

832, 900-01.) As Judge Carter noted “Plaintiff began treatment with Dr. Oven’s practice in

August of 2010 and consistently received treatment approximately every three months from

August 2010 through August 2014” and “was examined by a provider with Dr. Oven’s office 18

times in three years.” (T. 900-01.) Nonetheless, the ALJ again afforded limited weight to Dr.

Oven and Ms. Schlitz Hull’s opinions about Plaintiff’s limitations with standing, walking, being

off task, being absent from work, and alternating between positions.

The Court finds the ALJ’s conclusion regarding Dr. Oven’s opinions is not supported by

substantial evidence because it ignored the established, specialized treating relationship between

these providers and Plaintiff, as well as Judge Carter’s previous ruling that the ALJ erred in

evaluating this treating relationship. Furthermore, subsequent treatment notes before ALJ

Koennecke on remand indicate that Plaintiff continued treating with Dr. Oven at Regional

Rheumatology Associates between November 2014 and August 2017, with approximately six

examinations by Dr. Oven or someone in his practice during that time period. (T. 1157-86.)

The Court similarly finds that the ALJ’s analysis of Dr. Denzien’s opinion repeats an

error previously identified found by Judge Carter. (Dkt. No. 14, at 25; T. 825-832, 901-02.) The

ALJ also noted that Dr. Denzien’s conclusions were based in part on a traumatic brain injury,

although the ALJ found that the record did not document a severe traumatic brain injury. (T.

832.) Judge Carter observed that, in the ALJ’s previous decision, she discounted the opinions of

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Dr. Oven and Dr. Denzien because their opinions were based on impairments which the ALJ

deemed non-severe, including bursitis or brain injury. However, Judge Carter found that the

doctors’ opinions were actually based on Plaintiff’s fibromyalgia and trochanteric bursitis, or a

variety of medical diagnoses. (T. 901.) He concluded that the ALJ should have taken non-

severe impairments into consideration when formulating the RFC. Because Plaintiff’s treating

sources found limitations based on their treatment of Plaintiff’s collective impairments, Judge

Carter ruled that the ALJ erred by summarily discounting the entirety of the opinions because

she classified one particular impairment to be non-severe. (T. 901-02.)

The ALJ also gave limited weight to Dr. Denzien’s assessments because they were not

fully supported by her own treatment notes, which did not, for example, document evidence of

attention and concentration deficits. (T. 454-55, 832.) However, because treating physicians

appropriately focus on a patient’s diagnosis and treatment, it is unreasonable for the ALJ to

expect that Plaintiff’s treating physicians would document and support detailed functional

assessments in their treatment notes. See, e.g., Oakley v. Colvin, No. 3:13-CV-679 (GLS/ESH),

2015 WL 1097388, at *11 n. 22 (N.D.N.Y. Mar. 11, 2015) (“Absent a request for forensic

opinions, treating medical sources’ clinical notes focus on diagnoses and treatment modalities.”);

Ubiles v. Astrue, No. 11-CV-6340T, 2012 WL 2572772, at *9 (W.D.N.Y. July 2, 2012) (“it is

unreasonable to expect a physician to make, on his own accord, the detailed functional

assessment demanded by the Act in support of a patient seeking SSI benefits.”).

Further, the Court is troubled by the ALJ’s statement that “Dr. Denzien noted [Plaintiff]

was following with all of her various specialists for all her various problems, which suggests that

Dr. Denzien is not personally providing [her] with treatment for the majority of her conditions.”

(T. 455, 751, 772, 832.) This characterization ignores the longstanding relationship Dr. Denzien

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has with Plaintiff as her primary care physician. Dr. Denzien and others at Lourdes Center for

Family Health have treated Plaintiff since at least 2010, with referrals for specialized treatment

and various procedures. (T. 38, 75, 387, 366-449, 474-76, 604-50, 643, 651, 678, 751, 767-97,

1300-38, 1353-1419.) The Court is not satisfied that the ALJ properly assessed the frequency,

length, nature, and extent of this treating relationship in considering this medical source opinion.

Given the ALJ’s errors in considering the opinions from Dr. Oven and Dr. Denzien, the

ALJ’s RFC determination and Step Five analysis is tainted and not supported by substantial

evidence. (See Dkt. No. 14, at 25-27.) The ALJ’s RFC findings and her hypothetical to the VE

did not include significant limitations found by these treating sources relating to standing,

walking, the need to change positions, and work pace and/or attendance. (T. 676-77, 746-47,

855-56.) For example, multiple treating doctors opined that Plaintiff would have more than

three or four unexcused absences per month, which the VE testified would not be tolerated by

employers in the careers identified as consistent with the ALJ’s RFC hypothetical. (T. 858.)

b. The ALJ’s Evaluation of Plaintiff’s Fibromyalgia

The Court cannot find, on the current record, that the ALJ’s analysis of Plaintiff’s

fibromyalgia in her May 2018 decision is supported by substantial evidence. (T. 830.) In

reviewing the ALJ’s February 2015 decision, Magistrate Judge Carter found that (1) the ALJ’s

conclusion, based on her own interpretation of the medical evidence, that Plaintiff’s limitations

could not be due to her fibromyalgia because of her normal physical examinations, is a

fundamental misunderstanding of fibromyalgia and (2) that a lack of positive, objective clinical

findings does not rule out the presence of fibromyalgia, but may, instead, serve to confirm its

diagnosis. (T. 902 (citing, inter alia, Campbell v. Colvin, No. 5:13-CV-451 (GLS/ESH), 2015

WL 73763, at *5 (N.D.N.Y. Jan. 6, 2015).) In her May 2018 decision, the ALJ stated

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According to the evidence in record, [Plaintiff] had a history of

fibromyalgia, but rheumatology records from January 2013 showed

no marked swelling of any peripheral joints (Exhibit B5F, page 3).

I am aware that fibromyalgia is a diagnosis rendered without any

objective evidence. It is a subjective condition and this claimant,

just as every other claimant who alleges this impairment,

subjectively reports disabling pain with disabling functional

limitations. However, the Agency has not directed that the diagnosis

alone equals a finding of disability, rather it is up to the undersigned

to determine how severe her fibromyalgia is. Because it is a

condition that results in complaints of widespread pain affecting

function, it necessarily affects findings reported on examination,

such as reduced strength due to pain, reduced range of motion due

to pain, limited movement due to pain, [and] antalgic gait muscle

bulk versus muscle wasting. Therefore, there is objective evidence

that can inform the undersigned and fulfill the requirement to

determine the severity of her fibromyalgia. This is consistent with

the Agency’s directives for evaluating fibromyalgia. Otherwise, if

the undersigned is precluded from evaluating any objective

evidence, the diagnosis alone does equate to a finding of disability.

This conclusion would be improper, as the record does not

document fibromyalgia flares or the extensive limitations associated

therewith that [Plaintiff] has alleged.

(T. 456, 830.)

To be sure, Plaintiff’s other pain-causing impairments (including degenerative disc

disease of the cervical and lumbar spine, as well as trochanteric bursitis) complicate the

assessment of her fibromyalgia and related symptoms. (T. 108-09, 118-19, 825.) However, the

ALJ’s reliance on a lack of marked swelling of any peripheral joints documented in

rheumatology records from January 2013 appears to again represent a fundamental

misunderstanding of fibromyalgia and a failure to properly review or discuss positive clinical

findings throughout the record which could be attributed to fibromyalgia in conjunction with

Plaintiff’s other impairments. (T. 830, 902.)

For example, Plaintiff was assessed with chronic myalgias secondary to questionable

fibromyalgia with a history of osteoarthritis in September 2010 and had positive trigger points

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with decreased range of motion of the neck and upper arm on examination. (T. 428.) In late

2010 through 2012, Plaintiff had pain, tenderness (variously characterized as mild to exquisite),

or tender trigger points on examinations and was variously assessed with probable fibromyalgia

syndrome, diffuse arthromyalgias with multiple soft tissue complaints consistent with

fibromyalgia, and fibromyalgia syndrome with a large component of myofascial pain. (T. 458-

76.) In January 2013 (within the same treatment note cited by the ALJ for a lack of marked

swelling of any peripheral joints), Dr. Oven noted Plaintiff complained of tenderness on

palpation of various areas of the body, but he could see no active synovitis and her gait was

within normal limits that day. (T. 456-57.) Subsequently, in April 2013, FNP Schlitz Hull noted

diffuse tender trigger points on examination. (T. 455.) In July 2013, Plaintiff was noted to be

ambulating with a cane and her right knee showed soft tissue swelling with some pain and

tenderness along the lateral and medial aspect of the patella. (T. 630.) In rheumatology records

from March 2015 to August 2017, Plaintiff had tenderness in various areas. (T. 1157-85.)

Although the ALJ found Plaintiff’s fibromyalgia to be a severe impairment, her most

recent analysis of Plaintiff’s fibromyalgia is again deficient. (T. 825, 830.) Neither SSR 12-2p,

discussing the evaluation of fibromyalgia, nor Judge Carter’s decision suggests that the ALJ is

precluded from evaluating objective evidence or finding that the diagnosis of fibromyalgia alone

does not equate to a finding of disability. (T. 830.) However, the ALJ “must consider all

evidence in the record” in assessing Plaintiff’s impairments, symptoms, and RFC. Ryan v.

Astrue, 650 F. Supp. 2d 207, 216 (N.D.N.Y. 2009) (citation omitted); Armstead ex. rel.

Villanueva v. Astrue, 04-CV-0503 (NAM/RFT), 2008 WL 4517813, at *18 (N.D.N.Y., Sept. 30,

2008)). Although the ALJ is entitled to resolve conflicts in that evidence, she “cannot ‘cherry

pick’ only the evidence from medical sources that support a particular conclusion and ignore

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contrary evidence.” Walsh v. Colvin, 13-CV-0603 (GTS/ATB), 2014 WL 4966142, at *9

(N.D.N.Y. Sept. 30, 2014) (citing, inter alia, Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981)).

Judge Carter stated that it appeared from the ALJ’s “terse analysis of the record” in her

February 2015 decision that she improperly rejected the treating source opinions based on a

perceived lack of objective evidence supporting Plaintiff’s diagnosis and limitations due to her

fibromyalgia. (T. 903.) This Court is similarly unconvinced that the ALJ properly reviewed the

evidence (both medical and opinion) regarding Plaintiff’s fibromyalgia in her May 2018

decision, because the ALJ cherry-picked the evidence in choosing to highlight the January 2013

treatment note without discussing other evidence of positive findings.

In sum, the Court finds that the ALJ’s analysis of the medical opinion evidence, including

that related to Plaintiff’s fibromyalgia, and her RFC findings are not supported by substantial

evidence. Remand is required on these additional grounds. On remand, the ALJ should fairly

review the totality of the medical evidence in determining the weight to be given to the opinions

of Plaintiff’s treating physicians and properly evaluate Plaintiff’s impairments and related

symptoms to determine an RFC supported by substantial evidence.7

C. The Nature of Remand

“When there are gaps in the administrative record or the ALJ has applied an improper

legal standard . . . remand to the Secretary for further development of the evidence” is generally

appropriate. Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980). On remand, the ALJ should

7 ALJ Koennecke has now reviewed Plaintiff’s disability claims a total of three times. Although

“whether to assign a new ALJ on remand is generally a determination for the Commissioner,”

the Commissioner “should consider in [his] discretion whether the case warrants a ‘fresh look’

by a new ALJ.” Dioguardi v. Comm’r of Soc. Sec., 445 F. Supp. 2d 288, 300-01 (W.D.N.Y.

2006) (citing Nunez v. Barnhart, 01-CV-5714, 2002 WL 31010291 (E.D.N.Y. Sept. 9, 2002);

Hartnett v. Apfel, 21 F. Supp. 2d 217, 222 (E.D.N.Y. 1998)).

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address the errors identified above in considering whether Plaintiff was disabled during any of

the relevant time period prior to June 6, 2017.8 Because remand is necessary to address the

issues identified above, the Court declines to reach specific findings on Plaintiff's other

arguments. (Dkt. No. 14, at 27-29.) On remand, the Commissioner, perhaps with the input of a

medical expert, may be able to support a determination that Plaintiff was not disabled during

some or all of the earlier, relevant time period. Thus, this Court cannot conclude that substantial

evidence on the record as a whole indicates that the Plaintiff was disabled prior to the ALJ’s

chosen onset date and I cannot recommend a remand solely for the determination of benefits.

See Bush v. Shalala, 94 F.3d 40, 46 (2d Cir. 1996).

ACCORDINGLY, it is

ORDERED that the decision of the Commissioner as to the period between December

13, 2012, and June 5, 2017, is REVERSED and this case REMANDED, pursuant to sentence

four of 42 U.S.C. § 405(g), for a proper evaluation of the opinions of the treating physicians and

other medical and non-medical evidence, Plaintiff’s RFC, and whether and when she became

disabled during that time period, and other further proceedings, consistent with this Report.

Dated: October 28, 2019

bnloo Bate.

Andrew T. oh

U.S. Magistrate Judge

8 As discussed above, the ALJ’s errors in the evaluation of the medical opinion and other

evidence infected the ALJ’s RFC findings, undermined the opinion of the VE that Plaintiff could

perform work in the national economy, and tainted the ultimate decision that Plaintiff was not

disabled prior to June 6, 2017.

25