Brown v. Kijakazi

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

CHAD B.,

Plaintiff,

V. 3:19-CV-814

(DJS)

ANDREW M. SAUL, Commissioner of

Social Security,

Defendant.

APPEARANCES: OF COUNSEL:

LACHMAN & GORTON PETER A. GORTON, ESQ.

Attorney for Plaintiff

1500 East Main Street

P.O. Box 89

Endicott, New York 13761-0089

U.S. SOCIAL SECURITY ADMIN. SEAN SANTEN, ESQ.

OFFICE OF REG’L GEN. COUNSEL

REGION I

Attorney for Defendant

J.F.K. Federal Building - Room 625

Boston, Massachusetts 02203

DANIEL J. STEWART

United States Magistrate Judge

MEMORANDUM-DECISION AND ORDER!

Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) seeking review of a

decision by the Commissioner of Social Security that Plaintiff was not disabled for

purposes of disability insurance benefits. Dkt. No. 1. Currently before the Court are

4) Plaintiff's Motion for Judgment on the Pleadings and Defendant’s Motion for Judgment

on the Pleadings. Dkt. Nos. 10, 14, & 17. For the reasons set forth below, Plaintiffs

Motion for Judgment on the Pleadings is granted and Defendant’s Motion is denied.

The Commissioner’s decision is reversed and the matter is remanded for further

proceedings.

I. RELEVANT BACKGROUND

A. Factual Background

Plaintiff was born in 1973. Dkt. No. 8, Admin. Tr. (“Tr.”), p. 50. Plaintiff

reported receiving a college degree in horticulture. /d. He has past work experience in

the horticultural field and as a social worker. Tr. at p. 193. Plaintiff alleges disability

based upon nerve issues in his feet, lesion of plantar nerve, synovitis, teno synovitis of

both ankles, plantar fascial fibromatosis, depression, anxiety, and mood disorder. Tr. at

p. 192.

1 Upon Plaintiffs consent, the United States’ general consent, and in accordance with this District’s General Order

18, this matter has been referred to the undersigned to exercise full jurisdiction pursuant to 28 U.S.C. § 636(c) and

Federal Rule of Civil Procedure 73. See Dkt. No. 7 & General Order 18.

B. Procedural History

Plaintiff applied for disability insurance benefits on July 20, 2016. Tr. at pp. 164-

170. He alleged a disability onset date of May 25, 2016. Tr. at p. 188. Plaintiff's

application was initially denied on August 23, 2016, after which he timely requested a

hearing before an Administrative Law Judge (“ALJ” or “Judge”). Tr. at pp. 92-96 &

98. Plaintiff appeared at a hearing before Judge Robyn L. Hoffman on July 20, 2018.

Tr. at pp. 42-77. On September 11, 2018, Judge Hoffman issued a written decision

finding Plaintiff was not disabled under the Social Security Act. Tr. at pp. 22-34. On

May 23, 2019, the Appeals Council denied Plaintiffs request for review, making the

ALJ’s decision the final decision of the Commissioner. Tr. at pp. 1-5.

C. The ALJ’s Decision

In her decision, the ALJ made the following findings of fact and conclusions of

law. First, the ALJ found that Plaintiff meets the insured status requirements of the

Social Security Act through December 31, 2021 and that he had not engaged in

substantial gainful activity since May 25, 2016, the alleged onset date. Tr. at p. 25.

Second, the ALJ found that Plaintiff had the following severe impairments: residuals,

including bilateral foot and back pain, attributed to degenerative disc disease of the

lumbosacral spine with spondylosis, depression, generalized anxiety disorder, panic

disorder without agoraphobia, obsessive compulsive disorder, and posttraumatic stress

disorder. /d. Third, the ALJ found that Plaintiff does not have an impairment or

combination of impairments that meets or medically equals one of the listed

impairments in 20 C.F.R. § 404, Subpart P, App. | (the “Listings”). /d. Fourth, the ALJ

found that Plaintiff has the residual functional capacity (“RFC”) to perform light work

with some limitations including:

he can occasionally lift and carry 20 pounds, lift and carry 10 pounds

frequently, sit for up to 6 hours, and stand or walk for approximately 6 hours

in an 8-hour day with normal breaks. He can understand, carry out, and

remember simple instructions, respond appropriately to supervision,

coworkers and usual work situations, and deal with changes in a routine work

setting.

Tr. at pp. 26-27. Fifth, the ALJ found that Plaintiff could not perform any of his past

relevant work. Tr. at p. 32. Sixth, the ALJ found that while Plaintiff would qualify as

a younger individual based on his disability onset date, he had subsequently changed

_|age category to “approaching advanced age.” /d. Seventh, the ALJ found that Plaintiff

had a high school education and could communicate in English. Jd. The ALJ then

concluded that transferability of job skills was not material because the Medical-

Vocational Rules supported a finding that Plaintiff was not disabled whether or not he

has transferrable skills. Tr. at pp. 32-33. The ALJ then determined that there were jobs

existing in significant numbers in the national economy that Plaintiff could perform. Tr.

“lat p. 33. The ALJ, therefore, concluded that Plaintiff is not disabled. Id.

Il. RELEVANT LEGAL STANDARDS

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 correct legal standards were not applied, or it

was not supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 986

(2d Cir. 1987) (“Where there is a reasonable basis for doubt whether the ALJ applied

“) correct legal principles, application of the substantial evidence standard to uphold a

finding of no disability creates an unacceptable risk that a claimant will be deprived of

the right to have her disability determination made according to the correct legal

principles.”); accord Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983), Marcus v.

Califano, 615 F.2d 23, 27 (2d Cir. 1979). “Substantial evidence” is evidence that

amounts to “more than a mere scintilla,” and has been defined as “such relevant evidence

“las a reasonable mind might accept as adequate to support a conclusion.” Richardson v.

Perales, 402 U.S. 389, 401 (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. The Supreme Court has recognized the validity of this sequential

evaluation process. Bowen v. Yuckert, 482 U.S. 137, 140-42 (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).

C. The Parties’ Briefings on Their Cross-Motions

Plaintiffs brief makes four principal arguments. First, he contends that the ALJ

erred in her evaluation of the opinions of Plaintiffs treating providers. Dkt. No. 10,

Pl.’s Mem. of Law, pp. 10-13. Second, Plaintiff objects that the ALJ’s conclusion

regarding his ability to work on task was not supported in the record. Jd. at pp. 13-21.

Third, Plaintiff contends that the Appeals Council erred in failing to consider new

evidence. /d. at pp. 16-17. Finally, Plaintiff contends that the ALJ erred in not

consulting a vocational expert. /d. at pp. 18-19.

In response, Defendant contends that substantial evidence supports the ALJ’s

evaluation of the opinion evidence and her conclusions regarding Plaintiff’s ability to

be on task. Dkt. No. 14, Def.’s Mem. of Law, pp. 5-14. Defendant also asserts that

“| there is no reasonable probability that the evidence submitted to the Appeals Council

would have altered the ALJ’s decision. /d. at pp. 14-15. Finally, Defendant contends

that the ALJ properly relied on the medical-vocational guidelines in reaching her

conclusion. /d. at pp. 15-16.

I. ANALYSIS

A. The ALJ’s Consideration of the Opinion Evidence

The Second Circuit has long recognized the “treating physician rule” set out in

20 C.F.R. § 404.1527(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 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 v. Colvin, 802 F.3d at 375 (quoting Selian v. Astrue,

708 F.3d 409, 418 (2d Cir. 2013)). 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 is required. Atwater v. Astrue, 512 Fed. Appx. 67, 70 (2d Cir. 2013) (citing

Halloran v. Barnhart, 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).

In Estrella v. Berryhill, the Second Circuit more recently addressed an ALJ’s

failure to “explicitly” apply the regulatory factors set out in Burgess when assigning

weight to a treating physician’s opinion. 925 F.3d 90 (2d Cir. 2019). In Estrella, the

Court explained that such a failure is a procedural error and remand is appropriate “[i]f

‘the Commissioner has not [otherwise] provided ‘good reasons’ [for its weight

assignment][.]’” 925 F.3d at 96 (alteration in original) (quoting Halloran v. Barnhart,

362 F.3d at 32). The Court further clarified that “[i]f, however, ‘a searching review of

the record’ assures us ‘that the substance of the treating physician rule was not

traversed,’ we will affirm.” Estrella v. Berryhill, 925 F.3d at 96 (quoting Halloran v.

Barnhart, 362 F.3d at 32). The Court also noted the question of “whether ‘a searching

review of the record... assure[s us] .. . that the substance of the . . . rule was not

traversed’” is “whether the record otherwise provides ‘good reasons’ for assigning ‘little

weight’ to [the treating psychiatrist’s] opinion.” /d.

The Second Circuit recently reiterated its Estrella findings in Ferraro v. Saul,

indicating that the ALJ did not explicitly consider the frequency, length, nature, and

extent of treatment that the claimant had with his treating physicians, did not otherwise

provide “good reasons” for assigning reduced weight to the opinions of those physicians,

and a searching review of the record did not assure the Court that the substance of the

treating physician rule was not traversed. 806 Fed. Appx. 13, 15-16 (2d Cir. 2020). The

Court in Ferraro also indicated that “merely acknowledging the existence of treatment

relationships is not the same as explicitly considering ‘the frequency, length, nature, and

extent of treatment.’” Jd. at *2.

Plaintiff alleges that the ALJ failed to afford controlling weight to the opinions

of Doctors Bennett and Sweet regarding his functional limitations and as a result failed

to properly evaluate those opinions in reaching her RFC determination. Pl.’s Mem. of

Law at pp. 10-13.

I. Dr. Bennett

Dr. Matthew Bennett treated Plaintiff over a period of several years for foot and

back pain. See Tr. at pp. 522-600. Dr. Bennett offered a medical opinion finding

generally that Plaintiff would be off task more than fifteen but less than twenty percent

of the time at work, that he would likely miss up to three days of work a month, was

limited in the amount of time Plaintiff could sit, maintain the same position, or stand

and walk during a typical day, and limited in the amount of weight he could lift. Tr. at

pp. 714-715. The ALJ afforded this opinion little weight because the limitations

imposed by it were not consistent with the medical evidence. Tr. at p. 30.

The decision to afford only little weight to this opinion appears to rest largely on

evidence in the record that on at least one occasion Plaintiff reported a 98% reduction

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in back pain after receiving injections. Tr. at p. 30. Isolating this one fact without

discussing other evidence in the record which is more consistent with Dr. Bennett’s

opinion constituted impermissible cherry-picking. Luke H. v. Saul, 2020 WL 4346789,

at *3 (N.D.N.Y. July 28, 2020). This is especially true when there is no discussion in

“)the decision under review of evidence consistent with the limitations stated in Dr.

Bennett’s opinion. Tr. at pp. 29-30; see also Pl.’s Mem. of Law at pp. 10-11 (citing

examples from medical record). Here, Dr. Bennett’s opinion was given little weight in

part because the opinions he offered “do no[t] comport with the overall medical evidence

of record” without explaining in any detail why the ALJ reached that conclusion. Tr. at

p. 30. In Ferraro, the Second Circuit held that this lack of rationale was an insufficiently

conclusory basis for rejecting a treating physician’s opinion. Ferraro v. Saul, 806 Fed.

Appx. at 16. Also contrary to Ferraro’s most recent guidance, the ALJ’s decision

credits the opinion of a consulting physician over that of Plaintiff's treating doctor

without offering a complete explanation. Tr. at pp. 29-30; Ferraro v. Saul, 806 Fed.

Appx. at 16 (noting that the Court cautions against this practice). For these reasons, the

Court cannot conclude that substantial evidence supports the ALJ’s analysis of this

opinion because, although it is within the ALJ’s purview to assess the medical opinions

in the first instance, it is not clear from the rationale provided that the record underlying

Dr. Bennett’s opinion was fully evaluated in discounting it, or at least the basis for

discounting it was not fully explained. See Robert D. v. Comm’r of Soc. Sec., 2020 WL

2553260, at *8 (N.D.N.Y. May 20, 2020); see also Heschke v. Comm’r of Soc. Sec.,

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2020 WL 3989581, at *5 (W.D.N.Y. July 15, 2020) (remanding in light of Ferraro

because of conclusory assertions that treating physician opinions were not supported by

medical evidence).

2. Dr. Sweet

Dr. Jennifer Sweet was for a period of time Plaintiffs treating podiatrist. Tr. at

pp. 28 & 736-742. She offered a medical source statement indicating that Plaintiff

would be limited in the amount of time he could sit or stand during a workday and would

have to frequently change positions. Tr. at p. 732. The ALJ afforded this opinion “little

weight” because it dealt with only some areas of function, was vague, and because Dr.

Sweet had not had ongoing care and treatment of Plaintiff. Tr. at pp. 28-29.

A review of Dr. Sweet’s records indicate that her diagnosis and treatment of

Plaintiff may well be inconsistent with her medical source statement. Nothing in the

medical treatment record would seem to explain why her opinion imposes the limitations

it does. Compare Tr. at p. 732 with Tr. at pp. 736-742. The decision under review,

however, did not discuss this medical evidence or Sweet’s treatment notes. It thus has

[ee discussion of “whether the opinion was consistent with the provider’s records” and

“failed to discuss the consistency of the opinion with the other medical evidence.” Eddie

F. v. Saul, 2020 WL 4745250, at *4 (N.D.N.Y. Aug. 17, 2020). As such, the decision

does not conform with the requirements of the treating physician rule.

While the Second Circuit’s Estrella decision permits the Court to assess whether

a decision though not complying with the letter of the treating physician rule nonetheless

12

provided sufficiently good reasons to excuse that failure, Estrella v. Berryhill, 925 F.3d

at 96, the Court concludes that affirmance on that ground is not warranted here.

The ALJ suggested that the Sweet opinion should be afforded little weight in part

because it was vague with respect to whether the stated “sitting limitation was at one

time, or was the total time claimant could sit in an 8-hour period.” Tr. at p. 29. The

only other opinion offered by Dr. Sweet, however, was that Plaintiff should change

positions every sixty minutes, Tr. at p. 732, and so it seems apparent that the limitation

was not intended as limiting Plaintiff to a single period. Nor is it clear why the fact that

this opinion “only dealt with some areas of function” entitles it to less weight. Tr. at 29.

Dr. Sweet is a podiatrist and thus by nature her assessment was limited to areas of

“| function within her expertise.

Defendant raises several alternative grounds for rejecting the opinion from Dr.

Sweet. First, he suggests that it was contradicted by Dr. Jenouri’s opinion. Def.’s Mem.

of Law at p. 10. Second, he relies on Dr. Sweet’s treatment notes indicating that

Plaintiffs pain was the result of back, not foot, issues and that as a podiatrist Dr. Sweet

is an acceptable medical source only as to conditions of the feet. /d. Finally, Defendant

notes that Dr. Sweet identified only an approximate six-month period of disability, when

a disability finding must involve a period of twelve months or more. /d. at p. 11. While

each of these may provide a basis for limiting the weight afforded to Dr. Sweet’s

opinion, “[a] reviewing court may not accept appellate counsel’s post hoc

13

rationalizations for agency action.” Hamedallah ex rel. E.B. v. Astrue, 876 F. Supp. 2d

133, 144 (N.D.N.Y. 2012) (internal quotations and citations omitted).

Accordingly, this matter must be remanded for further consideration of the

opinions of Plaintiff's treating physicians.

B. Plaintiff's Remaining Contentions

Plaintiff also objects to the ALJ’s conclusion regarding his ability to stay on task

during a workday. Pl.’s Mem. of Law at pp. 13-16. His argument in this regard relies

in part on the opinion of Dr. Bennett which found that Plaintiff would be off task

between fifteen and twenty percent of the day and absent up to three days per month.

Tr. at pp. 714-715. In light of the Court’s conclusion that the ALJ did not properly

“| evaluate Dr. Bennett’s opinion, the issue of Plaintiff's ability to remain on task should

be reconsidered on remand.

Similarly, insofar as a new assessment of Dr. Bennett’s medical opinion may

result in a different RFC determination, the ALJ on remand will need to make a new

assessment of the propriety of seeking testimony from a vocational expert and so remand

with respect to Plaintiff's argument concerning the absence of testimony from a

vocational expert is also appropriate.

Plaintiffs final contention is that the Appeals Council erred in not considering

certain information presented to it as new evidence. Pl.’s Mem. of Law at pp. 16-17.

Defendant contends that there was no error in failing to consider the information because

it did not provide any basis for altering the ALJ’s decision. Def.’s Mem. of Law at pp.

14

14-15. In light of the remand order, the Court need not address whether the Appeals

Council properly declined to consider this material since it 1s now a part of the

administrative record in this case which should be considered by the ALJ on remand.

Noutsis v. Colvin, 2016 WL 552585, at *10 n. 3 (E.D.N.Y. Feb. 10, 2016) (citing Perez

Sly. Chater, 77 F.3d 41, 45 (2d Cir. 1996)); Jones v. Comm’r of Soc. Sec., 2013 WL

3486994, at *12 n. 10 (S.D.N.Y. July 11, 2013).

IV. CONCLUSION

ACCORDINGLY, it is

ORDERED, that Plaintiff's Motion for Judgment on the Pleadings is

GRANTED; and it is further

ORDERED, that Defendant’s Motion for Judgment on the Pleadings is

DENIED; and it is further

ORDERED, that Defendant’s decision denying Plaintiff disability benefits 1s

REVERSED and the matter is REMANDED for further proceedings pursuant to

sentence four of 42 U.S.C. § 405(g); and it is further

ORDERED, that the Clerk of the Court shall serve copies of this Memorandum-

Decision and Order on the parties.

Dated: September 25, 2020

Albany, New York

Zz;

U.SMMfagistrate Judge

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