# Brown v. Kijakazi

> District Court, N.D. New York · September 25, 2020

URL: https://www.frixlaw.com/law-library/cases/10313259

## Case

- **Court:** District Court, N.D. New York
- **Decided:** September 25, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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
10

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.,
11

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
15

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