Hissin v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

MEGAN S. HISSIN,

Plaintiff, Case # 17-CV-1264-FPG

v. DECISION AND ORDER

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

INTRODUCTION

Plaintiff Megan S. Hissin brings this action pursuant to the Social Security Act seeking

review of the final decision of the Commissioner of Social Security that denied her application for

Disability Insurance Benefits (“DIB”) under Title II of the Act. ECF No. 1. The Court has

jurisdiction over this action under 42 U.S.C. § 405(g). Both parties moved for judgment on the

pleadings pursuant to Federal Rule of Civil Procedure 12(c). ECF Nos. 11, 16. For the reasons

that follow, the Commissioner’s motion is DENIED, Hissin’s motion is GRANTED, and this

matter is REMANDED to the Commissioner for further administrative proceedings.

In addition, Hissin moves to supplement the administrative record with additional

evidence. ECF No. 12. Hissin’s motion to supplement is DENIED AS MOOT.

BACKGROUND

In December 2013, Hissin protectively applied for DIB with the Social Security

Administration (“the SSA”). Tr.1 96. She alleged disability since September 2012 due to bipolar

disorder, anxiety, Irritable Bowel Syndrome, and Ehler-Danlos Syndrome. Tr. 206, 210. On June

2, 2016, Hissin and a vocational expert (“VE”) testified at a video hearing before Administrative

1 “Tr.” refers to the administrative record in this matter. ECF No. 7.

Law Judge P. H. Jung (“the ALJ”). Tr. 27. On June 16, 2016, the ALJ issued a decision finding

that Hissin was not disabled. Tr. 10-20. On October 6, 2017, the Appeals Council denied Hissin’s

request for review. Tr. 1-3. This action seeks review of the Commissioner’s final decision. ECF

No. 1.

LEGAL STANDARD

I. District Court Review

“In reviewing a final decision of the SSA, this Court is limited to determining whether the

SSA’s conclusions were supported by substantial evidence in the record and were based on a

correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quotation marks

omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner is

“conclusive” if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence

means more than a mere scintilla. It means such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)

(quotation marks omitted). It is not the Court’s function to “determine de novo whether [the

claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quotation marks

omitted); see also Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990)

(holding that review of the Secretary’s decision is not de novo and that the Secretary’s findings are

conclusive if supported by substantial evidence).

II. Disability Determination

An ALJ must follow a five-step sequential evaluation to determine whether a claimant is

disabled within the meaning of the Act. See Parker v. City of New York, 476 U.S. 467, 470-71

(1986). At step one, the ALJ must determine whether the claimant is engaged in substantial gainful

work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not, the ALJ

proceeds to step two and determines whether the claimant has an impairment, or combination of

impairments, that is “severe” within the meaning of the Act, meaning that it imposes significant

restrictions on the claimant’s ability to perform basic work activities. Id. § 404.1520(c). If the

claimant does not have a severe impairment or combination of impairments, the analysis concludes

with a finding of “not disabled.” If the claimant does, the ALJ continues to step three.

At step three, the ALJ examines whether a claimant’s impairment meets or medically

equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the

“Listings”). Id. § 404.1520(d). If the impairment meets or medically equals the criteria of a Listing

and meets the durational requirement (Id. § 404.1509), the claimant is disabled. If not, the ALJ

determines the claimant’s residual functional capacity (“RFC”), which is the ability to perform

physical or mental work activities on a sustained basis, notwithstanding limitations for the

collective impairments. See id. § 404.1520(e)-(f).

The ALJ then proceeds to step four and determines whether the claimant’s RFC permits

him or her to perform the requirements of his or her past relevant work. 20 C.F.R. § 404.1520(f).

If the claimant can perform such requirements, then he or she is not disabled. Id. If he or she

cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the

Commissioner to show that the claimant is not disabled. Id. § 404.1520(g). To do so, the

Commissioner must present evidence to demonstrate that the claimant “retains a residual

functional capacity to perform alternative substantial gainful work which exists in the national

economy” in light of his or her age, education, and work experience. See Rosa v. Callahan, 168

F.3d 72, 77 (2d Cir. 1999) (quotation marks omitted); see also 20 C.F.R. § 404.1560(c).

DISCUSSION

I. The ALJ’s Decision

The ALJ analyzed Hissin’s claim for benefits under the process described above. At step

one, the ALJ found that Hissin had not engaged in substantial gainful activity since the alleged

onset date except between July 2014 and February 2015. Tr. 12. At step two, the ALJ found that

Hissin has several severe impairments, including depression, panic disorder, bipolar disorder,

asthma, and degenerative disc disease of the lumbar spine. Tr. 12-13. The ALJ concluded that,

although Hissin suffered from post-concussive syndrome as a result of a February 2015 motor

vehicle accident, the condition was nonsevere. Tr. 13. At step three, the ALJ found that these

impairments, alone or in combination, did not meet or medically equal any Listings impairment.

Tr. 13.

Next, the ALJ determined that Hissin retains the RFC to perform sedentary work2 with

additional limitations. Tr. 15. At step four, the ALJ found that Hissin cannot perform her past

relevant work. Tr. 19. At step five, the ALJ relied on the VE’s testimony and found that Hissin

can adjust to other work that exists in significant numbers in the national economy given her RFC,

age, education, and work experience. Tr. 19-20. Specifically, the VE testified that Hissin can

work as an order clerk, document preparer, and charge account clerk. Tr. 20. Accordingly, the

ALJ concluded that Hissin was not disabled. Id.

2 “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying

articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves

sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are

sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R.

§ 404.1567(a); see also SSR 96-9P, 1996 WL 374185, at *3 (S.S.A. July 2, 1996).

II. Analysis

Hissin argues, inter alia, that the Appeals Council erred when it declined to consider a new

treating physician opinion that she submitted after the ALJ’s decision. On June 13, 2016, John

Leddy, M.D.—who treated Hissin’s post-concussive syndrome—completed a “Neurologic

Questionnaire” in which he identified functional limitations resulting from her condition. See Tr.

91-95. Hissin submitted this opinion to the Appeals Council, but it denied review.

20 C.F.R. § 404.970 permits claimants to submit additional evidence to the Appeals

Council if certain requirements are met. The evidence must be new and material, must relate to

the period “on or before the date of the hearing decision,” and must create a reasonable probability

that it would “change the outcome of the decision.” 20 C.F.R. § 404.970(a)(5). The claimant must

also show good cause for not submitting the evidence sooner. Id. § 404.970(b). In this case, the

only reason the Appeals Council gave for rejecting Dr. Leddy’s opinion was that it did not “show

a reasonable probability that it would change the outcome of the decision.” Tr. 2.

In this respect, the Appeals Council erred. As a general matter, when the Commissioner

does not adequately explain the rationale for a decision, the Court “cannot provide meaningful

judicial review.” Jones v. Barnhart, No. CV-04-2772, 2004 WL 3158536, at *7 (E.D.N.Y. Feb.

3, 2004). The need for explanation is heightened with respect to treating-source opinions due to

the treating physician rule. That rule instructs the ALJ to give controlling weight to a treating

physician’s opinion when it is “well-supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.”

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

An ALJ may discount a treating physician’s opinion if it does not meet this standard, but he must

“comprehensively set forth [his] reasons for the weight assigned to a treating physician’s opinion.”

Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004) (per curiam); see also 20 C.F.R. §

404.1527(c)(2) (“We will always give good reasons in our notice of determination or decision for

the weight we give [the claimant’s] treating source’s opinion.”).

The treating physician rule applies both to the ALJ and the Appeals Council.3 See Durrant

v. Berryhill, No. 16-CV-6781, 2018 WL 1417311, at *4 (W.D.N.Y. Mar. 22, 2018) (collecting

cases); Brown v. Comm’r of Soc. Sec., No. 17-CV-1107, 2019 WL 2441862, at *4 (W.D.N.Y. June

12, 2019) (same). Consequently, like the ALJ, the Appeals Council must provide an “explicit

analysis” of the treating physician’s opinion and cannot reject it with boilerplate language. See

Patrick M. v. Saul, No. 18-CV-290, 2019 WL 4071780, at *7 (N.D.N.Y. Aug. 28, 2019) (Appeals

Council violated treating physician rule when it stated only that treating-source opinion “does not

show a reasonable probability that it would change the outcome of the decision”).

Judged by this standard, the Appeals Council’s stated rationale for declining to consider

Dr. Leddy’s opinion is clearly deficient, and more analysis is required. See Patrick M., 2019 WL

4071780, at *7.

The Commissioner responds that the Appeals Council’s decision was reasonable because

the opinion (1) was on a boilerplate form, (2) contained “only the most generic of information,”

and (3) did not include detailed explanation or treatment information. ECF No. 16-1 at 29-30.

The Commissioner also argues that Hissin did not provide good cause to justify the late filing. Id.

at 30. These arguments fail, however, because the Appeals Council did not articulate any of these

3 “The Second Circuit has not squarely addressed the Appeals Council’s obligation to apply the treating

physician rule when it denies review.” Patrick M. v. Saul, No. 18-CV-290, 2019 WL 4071780, at *7

(N.D.N.Y. Aug. 28, 2019). But as the Commissioner acknowledges, evidence submitted to the Appeals

Council “becomes part of the administrative record subject to judicial review.” ECF No. 16-1 at 29. If the

Appeals Council were not required to provide good reasons for rejecting a treating physician’s opinion, this

Court would be placed in the position of having to “apply the treating physician analysis” in the first

instance, when that analysis “must initially be applied by the Commissioner.” Patrick M., 2019 WL

4071780, at *7.

reasons to justify its conclusion. See Newbury v. Astrue, 321 F. App’x 16, 18 (2d Cir. 2009)

(summary order) (“A reviewing court may not accept appellate counsel’s post hoc rationalizations

for agency action.” (internal quotation marks omitted)).

Moreover, the Commissioner’s argument is unpersuasive because the opinion was not so

facially vague or unreliable as to lack probative value. To the contrary, there are factors that would

justify giving it controlling weight under the treating physician rule: Dr. Leddy treated Hissin’s

post-concussive condition consistently since onset; he references specific medical records and tests

that support his conclusion; and his diagnoses and conclusions find support elsewhere in the

record. See Tr. 91-95, 692-97, 741-42, 757-59; see also 20 C.F.R. § 404.1527(c)(2)-(6). This is

not to say that Dr. Leddy’s opinion must be given controlling weight, only that it would not

necessarily be unreasonable to do so. Thus, beyond its failure to provide a rationale, the Court

cannot agree with the Appeals Council’s conclusion that Dr. Leddy’s opinion was insufficiently

probative under § 404.970(a)(5).

Finally, the Commissioner contends that any error in failing to consider Dr. Leddy’s

opinion is harmless because the RFC already accounted for the limitations that Dr. Leddy

identified. Specifically, the ALJ found that Hissin could perform simple, repetitive, routine tasks

with no production rate of pace; tolerate few or infrequent changes in a routine work setting; and

interact frequently with the public. See Tr. 15. But while some of Dr. Leddy’s opinions are

consistent with the RFC, others are more stringent. For example, Dr. Leddy opines that, as a result

of her concussion, Hissin has reduced concentration, moderate difficulties with verbal and visual

memory, moderate limitations with respect to visual reasoning, and impaired vision function. Tr.

91-95. The RFC does not impose any limitations related to impaired vision function or reasoning

and does not fully reflect the potential limitations concerning Hissin’s inability to concentrate.

Indeed, the vocational expert testified that an individual unable to work one hour in an eight-hour

workday could not maintain competitive employment. Tr. 68.

Accordingly, the Appeals Councils error was not harmless. Remand for further

proceedings is therefore appropriate pursuant to sentence four of § 405(g). See Allborty v. Comm’r

of Soc. Sec., No. 14-CV- 1428, 2016 WL 770261, at *8(N.D.N.Y. Jan. 28, 2016). Onremand, the

Commissioner is directed to consider Dr. Leddy’s opinion as well as the evidence Hissin identifies

in her motion to supplement. See ECF No. 12. Given the Court’s conclusion, it need not address

Hissin’s other arguments.

CONCLUSION

For all of the reasons stated, the Commissioner’s Motion for Judgment on the Pleadings

(ECF No. 16) is DENIED and Hissin’s Motion for Judgment on the Pleadings (ECF No. 11) is

GRANTED. This matter is REMANDED to the Commissioner for further administrative

proceedings consistent with this opinion, pursuant to sentence four of 42 U.S.C. § 405(g). Hissin’s

motion to supplement the record (ECF No. 12) is DENIED AS MOOT. The Clerk of Court is

directed to enter judgment and close this case.

IT IS SO ORDERED.

Dated: September 9, 2019

Rochester, New York :

HON. i P. GERACI,

Chief Judge

United States District Court