Ivery v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

LASHANTI IVERY,

Plaintiff,

Hon. Hugh B. Scott

6:18CV6290

v.

CONSENT

Order

ANDREW SAUL, COMMISSIONER,

Defendant.

Before the Court are the parties’ respective motions for judgment on the pleadings

(Docket Nos. 14 (plaintiff), 18 (defendant Commissioner)). Having considered the

Administrative Record, filed as Docket No. 9 (references noted as “[R. __]”), and the papers of

both sides, this Court reaches the following decision.

INTRODUCTION

This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination

of the Commissioner of Social Security that plaintiff is not disabled and, therefore, is not entitled

to disability insurance benefits and/or Supplemental Security Income benefits. The parties

consented to proceed before a Magistrate Judge (Docket No. 21, reassignment Order July 9,

2019).

PROCEDURAL BACKGROUND

The plaintiff (“Lashanti Ivery” or “plaintiff”) filed an application for disability insurance

benefits on October 8, 2014 [R. 11], for an alleged onset date of August 30, 2013 [R. 11]. That

application was denied initially. The plaintiff appeared before an Administrative Law Judge

(“ALJ”), who considered the case de novo and concluded, in a written decision dated February 7,

2017 [R. 11], that the plaintiff was not disabled within the meaning of the Social Security Act.

The ALJ’s decision became the final decision of the Commissioner on February 13, 2018, when

the Appeals Council denied plaintiff’s request for review.

Plaintiff commenced this action on April 12, 2018 (Docket No. 1). The parties moved

for judgment on the pleadings (Docket Nos. 14, 18), and plaintiff duly replied (Docket No. 19).

Upon further consideration, this Court then determined that the motions could be decided on the

papers.

FACTUAL BACKGROUND

Plaintiff, a 40-year-old as of the onset date with a high school education, last worked as a

certified nurse assistant and a babysitter [R. 27]. Plaintiff claims the following impairments

deemed severe by the ALJ: mild cervical and lumbar degenerative disc disease; shoulder

tendonitis; sacroiliac dysfunction; lumbar strain; depression; and anxiety [R. 13]. Plaintiff also

claims she suffers from hallucinations but these were due to her medicine and the hallucinations

stopped when she ceased taking the medication [R. 14].

MEDICAL AND VOCATIONAL EVIDENCE

Plaintiff testified that she suffered from disability based on neck, back, and right shoulder

pain, depression, and anxiety [R. 271, 16]. Plaintiff was injured on the job on November 27,

2012 [R. 17, 359]. Plaintiff received chiropractic care for two months but plaintiff stopped

follow up despite it appearing to alleviate her pain [R. 17]. The ALJ concluded that plaintiff

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received treatment for alleged disabling impairments, the treatment was deemed “essentially

routine and/or conservative in nature” [R. 25].

Treating physician, Dr. Matthew Grier, a board-certified physiatrist for treatment of

upper and lower back pain, treated plaintiff throughout 2014 [R. 18]. On November 21, 2014,

Dr. Grier diagnosed plaintiff with sacroiliac dysfunction, cervical, thoracic, and lumbar strain,

bicipital tendinitis on the right, and reactive depression and anxiety [R. 428, 18]. Dr. Grier

examined plaintiff for a workers’ compensation examination on March 25, 2015, plaintiff

complained of worsening shoulder pain, and the doctor found that plaintiff had poor and limited

range of motion in her lumbar spine [R. 693-95]. Dr. Grier reported in a workers’ compensation

Doctor’s report of MMI/Permanent Disability that plaintiff could never climb, could occasionally

kneel, bend, stoop, or squat5, and could frequently lift 10 pounds, push or pull 20 pounds

[R. 683, 681]. Dr. Grier also noted that plaintiff needed to be able to change body positions as

needed [R. 683]. The doctor concluded that plaintiff could perform “light work,” defined in that

form as being able to exert up to 20 pounds of force occasionally with physical demands more

than sedentary work [R. 683].

Dr. Grier noted in a physical assessment of employability, on April 29, 2016, that

plaintiff had back pain with abnormal squatting, cervical pain with headaches, lumbar strain,

diminished reflexes, and atraumatic extra ocular muscles [R. 868-71, 23]. Dr. Grier opined that

plaintiff was moderately limited in standing, walking, sitting, pushing, pulling, bending, lifting,

and carrying [R. 871], finding that plaintiff was abnormal in squatting [R. 870]. The ALJ gave

this opinion partial weight because the opinion also listed normal findings and noted that plaintiff

could perform all exertion with moderate limitations [R. 23, 871].

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The ALJ gave great weight to the evaluation of consultative examiner, Dr. Janet Williams

since it was consistent with the findings and opinions of plaintiff’s treating doctors [R. 437, 21,

26]. Dr. Williams acknowledged that plaintiff had some physical limitations but opined that it

reduced her residual functional capacity but did not rendered her unable to work [R. 26]. The

ALJ also gave some weight to independent medical examiner, Dr. James McGlowan [R. 467, 18,

26-27], who recommended conservative care, advised that plaintiff could return to work

[R. 467]. The ALJ did not fully adopt Dr. McGlowan’s opinion because it was rendered under

the different worker’s compensation standard [R. 26-27].

As for plaintiff’s mental limitations, applying the “Paragraph B” criteria, plaintiff had

mild limitations in understanding, remembering or applying information and in interacting with

others; she had moderate limitation in concentration, persisting, or maintaining pace; and no

limitation in adapting or managing herself [R. 14-15]. The ALJ gave great weight to Dr. Adam

Brownfield, Ph.D. [R. 432, 26], who evaluated plaintiff on November 24, 2014, diagnosed

plaintiff with depressive disorder due to physical pain, and found no evidence of limitation in

following and understanding simple directions and instructions, performing simple tasks

independently, maintaining attention and concentration, maintaining a regular schedule, learning

new tasks, performing complex tasks independently, making appropriate decisions, and relating

adequately with others, while being moderately limited in dealing with stress [R. 434]. While

the results of her evaluation were consistent with psychiatric problems, Dr. Brownfield said they

did not appear to be significant enough to interfere with plaintiff’s daily functioning [R. 434].

The ALJ gave Dr. Brownfield’s opinion such weight because it was “well supported by the

treatment notes seen at DePaul PROS” [R. 26]. The ALJ gave partial weight to all

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psychical/psychological assessments, concluding that each opinion lacked evidentiary support

and were not written for a one-year period, and made on check box forms without internal

support [R. 25].

On January 16, 2015, Julie Sengstock, LMSW of DePaul PROS, completed a

psychological assessment for determination of employability [R. 864]. Sengstock found

plaintiff was very limited in her capacity to maintain attention and concentration for rote tasks

and moderately limited in other mental health categories [R. 866, 22].

The ALJ found that plaintiff had a residual functional capacity to perform light work

[R. 16]. The ALJ also found that plaintiff can lift and/or carry up to 10 pounds frequently and

up to 20 pounds occasionally; push and/or pull up to 10 pounds frequently; sit for up to 6 hours

of an 8-hour workday, stand and/or walk for up to 6 hours of an 8-hour day; plaintiff is able to

occasionally crouch, balance, stoop, kneel, crawl, reach, and climb stairs and ramps, but can

never climb ladders or scaffolds; plaintiff can frequently finger and handle, but can stand for no

more than 30 minutes and must then briefly sit down. Plaintiff can do no overhead reaching

with the right dominant arm. Plaintiff is limited to simple routine tasks. [R. 16.]

The ALJ found that plaintiff was unable to perform past relevant work as a certified nurse

assistant or a babysitter as both occupations are medium exertion jobs [R. 27]. With this

capacity and the inability to perform plaintiff’s past work, the vocational expert opined that a

hypothetical claimant like plaintiff was able to perform such occupations as counter clerk, usher,

or chaperone, all light exertion jobs [R. 28], or such sedentary jobs as call out operator and

surveillance system monitor [R. 28]. As a result, the ALJ held that plaintiff was not disabled [R.

28-29].

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DISCUSSION

The only issue to be determined by this Court is whether the ALJ’s decision that the

plaintiff was not under a disability is supported by substantial evidence. See 42 U.S.C.

§ 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). Substantial evidence is defined

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

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

(quoting Consolidated Edison Co. v. National Labor Relations Bd., 305 U.S. 197, 229 (1938)).

Standard

I. General Standards—Five-Step Analysis

For purposes of both Social Security Insurance and disability insurance benefits, a person

is disabled when unable “to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result in death or which

has lasted or can be expected to last for a continuous period of not less than 12 months.”

42 U.S.C. §§ 423(d)(1)(A) & 1382c(a)(3)(A).

Such a disability will be found to exist only if an individual’s “physical or mental

impairment or impairments are of such severity that [he or she] is not only unable to do [his or

her] previous work but cannot, considering [his or her] age, education, and work experience,

engage in any other kind of substantial gainful work which exists in the national economy . . . .”

42 U.S.C. §§ 423(d)(2)(A) & 1382c(a)(3)(B).

The plaintiff bears the initial burden of showing that the impairment prevents the

claimant from returning to his or her previous type of employment. Berry v. Schweiker,

675 F.2d 464, 467 (2d Cir. 1982). Once this burden has been met, “the burden shifts to the

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[Commissioner] to prove the existence of alternative substantial gainful work which exists in the

national economy and which the plaintiff could perform.” Id.; see also Dumas v. Schweiker,

712 F.2d 1545, 1551 (2d Cir. 1983); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980).

In order to determine whether the plaintiff is suffering from a disability, the ALJ must

employ a five-step inquiry:

(1) whether the plaintiff is currently working;

(2) whether the plaintiff suffers from a severe impairment;

(3) whether the impairment is listed in Appendix 1 of the relevant regulations;

(4) whether the impairment prevents the plaintiff from continuing past relevant

work; and

(5) whether the impairment prevents the plaintiff from doing any kind of work.

20 C.F.R. §§ 404.1520 & 416.920; Berry, supra, 675 F.2d at 467. If a plaintiff is found to be

either disabled or not disabled at any step in this sequential inquiry, the ALJ’s review ends.

20 C.F.R. §§ 404.1520(a) & 416.920(a); Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir.

1992). However, it should be noted that the ALJ has an affirmative duty to fully develop the

record. Gold v. Secretary, 463 F.2d 38, 43 (2d Cir. 1972).

To determine whether an admitted impairment prevents a claimant from performing past

work, the ALJ is required to review the plaintiff’s residual functional capacity and the physical

and mental demands of the work that has done in the past. 20 C.F.R. §§ 404.1520(e) &

416.920(e). When the plaintiff’s impairment is a mental one, special “care must be taken to

obtain a precise description of the particular job duties which are likely to produce tension and

anxiety, e.g. speed, precision, complexity of tasks, independent judgments, working with other

people, etc., in order to determine if the claimant’s mental impairment is compatible with the

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performance of such work.” See Social Security Ruling 82-62 (1982); Washington v. Shalala,

37 F.3d 1437, 1442 (10th Cir. 1994). The ALJ must then determine the individual’s ability to

return to past relevant work given the claimant’s residual functional capacity. Washington,

supra, 37 F.3d at 1442.

Application

In the instant case, the issue is whether the ALJ had substantial evidence to support the

decision rendered denying disability coverage. Plaintiff argues that the residual functional

capacity assessment is not supported by substantial evidence (Docket No. 14, Pl. Memo. at 21-

32). She contends the ALJ arbitrarily weighed the medical opinions in the records (id. at 22).

She claims that there is no support for limitations in the residual functional capacity on her

ability to stand or sit that she can stand for no longer than 30 minutes and then must briefly sit

[R. 16] (id. at 23-24). Since she needs to change positions as needed or at will, this erodes her

ability to perform light or sedentary work (id. at 24). Plaintiff faults the ALJ for not

incorporating limitations found in medical opinions (id. at 22) and failed to explain rejections of

portions of opinions (id.). Plaintiff also faults the ALJ for rejecting a “check box” form used by

LMSW Julie Senstock [R. 22, 864-67] and LMHC Kristin Tripp [R. 23, 872-83] merely because

of the format (id. at 29-30). The ALJ also did not weigh the March 25, 2015, opinion of

Dr. Grier [R. 681-83], but the ALJ rejected this doctor’s opinion (like similar medical opinions

rendered on worker’s compensation forms) since it was on a worker’s compensation form

[R. 26-27]. The ALJ overly relied upon consultative evaluators and less to treating sources (id.

at 24-27, 27-29, 32).

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Defendant responds that the ALJ need not “reconcile every conflicting shred of medical

testimony,” (Docket No. 18, Def. Memo. at 27, quoting Stevenson v. Berryhill, No. 16CV379,

2017 WL 2349733, at *3 (W.D.N.Y. May 31, 2017)).

As for plaintiff’s claimed mental impairments, she contends that the ALJ erred in his

analysis, failing to credit the opinions of Senstock and Tripp (Docket No. 14, Pl. Memo. at 31-

32).

Finally, the ALJ erred in evaluating plaintiff’s credibility (id. at 32-35). First, the ALJ

failed to acknowledge plaintiff’s attempts to obtain treatment and relief (id. at 32-33). Plaintiff

was told to stop chiropractic care because its effectiveness plateaued and plaintiff was advised to

start physical therapy (id. at 33) [R. 17, 318-33, 341, 345]. Plaintiff went to physical therapy

when she had coverage for it (see id. at 33-34).

I. Medical Opinions

Plaintiff faults the ALJ for finding in the residual functional capacity that she had no

limitations for sitting, standing, or walking aside from her inability to stand for longer than

30 minutes and then must briefly sit down (Docket No. 14, Pl. Memo. at 22). She contends that

the medical record established that she needed the ability to change positions as needed (id. at

23, citing, e.g., [R. 853, 858 (PA-C Brianne Sisca), 683 (Dr. Grier), 760 (vocational

rehabilitation counselor David Morgan), 910 (Dr. Oliver Masaba), 440 (Dr. Williams, finding

mild limitations in ability to sit, stand, and walk), 16, 19, 21]). The ALJ partially credited

Ms. Sisca’s opinion where it supported the view that plaintiff could perform some work, but

rejected limitations based upon low back pain that had “limited support in the medical evidence

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of record due to mild degenerative disc disease and stenosis” [R. 19]. The ALJ appears to

discount Dr. Masaba’s opinion since he was to provide a psychological assessment [R. 24].

Defendant points out that the ALJ properly relied upon the opinion of Dr. Joanne Wu

[R. 39, 345, 25] (Docket No. 18, Def. Memo. at 27). The ALJ concedes, however, that Dr. Wu

rendered this opinion on July 17, 2013, months before the onset date, but the ALJ claims these

opinions are consistent with subsequent medical evidence [R. 25]. Defendant also argues that

Dr. Grier and the ALJ noted that plaintiff worked in providing child care that the ALJ deemed to

be potentially “taxing physically and mentally” [R. 13, 25, 759] (Docket No. 18, Def. Memo. at

28), without considering whether that work afforded plaintiff the ability to change positions at

will.

While, as defendant argues (id. at 26) it is the ALJ’s duty to formulate the residual

functional capacity assessment, Davis v. Colvin, No. 15CV6695, 2017 WL 745866, at *11

(W.D.N.Y. Feb. 27, 2017) (Payson, Mag. J.), there must be some medical record in evidence to

support a particular finding within the residual functional capacity, see McBrayer v. Sec’y of

Health & Human Servs., 712 F.2d 795, 799 (2d Cir. 1983). A search of the administrative

record finds no support for the ALJ’s particular finding that plaintiff can stand for no more than

thirty minutes and then must briefly sit [R. 16]. It is not clear what evidence supports the

30 minutes standing then sitting finding, despite the assessment of the various medical opinions

without indicating an express finding in that record to support the ALJ’s finding. It appears that

the ALJ rendered his own medical judgment to arrive at this particular residual functional

capacity finding, this is improper and requires remand, see also Worden v. Comm’r,

No. 18CV923, Docket No. 19, Order of Oct. 25, 2019, at 7-8 (Scott, Mag. J.).

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The first hypothetical posed by the ALJ to the vocational expert assumed that the

claimant could perform light work but without mentioning their duration for standing and

required sitting [R. 103-04]. The vocational expert concluded that such a person could not work

as a babysitter [R. 103]; this diminishes the ALJ’s later contention that plaintiff could perform

light work because she performed child care [R. 25]. The second hypothetical added the

limitation that the claimant could stand no longer than 30 minutes, and then had to sit; the

vocational expert opined that the three occupations she suggested (counter clerk, usher,

chaperone) could still be performed but that “occupational base may be eroded based upon the

specific employer and what they would allow for the individual” [R. 105] but with that base

eroded by 50% [R. 106]. Thus, the error in setting forth a specific stand/sit functioning without

a basis in the medical evidence requires remand.

II. Plaintiff’s Mental Condition

Plaintiff next argues that the ALJ erred in disregarding mental treatment notes source

(LMSW Sengstock) while accepting the opinion of consultative examiner (Dr. Brownfield)

based upon the treatment notes from the deemed less reliable Sengstock and DePaul PROS

[R. 25, 21] (Docket No. 14, Pl. Memo. at 31). The ALJ gave this (among other psychological

assessments) partial weight because they were rendered on checkbox forms and lacked support

and explanations for findings [R. 22, 25]. While the checkbox forms without more are “not

particularly informative,” Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (Docket No. 18,

Def. Memo. at 30); see also Shipp v. Colvin, No. 16CV919, 2018 WL 4870748, at *3 (W.D.N.Y.

Oct. 9, 2018) (Scott, Mag. J.), the fact it comes from a checkbox form alone should not justify

rejection of Sengstock’s findings, Kain v. Colvin, No. 15CV6645, 2017 WL 279560, at *4

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(W.D.N.Y. Jan. 23, 2017) (Geraci, Ch.J.) (Docket No. 19, Pl. Reply Memo. at 8-9, citing cases).

It is inconsistent to reject the source of the opinion (recorded in this record in checkbox forms)

that is later given more significant weight when the basis of the consultative examiner’s opinion.

Upon remand, plaintiff’s mental impairments need to be reassessed.

III. Plaintiff’s Credibility Assessment

Upon remand, the ALJ can reassess plaintiff’s credibility. Plaintiff now argues that the

ALJ found her was less credible since she either did not seek hospital treatment, sought

conservative treatment, or discontinued treatment [R. 17, 24-25]. Plaintiff explains that she

discontinued chiropractic treatment because the results plateaued and later had sporadic physical

therapy because her sessions were dependent upon having coverage for them (see Docket No. 14,

Pl. Memo. at 33-34). These external considerations should be noted rather than categorically

finding that plaintiff stopped treatment without explanation.

CONCLUSION

For the foregoing reasons, plaintiff’s motion (Docket No. 14) judgment on the pleadings

is granted, and defendant’s motion (Docket No. 18) for judgment on the pleadings is denied.

Thus, the decision of the defendant Commissioner is vacated and remanded for further

proceedings consistent with the above decision to find additional facts pursuant to sentence four

of 42 U.S.C. § 405(g), see Curry v. Apfel, 209 F.3d 117, 124 (2d Cir. 2000). The Clerk of the

Court shall close this case.

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So Ordered.

s/Hugh B. Scott

Hon. Hugh B. Scott

United States Magistrate Judge

Buffalo, New York

November 7, 2019

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