Trank v. Commissioner of Social Security

KO eR

AS □□

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UNITED STATES DISTRICT COURT | MAY □ 2020

WESTERN DISTRICT OF NEW YORK \ Naa. □□

STERN DISTRICLE—

BRIAN D. TRANK, 18-CV-01002-MJR

DECISION AND ORDER

Plaintiff,

-V-

ANDREW SAUL,

Commissioner of Social Security,"

Defendant.

Pursuant to 28 U.S.C. §636(c), the parties consented to have a United States

Magistrate Judge conduct all proceedings in this case. (Dkt. No. 16)

Plaintiff Brian Trank (‘plaintiff’) brings this action pursuant to 42 U.S.C. §§ 405(g)

and 1383(c)(3) seeking judicial review of the final decision of the Commissioner of Social

Security (“Commissioner” or “defendant”) denying him Disability Insurance Benefits

(“DIB”) and Supplemental Security Income (“SSI”) under the Social Security Act (the

“Act”’). Both parties have moved for judgment on the pleadings pursuant to Rule 12(c) of

the Federal Rules of Civil Procedure. For the following reasons, plaintiff's motion (Dkt.

No. 9) is granted, defendant’s motion (Dkt. No. 14) is denied, and this case is remanded

to the Commissioner for further administrative proceedings consistent with this Decision

and Order.

BACKGROUND

Plaintiff filed an application for DIB on March 2, 2015, alleging disability since

September 17, 2013 due to low back injury, spinal impairment, depression and arthritis.

' Andrew Saul is now the Commissioner of Social Security and is automatically substituted as a party

pursuant to Fed. R. Civ. P. 25(d).

(See Tr. 179, 186, 205, 2017)? Plaintiff also protectively filed an application for SSI on

March 3, 2015. (Tr. 186) Plaintiff's disability benefits application was initially denied on

May 20, 2015. (Tr. 65-66). Plaintiff filed a written request for a hearing on May 27, 2015.

(Tr. 107) A hearing was held before Administrative Law Judge Hortensia Haaversen ("the

ALJ") on April 12, 2017. (Tr. 31-64) Plaintiff, wno was represented by counsel, testified

at the hearing. (/d.) The ALJ also received testimony from Vocational Expert Randolph

Saimons (“the VE”). (/d.) On June 14, 2017, the ALJ issued a decision finding that

plaintiffs condition did not meet the standard for disability, as defined by the Act, from

September 17, 2013 through the date of the decision. (Tr. 12-30) The Appeals Council

denied plaintiff's request for review of the ALJ’s determination on July 16, 2018, and this

action followed. (Tr. 1-3)

Born on June 11, 1968, plaintiff was forty-five years old on the alleged disability

onset date. (Tr. 23, 179) He graduated high school, attended Erie Community College

for two semesters, and has past work experience as a bus driver and computer

technician. (Tr. 23, 35-37, 43, 208)

DISCUSSION

I. Scope of Judicial Review

The Court's review of the Commissioner's decision is deferential. Under the Act,

the Commissioner's factual determinations “shall be conclusive” so long as they are

“supported by substantial evidence,” 42 U.S.C. §405(g), that is, supported by “such

relevant evidence as a reasonable mind might accept as adequate to support [the]

conclusion,” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks

? References to “Tr.” are to the administrative record in this case.

and citation omitted). “The substantial evidence test applies not only to findings on basic

evidentiary facts, but also to inferences and conclusions drawn from the facts.” Smith v.

Colvin, 17 F. Supp. 3d 260, 264 (W.D.N.Y. 2014). “Where the Commissioner's decision

rests on adequate findings supported by evidence having rational probative force,” the

Court may “not substitute [its] judgment for that of the Commissioner.” Veino v. Bamhart,

312 F.3d 578, 586 (2d Cir. 2002). Thus, the Court's task is to ask “whether the record,

read as a whole, yields such evidence as would allow a reasonable mind to accept the

conclusions reached’ by the Commissioner,” Silvers v. Colvin, 67 F. Supp. 3d 570, 574

(W.D.N.Y, 2014) (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)).

Two related rules follow from the Act's standard of review. The first is that “[ijt is

the function of the [Commissioner], not [the Court], to resolve evidentiary conflicts and to

appraise the credibility of witnesses, including the claimant.” Carroll v. Sec’y of Health &

Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). The second rule is that “[g]enuine

conflicts in the medical evidence are for the Commissioner to resolve.” Veino, 312 F.3d

at 588. While the applicable standard of review is deferential, this does not mean that the

Commissioner's decision is presumptively correct. The Commissioner's decision is, as

described above, subject to remand or reversal if the factual conclusions on which it is

based are not supported by substantial evidence. Further, the Commissioner’s factual

conclusions must be applied to the correct legal standard. Kohler v. Astrue, 546 F.3d

260, 265 (2d Cir. 2008). Failure to apply the correct legal standard is reversible error. Id.

II. standards for Determining “Disability” Under the Act

A “disability” is an “inability 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). The Commissioner may find the

claimant disabled “only if his physical or mental impairment or impairments are of such

severity that he is not only unable to do his previous work but cannot, considering his age,

education, and work experience, engage in any other kind of substantial gainful work

which exists in the national economy, regardless of whether such work exists in the

immediate area in which he lives, or whether a specific job vacancy exists for him, or

whether he would be hired if he applied for work.” /d. §423(d)(2)(A). The Commissioner

must make these determinations based on “objective medical facts, diagnoses or medical

opinions based on these facts, subjective evidence of pain or disability, and . . . [the

claimant's] educational background, age, and work experience.” Dumas v. Schweiker,

712 F.2d 1545, 1550 (2d Cir. 1983) (first alteration in original) (quoting Miles v. Harris,

645 F.2d 122, 124 (2d Cir. 1981)).

To guide the assessment of whether a claimant is disabled, the Commissioner has

promulgated a “five-step sequential evaluation process.” 20 C.F.R. §404.1520(a)(4).

First, the Commissioner determines whether the claimant is “working” and whether that

work “is substantial gainful activity.” /d, §404.1520(b). If the claimant is engaged in

substantial gainful activity, the claimant is “not disabled regardless of [his or her] medical

condition or... age, education, and work experience.” /d. Second, if the claimant is not

engaged in substantial gainful activity, the Commissioner asks whether the claimant has

a “severe impairment.” Id. §404.1520(c). To make this determination, the Commissioner

asks whether the claimant has “any impairment or combination of impairments which

significantly limits [the claimant’s] physical or mental ability to do basic work activities.”

id. As with the first step, if the claimant does not have a severe impairment, he or she is

not disabled regardless of any other factors or considerations. fd. Third, if the claimant

does have a severe impairment, the Commissioner asks two additional questions: first,

whether that severe impairment meets the Act’s duration requirement, and second,

whether the severe impairment is either listed in Appendix 1 of the Commissioner's

regulations or is “equal to” an impairment listed in Appendix 1. /d. §404.1520(d). If the

claimant satisfies both requirements of step three, the Commissioner will find that he or

she is disabled without regard to his or her age, education, and work experience. /d.

If the claimant does not have the severe impairment required by step three, the.

Commissioner's analysis proceeds to steps four and five. Before doing so, the

Commissioner must “assess and make a finding about [the claimant's] residual functional

capacity ["RFC”] based on all the relevant medical and other evidence’ in the record. fd.

§404.1520(e). RFC “is the most [the claimant] can still do despite [his or her] limitations.”

Id. §404.1545(a)(1). The Commissioner's assessment of the claimant’s RFC is then

applied at steps four and five. At step four, the Commissioner “compare[s] [the] residual

functional capacity assessment . . . with the physical and mental demands of [the

claimant's] past relevant work.” /d. §404.1520(f). If, based on that comparison, the

claimant is able to perform his or her past relevant work, the Commissioner will find that

the claimant is. not disabled within the meaning of the Act. /d. Finally, if the claimant

cannot perform his of her past relevant work or does not have any past relevant work,

then at the fifth step the Commissioner considers whether, based on the claimant's RFC,

age, education, and work experience, the claimant “can make an adjustment to other

work.” Id. §404.1520(g)(1). If the claimant can adjust to other work, he er she is not

disabled. /d. If, however, the claimant cannot adjust to other work, he or she is disabled

within the meaning of the Act. fd.

The burden through steps one through four described above rests on the claimant.

lf the claimant carries their burden through the first four steps, “the burden then shifts to

the [Commissioner] to show there is other gainful work in the national economy which the

claimant could perform.” Carrol/, 705 F.2d at 642.

VI. The. ALJ’s Decision

The ALJ first found that plaintiff met the insured status requirements of the Act

through December 31, 2016. (Tr. 17) The ALJ then followed the required five-step

analysis for evaluating plaintiffs claim. Under step one, the ALJ found that plaintiff had

not engaged in substantial gainful activity since the alleged onset date of September 17,

2013. (/d.) At step two, the ALJ found that plaintiff has the severe impairment of

degenerative disc disease of the low back.* (/d.} At step three, the ALJ determined that

plaintiff does not have an impairment or combination of impairments that meets or

medically equals the severity of one of the listed impairments. (Tr. 18-19) Before

proceeding to step four, the ALJ assessed plaintiff's RFC as follows:

[Tjhe [plaintiff] has the residual functional capacity to perform sedentary

work as defined in 20 CFR 404.1567(a) and 416.967(a) except he could lift

and carry 10 pounds occasionally and less than ten pounds frequently. He

could stand or walk for two hours in an eight-hour workday and sit for six

hours in an eight-hour workday. He could occasionally perform postural

activities.

(Tr. 19-23)

The ALJ also found, at step two, that plaintiffs medically determinable mental impairment of depression

does not cause more than minimal limitation in plaintiffs ability to perform basic mental work activities and

is therefore non-severe. (Tr. 18)

Proceeding to step four, the ALJ concluded that plaintiff is not capable of

performing his past relevant work. (Tr. 23) The ALJ went on to find that based upon

plaintiffs age, education, work experience, RFC and the testimony of the VE, there are

jobs which exist in significant numbers in the national economy which plaintiff can

perform, such as document preparer, surveillance system monitor, and assembler/table

worker. (Tr. 23-24) Thus, the ALJ ultimately concluded that plaintiff has not been under

a disability, as defined by the Act, from September 17, 2013 through. the date of the

decision. (Tr. 24)

IV. Plaintiffs Challenges

Plaintiff argues that the ALJ erred by failing to evaluate opinion evidence by his

treating physical therapists. (See Dkt. No. 9-1 (Plaintiffs Memo. of Law)) For the reasons

stated below, the Court agrees that the ALJ should have considered the medical findings

and opinions of plaintiffs physical therapists.

An ALJ is required to “evaluate every medical opinion [she] receives, regardiess

of its source.” Pena v. Chater, 968 F. Supp. 930, 937 (SDNY 1997), aff'd 141 F.3d 1152

(2d Cir. 1998). Because the Commissioner considers a physical therapist to be an “other

source”, rather than an “acceptable medical source”, a physical therapist's opinion is not

entitled to controlling weight. Martino v. Comm’r of Soc. Sec., 339 F. Supp. 3d 118

(WDNY 2018); S.S:R. 06-03p, 2006 SSR LEXIS 5, 2006 WL 2329939 (S.S.A. Aug. 9,

2006). However, an ALJ is still required to weigh opinion evidence from a physical

therapist, and, in rendering the disability determination, should explain the weight afforded

to the opinion and why. See 2006 SSR LEXIS 5, *5 (Pursuant to the Commissioner's

regulations, opinions from other medical sources are “important and should be evaluated

on key issues such as impairment severity and functional effects.”); Piatt v. Colvin, 80 F.

Supp. 3d 480, 493 (WDNY 2015) (An ALJ is “free to decide that the opinions of ‘other

sources’...are entitled to no weight or Jittle weight,” but “those decisions should be

explained.”) Factors to be considered in determining how much weight to give to a

physical therapist's opinion include the examining and treating relationship, the frequency

of treatment, whether ihe opinion is well explained, and whether the opinion is supported

by other evidence in the record. See 20 C.F.R. §§404.1527(f)(1) and 404.1527(f)(2).

Indeed, it is especially important for an ALJ to explain the weight afforded to the opinion

of an “other source’, such as a physical therapist, where the source had a long-term

treating relationship with the claimant or their findings may affect the outcome of the case.

See 2006 SSR LEXIS 5, *5 (An ALJ should “generally explain the weight given” to a

physical therapist's opinion “or otherwise ensure that the discussion of the evidence in

the determination or decision allows a claimant or subsequent reviewer to follow the

[ALJ’s] reasoning, when such opinions may have an effect on the outcome of the case.”);

Pogoselski v. Barnhart, 03-CV-2914, 2004 U.S. Dist. LEXIS 9029 (EDNY May 19, 2004)

(finding that “some. weight should still have been afforded to [the therapist’s] opinion

based on his familiarity and treating relationship with the claimant”); Acevedo v. Colvin,

20 F. Supp. 3d 377, 389 (WDNY 2014) (‘[T]he opinions of physical therapists may

constitute substantial evidence where the opinions are well documented and supported

by the medical evidence.”

On October 30,2014, plaintiff began treatment at Phoenix Physical Therapy for

severe back and leg pain resulting from an injury sustained at work when the bus he was

driving “bottomed out.” (Tr. 358) The physical therapist’s treatment notes on that date

indicate that plaintiff had. poor posture, flattened lumbar lordosis in standing, limited range

of motion, and moderate to severe tenderness with palpation to bilateral lumbar erector

spinae. (Tr. 358) The therapist also indicated, in the portion of the treatment notes

labeled “objective”, that plaintiff was “unable to sit, get up from a seated position, bend

forward, lift his kids or perform household chores without moderate pain.” (/d.) Plaintiff

was diagnosed with consistent posterior disc derangement and bilateral radiculopathy.

(/d.) Plaintiff returned for physical therapy treatments on November 6, 2014, January 15,

2015, January 19, 2015, January 22, 2015 and March 17, 2015. (Tr. 354-357, 423)4

Treatment notes from those appointments reflect the same. objective findings as noted

during the first visit, and on each visit the treating therapist indicated that plaintiff was

unable to sit, rise from a seated position, bend forward, or lift his children without pain.

(/d.) Plaintiff next treated at Phoenix Physical Therapy on September 26, 2016. (Tr. 424)

Treatment notes on that date reflect that plaintiff's range of motion had further decreased,

he was experiencing shooting pain down his left leg, and he continued to have poor

posture as well as moderate. to severe tenderness. (/d.) The treating therapist again

noted that plaintiff was unable to sit, rise from a seated position, bend forward, or lift his

children without pain. (/d.) These findings remained the same when plaintiff returned for

physical therapy treatments on September 28, 2016, October 5, 2016, October 11, 2016,

October 17, 2016, October 20, 2016, November 14, 2016 and November 28, 2016. (Tr. □

425-432) During each of plaintiffs physical therapy sessions, his treatment was

consistently focused on improving pain, range of motion and functional abilities. (/d.) On

his last visit, however, plaintiffs range of motion had not improved, he continued to have

* Plaintiff saw four physical therapists during the entire course of his treatment at Phoenix Physical

Therapy. (Tr. 354-59, 422-33) As explained herein, all of their findings were consistent.

moderate to severe tenderness, and his pain was recorded as 5-8 out of 10. (Tr. 432)

The treating therapist’s statement as to plaintiffs inability to sit, rise from a seated

position, bend, lift or perform household chores without pain also remained unchanged.

In determining that plaintiff was.not disabled under the Act, the ALJ concluded that

plaintiff is capable of sedentary work, with the ability to lift and carry 10 pounds

occasionally and less than ten pounds frequently. (Tr. 19) The ALJ also found that

plaintiff has the ability to stand and walk for two hours. □□ an eight-hour day and to sit for

six hours in an eight-hour work day. (Tr. 19) The RFC is inconsistent with the physical

therapists’ findings that plaintiff has limited range of motion, moderate to severe back

tenderness, posterior disc derangement and bilateral radiculopathy. The RFC is also:

incompatible with the physical therapists’ assessment that plaintiff is unable to sit, rise

from a seated position, bend forward, lift his children or complete household chores

without pain. Despite the fact that the ALJ is required to evaluate every medical opinion

in the record, the ALJ gave no indication that she reviewed and considered the physical

therapists’ findings in fashioning the RFC. This oversight is especially significant here,

where a review of the relevant. factors indicate that consideration of the physical

therapists’ findings could change the outcome of the case. Indeed, plaintiff had a

longstanding relationship with the providers at Phoenix Physical Therapy. Their medical

assessments were detailed and based on numerous examinations as. well as treatment

sessions. Further, their findings were consistent over the course of 14 treatments with

four different providers spanning two years. See Bulger v. Astrue, 6:07-cv-542, 2009 U.S.

Dist. LEXIS 56792, *29 (NDNY July 1, 2009) (where physical therapist evaluated and

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treated claimant extensively for over two years, the ALJ’s “dismissal of her opinion without

adequate explanation was inappropriate in light of the considerable extent and duration

of her professional evaluation of claimant”); Brown v. Astrue, 4 F. Supp. 3d 390, 400

(NDNY 2012) (although the ALJ was not required to give controlling weight to treating

physical therapist's assessment of “significant disability’ with functional losses in, infer

alia, walking, working, carrying, standing, squatting and lifting, the assessment should

have been addressed and afforded some consideration, especially since the therapist

treated the claimant on numerous occasions during the relevant period). Moreover, the

physical therapists’ findings here were consistent with the functional limitations found by

Dr. Gary Nelson, plaintiffs treating physician. A Physical Medical Source Statement

completed by Dr. Nelson on February 8, 2017 indicated that plaintiff has limited range of

motion, joint tenderness, can sit for less than two hours total during an eight-hour work

day, and can stand or walk for less than two hours total in an eight-hour work day. (Tr.

452-55). See Mejia v. Barnhart, 261 F. Supp. 2d 142, 148, (NDNY 2003) (despite being

an “other source”, more weight should have been afforded to. the treating therapist's

opinion, since she saw plaintiff on a regular basis and offered a diagnosis consistent with

plaintiff's treating psychiatrist).

The Commissioner argues that the ALJ was not required to discuss the portions of

the physical therapists’ reports explaining plaintiff's inability to sit, rise from a seated

position, bend over, or lift without pain, because those statements are not opinion

evidence, The Commissioner contends that these statements are likely “a recounting of

[p]laintiff's [subjective] complaints” rather than “a statement of what plaintiff can still do

despite his impairments.” (See Dkt. No. 9-1 (Plaintiff's Memo. of Law)). To begin, all of

41

the statements regarding plaintiff's inability to sit, rise from a seated position, bend over,

or lift without pain are listed in the “objective” sections of the physical therapy treatment

notes, along with other medical assessments and findings by the provider as to plaintiff's

condition and abilities. The treatment notes contain a separate section labeled

“subjective”, which include plaintiff's descriptions of his symptoms. The statements as to

plaintiffs difficulties in sitting, rising, bending, and lifting are also consistent with the

therapists’ assessment of plaintiff's back condition, range of motion and tenderness.

Thus, the Court is not convinced that these statements are merely a recitation of plaintiff's

subjective complaints of pain. Moreover, while the ALJ was entitled to reject the. physical

therapists’ findings, she must explain that determination in light of the relevant factors

noted above. See Sixberrt v. Colvin, 7:12-CV-1231, 2013 U.S. Dist. LEXIS 134688

(NDNY Sept. 20, 2013) (“the ALJ erred in failing to properly determine the weight

assigned to [the physical therapist's] opinion under the regulations and in failing to

sufficiently explain the weight assigned.”) Here, the ALJ did not discuss the physical

therapists’ findings in any manner. Thus, the Court cannot determine whether the ALJ

rejected the statements about plaintiffs inability to sit, rise, bend, or lift without pain

because (1) she considered them subjective complaints rather than opinion evidence; (2)

she considered them opinion evidence but found, for other reasons grounded in the

record, that they were not entitled to weight; or (3) she failed to consider them at all.

Indeed, the Commissioner may not now substitute their own rationale when the ALJ failed

to provide one. See Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999) (“A reviewing court

may not accept appellate counsel's post hoc rationalizations for agency action.”)

12

For these reasons, the Court finds that remand is appropriate for the

Commissioner to consider the physical therapists’ treatment notes and the findings

contained therein.

Plaintiff also argues that the ALJ erred by rejecting the opinion of Dr. Gary Nelson,

his treating physician. (See Dkt. No. 9-1 (Plaintiffs Memo. of Law)) The Court agrees.

As noted above, plaintiff injured his back while working as a bus driver. (Tr. 38)

Following this injury, plaintiff regularly treated with Dr. Nelson, his primary care physician

at South Towns Internal Medicine, from June 2012 through February 2017. (Tr. 360-93,

492-55, 456-86) On February 8, 2017, Dr. Nelson completed a Physical Medical Source

Statement on behalf of plaintiff. (Tr. 452-55) Therein, Dr. Nelson indicated that plaintiff

has poor range of motion, leg weakness, joint tenderness, low back pain, and shooting

pain down his back and legs. (/d.) Dr. Nelson opined that: (1). plaintiff can only sit or

stand for fifteen minutes at a time before needing to change position; (2) plaintiff can sit

for a total of less than two hours in an eight-hour work day; and (3) plaintiff can stand for

a total of less than two hours in an eight-hour work day. (/d.) He opined that plaintiff can

rarely lift ten pounds and occasionally lift less than ten pounds. (/d.) Dr. Nelson also

opined that plaintiff would need six unscheduled breaks from work over the course of an

eight-hour work day and that plaintiff was likely to be. absent from work more than four

days a month. (/d.) The ALJ afforded only partial weight to Dr. Nelson’s opinions as to

plaintiff's functional limitations. (Tr. 22)

The Commissioner's regulations as well as Second Circuit precedent “mandate

specific procedures that an ALJ must follow in determining the appropriate weight to

assign a treating physician's opinion.” Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir. 2019).

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To that end, the “treating physician rule” requires that “the opinion of a claimant's treating

physician as to the nature and severity of [an] impairment is given ‘controlling weight’ so

long as it ‘is well-supported by medically acceptable clinical and diagnostic techniques

and is not inconsistent with the other substantial evidence in the record’.” /d.; quoting

Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008). Where an ALJ decides not to credit

the opinion of a treating physician, the following factors should be considered: “(1) the

frequency, length, nature, and extent of the 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.” Estrella, 925 F.3d at 95-96:

quoting Selian v. Asture, 708 F.3d 409, 418 (2d Cir. 2013). Failure to explicitly consider

these factors before declining to give controlling weight to a treating physician’s opinion

is procedural error. Estrefla, 925 F.3d at 96. Where an ALJ commits this procedural error

and fails to give good reasons for the weight assigned to a treating physician’s opinion,

remand is warranted. Halforan v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004). See also

Miller v. Colvin, 122 F. Supp. 3d 23, 28 (WDNY 2015) (“Those good reasons must be

supported by evidence in the case record, and must be sufficiently specific.”)

In assigning partial weight rather than controlling weight to Dr. Nelson’s opinion,

the ALJ notes only that (1) the limitations found by Dr. Nelson are not supported by

medical imaging, including an MRI on May 19, 2014, a CT scan on July 17, 2014 and an

EMG on September 2, 2011; and (2) plaintiff “maintains an active, albeit reduced, lifestyle,

maintains full strength and ambulates without assistance.” (Tr. 22) The reasons offered

by the ALJ cover only one of the factors set forth by the Commissioner’s regulations — the

consistency of the opinion with the record as a whole. The ALJ did not address how often

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Dr. Nelson treated plaintiff or the iength, nature and extent of their treatment relationship,

which is significant because Dr. Nelson was plaintiff's primary care physician for ten years

and regularly treated plaintiff for his back injury over.a period of five years. The ALJ also

did not discuss whether Dr. Nelson's opinions were well-supported and well-documented.

Furthermore, the ALJ does not discuss, in any detail, how Dr. Nelson’s opinion compared

to other medical evidence or opinions in the record, other than stating they were not

supported by medical images on three occasions over five years of treatrnent. The ALJ's

failure to provide a robust discussion of the applicable factors contravenes the treating

physician rule.

Moreover, the reasons offered by the ALJ for ascribing Dr. Nelson's opinion only

partial weight are not supported by substantial evidence and do not qualify as. “good

reasons.” The Commissioner is correct that the May 19, 2014 MRI cited by the ALJ did

not show significant nerve root compression or stenosis. (Tr. 351-52) However, that

same MRI was abnormal.as to the lumbosacral spine due to probable diffuse idiopathic

skeletal hyperostosis within the lower thoracic spine. (/d.) The July 17, 2014 CT scan

showed prominent anterior osteophytes, or bone spurs. (/d. at 353) Moreover, regular

examinations by Dr. Nelson from June 2012 through February 2017 indicated that plaintiff

was consistently experiencing severe, chronic pain requiring prescription medication and

injections; tenderness; muscle tightness; and limited range of motion. (Tr. 362-63, 366-

68, 372-76, 379, 381, 385, 390-92, 463-68, 470, 477, 483-85) Dr. Nelson diagnosed

spasms in plaintiffs spinal muscles, painful shoulder range of motion, and positive

Hawkins and impingement signs. (Tr. 363) Dr. Nelson’s treatment notes also indicate

that plaintiff had a positive soda can maneuver for pain and weakness as well as a positive

15

arm drop test for pain. (/d.) These findings are consistent with the records from plaintiff's

treating physical therapists described in detail above. These findings are also in line with

plaintiff's treatment with Dr. Michael Geraci, a spine and sports medicine specialist, during

the relevant time-period. (Tr, 313-50, 487-88) In 2013, plaintiff received numerous

injections from Dr. Geraci to treat his back and leg pain. (Tr. 308-10) On July 17, 2014,

Dr. Geraci noted that plaintiff continued to have 75% back pain, 25% leg pain and right

lower extremity pain. (Tr. 324) In 2015, Dr. Geraci diagnosed plaintiff with L5-S1 focal

disc herniation, right S1 radiculitis, chronic low back pain, and right sciatica. (Tr. 491)

Thus, the functional limitations assessed by Dr. Nelson were well-supported by his own

treatment notes and consistent with other medical evidence in the record.

The ALJ’s other reason for assigning partial weight to Dr. Nelson‘s opinion, that

“plaintiff maintained an active, yet reduced lifestyle”, is similarly deficient. Contrary to the

ALJ's conclusion, plaintiffs hearing testimony is actually consistent with Dr. Nelson's

findings because it shows his daily activities and abilities to be limited. Plaintiff testified

that he experiences shooting pain and numbness down his legs when he sits for long

periods of time. (Tr. 52) He testified that he is unable to do much around the house and

‘that his girlfriend cleans, does the laundry, shop and cooks. (Tr. 52- 53) Plaintiff testified

that he is no longer able to fish or engage in the other active hobbies he previously

enjoyed and that he spends.a significant portion of his day laying down. (Tr. 47-48, 52-

53) In finding that plaintiff is capable of sedentary work, the ALJ seems to rely heavily on

the fact that plaintiff cares for his minor children while his girlfriend works outside the

home. (Tr. 21) The Court does not find this reasoning persuasive. Plaintiff testified that

he takes care of his children, but described it as “difficult” and “very hard.” (Tr. 38-39)

16

Plaintiff also explained that his girlfriend has to “set everything out for [him] to make things

easier’, that he is unable to change the children’s diapers on the changing table, and that

he has difficulty lifting them. (Tr. 41,48) See Harris v. Colvin, 149 F. Supp. 3d 435, 444-

45 (WDNY 2016) (remand required where the ALJ failed to recognize that there are

“differences between being a parent, caring for one’s children at home, and performing

substantial gainful employment in the competitive workplace on a regular and continuing

basis’), Furthermore, plaintiff's ability to engage in limited child care is not inconsistent

with many of the functional limitations assessed by Dr. Nelson, including Dr. Nelson’s

opinion that plaintiff is unable to sit for more than a total of two hours during an eight-hour

work day. Indeed, caring for minor children would not require plaintiff to sit for an

extended period of time and would give plaintiff the ability to change positions much more

often than would be permitted in the type of sedentary position described in the RFC.

Likewise, the ALJ’s reasoning that plaintiff “maintains full strength and ambulates without

assistance”, even if accurate, does not account for plaintiff's ability to fulfill the sitting

requirements. of the RFC.

Lastly, the ALJ’s assignment of partial weight to Dr. Nelson’s opinion is problematic

because it is vague. The ALJ indicates that “the overall evidence supports, some, but not

all of Dr. Nelson's limitations.” (Tr. 22) However, the ALJ does not explain which

limitations were in fact supported and which were not. The majority of the functional

17

limitations assessed by Dr. Nelson are incompatible with the RFC.5 Therefore, the Court

is not able to ascertain which functional limitations found by Dr. Nelson the ALJ actually

credited, and is further unable to ascertain how plaintiff could perform the work described

by the ALJ in light of those limitations. See McCarthy v. Colvin, 66 F. Supp. 3d 315, 323

(WDNY 2014) (an ALJ is required to support her explanations with “sufficiently specific”

evidence); McGuire v. Commrr of Soc. Sec., 18-CV-6554, 2020 U.S. Dist. LEXIS 29907

(WDNY Feb. 21, 2020) (remand required where ALJ gave only conclusory reasons for

assigning partial weight to opinion evidence and “[t]he provided reasoning [did] not

provide any insight into what portions of the doctor's opinion the ALJ credited as being

consistent with the evidence of record.”)

In sum, the ALJ violated the treating physician rule by failing to provide good

reasons for assigning Dr. Nelson’s opinion partial weight and by not consulting the factors

in 20 C.F.R. §404.1527(c) in deciding what weight to give the opinion. Thus, the case is

also remanded for further consideration and proper application of the treating physician

rule.

Finally, plaintiff argues that the ALJ improperly assessed his credibility. (See Dkt.

No. 9-1 (Plaintiffs Memo. of Law)) “A treating physician's opinion is a significant part of

the evidence that is weighed in determining credibility of a claimant under 20 C.F.R.

* As stated herein, Dr. Nelson's opinion that plaintiff could sit for a total of less than two hours during an

eight-hour workday is inconsistent with the RFC. Also inconsistent with the RFC are Dr. Nelson's findings

that plaintiff could stand for a total of less than two hours during an eight-hour day, could rarely fift ten

pounds and could only occasionally lift less than ten pounds. During the hearing, the VE testified that if

an individual were to be absent four days or more per month, they would not be able to maintain

employment. (Tr. 60-61) The VE also testified that work could not be sustained if-an individual needed to

take six breaks per day to rest or lie down for an average of 15 to 20 minutes at a time. (Tr. 61) Thus,

Dr. Neison’s assessments as to how often plaintiff would néed an unscheduled break and how often he

was likely to be absent, if credited, would also’ preclude plaintiff from working.

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§404.1529.” Lasker v. Comm’r of Soc. Sec., 15-CV-923, 2017 WL 130267, *8 (WDNY

Jan. 13, 2017) (quoting Gagovits v. Colvin, 15-CV-3246, 2016 WL 4491537, *13 (EDNY

Aug. 25, 2016)). Therefore, because the Court is remanding this matter for review of the

physical therapy records and proper application of the treating physician rule, the ALJ

should address plaintiff's credibility on remand as well.© See id.

CONCLUSION

For the foregoing reasons, plaintiffs motion for judgment on the pleadings (Dkt.

No. 9) is granted, the Commissioner’s motion for judgment on the pleadings (Dkt. No. 14)

is denied, and this case is remanded to the Commissioner for further administrative

proceedings consistent with this Decision and Order.

The Clerk of Court shall take all steps necessary to close this case.

SO ORDERED.

Dated: May 19, 2020

Buffalo, New York

MICHAEL J. ROEME

United States Magistrate Judge

* Plaintiff also argues that remand is warranted because the ALJ failed to reconcile her RFC with the

psychiatric consultative examiner's opinion. (See Dkt. No. 9-1 (Plaintiff's Memo. of Law)) Because the

Court finds that the matter should be remanded for a new RFC determination for the reasons stated

herein, the Court does not specifically address this argument. On remand, the Commissioner should

consider the psychiatric consultative examiner's opinion in light of all of the other evidence in the record

when fashioning a new RFC.

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