Pinkerton v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

GENEVIEVE CARLA PINKERTON,

Plaintiff,

v.

DECISION & ORDER

19-CV-6211 MJP

ANDREW SAUL, Commissioner of

Social Security,

Defendant.

INTRODUCTION

Pedersen, M.J. Genevieve Carla Pinkerton (“Plaintiff”) brings this action

pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking

judicial review of a final decision of the Commissioner of Social Security

(“Commissioner”) denying her application for Supplemental Security Income (“SSI”).

Pursuant to 28 U.S.C. § 636(c), the parties have consented to the disposition of this

case by a United States magistrate judge. (ECF No. 13.)

Presently before the Court are cross-motions for judgment on the pleadings

pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (ECF Nos. 10 & 12.)

For the reasons set forth below, this matter must be remanded for a rehearing.

PROCEDURAL BACKGROUND

Plaintiff filed an application for SSI on December 1, 2015. (R.1 167–73.) The

Commissioner initially denied the application on March 28, 2016. (R. 98–109.)

Plaintiff requested a hearing before an Administrative Law Judge (“A.L.J.”) and

1 “R.” refers to the record of proceedings from the Social Security Administration, filed

on February 5, 2019, ECF No. 6.

appeared and testified at a hearing held on February 7, 2018. (R. 29–83; 111–13.) On

April 2, 2018, the A.L.J. issued an unfavorable decision, finding Plaintiff was not

disabled. (R. 1–6.) In his decision, the A.L.J. followed the required five-step analysis

for evaluating disability claims. (R. 12–19.) Under step one of the analysis, the A.L.J.

found that Plaintiff had not engaged in substantial gainful activity since December

1, 2015, the application date. (R. 12.) At step two, the A.L.J. concluded that Plaintiff

had the following severe impairments: depression, anxiety, fibromyalgia, sacroiliitis,

and irritable bowel syndrome. (Id.) At step three, the A.L.J. determined that Plaintiff

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

equals one of the listed impairments. (Id.) At step four, the A.L.J. concluded that

Plaintiff has the Residual Functional Capacity (“RFC”):

to perform light work as defined in 20 C.F.R. § 416.967(b) except she

requires a sit/stand option at will, but must remain on task during the

sit/stand period. She can perform frequent fingering and handling, and

occasional stooping, kneeling, crouching, and crawling, but no climbing

ladders, ropes, or scaffolds, and no exposure to unprotected heights. She

must avoid concentrated exposure to dust, fumes, gases, pulmonary

irritants, extreme temperatures, and loud work environments. She is

limited to a low stress environment, defined as simple routine tasks,

basic work-related decisions, rare changes in the workplace setting,

occasional interaction with the public, and frequent interaction with co-

workers and supervisors. She may be off-task five percent of the

workday.

(R. 14.) The A.L.J. determined that Plaintiff has no past relevant work. (R. 17.) The

A.L.J. proceeded on to step five and found that jobs existed in the national and

regional economy that Plaintiff could perform. (R. 18.) Accordingly, at step five, the

A.L.J. found that Plaintiff was not disabled. (R. 19.)

Plaintiff timely filed a request for review by the Appeals Council on April 13,

2018. (R. 165.) The Appeals Council denied the request for review on January 24,

2019, thereby making the A.L.J.’s decision the final decision of the Commissioner. (R.

1–6.) Plaintiff timely filed this civil action on March 21, 2019, seeking judicial review

of the A.L.J.’s decision. (Compl., March 21, 2019, ECF No. 1.)

STANDARD OF REVIEW

Title 42 U.S.C. § 405(g) grants jurisdiction to district courts to hear claims

based on the denial of Social Security benefits. Section 405(g) provides that the

district court “shall have the power to enter, upon the pleadings and transcript of the

record, a judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the cause for a

rehearing.” 42 U.S.C. § 405(g) (2007). It directs that when considering a claim, the

Court must accept the findings of fact made by the Commissioner, provided that such

findings are supported by substantial evidence in the record. 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 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,

229 (1938)); see also Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 149 (1997).

To determine whether substantial evidence supports the Commissioner’s

findings, the Court must “examine the entire record, including contradictory evidence

and evidence from which conflicting inferences can be drawn.” Brown v. Apfel, 174

F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir.

1983) (per curiam)). Section 405(g) limits the scope of the Court’s review to two

inquiries: whether the Commissioner’s findings were supported by substantial

evidence in the record, and whether the Commissioner’s conclusions are based upon

an erroneous legal standard. Green-Younger v. Barnhart, 335 F.3d 99, 105–06 (2d

Cir. 2003); see also Mongeur, 722 F.2d at 1038 (finding a reviewing court does not try

a benefits case de novo).

A person is disabled for the purposes of SSI and disability benefits if he or she

is 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). In assessing whether a

claimant is disabled, the A.L.J. must employ a five-step sequential analysis. See Berry

v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam). The five steps are:

(1) whether the claimant is currently engaged in substantial gainful

activity;

(2) if not, whether the claimant has any “severe impairment” that

“significantly limits [the claimant’s] physical or mental ability to do

basic work activities”;

(3) if so, whether any of the claimant’s severe impairments meets or

equals one of the impairments listed in Appendix 1 of Subpart P of Part

404 of the relevant regulations;

(4) if not, whether despite the claimant’s severe impairments, the

claimant retains the residual functional capacity [(“RFC”)] to perform

his past work; and

(5) if not, whether the claimant retains the [RFC] to perform any

other work that exists in significant numbers in the national economy.

20 C.F.R. §§ 404.1520(a)(4)(i)-(v) & 416.920(a)(4)(i)-(v); Berry v. Schweiker, 675 F.2d

at 467. “The claimant bears the burden of proving his or her case at steps one through

four[;] . . . [a]t step five the burden shifts to the Commissioner to ‘show there is other

gainful work in the national economy [which] the claimant could perform.’” Butts v.

Barnhart, 388 F.3d 377, 383 (2d Cir. 2004) (quoting Balsamo v. Chater, 142 F.3d 75,

80 (2d Cir. 1998)).

ANALYSIS

Plaintiff challenges the A.L.J.’s decision on three separate grounds. First,

Plaintiff contends that the A.L.J.’s RFC is not supported by substantial evidence.

Specifically, the A.L.J. erred “by failing to weigh” the treating source materials of

Gregory Ryan, M.D. according “to the appropriate legal standards.” (Pl’s Mem. of Law

at 14, Oct. 16, 2019, ECF No. 10-1.) Plaintiff contends that the A.L.J. also erred by

failing to give Dr. Ryan’s opinion controlling weight as he was a treating physician.

(Id. at 24.) Plaintiff further contends that the A.L.J. erred by failing to analyze the

required factors in declining to assign Dr. Ryan’s treating opinion controlling weight.

(Id.) Second, Plaintiff asserts that while the A.L.J. gave “great weight” to the opinion

of Rita Figueroa, M.D., the A.L.J. improperly rejected portions of that opinion without

explanation and did not seek clarification of the opinion (Id. at 24–26.) Finally,

Plaintiff argues that the A.L.J. erred by concluding that Plaintiff’s testimony was

inconsistent with the medical record as a whole and argues that “remand is required

for proper evaluation of Plaintiff’s subjective complaints.” (Id. at 26–30.)

The A.L.J. Erred with Respect to the Weight Assigned to the Employability

Assessments of Dr. Ryan.

Although not explicitly stated in the A.L.J.’s decision,2 Dr. Ryan is a treating

medical source under the applicable version of 20 C.F.R. § 416.913(a)(1).3 Dr. Ryan is

a treating source because of Plaintiff’s frequent visits with him, (see, e.g., R. 276, 283–

85, 288–90, 507–09, 532–34, 564–66, 573–75 (indicating appointments apart from

those for the employment assessments)), and because the treatments Plaintiff sought

from Dr. Ryan were well within his scope of practice as a primary care physician.

Accordingly, the A.L.J. was required to give Dr. Ryan controlling weight provided his

assessments were “well supported” and were “not inconsistent with the other

substantial evidence in the case record.” Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir.

2008) (quoting 20 C.F.R. § 404.1527(d)(2)).4 The A.L.J. did not assign controlling

weight to all of Dr. Ryan’s assessments, failed to provide the requisite good reasons

for the weight assigned, and failed to comply with the Second Circuit mandate,

described below. (R. 16.)

When an A.L.J. does not give controlling weight to a treating physician, the

A.L.J. must “explicitly consider” four factors provided in Burgess (the “Burgess”

factors). Estrella v. Berryhill, 925 F.3d 90, 95–96 (2d Cir. 2019) (quoting Selian v.

Astrue, 708 F.3d 409, 418 (2d Cir. 2013)) (the four “Burgess” factors stated in Estrella

2 The A.L.J. referred to Dr. Ryan as Plaintiff’s “primary care provider,” which this

Court interprets to mean that Dr. Ryan was one of Plaintiff’s treating physicians. (R. 16.)

3 Amended March 27, 2017. See also 20 C.F.R. §§ 416.927(a)(2) & 416.927(c)(2)–(6).

4 In 2008, when the Second Circuit decided Burgess v. Astrue, the applicable provision

was § 404.1527(d)(2). However, at the time Plaintiff filed her claim in 2015, the statute had

been amended and the applicable subsection was changed to § 404.1527(c)(2).

and earlier in Burgess are drawn from 20 C.F.R. § 404.1527(c)(2): “(1) the frequen[cy],

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.”) An A.L.J.’s failure to consider

each of the Burgess factors “explicitly” has been held to require remand where “the

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

assignment].” Estrella, 925 F.3d at 96 (quoting Halloran v. Barnhart, 362 F.3d 28, 33

(2004) (alterations in original.) In such situations, the court is “unable to conclude

that the error was harmless and consequently remand” is appropriate so that the

A.L.J. can state the reasons for the weight assigned. Estrella, 925 F.3d at 96 (citing

Halloran, 362 F.3d at 33.) Should a “searching review of the record,” however, assure

the Court “that the substance of the treating physician rule was not traversed,”

remand is not required for failure to adequately consider the Burgess factors.

Halloran, 362 F.3d at 33. A court may find remanding inappropriate if the evidence

is “essentially duplicative of evidence considered by the A.L.J.” Zabala v. Astrue, 595

F.3d 402, 409 (2d Cir. 2010).

Dr. Ryan’s Assessments

During Plaintiff’s first visit with Dr. Ryan after she applied for SSI, Dr. Ryan

completed an employability assessment. (R. 438–41.) Dr. Ryan found that Plaintiff

was unable “to participate in activities except treatment or rehabilitation” due to

“depression, anxiety, [and] chronic pain” for eight months. (R. 439.) Dr. Ryan also

concluded that during a normal eight-hour workday, Plaintiff could walk two to four

hours, stand two to four hours, sit two to four hours, push, pull, and bend for one to

two hours, and that Plaintiff could lift or carry for one to two hours. (R. 441.) Plaintiff

had no evidence of limitations concerning seeing, hearing, and speaking. (Id.)

On June 25, 2015, Dr. Ryan completed another employability assessment,

concluding that Plaintiff had the same medical conditions, but with the addition of

fibromyalgia and an inability “to participate in activities except treatment or

rehabilitation” for six months. (R. 444.) The limitations on eight-hour workdays

remained the same. (R. 446.)

On January 12, 2016, Dr. Ryan completed another employability assessment,

concluding that Plaintiff had the same medical conditions as on June 25, 2015, with

an inability “to participate in activities except treatment or rehabilitation” for one

year. (R. 448.) The limitations on eight-hour workdays remained the same. (R. 450.)

On December 28, 2016, Dr. Ryan made the same assessment of Plaintiff as on

January 12, 2016. (R. 453–55.)

Dr. Ryan’s final assessment, signed on December 14, 2017, indicated the same

medical conditions with the addition of lower back pain and memory problems. (R.

478–79.) Dr. Ryan indicated that Plaintiff’s “[frequent] experience of pain or other

symptoms [was] severe enough to interfere with attention and concentration needed

to perform simple work tasks.” (R. 478.) The form stated that “frequent[]” means “34%

to 66% of an [eight]-hour work day.” (Id.) Dr. Ryan also indicated that Plaintiff could

only walk a single city block “without rest or pain.” (Id.) Finally, Dr. Ryan indicated

that Plaintiff would “likely [ ] be absent from work as a result of” her medical

conditions “more than four days per month.” (R. 479.)

In his decision, the A.L.J. gave Dr. Ryan’s assessments different weights based

on a comparison between the assessments and with the record as a whole as follows:

Great weight is granted to employability assessments submitted on

several occasions between January 2015 and December 2016 by Gregory

Ryan, MD, a primary care provider [citation omitted], as they are

generally supported by objective findings noted previously. Dr. Ryan

indicated that the claimant could walk, stand, or sit for up to four hours

each during a normal eight-hour day, and [that Plaintiff] could lift and

carry for up to two hours of eight, and push, pull, and bend for up to two

hours of eight. Little weight is granted to a December 2017 assessment

from Dr. Ryan [citation omitted], in which he indicates much greater

limitations were present. He indicated that the [Plaintiff] could

stand/walk in combination for less than two hours of an eight-hour day

and would miss four or more work days per month. This opinion is highly

inconsistent with his previous assessments and is not well-supported by

objective findings and the very conservative treatment course. For

example, although recent exams document back pain and trigger point

tenderness, [Plaintiff] was only instructed to use over the counter

medication . . . and home exercises/stretching for symptom control.

(R. 16.) The A.L.J.’s failure to adequately address the first Burgess factor results in

this Court being unable to conclude that the A.L.J. applied the substance of the

treating physician rule to Plaintiff’s benefit, requiring remand. Separately, this Court

also finds that the A.L.J. failed to provide enough indication that he properly

considered the third Burgess factor, which also requires remand.

1. The A.L.J.’s Application of the Burgess Factors

While the A.L.J. makes a barebones reference to the existence of a treating

relationship between Dr. Ryan and Plaintiff by stating that Dr. Ryan is “a primary

care provider” for Plaintiff, the A.L.J.’s failure to apply portions of the first Burgess

factor leaves this Court unable to determine if the A.L.J. “conscientiously applied the

substance of the treating physician rule.” Gualano v. Comm’r of Soc. Sec, 415 F. Supp.

353, 361 (W.D.N.Y. 2019) (citing Jasen v. Comm’r of Soc. Sec., No. 16-CV-6153P, 2017

WL 3722454, *11 (W.D.N.Y. Aug. 29, 2017); see also Alexander v. Comm’r of Soc. Sec.,

No. 14-CV-0039, 2014 WL 7392112, *6 (D. Vt. Dec. 29, 2014) (holding that remand is

required where the “[t]he court cannot be confident that [Plaintiff] received the

treating physician rule’s procedural advantages, nor can it conclude that the

substance of the treating physician rule was not traversed.”) (internal quotations and

brackets omitted.) The first Burgess factor requires the A.L.J. to consider “the

frequen[cy], length, nature, and extent of treatment.” Estrella, 925 F.3d at 95

(quoting Selian v. Astrue, 708 F.3d 409, 418 (2013)). Here, the A.L.J. did not consider

the “frequency” of the treating relationship. (R. 16.) The record clearly indicates that

Plaintiff saw Dr. Ryan frequently over several years. (See, e.g., R. 276, 283–85, 288–

90, 507–09, 532–34, 564–66, 573–75 (indicating appointments apart from those for

employment assessments)).

Additionally, the A.L.J. only assigned weight to Dr. Ryan’s employability

assessments and not to his treatment notes in general. (Id.) The A.L.J. thus does not

appear to have considered the full extent of Dr. Ryan’s treatment. Accordingly,

remand is required to ensure that Plaintiff received the benefit of the treating

physician rule in compliance with the first Burgess factor.

Further, while the A.L.J. failed to adequately address the first Burgess factor,

the A.L.J. did address the third Burgess factor, which required that the A.L.J.

consider “the consistency of the opinion with the remaining medical evidence.”

Estrella, 925 F.3d at 95–96. The A.L.J. stated that Dr. Ryan’s medical assessment of

December 2017 was “not well-supported by objective findings and the very

conservative treatment course” while finding that his earlier assessments were

entitled to “great weight.” (R. 16.) Plaintiff argues, essentially, that the A.L.J. cherry-

picked evidence favoring a decision to deny benefits. (Pl.’s Mem. of Law at 22–23.)

While the A.L.J. did provide a limited discussion of the inconsistency between Dr.

Ryan’s December 2017 assessment with his earlier assessments and the record, (R.

16), there are indications in the record that the assessments are consistent, which

merits a more meaningful attempt to “‘reconcile’ or ‘grapple with’ the apparent

longitudinal inconsistencies” in Dr. Ryan’s assessments. Estrella, 925 F.3d at 97

(quoting Selian, 708 F.3d at 409); see also Younes v. Colvin, No. 1:14-CV-179

(DNH/ESH), 2015 WL 1524417, at *8 (N.D.N.Y. April 2, 2015) (stating that A.L.J.s

“must have a sound reason for weighting portions of the same-source opinions

differently.”)

Dr. Ryan noted that Plaintiff was suffering from additional pain in his

December 2017 assessment, which could indicate Plaintiff’s condition was worsening

rather than there being an inconsistency between Dr. Ryan’s assessments (R. 478.)

In addition, Dr. Ryan’s December 2017 assessment notes that Plaintiff would “miss

four or more work days per month,” for appointments and his previous assessments

indicate that Plaintiff was unable “to participate in activities except treatment or

rehabilitation” for six months. (R. 444.) While these assessments may indicate that

Plaintiff’s disability lacked the required duration under 42 U.S.C. §§ 423(d)(1)(A) &

1382c(a)(3)(A), they may also support Plaintiff’s contentions that she will be unable

to pursue employment because of the amount of treatment she needs to receive. See

Olejniczak v. Colvin, 180 F. Supp. 3d 224, 229 (W.D.N.Y. 2016.) (holding that when a

treating physician’s opinion was given appropriate controlling weight it established

an “inability” of Plaintiff “to sustain full-time work” which rendered Plaintiff

“disabled under the regulations”); see also Hodgkin v. Comm’r of Soc. Sec., __ F. Supp.

3d __, No. 18-CV-703 (MWP), 2020 WL 1457625 at *6 (W.D.N.Y. March 26, 2020)

(remanding solely for calculating of benefits where Plaintiff “suffer[ed] from inability

to remain on task for approximately 85% of the workday, as required for competitive

work.”).

Without more discussion from the A.L.J., this Court is unable to conclude that

the A.L.J. was not “cherry picking” in his assignment of different weights to Dr.

Ryan’s assessments, a practice which the courts and the Second Circuit itself have

“decr[ied].” Artinian v. Berryhill, No. 16-CV-4404 (ADS), 2018 WL 401186, at *8

(E.D.N.Y. Jan. 12, 2018) (“Federal courts reviewing administrative social security

decisions decry ‘cherry picking’ of relevance evidence, which may be defined as

inappropriately crediting evidence that supports administrative conclusions while

disregarding differing evidence from the same source”) (citing Smith v. Bowen, 687

F. Supp. 902, 904 (S.D.N.Y. 1988)); Estrella, 925 F.3d at 97; Fiorello v. Heckler, 725

F.2d 174, 175–76 (2d Cir. 1983).

The A.L.J. may have considered and appropriately weighed “different parts of

the same opinion differently.” Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002).

However, there is insufficient discussion in the A.L.J.’s decision for this Court to

determine if the A.L.J. properly addressed the record regarding the third Burgess

factor. Based on this, remand is necessary so that the Commissioner can provide

“good reasons’ for the weight assignments given to Dr. Ryan’s assessments in the

A.L.J.’s decision. See Estrella, 925 F.3d at 97 (holding that “cherry-picked treatment

notes do not provide ‘good reasons” for assignment of weight to a treating physician’s

opinion.)

The forgoing errors require reversal and remand. Since remand is required,

the Court need not address the other arguments advanced by Plaintiff in support of

her motion.

CONCLUSION

For the foregoing reasons, the Court grants Plaintiff's motion for judgment on

the pleadings (ECF No. 10), and denies the Commissioner’s motion for judgment on

the pleadings (ECF No. 12). Pursuant to the fourth sentence of 42 U.S.C. § 405(g), the

Court remands this matter to the Commissioner for a hearing. The Court directs the

Clerk of the Court to enter judgment in favor of Plaintiff and close this case.

IT IS SO ORDERED.

Dated: August 5, 2020 Wal, heron

Rochester, New York MARK. W. PEDERSEN

United States Magistrate Judge

13