Brown-Smith v. Commissioner of Social Security

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UNITED STATES DISTRICT COURT (SEP 192022)

WESTERN DISTRICT OF NEW YORK peer th

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TARSHA B., 20-CV-01571-MJR

DECISION AND ORDER

Plaintiff,

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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. 14)

Plaintiff Tarsha B." (‘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 her application for Disability Insurance

Benefits (“DIB”) pursuant to 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, Plaintiffs motion (Dkt. No. 10) is granted,

defendant's motion (Dkt. No. 12) is denied, and the case is remanded for further

administrative proceedings.

'In accordance with the District's November 18, 2020, Standing Order, Plaintiff is identified by first name

and last initial.

BACKGROUND?

Plaintiff filed for DIB on May 29, 2014, alleging a disability onset date of February

5, 2014. (Administrative Transcript ["Tr.”] 320-21). The application was initially denied

on September 11, 2014. (Tr. 270-74). Plaintiff timely filed a request for an administrative

hearing. (Tr. 276-88). Following a hearing on February 9, 2017, the Administrative Law

Judge (“ALJ”) then-assigned to the case issued an unfavorable decision on June 9, 2017.

(Tr. 53-74, 78-124, 1196-1217). On June 29, 2018, the Appeals Council (“AC”) denied

Plaintiffs request for review. (Tr. 1218-24). On August 24, 2018, Plaintiff appealed to

this Court. (Tr. 1225-63). On November 6, 2019, this Court remanded the case for further

proceedings, and on January 10, 2020, the AC issued a remand order, remanding the

case to a different judge. (Tr. 1264-72, 1274-78). On June 8, 2020, a telephone hearing

was held before ALJ Mary Mattimore. (Tr. 1139-95). The Plaintiff testified and was

represented by counsel. A vocational expert also testified. The ALJ issued an

unfavorable decision on July 24, 2020. (Tr. 1111-38). This action followed.

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]

The Court presumes the parties’ familiarity with Plaintiff's medical history, which is summarized in the

moving papers.

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

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. Barnhart,

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 “i]t 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 “[glenuine

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. /d.

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Il. 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 twelve (12) months.” 42 U.S.C. §§423(d)(1)(A), 1382c(a)(3)(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),

1382c(a)(3)(B). 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),

416.920(a)(4). First, the Commissioner determines whether the claimant is “working” and

whether that work “is substantial gainful activity.” /d. §§404.1520(b), 416.920(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.

§§404.1520(b), 416.920(b). Second, if the claimant is not engaged in substantial gainful

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activity, the Commissioner asks whether the claimant has a “severe impairment.” /d.

§§404.1520(c), 416.920(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.” /d. §§404.1520(c),

416.920(c). 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. □□□□

§§404.1520(c), 416.920(c). 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), 416.920(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. §§404.1520(d), 416.920(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. /d.

§§404.1520(e), 416.920(e). RFC “is the most [the claimant] can still do despite [his or

her] limitations.” /d. §§404.1545(a)(1), 416.945(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),

416.920(f). If, based on that comparison, the claimant is able to perform his or her past

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relevant work, the Commissioner will find that the claimant is not disabled within the

meaning of the Act. /d. §§404.1520(f), 416.920(f). Finally, if the claimant cannot perform

his or 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.” □□□□

§§404.1520(g)(1), 416.920(g)(1). If the claimant can adjust to other work, he or she is

not disabled. /d. §§404.1520(g)(1), 416.920(g)(1). If, however, the claimant cannot

adjust to other work, he or she is disabled within the meaning of the Act. /d.

§§404.1520(g)(1), 416.920(g)(1).

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

If the claimant carries his 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.

HI. The ALJ’s Decision

At step one, the ALJ found that Plaintiff had not engaged in substantial gainful

activity from February 5, 2014, her alleged onset date, through June 30, 2017, her last-

insured date. (Tr. 1117). At step two, the ALJ found that Plaintiff had the following severe

impairments: mild cervical spondylosis; cervical radiculopathy; Myasthenia Gravis; left

eye cranial palsy; strabismus; and depressive disorder. (Tr. 1117). At step three, the

ALJ concluded that, through the date last insured, Plaintiff did not have an impairment or

combination of impairments that met or medically equaled one of the listed impairments

in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 1117-1120). Prior to proceeding to

step four, the ALJ determined that Plaintiff retains the following RFC:

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Through the date last insured, the claimant had the residual functional capacity to

perform sedentary work as defined in 20 CFR 404.1567(a), because the claimant

was able to lift and/or carry ten pounds occasionally and less than ten pounds

frequently, stand and/or walk for two hours in an eight-hour workday, and sit for six

hours in an eight-hour workday. The claimant was able to occasionally balance

and occasionally reach overhead bilaterally. The claimant's vision was limited to

book print, and she required two unscheduled breaks per day of approximately

three to five minutes each (in order to rest her eyes). In addition, the claimant was

able to perform a low-stress job, defined as simple, routine work with one to two

steps, simple workplace decisions, and no production-rate pace (/.e., assembly-

line work), The claimant was able to tolerate occasional interaction with co-workers

and the public, but she was unable to engage in tandem or teamwork; the claimant

was also able to tolerate minimal changes in workplace processes and settings.

(Tr. 1120-26). At step four, the ALJ found that, through the date last insured, Plaintiff was

unable to perform any past relevant work. (Tr. 1126). At step five, the ALJ found that,

through the date last insured, there were jobs that existed in significant numbers in the

national economy that Plaintiff could perform. (Tr. 1127-28). Accordingly, the ALJ

determined that Plaintiff was not under a disability from February 5, 2014, her alleged

onset date, through June 30, 2017, her last-insured date. (Tr.1128).

IV. Plaintiffs Challenge

Plaintiff argues that the case should be remanded because the ALJ improperly

evaluated the medical opinion evidence of Plaintiff's treating physician, Dr. Nyathappa

Anand, M.D. The Court agrees.

The "treating physician rule" “requires the ALJ to give ‘controlling weight’ to the

opinion of a claimant's treating physician regarding ‘the nature and severity of [the

claimant's] impairment(s) . . . [if it] is well-supported by medically acceptable clinical and

laboratory diagnostic techniques and is not inconsistent with the other substantial

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evidence in [the] case record.’"* Piatt v. Colvin, 80 F.Supp.3d 480, 491 (W.D.NLY. 2015),

quoting 20 C.F.R. § 404.1527(c)(2). If an ALJ chooses not to afford a treating physician’s

opinion controlling weight, the ALJ must consider various factors to determine what

weight to assign such opinion. Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). These

factors are: (1) examining relationship; (2) treatment relationship; (3) supportability; (4)

consistency; (5) specialization; and any other relevant factors. 20 C.F.R. § 404.1527(c).

While an ALJ does not have to “‘explicitly’ analyze these factors, the ALJ needs to apply

the substance of the rule and provide good reasons for the assigned weight.” Halloran,

362 F.3d at 32.

The Second Circuit has consistently instructed that the failure to provide good

reasons for not crediting the opinion of a plaintiff's treating physician is a ground for

remand. Estrella v. Berryhill, 925 F.3d. 90, 98 (2d Cir. 2019) (“although substantial

evidence supports the ALJ's decision at step one to assign less-than-controlling weight

to Dr. Dron's opinion, the same is not true of its decision at step two to assign “little weight”

thereto... First, a number of treatment notes not cited by the ALJ reflect a more serious

impairment than the ALJ acknowledged.”); see Schaal v. Apfel, 134 F.3d 496, 503-05 (2d

Cir. 1998); Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (The failure to provide “‘good

reasons’ for not crediting the opinion of a claimant's treating physician is a ground for

remand.”); Halloran, 362 F.3d at 33 (“We do not hesitate to remand when the

Commissioner has not provided ‘good reasons’ for the weight given to a treating

3 New regulations regarding the evaluation of medical evidence and rescission of Social Security Rulings

96-2p, 96-5p, 96-6p, and 06-03p, took effect for applications/claims filed on or after March 27, 2017.

Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01 (Jan. 18, 2017).

Plaintiff's application was dated May 29, 2014. Consequently, these changes were not in effect at the time

of the ALJ's decision in this case and the 2015 version of the regulations apply to this case.

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physician['s] opinion and we will continue remanding when we encounter opinions from

ALJ’s that do not comprehensively set forth reasons for the weight assigned to a treating

physician’s opinion.”); Green- Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (“The

SSA recognizes a ‘treating physician’ rule of deference to the views of the physician who

has engaged in the primary treatment of the claimant.”); see also Dahn v. Comm’r of Soc.

Sec., No. 18-CV-327P, 2019 WL 4072661, *4 (W.D.N.Y. Aug. 29, 2019)(“The ALJ’s

failure to acknowledge that [treating physician] was a specialist, or that he provided

regular, ongoing treatment for [plaintiffs] migraines leads me to conclude that the ALJ

likely overlooked or ignored the bulk of [treating physician's treatment notes.]”); Merkel v.

Comm'r of Soc. Sec., 2018 WL 6438944 *1, *5 (W.D.N.Y. Nov. 28, 2018) (the ALJ was

“required to explain why he has not adopted certain medical opinions, particularly those

given by a plaintiffs treating physician for important functions such as walking and

standing...” where Plaintiff had gone through several knee surgeries); Chalk v. Berryhill,

No. 16-cv-6494, 2017 WL 4386811, *11 (W.D.N.Y. Sept. 29, 2017)(“Because the ALJ

failed to set forth comprehensive reasons for rejecting plaintiffs treating physicians’

opinions here, the denial of benefits was not supported by substantial evidence.”);

Cordero v. Colvin, No. 1:15-cv-00845(MAT), 2016 WL 6829646, *5 (W.D.NLY. Nov. 21,

2016)( remanded where “none of the regulatory factors support a decision not to afford

controlling weight to [treating physician].”).

When the treating physician's opinion is not afforded controlling weight, the ALJ

must “comprehensively set forth reasons for the weight” ultimately assigned to the treating

source. Halloran, 362 F.3d at 32. The Second Circuit “[does] not hesitate to remand when

the Commissioner's decision has not provided ‘good reasons’ for the weight given to a

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[treating physician's] opinion and [it] will continue remanding when [it] encounter{[s]

opinions from [ALJs] that do not comprehensively set forth reasons for the weight

assigned to a treating physician's opinion.” Halloran, 362 F.3d at 33. see Mojbel v.

Comm’r of Soc. Sec., 385 F.Supp.3d 199 (W.D.N.Y. 2019) (A “one sentence assertion”

that the treating physician opinion was inconsistent with evidence was not a “good

reason’ to reject treating physician’s opinion.); Colon Medina v. Comm’r of Soc. Sec., 351

F.Supp.3d 295 (W.D.N.Y. 2018) (“The fact that an ALJ believes that a treating source

opinion should not be afforded controlling weight does not excuse him from meaningfully

considering the opinion and adequately explaining his reasons for not adopting the

Opinion.”).

In June 2014, Plaintiff's treating physician, Dr. Anand, opined in a “Medical

Examination for Employability Assessment, Disability Screening, and Alcoholism/Drug

Addiction Determination” that Plaintiff was very limited in walking, standing, lifting,

carrying, pushing, pulling, and stairs, and that she was moderately limited in seeing and

- using her hands. (Tr. 1518). The ALJ did not give Dr. Anand’s opinion controlling weight.

Instead, she gave it only “reduced weight” because: (1) the “moderate” and “very limited”

limitations included in Dr. Anand’s opinion were “nonspecific;” (2) Dr. Anand noted no

limitations regarding the ability to sit or engage in mental work-related activities; (3) the

opinion was “vague;” and (4) the way Dr. Anand presented his opinion was “disorienting.”

(Tr. 1125).

The ALJ did not properly evaluate Dr. Anand’s treating physician medical opinion.

The ALJ did not comprehensively provide “good reasons” for discounting Dr. Anand’s

opinion. itis not clear to the Court what the ALJ meant by referring to Dr. Anand’s opinion

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as “nonspecific.” Dr. Anand clearly indicated Plaintiff's “moderate” and “very limited”

limitations, Without further explanation from the ALJ as to how the opinion was not

specific enough, the Court is at a loss as to how to conduct a meaningful review. Similarly,

the ALJ’s assertion that the opinion is “vague” begs the question as to how so. Such

conclusory analysis is insufficient to satisfy the treating physician rule. Kester v. Berryhill,

2017 WL 5514304, *5-7 (W.D.N.Y. 2017), report and recommendation adopted, 2017

WL 5501085 (W.D.N.Y. 2017); citing “See Oomen v. Berryhill, 2017 WL 1386355, *11

(S.D.N.Y. 2017) (“[t]he ALJ afforded ‘[s]ome weight’ to Dr. [] ... evaluation given his status

as a treating source.... The ALJ concluded, however, that there was ‘no support in the

record’ for Dr. []'s opinion [was not good reason]); Mercado v. Colvin, 2016 WL 3866587,

“16 (S.D.N.Y. 2016) (“ALJ []'s conclusory assertion that ‘scant evidence’ supported a four-

hour workday restriction ... does not countenance discrediting this limitation”); Ashley v.

Commissioner of Social Security, 2014 WL 7409594, *2 (N.D.N.Y. 2014) (an ALJ's

“conclusory statement about the treatment records [not supporting the treating physician's

opinion] fails to fulfill the heightened duty of explanation’). [] ALJ's failure to specifically

address these medical findings makes it difficult to follow his reasoning as to why the

medical records did not support Dr. []'s opinion. See Mercado, 2016 WL 3866587 at *16.”

Cited by Kester, 2017 WL 5514304, *5—7, report and recommendation adopted, 2017 WL

5501085.

If Dr. Anand’s opinion was ambiguous, insufficiently specific, too vague, or too

difficult to read, then the ALJ should have recontacted Dr. Anand for clarification of his

findings before discounting the weight of his opinion. See generally, 20 C.F.R. §

404.1520b(b)(2)(i)(ii)(iv)); 20 CFR 404.1512 (b). “[I]f the ALJ thought that he could not

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assess [] medical source statement because it was “vague and ambiguous,” [], then that

created a gap in the record—a gap that the ALJ was obligated to fill by recontacting the

source.” Georgia H. v. Comm'r of Soc. Sec., 2021 WL 22506, *5 (W.D.N.Y. 2021); quoting

Trumpower v. Colvin, 2015 WL 162991, *14 (W.D.N.Y. 2015) (citations omitted); Ashley

v. Comm'r of Soc. Sec., 2014 WL 7409594, *4 (N.D.N.Y. 2014) (concluding that when a

physician's opinion suffered from inconsistencies, conflicts, or ambiguities, “[t]he ALJ

ought to have contacted the doctor for clarification on his conclusion’).

With regards to the ALJ’s statement that Dr. Anand’s decision was entitled to less

weight because Dr. Anand placed no limitations on Plaintiff's ability to sit, the Court finds

such reasoning a non sequitur, as well as blatant cherry picking. The ALJ appears to

assume that “moderate” and “very limited” limitations on walking, standing and lifting, with

no limitation on sitting, would be consistent with sedentary work. However, even

sedentary work requires limited walking, standing, and lifting. The ALJ provides no

explanation as to how Dr. Anand’s finding of no limitation on sitting would require a

rejection of the rest of his opinion.

Further, Dr. Anand found Plaintiff was moderately limited in using her hands. (Tr.

1518). This limitation is not included in Plaintiffs RFC. “Most unskilled sedentary jobs

require good use of the hands and fingers for repetitive hand-finger actions.” SSR 83-10.

All three jobs at Step Five required frequent handling and two required frequent fingering.

DOT 249.587-018; DOT 209.587-010; DOT 249.587-01). The ALu’s failure to explain why

she did not account for this limitation is error. It is reversible error for an ALJ to disregard

functional limitations imposed by a physician whose opinion was given weight. Dioguardi

v. Commissioner of Soc. Sec., 445 F.Supp.2d 288, 298-299 (W.D.N.Y. 2006).

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“It is plainly improper for an ALJ to cherry-pick evidence that supports a finding of

not-disabled while ignoring other evidence favorable to the disability claimant.” Starzynski

v. Colvin, No. 1:15-cv-00940(MAT), 2016 WL 6956404, at *3 (W.D.N.Y. Nov. 29, 2016).

When the ALJ’s RFC assessment conflicts with a valid medical opinion, the ALJ must

explain why the opinion was not adopted. Chmura v. Berryhill, No. 16-C\V-205-FPG, 2017

WL 1829728 at *3 (W.D.N.Y. May 8, 2017); see also Felicia A. v. Comm'r of Soc. Sec.,

No. 20-CV-6435-FPG, 2021 WL 2153878, at *2 (W.D.N.Y. May 27, 2021) (“While

purporting to give Dr. Luna's opinion some weight, the ALJ did not discuss this moderate

limitation that Dr. Luna identified. For this reason, this case must be remanded.”). Valerie

R. v. Comm'r of Soc. Sec., No. 1:19-CV-00410 EAW, 2021 WL 671597, at *4 (W.D.NLY.

Feb. 22, 2021) (“The ALJ provided no explanation whatsoever of his thought processes,

and it would be improper for the Court to speculate as to the basis for his conclusions.”);

Edward W. v. Comm’r of Soc. Sec., No. 1:19-cv-1000-DB, 2021 WL 463831, at *4

(W.D.N.Y. Feb. 9, 2021) (“Generally, an ALJ must ‘reconcile discrepancies between her

RFC assessment and medical source statements.””); McFarland-Deida v. Berryhill, 2018

WL 1575273, *4 (W.D.N.Y. Apr. 2, 2018) (finding that “the ALJ erred when he afforded

‘significant weight’ to [the consulting examiner's] opinion that [the plaintiff] had mild hand

limitations, but failed to explain his [implicit rejection of those mild limitations]’); Raymer

v. Colvin, No. 14-CV-6009P, 2015 WL 5032669, at *6 (W.D.N.Y. Aug. 25, 2015) (remand

is “especially appropriate” where the ALJ gives considerable weight, “but failed to provide

an explanation for not incorporating into the RFC some of the limitations identified in that

opinion—particularly those that would lead to a finding of disability.”). The ALJ here

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provides no explanation for accepting part of Dr. Anand’s opinion, while rejecting the

remainder.

In sum, the Court finds that the treating physician rule was not properly applied in

this case and it therefore must be remanded. See Rucker v. Kijakazi, 21-621-CV; 2022

U.S. App. LEXIS 24953 (2d Cir. Sept. 6, 2022).

CONCLUSION

For the above reasons, Plaintiff's motion for judgment on the pleadings (Dkt. No.

10) is granted, defendant’s motion for judgment on the pleadings (Dkt. No. 12) is denied,

and the case is remanded for further administrative proceedings.

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

SO ORDERED.

Dated: September 19, 2022

Buffalo, New York

mslel NO

United States Magistrate Judge

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