Opinion
6:20-CV-06416 EAW
2021-09-22
SERENA T., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Amy C. Chambers, Kenneth R. Hiller, Law Offices of Kenneth Hiller, PPLC, Amherst, NY, for Plaintiff. Heetano Shamsoondar, Social Security Administration Office of General Counsel, New York, NY, Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY, for Defendant.
Amy C. Chambers, Kenneth R. Hiller, Law Offices of Kenneth Hiller, PPLC, Amherst, NY, for Plaintiff.
Heetano Shamsoondar, Social Security Administration Office of General Counsel, New York, NY, Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
Represented by counsel, Plaintiff Serena T. ("Plaintiff") brings this action pursuant to Titles II and XVI of the Social Security Act (the "Act"), seeking review of the final decision of the Commissioner of Social Security (the "Commissioner," or "Defendant") denying her applications for disability insurance benefits ("DIB") and supplemental security income ("SSI"). (Dkt. 1). This Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties’ cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Dkt. 11; Dkt. 15), and Plaintiff's reply (Dkt. 16). For the reasons discussed below, Plaintiff's motion (Dkt. 11) is granted in part, the Commissioner's motion (Dkt. 15) is denied, and the matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order.
BACKGROUND
Plaintiff protectively filed her applications for DIB and SSI on April 6, 2016. (Dkt. 9 at 61, 133-34). In her applications, Plaintiff alleged disability beginning July 19, 2011, due to the following impairments: scoliosis ; bulging disc; flat feet, uneven balance and bunions ; sciatica; congenital PS plantis right and left foot; xerosis cutis ; and hallux valgus. (Id. at 61, 135-36, 147-48). Plaintiff's applications were initially denied on June 14, 2016. (Id. at 16, 159-66). At Plaintiff's request, a hearing was held before administrative law judge ("ALJ") Connor O'Brien in Rochester, New York, on October 12, 2018. (Id. at 61, 78-125). On March 26, 2019, the ALJ issued an unfavorable decision. (Id. at 61-72). Plaintiff requested Appeals Council review; her request was denied on April 20, 2020, making the ALJ's determination the Commissioner's final decision. (Id. at 5-8). This action followed.
When referencing the page number(s) of docket citations in this Decision and Order, the Court will cite to the CM/ECF-generated page numbers that appear in the upper righthand corner of each document.
LEGAL STANDARD
I. District Court Review
"In reviewing a final decision of the [Social Security Administration ("SSA")], this Court is limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard." Talavera v. Astrue , 697 F.3d 145, 151 (2d Cir. 2012) (quotation omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner is "conclusive" if it is supported by substantial evidence. 42 U.S.C. § 405(g). "Substantial evidence means more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Moran v. Astrue , 569 F.3d 108, 112 (2d Cir. 2009) (quotation omitted). It is not the Court's function to "determine de novo whether [the claimant] is disabled." Schaal v. Apfel , 134 F.3d 496, 501 (2d Cir. 1998) (quotation omitted); see also Wagner v. Sec'y of Health & Human Servs. , 906 F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary's decision is not de novo and that the Secretary's findings are conclusive if supported by substantial evidence). However, "[t]he deferential standard of review for substantial evidence does not apply to the Commissioner's conclusions of law." Byam v. Barnhart , 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley v. Heckler , 748 F.2d 109, 112 (2d Cir. 1984) ).
II. Disability Determination
An ALJ follows a five-step sequential evaluation to determine whether a claimant is disabled within the meaning of the Act. See Parker v. City of New York , 476 U.S. 467, 470-71, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). At step one, the ALJ determines whether the claimant is engaged in substantial gainful work activity. See 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, the claimant is not disabled. If not, the ALJ proceeds to step two and determines whether the claimant has an impairment, or combination of impairments, that is "severe" within the meaning of the Act, in that it imposes significant restrictions on the claimant's ability to perform basic work activities. Id. §§ 404.1520(c), 416.920(c). If the claimant does not have a severe impairment or combination of impairments, the analysis concludes with a finding of "not disabled." If the claimant does have at least one severe impairment, the ALJ continues to step three.
At step three, the ALJ examines whether a claimant's impairment meets or medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the "Listings"). Id. §§ 404.1520(d), 416.920(d). If the impairment meets or medically equals the criteria of a Listing and meets the durational requirement (id. §§ 404.1509, 416.909), the claimant is disabled. If not, the ALJ determines the claimant's residual functional capacity ("RFC"), which is the ability to perform physical or mental work activities on a sustained basis, notwithstanding limitations for the collective impairments. See id. §§ 404.1520(e), 416.920(e).
The ALJ then proceeds to step four and determines whether the claimant's RFC permits the claimant to perform the requirements of his or her past relevant work. Id. §§ 404.1520(f), 416.920(f). If the claimant can perform such requirements, then he or she is not disabled. If he or she cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the Commissioner to show that the claimant is not disabled. Id. §§ 404.1520(g), 416.920(g). To do so, the Commissioner must present evidence to demonstrate that the claimant "retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy" in light of the claimant's age, education, and work experience. Rosa v. Callahan , 168 F.3d 72, 77 (2d Cir. 1999) (quotation omitted); see also 20 C.F.R. § 404.1560(c).
DISCUSSION
I. The ALJ's Decision
In determining whether Plaintiff was disabled, the ALJ applied the five-step sequential evaluation set forth in 20 C.F.R. §§ 404.1520 and 416.920. Initially, the ALJ determined that Plaintiff last met the insured status requirements of the Act on September 30, 2020. (Dkt. 9 at 63). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity since July 19, 2011, the alleged onset date. (Id. ).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of: "h/o scoliosis since age 10, aggravated by a motor vehicle accident in 2011; degenerative changes in cervical, thoracic, and lumbar spine; bunions on feet; and intermittent migraine headaches." (Id. ). The ALJ further found that Plaintiff's medically determinable impairments of affective disorder and anxiety disorder were non-severe. (Id. at 64-65).
At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of any Listing. (Id. at 65). The ALJ particularly considered the criteria of Listing 1.04 in reaching her conclusion. (Id. ).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), with the following limitations:
She requires a sit/stand option that allows for changing position every 60 minutes for up to 5 minutes. She cannot climb a rope, ladder or scaffold; cannot balance on narrow, slippery, or moving surface; and cannot crawl. She can occasionally reach overhead. She can occasionally stoop; crouch; climb stairs or ramps; kneel. She can tolerate only occasional exposure to bright (brighter than office) light, and moderate noise, as defined in the DOT (Office, grocery, light traffic). She requires three, additional, short, less-than-five-minute breaks in addition to regularly scheduled breaks. She can fulfill daily quotas or expectations, but cannot maintain a fast-paced, automated, production line pace. She can adjust to occasional changes in work setting and make simple work-related decisions.
(Id. at 66). At step four, the ALJ found that Plaintiff was unable to perform any past relevant work. (Id. at 71).
At step five, the ALJ relied on the testimony of a vocational expert ("VE") to conclude that, considering Plaintiff's age, education, work experience, and RFC, there were jobs that exist in significant numbers in the national economy that Plaintiff could perform, including the representative occupations of telephone quotation clerk and charge account clerk. (Id. at 71-72). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id. at 72).
II. Remand of this Matter for Further Proceedings is Necessary
Plaintiff asks the Court to reverse or, in the alternative, remand this matter to the Commissioner, arguing that (1) the ALJ rejected medical opinions in the record, creating an evidentiary gap requiring further development of the record, and (2) the ALJ did not conduct a proper credibility evaluation. (Dkt. 11-1 at 16-30). For the reasons set forth below, the Court finds that the ALJ erred in evaluating the opinion evidence offered by Plaintiff's treating physician, and this error necessitates remand for further administrative proceedings.
A. Evaluation of Opinion Evidence
Plaintiff's first argument is that the ALJ improperly rejected the opinions offered by Plaintiff's treating physician, Laura Gift, D.O. (Dkt. 11-1 at 16). In response, the Commissioner argues that the ALJ thoroughly examined all the opinions offered by Dr. Gift, considered them in developing the RFC, and gave good reasons for the opinions she declined to adopt. (Dkt. 15-1 at 7-8).
Because Plaintiff's claim was filed before March 27, 2017, the ALJ was required to apply the treating physician rule, under which a treating physician's opinion is entitled to "controlling weight" when it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record[.]" 20 C.F.R. § 404.1527(c)(2). Under the treating physician rule, if the ALJ declines to afford controlling weight to a treating physician's medical opinion, he or she "must consider various factors to determine how much weight to give to the opinion." Halloran v. Barnhart , 362 F.3d 28, 32 (2d Cir. 2004) (internal quotation marks omitted). These factors include:
(i) the frequency of examination and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the treating physician's opinion; (iii) the consistency of the opinion with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other factors brought to the Social Security Administration's attention that tend to support or contradict the opinion.
Id. "An ALJ's failure to explicitly apply the[se] ... factors when assigning weight at step two is a procedural error." Estrella v. Berryhill , 925 F.3d 90, 96 (2d Cir. 2019) (quotation omitted). However, such error is harmless if "a searching review of the record" confirms "that the substance of the treating physician rule was not traversed." Id. (quotations omitted).
Whatever weight the ALJ assigns to the treating physician's opinion, she must "give good reasons in [her] notice of determination or decision for the weight [she gives to the] treating source's medical opinion." 20 C.F.R. § 404.1527 (c)(2) ; see also Harris v. Colvin , 149 F. Supp. 3d 435, 441 (W.D.N.Y. 2016) ("A corollary to the treating physician rule is the so-called ‘good reasons rule,’ which is based on the regulations specifying that ‘the Commissioner "will always give good reasons" ’ for the weight given to a treating source opinion." (quoting Halloran , 362 F.3d at 32 )). "Those good reasons must be supported by the evidence in the case record, and must be sufficiently specific...." Harris , 149 F. Supp. 3d at 441 (internal quotation marks omitted).
Plaintiff began treating with Dr. Gift in January 2016 (Dkt. 9-1 at 470), and Dr. Gift offered several opinions relative to Plaintiff's physical functioning. On March 18, 2016, Dr. Gift completed a Monroe County Department of Human Services Physical Assessment for Determination of Employability. (Dkt. 9 at 523). Dr. Gift explained that Plaintiff has severe scoliosis which was exacerbated by a motor vehicle accident in 2011. (Id. at 524). Plaintiff was unable to sit for more than two hours and laid down to relieve pain. (Id. ). Plaintiff was referred to Ortho Spine and took Baclofen for treatment. (Id. at 525). A physical examination was mostly normal, save for her gait which revealed a pivot in her torso, and her musculoskeletal examination which revealed "notable scoliosis." (Id. at 525-26). Plaintiff was "very limited," meaning she could perform the following activities for only one to two hours: walking; standing; sitting; pushing, pulling, and bending; and lifting/carrying. (Id. at 526). The ALJ gave this opinion "little weight," because it was conclusory and only a reference to another form that was completed for a different agency and purpose. (Id. at 68).
Dr. Gift also offered an opinion as to Plaintiff's mental limitations on October 5, 2018 (see Dkt. 9-1 at 476); however, because Plaintiff's arguments focus on the ALJ's evaluation of the physical RFC, the Court does not discuss Dr. Gift's mental evaluation.
On September 19, 2018, Dr. Gift completed another Department of Human Services physical assessment. (Id. at 572). Dr. Gift opined that Plaintiff could work up to eight hours per week for two hours per day, but not two days in a row. (Id. at 573). This was due to Plaintiff's inability to sit up for more than two hours and post-exertional fatigue. (Id. ). Plaintiff would need to change positions while working, lay down after two hours, and would have ankle and foot pain with standing, particularly if standing on uneven ground. (Id. ). Dr. Gift explained that while Plaintiff was making "slow gains," she would never make full improvement due to scoliosis and flat feet. (Id. ). Plaintiff experienced back pain due to her scoliosis since childhood and was functional until she was in a motor vehicle accident in 2011, and her flat feet worsened with age. (Id. ). A physical examination was mostly normal, except that Plaintiff was not able to toe walk. (Id. at 574). Plaintiff was "very limited," meaning she could perform the following activities for only one to two hours during an eight-hour workday: walking; standing; sitting; pushing, pulling, and bending; and lifting/carrying. (Id. ). The ALJ gave Dr. Gift's September 2018 evaluation "little weight," because the treatment records did not support the opinion, noting that while Plaintiff "may not return to her earlier capacity of playing sports and running ... that does not compel a finding of disability. The claimant's physical therapy records show improvement and the participation in working out, attending community events, and hiking on the weekends." (Id. at 70).
Thereafter, on October 5, 2018, Dr. Gift completed a "Physical Treating Medical Source Statement." (Dkt. 9-1 at 470). Dr. Gift saw Plaintiff three to four times per year for scoliosis /back pain, foot pain, anxiety, and migraine headaches. (Id. ). Dr. Gift explained that Plaintiff's back pain and foot pain became worse with standing and prolonged sitting. (Id. ). Plaintiff also experienced depression and anxiety, which affected her physical condition. (Id. at 471). Plaintiff's experience of pain or other symptoms "frequently" was severe enough to interfere with attention and concentration needed to perform even simple work tasks, and she could tolerate moderate work stress. (Id. ). Plaintiff could walk only one city block without rest or pain. (Id. ). She could sit for two hours at one time; stand for 15 minutes at one time; sit for about two hours in an eight-hour workday; and stand/walk for less than two hours in an eight-hour workday. (Id. at 471-72). Plaintiff would need to walk for two minutes every 30 minutes during the workday. (Id. at 472). She would also need to shift positions at will from sitting, standing, or walking, and would need unscheduled 15-minute breaks every two hours. (Id. ). Plaintiff could frequently lift less than 10 pounds, occasionally lift 10 pounds, rarely lift 20 pounds, and never lift 50 pounds. (Id. ). She could rarely twist, occasionally stoop (bend) and climb ladders, and frequently crouch/squat and climb stairs. (Id. at 473). She could reach overhead 50 percent of the workday. (Id. ). Plaintiff's impairments were likely to produce "good days" and "bad days," and she would be absent from work more than four days per month. (Id. ). The ALJ evaluated this opinion as follows:
The interference with attention and concentration is not consistent with the claimant's own reported ability to manage money, drive, and care for her severely autistic child. There is no evidence in the treatment records of any problems with attention or concentration during examinations. It is also internally inconsistent with the next answer by Dr. Gift that "moderate stress is okay" (Ex. 15F, p. 5). The record does not support the limitations on the ability to sit and stand/walk. The claimant's physical therapy records reflect greater capacity, particularly her reports of hiking, performing daily activities, traveling, and carrying her son up a sledding hill. Further, the opinion regarding the limitations on sitting is not explained. The notes actually state she drove 36 hours to North Carolina—even with significant breaks, this is not consistent with the inability to sit for more than two hours. While I am persuaded that the claimant is limited to the lowest exertional level for work, the additional significant limitations suggested by Dr. Gift, are just not warranted.
(Dkt. 9 at 70).
The Court has carefully reviewed the ALJ's written determination, as well as the medical records, including Dr. Gift's treatment notes and notes from Plaintiff's physical therapy treatments, and concludes that the ALJ erred in assessing the opinion evidence offered by Dr. Gift. Dr. Gift began treating Plaintiff for increased back pain in 2016 and continued treating her through at least 2018. Her opinions relating to Plaintiff's functioning are largely consistent, insofar that Plaintiff, due to her severe scoliosis, cannot sit, stand, or walk for long periods of time and needs frequent breaks to relieve her pain. Further, Dr. Gift's opinions relating to Plaintiff's functioning are not conclusory and isolated to the opinion evidence; rather, the assessed limitations are supported by her treatment records, in which she noted similar limitations. For example, at Plaintiff's appointment with Dr. Gift in March 2016, Dr. Gift noted "severe scoliosis" and worsening pain with sitting for too long, standing, and walking, including that Plaintiff experienced back spasms after one to two hours and is most comfortable laying down. (Id. at 482). Plaintiff had a normal gait but pivoted her torso when walking, and was able to squat and heel/toe walk. (Id. at 483). For her back, Plaintiff had "very notable dextroscoliosis." (Id. ). Dr. Gift referred Plaintiff to Ortho Spine, prescribed Baclofen to control muscle spasms, and completed a form to allow Plaintiff to apply for temporary disability. (Id. ).
Plaintiff continued treating with Dr. Gift's office through May 2018, during which time her condition remained largely unchanged. (See Dkt. 9-1 at 516-17 (in January 2017, Plaintiff complained of worsening pain through her neck, right shoulder, and chest, which Dr. Gift noted was, given her history and thoracic back exam, an acute muscle spasm, and examination of her neck revealed discomfort and pain); id. at 512 (in May 2017, noting that Plaintiff was seen several times by Dr. Mesfin, an orthopedic specialist, and although her back pain was improving with physical therapy as she was able to sit and stand for longer periods of time, she still required breaks to move around and stretch); id. at 504-06 (in November 2017, Plaintiff's back pain "continue[ed] to be severe" despite continuing with physical therapy, and "ortho want[ed] to do surgery"); id. at 502-03 (in February 2018, noting that Plaintiff had received physical therapy but ran out of sessions; experienced worsening pain with prolonged sitting; had "grossly notable dextro thoracic scoliosis"; and should not be bending, twisting, or lifting)). These observations are consistent with those of other medical providers in the record, including Addisu Mesfin, M.D. (See Dkt. 9 at 520-22 (Plaintiff reported constant back pain worsening with heavy lifting, bending and twisting; imaging showed "59 degree thoracic curvature from T5-T12 40 [degrees] from T1-T5"; and Plaintiff was assessed with "axial thoracic back pain in the setting of scoliosis")). While the medical record reveals that Plaintiff experienced some success with physical therapy, these records do not contradict the opinions offered by Dr. Gift. (See Dkt. 9-1 at 377 (in June 2017, Plaintiff tolerated exercises well but had fatigue post-session); id. at 384 (in July 2017, Plaintiff tolerated exercises but also experienced muscle tightness); id. at 398 (at re-evaluation in October 2017, Plaintiff was "doing pretty well," but had pain in her right shoulder, as well as decreased range of motion and strength, and she also was "unable to walk, sit, or stand for greater than 90 min without provoking symptoms"); id. at 441 (in July 2018, Plaintiff had low back pain due to scoliosis ; did physical therapy in the past which was helpful but recently had more pain in her back due to increased lifting; and symptoms worsened with prolonged standing and sitting); id. at 453 (in August 2018, Plaintiff's pain remained unchanged; her back was bothering her more due to "carrying things from location A to B"; and she noted her exercises were "challenging and fatiguing")). Dr. Gift's assessed limitations for sitting, standing, and walking are also consistent with Plaintiff's hearing testimony that she was unable to work because standing up and sitting causes pain in her back. (See Dkt. 9 at 92).
While the ALJ is not required to further develop the record simply because she rejects opinion evidence from a treating source, see Monroe v. Comm'r of Soc. Sec. , 676 F. App'x 5, 8 (2d Cir. 2017), considering the consistency of the opinion evidence offered by Dr. Gift and the support for her opinions in the treatment notes, this is one of those circumstances where the record would have benefited from further development. For example, the ALJ does not cite to other opinions addressing Plaintiff's functional limitations contradicting those offered by Dr. Gift and, as explained above, the treatment notes of Plaintiff's other providers are consistent with Dr. Gift's assessment of Plaintiff's functioning. Similarly, the record lacks an opinion from a consultative examiner, at least as it pertains to Plaintiff's physical functioning. See Balsamo v. Chater , 142 F.3d 75, 81 (2d Cir. 1998) (remand necessary where "the Commissioner failed to offer and the ALJ did not cite any medical opinion to dispute the treating physicians’ conclusions that [plaintiff] could not perform sedentary work").
The ALJ's citation to Plaintiff's ability to care for her children, drive a car, or exercise—without additional evidence as to how these activities contradict Dr. Gift's opinions relating to Plaintiff's physical functioning in a work-related setting—is not sufficient. While the ALJ cites to Plaintiff's ability to carry her son up a sledding hill as a reason for rejecting Dr. Gift's opinions, she fails to note that Plaintiff reported that she was "very sore" from that activity, and she "ha[d] to take medicine prior to her appointment in order to be able to make the trip to PT." (See Dkt. 9-1 at 37); see also Harris v. Colvin , 149 F. Supp. 3d 435, 445 (W.D.N.Y. 2016) ("There is nothing in either the Act or the Commissioner's regulations and policy rulings to suggest that individuals who engage in child-rearing activities are disqualified from being found disabled."). While the ALJ may consider such information insofar as it undermines Plaintiff's credibility, the ALJ appears to have relied heavily on this type of evidence in rejecting the opinions offered by Dr. Gift, which the Court finds to be problematic in this case given the other medical evidence in the record. See Coger v. Comm'r of Soc. Sec. , 335 F. Supp. 3d 427, 436 (W.D.N.Y. 2018) ("While it is true that the capability to perform activities of daily living is not inherently inconsistent with a finding of disability, the law is clear that the ALJ may consider a claimant's purported activities of daily living for the purposes of a credibility determination." (citation, quotations, and alterations omitted)). Accordingly, remand is required for further proceedings, including development of the record as necessary.
B. Plaintiff's Remaining Argument
As set forth above, Plaintiff has identified an additional reason why she contends the ALJ's decision was not supported by substantial evidence. However, because the Court has already determined, for the reason previously discussed, that remand of this matter for further administrative proceedings is necessary, the Court declines to reach this issue. See, e.g., Bell v. Colvin , No. 5:15-CV-01160 (LEK), 2016 WL 7017395, at *10 (N.D.N.Y. Dec. 1, 2016) (declining to reach arguments "devoted to the question whether substantial evidence supports various determinations made by [the] ALJ" where the court had already determined remand was warranted); Morales v. Colvin , No. 13cv06844 (LGS) (DF), 2015 WL 13774790, at *23 (S.D.N.Y. Feb. 10, 2015) (the court need not reach additional arguments regarding the ALJ's factual determinations "given that the ALJ's analysis may change on these points upon remand"), adopted , 2015 WL 2137776 (S.D.N.Y. May 4, 2015).
CONCLUSION
For the foregoing reasons, Plaintiff's motion for judgment on the pleadings (Dkt. 11) is granted, the Commissioner's motion for judgment on the pleadings (Dkt. 15) is denied, and the case is remanded to the Commissioner for further proceedings consistent with this Decision and Order.
SO ORDERED.