Opinion
1:20-CV-01404 EAW
2022-07-11
THOMAS K., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Amy C. Chambers, Albany, NY, Kenneth R. Hiller, Law Offices of Kenneth Hiller, Amherst, NY, for Plaintiff. Prashant Tamaskar, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
Amy C. Chambers, Albany, NY, Kenneth R. Hiller, Law Offices of Kenneth Hiller, Amherst, NY, for Plaintiff.
Prashant Tamaskar, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge INTRODUCTION
Represented by counsel, Plaintiff Thomas K. ("Plaintiff") brings this action pursuant to Title II of the Social Security Act (the "Act"), seeking review of the final decision of the Commissioner of Social Security (the "Commissioner," or "Defendant") denying his application for disability insurance benefits ("DIB"). (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. 12; Dkt. 13), and Plaintiff's reply (Dkt. 14). For the reasons discussed below, Plaintiff's motion (Dkt. 12) is granted to the extent that the matter is remanded for further administrative proceedings, and the Commissioner's motion (Dkt. 13) is denied.
BACKGROUND
Plaintiff protectively filed his application for DIB on July 20, 2016. (Dkt. 11 at 30, 104). In his application, Plaintiff alleged disability beginning July 8, 2016, due to heart disease /heart attacks, back injury, sleep apnea, diabetes, and depression. (Id. at 30, 92-93). Plaintiff's application was initially denied on December 1, 2016. (Id. at 30, 105-10). At Plaintiff's request, a hearing was held before administrative law judge ("ALJ") Mary Mattimore in Buffalo, New York, on April 8, 2019. (Id. at 30, 49-91). On April 17, 2019, the ALJ issued an unfavorable decision. (Id. at 27-42). Plaintiff requested Appeals Council review; his request was denied on August 5, 2020, making the ALJ's determination the Commissioner's final decision. (Id. at 6-9). 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 Bowen 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). 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). 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). If the impairment meets or medically equals the criteria of a Listing and meets the durational requirement (id. § 404.1509), 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).
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). 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). 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. Initially, the ALJ determined that Plaintiff last met the insured status requirements of the Act on December 31, 2020. (Dkt. 11 at 32). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity since July 8, 2016, the alleged onset date. (Id. ).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of: "status post heart attacks, adjustment disorder with mixed anxiety and depressed mood, obesity, coronary artery arteriosclerosis, aortic valve regurgitation, intervertebral disc displacement, degenerative disc disease of L4-L5, mild retrolisthesis at L3-L4, and lumber spondylosis." (Id. ). The ALJ further found that Plaintiff's medically determinable impairments of hypertension, diabetes, hyperlipidemia, sleep apnea, cysts, and GERD were non-severe. (Id. at 32-33).
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 33). The ALJ particularly considered the criteria of Listings 1.04, 4.02, 4.04, 4.05, 4.06, 4.09, 4.10, 4.11, 4.12, 12.04, and 12.06 in reaching her conclusion, as well as considering the effect of Plaintiff's obesity as required by Social Security Ruling ("SSR") 02-1p. (Id. at 33-35).
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), except:
he can occasionally climb ramps, stairs, stoop, kneel, crouch and crawl. He can never climb ladders, ropes, scaffolds. He can perform work that does not involve driving motor vehicles or operating heavy machinery. The claimant can perform a low stress job defined as simple routine work and make simple workplace decisions, but not at production rate pace (i.e. assembly line pace). The claimant can maintain attention and concentration for two-hour blocks of time and can tolerate minimal changes in workplace processes and settings.
(Id. at 36). At step four, the ALJ found that Plaintiff was unable to perform any past relevant work. (Id. at 40).
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 call out operator, document preparer, and charge account clerk. (Id. at 40-41). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id. at 41-42).
II. Remand of This Matter for Further Administrative Proceedings is Necessary
Plaintiff asks the Court to remand this matter to the Commissioner, arguing that (1) the ALJ did not properly evaluate opinion evidence and gave diminished weight to the opinion of Plaintiff's treating physician, and (2) the RFC finding is "unexplained and unsupported." (Dkt. 12-1 at 2, 17-30). Because the ALJ erred in assessing the November 2018 opinions offered by Plaintiff's treating physician, remand is required for further administrative proceedings.
A. Evaluation of Opinion Evidence
Plaintiff's first argument is that the ALJ improperly gave diminished weight to the opinion offered by Lisa Mendonza, M.D., Plaintiff's treating physician, and also that the ALJ improperly credited the opinion of the consultative examiner over that of Dr. Mendonza. (Dkt. 12-1 at 17). The government contends that the ALJ properly afforded greater weight to the opinion offered by the consultative examiner, Hongbiao Liu, M.D., because it is more consistent with the medical record. (Dkt. 13-1 at 6).
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" if 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, 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 requisite factors 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).
At the time Dr. Mendonza completed her November 20, 2018 medical assessment of Plaintiff's functional limitations, Plaintiff had been her patient for 18 years, during which time he was treated for several serious medical conditions, including coronary artery disease, chronic back pain, diabetes, and depression. (Dkt. 11 at 891). Dr. Mendonza identified Plaintiff's symptoms as back pain which becomes worse with sitting or standing for long periods of time, shortness of breath, chest pain, fatigue, and difficulty concentrating. (Id. ). Plaintiff's back pain required narcotic pain medication, which may cause difficulty concentrating and fatigue. (Id. ). He had poor range of motion in his back and a depressed affect. (Id. ).
Dr. Mendonza opined that during a typical workday, Plaintiff's experience of pain would be severe enough to "frequently" interfere with the attention and concentration needed to perform simple work tasks, that he was incapable of performing even "low stress" jobs (clarifying that although Plaintiff could handle very low-stress jobs, they would exacerbate his heart condition), and that he could walk "1/2 block" without rest or severe pain. (Id. at 892). Plaintiff could sit for 15 minutes before getting up, and he could stand for 15 minutes before needing to sit or walk. (Id. ). He was able to sit and stand/walk for less than two hours total in an eight-hour workday, and he required the ability to walk for five minutes, every 15 minutes. (Id. at 893). Plaintiff required a job that would permit him to shift positions at will from sitting, standing, or walking, and he also needed to take frequent unscheduled breaks due to his back condition. (Id. ). He did not require a cane or assistive device to walk. (Id. ). Plaintiff could never lift 20 or more pounds, rarely lift 10 pounds, and occasionally lift less than 10 pounds. (Id. ). He could rarely look down, and could occasionally turn his head left or right, look up, or hold his head in a static position. (Id. at 894). He could never twist, stoop (bend), crouch/squat, climb ladders, or climb stairs. (Id. ). Dr. Mendonza stated that Plaintiff had significant limitations with reaching, handling, and fingering, but did not indicate the percentage of time Plaintiff would be limited to performing these activities. (Id. ). Dr. Mendonza also opined that Plaintiff would be absent from work more than four days per month. (Id. ). Also on November 20, 2018, Dr. Mendonza wrote a letter opining that Plaintiff "is a candidate for Social Security Disability due to his medical conditions." (Id. at 887). The letter outlined Plaintiff's various medical conditions, including coronary artery disease, obstructive sleep apnea, back injury, type 2 diabetes, and depression. (Id. ). Dr. Mendonza explained that Plaintiff "is unable to hold down meaningful work for many reasons," including:
1) he has a chronic back injury which keeps him from sitting for long periods of time. He also has pain medication which may have cognitive effects. 2) he suffers from coronary artery disease and has had a multitude of issues with this. Stress at work has definitely played into this before and has exacerbated this. 3) he suffers from sleep apnea and is unable to drive a motor vehicle for any distance for the fear of somnolence. 4) he is an insulin dependent diabetic and may be at risk for hypoglycemia, therefore, is not really a candidate to operate heavy machinery. 5) his major depression makes it difficult for him to concentrate at times.
(Id. ).
Previously, on January 3, 2017, following a routine visit, Dr. Mendonza noted that Plaintiff "still remains 75% disabled because of low back injury, symptomatic sleep apnea and uncontrolled diabetes." (Id. at 628-32).
Dr. Liu, the consultative examiner, examined Plaintiff on October 4, 2016. (Id. at 599). Plaintiff appeared to be in no acute distress and had a normal gait. (Id. at 601). Plaintiff could not perform heel walking, and he could walk on his toes with "moderate difficulty" and his squat was "25% of full," due to his low back pain. (Id. ). Plaintiff had full range of motion in the cervical spine, but had "flexion/extension 60 degrees, lateral flexion 20 degrees bilaterally, and rotary movement 20 degrees bilaterally," in his lumbar spine. (Id. ). He had positive straight-leg raise test at 30 degrees bilaterally in the supine and sitting position. (Id. ). Dr. Liu opined that Plaintiff had "mild-to-moderate limitation for prolonged walking, bending, and kneeling," and "should avoid moderate exercise activity because of [his] cardiac condition." (Id. at 602).
The ALJ discussed the opinion evidence in the written determination. (Id. at 38-40). With respect to Dr. Liu's opinion, the ALJ afforded it "significant" weight, explaining that "[a]lthough this opinion is somewhat vague, Dr. Liu has program knowledge and his findings are generally consistent with [the] record which shows good physical exams." (Id. at 38). The ALJ afforded Dr. Mendonza's November 2018 medical assessment "partial weight," noting that while the opinion is consistent with a reduced range of sedentary exertion, it overstated Plaintiff's limitations and was inconsistent with her largely normal physical findings, citing to "Exhibit 8F, pages 4, 6; Exhibit 24F, page 39." (Id. at 39). The ALJ also found no support for Dr. Mendonza's opinion that Plaintiff has hand limitations and that he would be absent four days per month. (Id. ). The ALJ gave Dr. Mendonza's November 2018 letter "limited weight," because it was conclusory, vague, and inconsistent with other evidence in the record, including evidence showing that Plaintiff's coronary artery disease is stable on medications. (Id. ). Finally, the ALJ gave "little weight" to Dr. Mendonza's January 3, 2017 opinion that Plaintiff has a 75% disability because it was conclusory, addressed an issue that is reserved to the Commissioner, and inconsistent with the evidence. (Id. at 39-40).
The Court does not disagree with the ALJ's weighing of Dr. Mendonza's opinion as it relates to her assessment of Plaintiff's hand limitations. As explained above, Dr. Mendonza did not complete the section of the assessment specifying the degree of Plaintiff's hand limitations, nor did she provide any explanation for her assessment of Plaintiff's hand limitations.
The Court finds that the ALJ erred in her assessment of Dr. Mendonza's November 2018 opinions. While a treating physician's opinion is entitled to deference, an ALJ may credit the opinion of a consultative examiner over that of a treating physician when the consultative examiner's opinion is more consistent with and better supported by the medical record. See Suarez v. Colvin , 102 F. Supp. 3d 552, 577 (S.D.N.Y. 2015) ("an ALJ may give greater weight to a consultative examiner's opinion than a treating physician's opinion if the consultative examiner's conclusions are more consistent with the underlying medical evidence"); Fuentes v. Colvin, No. 13-CV-6201, 2015 WL 631969, at *8 (W.D.N.Y. Feb. 13, 2015) ("The opinion of a consultative examiner can constitute substantial evidence supporting an ALJ's decision." (citation omitted)). However, the ALJ may not reject the opinion of a treating physician in favor a consultative examiner's opinion when her reasons for doing so are not supported by the record. See, e.g., Colon v. Saul , No. 19-CV-1458 (PKC), 2020 WL 5764100, at *9 (E.D.N.Y. Sept. 28, 2020) ("A treating physician's opinion should not be evaluated against the yardstick of a CE opinion if the ALJ has not provided the requisite justification.").
Here, the ALJ gave Dr. Mendonza's opinion partial weight, explaining that "while the evidence discussed above is consistent with a reduced range of sedentary exertion, Dr. Mendonza overstates the claimant's limitations and some of her limitations are inconsistent with her own largely normal physical findings." (Dkt. 11 at 39). In support of this statement, the ALJ cited specifically to "Exhibit 8F, pages 4, 6; Exhibit 24F, page 39." (Id. ). The Court has examined these portions of the administrative record and finds that they do not constitute good reasons for rejecting the November 2018 opinions offered by Dr. Mendonza.
Exhibit 8F is Dr. Liu's opinion, as well as a radiology report from an October 7, 2016 lumbosacral spine x-ray showing a negative study. It is not clear to the Court how these records undermine the opinion offered by Dr. Mendonza. The ALJ may not reject the opinion of a treating physician simply because the consultative examiner arrived at a different conclusion relative to Plaintiff's functioning, and that is particularly true in this case, where the ALJ found that Dr. Liu's assessment of Plaintiff's functioning was "vague." The Court also finds that the negative imaging study cited by the ALJ—which occurred in October 2016, over two years before Dr. Mendonza rendered her functional assessment in November 2018—does not contradict or undermine that assessment.
Exhibit 24F, page 39 is an October 24, 2017 letter from Dr. Siddiqui to Dr. Mendonza, documenting that Dr. Siddiqui found Plaintiff's strength was intact throughout the lower extremities, his sensory examination was mostly intact, he had symmetric muscle bulk and tone, no ankle clonus, negative straight-leg raise, a non-antalgic gait, but noted tenderness in the lumbar paraspinal muscles. (Id. at 1100). Dr. Siddiqui assessed Plaintiff with spondylosis in his lumbar region and noted that he had low back pain with lower extremity weakness, that he would be referred for a nerve conduction study, and that Plaintiff previously underwent lumbar injections and an epidural steroid injection, which did not provide him with any benefit. (Id. ). Without further explanation by the ALJ, it is not clear to the Court how these records contradict or otherwise undermine Dr. Mendonza's opinion relating to Plaintiff's functioning, including her assessment of Plaintiff's ability to sit, stand, and walk, his need to change positions, his need to take frequent breaks, or the fact that he would be absent more than four days per month. Dr. Siddiqui's letter—which documents some normal functioning of the lower extremities, but also confirms that Plaintiff experienced ongoing pain and weakness in his lumbar region—also does not contradict Dr. Mendonza's opinion relating to Plaintiff's functional limitations which, as explained in her assessment, are largely attributable to Plaintiff's lower back pain.
Given that Dr. Mendonza provided consistent assessments of Plaintiff's functioning, and because she was Plaintiff's treating physician for 18 years, the ALJ was required to give a more fulsome explanation as to why she declined to credit the November 2018 opinion evidence and, to that end, the Court is not persuaded that the ALJ considered the length of Plaintiff's treatment with Dr. Mendonza when assessing her opinions.
The Court has also carefully reviewed the remainder of the written determination as it pertains to the ALJ's evaluation of Plaintiff's physical impairments (see id. at 37-38), and finds that the ALJ has not offered "good reasons" for rejecting Dr. Mendonza's opinion of Plaintiff's physical functioning, nor does it assure the Court that the substance of the treating physician rule was not traversed. The fact that Plaintiff's cardiac and lumbar spine impairments have been somewhat stable do not undermine Dr. Mendonza's opinion of his functional limitations. The medical record documents that Plaintiff continued to receive treatment relative to his heart conditions in 2017 and 2018. For example, in September 2017, Plaintiff was hospitalized with an acute myocardial infarction. (Id. at 986). He continued treating with his cardiologist in September 2018, and while he reported no chest pain at that time, he did report fatigue. (See id. at 1272). Likewise, Plaintiff continued to report chronic lower back pain in November 2018 (see id. at 1160) and in January 2019 (id. at 1166), and he continued to explore other forms of treatment for his pain (id. at 1170).
Finally, the Court disagrees with the ALJ's characterization of the November 2018 letter from Dr. Mendonza as "conclusory" and "vague." (See id. at 39). As explained above, Dr. Mendonza's letter identified five specific reasons supporting her opinion that Plaintiff is unable to perform sustained gainful activity, including due to limitations caused by his back injury and coronary artery disease.
In sum, the Court finds that the ALJ did not properly weigh the opinion evidence offered by Dr. Mendonza. On remand, the ALJ shall consider this evidence in light of the treating physician rule.
B. Plaintiff's Remaining Argument
As set forth above, Plaintiff has identified an additional reason why he contends the ALJ's decision was not supported by substantial evidence. However, because the Court has already determined, for the reasons 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. 12) is granted to the extent that the matter is remanded for further administrative proceedings, and the Commissioner's motion for judgment on the pleadings (Dkt. 13) is denied.
SO ORDERED.