Opinion
Case No. 2:19-cv-217
2021-03-31
DANY Z., Plaintiff v. Andrew SAUL, Commissioner of Social Security, Defendant.
Craig A. Jarvis, Esq., Jarvis & Modun, LLP, Burlington, VT, for Plaintiff. SAUSA Natasha Oeltjen, SAUSA Susan J. Reiss, United States Attorney's Office District of Vermont, Burlington, VT, for Defendant.
Craig A. Jarvis, Esq., Jarvis & Modun, LLP, Burlington, VT, for Plaintiff.
SAUSA Natasha Oeltjen, SAUSA Susan J. Reiss, United States Attorney's Office District of Vermont, Burlington, VT, for Defendant.
OPINION AND ORDER
(ECF 7, 10)
William K. Sessions III, U.S. District Court Judge Plaintiff Dany Z. brings this action pursuant to 42 U.S.C. § 405(g) of the Social Security Act requesting review of the Commissioner's decision to deny his application for disability insurance benefits. Now before the Court are Plaintiff's motion for an order reversing the decision of the Commissioner (ECF No. 7), and the Commissioner's motion for an order affirming the same (ECF No. 10). For the reasons set forth below, Dany Z.’s motion is granted .
Background
I. Medical History
Dany Z. was born in 1965. AR 200. Her amended onset date of alleged disability is May 17, 2017, the date of her last application for Supplemental Social Security Income. AR 15. Her past work includes employment as a cashier and waitress.
In 1985, Dany Z. was injured by a gunshot. AR 36. On September 9, 2015, a myelography of the thoracic spine showed retained metallic fragments in the T8 vertebra and left T9 rib and a central disc protrusion mildly indenting the left ventral aspect of the cord at T6-7. AR 830. On August 31, 2016, Nolan Hurley, PA, described the fragments at the T8-T9 level as causing a documented case of Brown Séquard syndrome, with the symptoms of left leg pain and weakness. AR 767.
Dany Z. also has a history of psychosocial stressors, substance abuse, and trauma. AR 313. In December 2015, she sought treatment for opioid dependence with Dr. Suzan White, DO. AR 846-48. Dr. White noted that Dany Z. was "here for suboxone maintenance for opioid dependence in remission in the setting of PTSD." She had not used any drugs since Ritalin several weeks before, despite a denial of disability benefits that she was worried would have triggered her use but that had not. She stated that she was "always depressed." White assessed opioid dependence in remission, nicotine dependence, chronic pain syndrome, chronic post-traumatic stress disorder, and major depressive disorder that was recurrent and moderate.
Dr. White treated Dany Z. numerous times after 2015. Mental status exam notes from Dr. White often contained normal findings, such as appropriate grooming, articulate speech, and observations that she was alert, oriented, and cooperative. Her thought process was often described as clear, appropriate, coherent and logical, with no delusions, hallucinations, obsessions, preoccupations or somatic thoughts. Under the assessment for chronic post-traumatic stress disorder, Dr. White wrote the comment that:
Both parents suicided, pt grew up with alcoholic parents and father was abusive, violent to mother. Pt. has survived gunshot wound, unstable and violent relationship and loss of custody of daughter. She has hypervigilance, avoidance behaviors, mood fluctuations and represses memories to avoid the pain associated with them.
AR 1023. Dr. White's comment regarding "Major depressive disorder, recurrent, in partial remission" said:
Patient continues to struggle with some depressive sxs but is overall doing better since she has stabilized in her recovery. She appears to be under great stress trying to find work while managing her severe physical handicaps and is discouraged that she is not able to perform in any jobs despite her ongoing search. She is filing her disability application. The court mandate is causing
distress and increase in despair. She has been caught in a dilemma, she is mandated to go to court and is being asked to seek work while she is appropriately applying for disability. Will work on coordinating care with social worker. Continue celexa and wellbutrin, this is helping patient manage severe symptoms.
AR 1024. Dr. White's "Risk Assessment" noted:
Suicidality: None. Homicidality: None. Dangerousness: None. Pt. is at overall higher risk for suicide due to having parents who have suicided. She is actively engaged with family, well connected with providers and managing her challenges at this time. She is not considered at imminent risk for suicide. Mood is depressed but she is showing up for appointments and continuing to function despite ongoing pain and suffering at baseline.
AR 1023.
On December 12, 2016, Dany Z. saw Dr. Waqar Waheed, MD, for her low back pain and dragging left leg. AR 1097. He noted that "[e]xamination showed significant spasticity in the lower extremity with rather normal strength and symmetrical hyperreflexia with downgoing toe" and noted that her "symptoms are most probable related to spasticity related to residual myelopathy from previous gunshot injury." On October 11, 2017, Dany Z. received a complete myelography. The impressions listed on the report were:
1. Mild degenerative changes of the cervical spine without significant neuroforaminal narrowing or spinal canal stenosis.
2. Cervical facet arthropathy is most pronounced on the left at C2-C3.
3. At L4-L5, there is a disc bulge with superimposed right foraminal disc protrusion which in conjunction with facet arthropathy causes moderate right neuroforaminal narrowing.
4. At L2-L3, there is mild neuroforaminal narrowing bilaterally.
AR 818.
On June 9, 2017, Dr. Thomas Simpatico saw Dany Z. for a clinical assessment. AR 919. Simpatico noted that she was "cooperative, well-dressed and groomed, babysitting her 9 y/o granddaughter; speech normal rate, volume and prosody, mood euthymic, affective range full and appropriate; no formal thought disorder, delusions or hallucinations; denies suicidal ideation, intention or plan; cognition grossly intact." AR 918.
On June 30, 2017, Dr. Francis Cook, M.D., reviewed Dany Z.’s records and gave an opinion to the state Disability Determination Services that she could lift 20 pounds occasionally and 10 pounds frequently, and stand / walk / sit for about 6 hours in an 8-hour workday. AR 107. She should avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation. AR 108. On July 21, 2017, Dr. Ellen Atkins, Ph.D., reviewed Dany Z.’s records and wrote that she was moderately limited in her ability to carry out detailed instructions, her ability to maintain attention and concentration for extended periods, and her ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances. AR 109-110. Atkins also indicated that Dany Z. was moderately limited in her ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace because: "limited for high production norm tasks/settings and for complex tasks. Episodic exacerbations in pain perception and depressive symptoms can temporarily undermine cognitive efficiency, otherwise, can sustain for two hours over typical work day/week for simple tasks, from purely psych perspective." On November 1, 2017, Dr. Thomas Reilly, Ph.D., reviewed the record and gave the same opinion as Dr. Atkins had. AR 128-29.
On July 11, 2017, Dany Z. completed a function report and described her daily activities. AR 262-271. She wrote that physically, she was in constant pain and could not bend without pain, that her left leg would stop working within eight hours of being on it and that the leg dragged and had a limp. She wrote that it was hard for her to spend time with family or friends when she was in constant pain, and she could not walk fast and when she did walk it was with a limp and she dragged her leg. AR 267. When describing her abilities, she said that her injuries affect her standing: "cannot stand for long periods of time my walking is very limited I walk very slowly due to pain in my legs & lower back".
Mentally, she said her depression gets so bad sometimes that she will not care for herself for days without thinking about the consequences, and that she stays alone and does not do things anymore with people. As far as personal care, she indicated that she had no problem with it but also wrote that she doesn't need reminders to do it, she just refuses to do anything. AR 264. She explained that she showers and gets dressed very slowly, and that she does not spend her time with friends because she has none due to her depression. AR 271. She said that if she has a ride she will go to appointments, but if not then she has "been known to cancel." It depends on the day and her pain level. She wrote that she does not prepare meals or cook, but also indicated that she can make frozen dinners, sandwiches, canned food and junk. She wrote that she did laundry, dishes, vacuuming, and dusting: "as long as possible" without her pain stopping her. She explained that her chores depended on her pain level and her breathing. She indicated that she did not need help doing these chores. She wrote that she went outside to the porch every day to take the garbage out. She wrote that when going out, she would walk, ride in a car, or use public transportation: she wrote a question mark next to a question asking whether she could go out alone and explained "sometimes I can function alone, most times I need someone to come to appointments with me to give me support". AR 265. She wrote that she did not drive and had lost her license years ago. She sometimes watched her granddaughter (13 years old). She wrote that she shopped in stores for food and personal items. She wrote that her hobbies were reading and watching TV, and that she did these hobbies "mostly everyday" depending on her mood and depression. AR 266. She explained, "I cannot concentrate on reading" like she used to, and that when depressed she doesn't do anything at all but stay in bed. She said that she only saw her family – they would go shopping together – and that she did not go anywhere regularly, but she went to appointments as scheduled. AR 266.
She wrote that the distance and length of rest she could walk depended on the pain she was experiencing that day, but "worst case is I can walk about 3 blocks, stopping every 5 minutes. I walk very slowly. I have to stop due to pain in legs & lower back." She also explained that some days she could not walk at all, and that in general her left leg is very weak. AR 270. She struggles to squat, bend, or climb stairs. She said that she could not lift more than 10 pounds at any given time. She wrote that she did not know how long she could pay attention, but that she finished what she started. She said it was difficult for her to follow written instructions, she said she could do it "not well at all, I have to go over it about 15 times before I quit completely." She also indicated difficulty following spoken instructions. However, she said she had no problems with authority figures and had never been fired from a job because of problems getting along with other people. AR 268. She said that she does not handle stress well: "I get overwhelmed very easily now and panic a lot." She said she mostly needs her routine to stay the same, and that she has unusual behavior and fears.
Dany Z. supplemented her form with extra remarks that her COPD gets overwhelming, that she does not know when she will have attacks and that she usually needs 2-3 days to recover from them (and they happen almost every three months). AR 269. She wrote that she gets overwhelmed easily emotionally, whether from her pain, depression or PTSD.
On September 8, 2017, White wrote a letter regarding Dany Z. She wrote that Dany:
... has significant health burdens that are chronic in nature including chronic pain issues secondary to a gunshot wound that partially severed her spinal cord in 1986. As a board certified psychiatrist I have been treating her for chronic PTSD related to growing up on a violent household and having both parents suicide. She struggles with ongoing depressed mood and relies heavily on an agency designated by the department of mental health (Pathways) for counseling support to help her with daily and medical appointments.
[Dany Z.] is also seen by me for treatment of opioid dependence in remission and is stable in recovery.
In my opinion as a Board Certified Psychiatrist, [Dany Z.] is so significantly impacted by her psychiatric and physical dysfunction that she would benefit significantly from any additional support that may be available to her. Her disability precludes her from being able to engage in any occupation.
AR 1149.
On September 18, 2017, Stacey D. Bouchard, APRN-C and Dino V. Soriano Sr., FNP, both observed during an appointment for an unrelated medical issue that Dany Z.’s affect was normal and her cognition was bright and interactive, and that her judgment and insight were grossly intact. AR 1032, 1028.
On October 26, 2017, Dany Z. saw Dr. Waheed again. AR 1094. He noted a bilateral positive Hoffmann sign, "increased tone in the lower extremities, left more than right. In the upper extremity, she has evidence of mild left torticollis which has been documented in the past. Her range of movement was however normal". AR 1095. In her lower extremities, "she has markedly increased tone in the left leg slightly increased tone in the right leg was also identified except for mild weakness of left EHL +3/5 the strength was normal. She has generalized hyperreflexia, +3 in the upper extremities, -4 in the left leg." On gait examination, she dragged her left leg. Waheed wrote that Dany Z.:
... is a 52-year-old woman with a remote history of gunshot injury 25 to 30 years ago with subsequent lower extremity weakness improved to a point that she was able to ambulate and now having progressive gait disorder. Her left leg problems have been documented at least 11 years ago. The patient also complained of subjective right leg involvement. Her examination did show upper motor neuron signs suggestive of bilateral positive Hoffmann sign, spasticity in the lower extremities, worse in the left with left-sided hyperreflexia. She complained of subjective decreased pinprick in the right hemibody. This could be suggestive of Brown-Sequard syndrome. She could not have MRI because
of retained metallic segment however CT myelogram of the entire spine in 2016 did not show any extrinsic compressive lesion.
Her two EMGs were normal excluding the possibility of peripheral nervous system dysfunction. She had a remote CAT scan of the head, which I could not find the report. I did not find any definite focal weakness except for evidence of spasticity.
It is possible that she has sustained spinal cord injury and now we are seeing a delayed complication from her spinal cord injury. Certainly no compressive etiology was identified on a CT myelogram and no peripheral nervous system abnormalities documented on electrodiagnostic studies.
AR 1095. Waheed continued that "Considering her subjective complaint of worsening gait disorder, I believe we need to exclude other etiologies associated with myelopathy." AR 1096.
On February 12, 2018, Dr. Judy Fingergut and Stacey Blanchard, APRN, wrote a letter saying that Dany Z. had been under their care for the past two years. AR 1137. They wrote that:
She has significant health burdens that are chronic in nature including chronic pain issues secondary to a gunshot wound that partially severed her spinal cord in 1986. [Dany Z.] is not able to work at this time due to her uncontrolled chronic conditions of COPD and chronic low back and left leg pain. She should be exempt from work for these reasons.
Id. That same day, February 12, Bouchard noted during an exam that Dany Z.’s mood was normal and affect was normal. AR 1147.
On July 10, 2018, Dr. White also answered a questionnaire titled "Medical Source Statement (Mental)". AR 1301. She wrote that Dany Z. had been diagnosed with chronic post-traumatic stress disorder, recurrent and moderate major depressive disorder, and opioid abuse in remission. She wrote: "[Dany Z.] has been traumatized by having both parents commit suicide, having been beaten, having been shot, having multiple people close to her die, she compartmentalizes and minimizes her pain, struggles with crippling anxiety and panic attacks, poor sleep". Dr. White indicated that Dany Z. had been generally compliant with her treatment regimen, and wrote that she has a Pathways support person she meets with twice a week, a psychiatrist she saw every three weeks, and was receiving psychotropic medications. Dr. White indicated that Dany Z. had ongoing low mood "but appears to be slowly regaining trust through the therapeutic relationships she has formed" though her PHQ 9 that day was "still high at 16 indicating major depression moderately severe". Dr. White wrote that her prognosis was that "due to the severity of developmental trauma and ongoing abuse into adulthood in the setting of chronic pain [Dany Z.] is expected to struggle with symptoms of chronic post-traumatic stress disorder for the foreseeable future."
With respect to the listings, Dr. White opined that Dany Z. had moderate limitations in understanding, remembering, or applying information and adapting and managing oneself. AR 1302. She indicated marked limitations for interacting with others (and wrote, "due to severe issues with trust can feel threatened and combative"), and in concentrating, persisting, or maintaining pace. Dr. White checked a box indicating that Dany Z.’s mental conditions had persisted for a period of at least two years, and that she "has been on antidepressant medication for decades; in 2005 she was referred for psychiatric consult due to uncontrolled depression despite medication, post-traumatic stress disorder-chronic ." She wrote that she has been undergoing treatment since the conditions were first documented: she "has been seen by counselors, has been to Brattleboro Retreat, has been provided medication treatment, has had psychiatric support for two years" and "her opioid use disorder / addiction first required hospitalization/rehab at age of 21 – has been successfully maintained on medication assisted treatment with occasional lapses[.]" Dr. White wrote that Dany Z. was currently stable in her addiction treatment, "however her affective mood disorder remains at a severe level of distress[.]"
Dr. White also indicated that Dany Z. had a minimal capacity to adapt to changes in her environment or to demands that are not already part of her daily life, and wrote that she "has limited emotional coping skills and part of this is due to her ongoing compartmentalization of severe unresolved psychic pain, she is an ongoing state of denial and struggles to manage her moods enough to be functional. Sleep is consistently poor, this affects mood further. Trauma has created ongoing trust issues." AR 1303. Dr. White indicated that in a competitive work environment, Dany Z. would be able to understand, remember, and complete simple 1- to 3-step tasks but not more complex tasks. She wrote that Dany Z. "has ongoing high levels of severe autonomic arousal that interferes with her ability to process information – this is a direct result of a long-term history of severe complex trauma, new situations can cause panic[.]" Dr. White also indicated that Dany Z. had psychological symptoms that would result in her being off task for significant periods during the workday, and wrote that she had "dissociative symptoms – derealization, depersonalization" as well as panic attacks, severe depression, and "fatigue secondary to insomnia". Dr. White indicated at least 20% of the time where Dany Z. would likely be off task. She also wrote that Dany Z. would likely be on average absent from work about four times per month, because of "difficulty getting out of bed secondary to low mood", "feeling overwhelmed by complex tasks" and "feeling threatened by relationships in work environment." AR 1304. Dr. White also checked a box indicating that Dany Z. would be able to handle routine and superficial interactions but not regular interactions, noting that "any perceived challenge may be viewed as a threat that would activate the fight or flight system causing [Dany Z.] to either be incapacitated – lying in bed for days, or becoming combative and irascible."
Dr. White indicated that Dany Z. would require special supervision to succeed in a work environment, noting that she "would require an extremely flexible supportive and non-threatening environment with minimal demands." She also wrote that Dany Z. would be able to handle regular interactions in structured settings but not intense interactions with the general public: "at times patient has difficulty leaving the home and is reluctant to expose herself to interactions with people." However, this limitation did not extend to contact with the public over the telephone. AR 1305. Dr. White also indicated that Dany Z. is unable to cope even with normal work stress, and elaborated that: "due to limited emotional coping strategies [Dany Z.] is easily destabilized by minor setbacks, these will lead to periods of emotional immobilization where she will be bed-bound with depressed mood for days." Next, Dr. White explained that though Dany Z. did have a substance-abuse disorder, she was in remission and it was not making her other mental impairments worse. Finally, Dr. White wrote that "due to chronic post-traumatic stress disorder [Dany Z.] has been psychiatrically disabled during the time I have known her over the last two years. The condition precedes our work together." II. Hearing on August 2, 2018
Administrative Law Judge (ALJ) Joshua Menard held a hearing on August 2, 2018. At the hearing, Dany Z. testified about the development of her left leg pain. The pain began when she was shot three times 25 years ago, and she had to learn to walk again and wear a back brace. AR 75. At that time she was able to do a lot without problems, but as she got older her daughter noticed that it was beginning to drag. Id. The dragging got worse, then she began feeling weakness and pain. Id. She explained:
And that's when I went, first started going to doctors. It had progressed to the part where I can't lift my leg to get in my shower. I, right now I have a bad limp, and it still drags. I can't walk on it or stand on it very long. But, and again, getting dressed is hard for me with my legs. I've got quite a bit of pain with it. And then it goes up into my spine, but yeah, it – I can only walk so far. Like I just walked a block to Dunkin Donuts, and it, it hurt a lot. So that means I have to sit down, and then I can only sit down for so long.
AR 75. She further testified that she took Lyrica, Gabapentin, and Soboxone. AR 77. She also described her PTSD:
I had my daughter's father OD'd. I kind of lost my youngest daughter with a guardianship case that I've been dealing with for ten years, and that's taken a toll on me bad. I go in there and they string me apart. So, but mostly it's the gunshot and my parents’ suicide that is pretty crippling. And the gunshot is like what's happening worse for me now. Because of the physical difficulties I'm having from it, it's bringing mental problems along with it. It's bringing up what happened, where I pushed it away before. It's kind of coming to life the last two years.
AR 78. She further testified that she was able to maintain her self-care and personal hygiene, but that she had a hard time vacuuming and taking the trash out. AR 80. Her oldest daughter did her laundry for her. When asked whether she had hobbies, she answered: "I don't. I don't do anything. I stay in my, pretty much I have a two-bedroom apartment. I stay in my room. I don't want to do anything. I isolate. It's causing problems with my family." Id. She said that she stays in her room with her cats, and reads. AR 81. She said that she could read maybe two chapters before putting her reading down, and that she read things like John Grisham and National Geographic. AR 85-86. She testified that she'll stay in bed for four days sometimes, every three weeks.
She testified that she could stay on her feet for about two hours before having to sit down, but that would be "pushing it." AR 87-88. She said she could maybe, cumulatively in an eight-hour day, be on her feet for three hours. AR 88. Dany Z. testified that she could lift around 20 pounds. AR 89.
A vocational expert, Christine Spaulding, testified at the hearing that Dany Z.’s past work could be classified as a cashier, generally performed at a light physical demand level, and a waitress, which was also performed at the light physical demand level. AR 93. The ALJ posed a first hypothetical, of an individual of Dany Z.’s age, education, and past work, who would be limited to: a light exertion level, avoiding concentrated exposure to dust, odors, fumes, and other pulmonary irritants, and limited to perform simple, routine tasks. AR 93-94. Spaulding testified that though such an individual could not perform past work, they could do cashier at the light level, markers, or mail sorter. AR 94. However, if the limitation of being off task up to 15% of the day were added, then Spaulding testified that that would not be tolerated and there would be no jobs available. AR 94-95. Similarly, no jobs would be available if the individual missed two or more days of work on an ongoing and chronic basis. AR 95.
ALJ Decision
In the decision, published on July 25, 2018, the ALJ applied the five-step sequential process set forth in 20 C.F.R. § 404.1520 to evaluate Dany Z.’s disability claim. See Butts v. Barnhart , 388 F.3d 377, 380-81 (2d Cir. 2004). The first step of this process requires the ALJ to determine whether the claimant is presently engaging in "substantial gainful activity." 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not engaging in such activity, then step two requires the ALJ to determine whether the claimant has a "severe impairment." 20 C.F.R. §§ 404.1520(c), 416.920(c). If the ALJ finds that the claimant has a severe impairment, then the third step requires the ALJ to determine whether that impairment "meets or equals" an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"). §§ 404.1520(d), 416.920(d). The claimant is presumptively disabled if his or her impairment meets or equals a listed impairment. Ferraris v. Heckler , 728 F.2d 582, 584 (2d Cir. 1984).
If the claimant is not presumptively disabled, the ALJ must proceed to the fourth step. The ALJ begins this step by determining the claimant's residual functional capacity (RFC). An individual's RFC equals that person's ability to perform physical and mental work activities on a sustained basis despite limitations from an impairment. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1), 416.920(e), 416.945(a)(1). To make RFC determinations, ALJs must consider all of the claimant's impairments—including those that are not severe—and must base their findings on all the relevant medical and other evidence in the record. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1), 416.920(e), 416.945(a)(1). Then, the fourth step requires ALJs to consider whether the claimant's RFC precludes the performance of his or her past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f). Finally, at the fifth step, the ALJ determines whether the claimant can do "any other work." 20 C.F.R. §§ 404.1520(g), 416.920(g).
Claimants bear the burden of proving their case at steps one through four. Butts , 388 F.3d at 383. At step five there is a "limited burden shift to the Commissioner" to provide evidence demonstrating that other work exists in significant numbers in the national economy that the claimant can perform. Poupore v. Astrue , 566 F.3d 303, 306 (2d Cir. 2009).
The ALJ's Analysis of Dany Z.’s Case
ALJ Menard issued an unfavorable decision on September 6, 2018. AR 12. He found that Dany Z. had not engaged in substantial gainful activity since May 17, 2017, the application date. AR 17. He found that she had the severe impairments of COPD, obesity, an addiction disorder, and depression. He found that the low back pain and leg pain did not rise to the level of a severe medical condition, and that the record indicated a mild degenerative disc disease. Id.
Next, the ALJ found that none of Dany Z.’s conditions met or equaled one of the listed impairments. AR 18. He found that under the "paragraph B" criteria, Dany Z. had only mild and moderate limitations. AR 18-19. At the next step, the ALJ found that Dany Z. had the capacity to perform light work as defined in 20 CFR § 416.967(b) except that she must avoid concentrated exposure to dust, odors, fumes and pulmonary irritants, and she is limited to performing simple, routine tasks. AR 19. In making this RFC determination, the ALJ evaluated the opinion evidence and found the opinion of Dr. Cook to be most persuasive, and Drs. Atkins and Reilly to be persuasive. AR 22-23. He found the opinions of Fingergut and Bouchard to be not very persuasive, and the opinion of Dr. White to be partially persuasive where it was consistent with the non-examining medical consultants, but unpersuasive with regards to the rest of the opinion because it "is inconsistent with her own mental status exam notes that show largely normal functioning, with intermittent exacerbation related to situational stressors." AR 23. He found that the claimant was unable to perform any past relevant work, but that she could perform other work as a cashier, a price marker, or a mail sorter and thus that there exist in significant numbers in the national economy jobs that the claimant can perform. AR 24-25.
Standard of Review
In considering a Commissioner's disability decision, the court "review[s] the administrative record de novo to determine whether there is substantial evidence supporting the Commissioner's decision and whether the Commissioner applied the correct legal standard." Machadio v. Apfel , 276 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v. Chater , 221 F.3d 126, 131 (2d Cir. 2000) ); see 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." Biestek v. Berryhill, ––– U.S. ––––, 139 S. Ct. 1148, 1154, 203 L.Ed.2d 504 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) ). In its deliberations, a court should bear in mind that the Social Security Act is "a remedial statute to be broadly construed and liberally applied." Dousewicz v. Harris , 646 F.2d 771, 773 (2d Cir. 1981).
Discussion
I. New Regulations
The threshold issue in this case is whether the new regulations promulgated by the Social Security Administration validly superseded the old treating physician rule. Plaintiff argues that the Commissioner did not have the "legal authority to abolish the treating physician rule." For the reasons set forth below, this Court disagrees.
Previously, the Social Security Administration followed the ‘treating physician rule,’ which generally afforded controlling weight to the opinion of a claimant's treating physician as long as 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." Burgess v. Astrue , 537 F.3d 117, 128 (2d Cir. 2008) (alteration in original) (quoting 20 C.F.R. § 404.1527(d)(2) ). However, the Social Security Administration has since revised its medical source regulations. These new regulations apply to claims filed on or after March 27, 2017. Revisions to Rules Regarding the Evaluation of Medical Evidence , 2017 WL 168819, 82 Fed. Reg. 5844-01, at *5844 (Jan. 18, 2017).
Under the new regulations, ALJs do not defer to, or give specific evidentiary weight to, any medical opinions. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). ALJs must evaluate medical opinions according to the following factors: supportability, consistency, relationship with the claimant (this factor has five sub-factors), specialization, and other factors. 20 C.F.R. § 416.920c(c)(1)-(5). The most important of these factors are supportability and consistency. 20 C.F.R. § 416.920c(b)(2). Supportability is the extent to which an opinion or finding is supported by relevant objective medical evidence and the medical source's supporting explanations. 20 C.F.R. § 416.920c(c)(1). Consistency is the extent to which an opinion or finding is consistent with evidence from other medical sources and non-medical sources. 20 C.F.R. §§ 416.920c(c)(2). The ALJ will articulate how he or she considered the most important factors of supportability and consistency, but an explanation for the remaining factors is not required unless the ALJ is deciding among multiple medical opinions of equal support and consistency on the same issue that differ slightly. 20 C.F.R. § 416.920c(b).
The Secretary's authority to promulgate regulations concerning "proofs and evidence" in disability cases under Section 405(a) is "exceptionally broad." Heckler v. Campbell , 461 U.S. 458, 466, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). Section 405(a) of Title 42 authorizes the Secretary to issue regulations governing the disability program: the Secretary is authorized to "adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder." 42 U.S.C. § 405(a). Both parties appear to agree that the customary notice and comment rulemaking procedures were followed here.
Dany Z. argues that the new regulations were adopted outside of this regulatory authority, and that the Second Circuit's precedent demonstrates the necessity of the treating physician rule. The parties dispute the holdings of three past Second Circuit cases that dealt with the tension in the agency's prior regulations implementing the Second Circuit's prior treating physician rule: Schisler v. Heckler, 787 F.2d 76 (2d Cir. 1986) (" Schisler I "), Schisler v. Bowen , 851 F.2d 43 (2d Cir. 1988) (" Schisler II "), and Schisler v. Sullivan , 3 F.3d 563 (2d Cir. 1993) (" Schisler III "). Plaintiff claims that "[t]he issue in Schisler III is properly seen as whether the Commissioner's regulations were sufficiently consistent with the court's categorical rule about treating physician opinions[,]" and argues that this precedent means that this Court must engage in a similar analysis. However, as Schisler III itself explains, that case arose out of a very unique procedural posture in which counsel for the Secretary represented that the agency followed the treating physician rule in Schisler I , leading the Second Circuit to order limited relief, while acknowledging in Schisler II that this relief should be distinguished from alternate situations in which the Secretary issues regulations after resorting to the customary administrative processes and thus receives the "deference traditionally shown to administrative rulings." Schisler III at 566-67, quoting Schisler II at 45. This unusual case history is what allowed the Second Circuit in Schisler III to compare the regulations to the judicially-developed treating physician rule, even while also explaining that the structure of the Social Security Act is such that judicial review is narrow:
The regulations before us fall within the scope of Section 405(a) ’s grant of authority because they guide disability adjudicators in their evaluation of "the nature and extent of ... proofs and evidence." Specifically, they instruct them on the evaluation of the opinions of treating physicians and the weight they should receive.
Judicial review of regulations promulgated pursuant to Section 405(a) is narrow and limited to determining whether they are arbitrary, capricious, or in excess of the Secretary's statutory grant of authority. 42 U.S.C. § 405(g) [.]
Schisler III at 567. Having examined the Second Circuit's precedent in this area, the Court finds it clear that the Second Circuit did not find that the treating physician rule was categorically required by the statute. Rather, the Second Circuit was carrying out a review developed in Schisler I and Schisler II , and in doing so it affirmed the idea that regulations guiding ALJs in their evaluation of medical opinions fell within the scope of Section 405(a) ’s grant of authority.
In Chevron , the Supreme Court explained that filling in ambiguous gaps in statutes involves difficult policy choices that agencies are better equipped to deal with than courts. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 842-44, 864, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The Court decided that, where a statute is silent or ambiguous as to a specific issue, an agency's "legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." Id. This means that even if a court has a different belief as to the best statutory interpretation of the statute, it must still follow the agency's construction so long as that construction is reasonable. Id. In the wake of Chevron , the Supreme Court further clarified that "[a] court's prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion." Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs. , 545 U.S. 967, 982, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005). As explained above, the Second Circuit did not find in any of the Schisler cases that the statute itself was unambiguous in requiring the treating physician rule. Nor does this Court see any evidence that the regulations are arbitrary or capricious.
Dany Z. also argues that the Social Security Administration lacked authority to promulgate these new regulations because the regulations are tied to the substantial evidence standard of review, which is the domain of the courts. This Court disagrees. Courts must still review administrative decisions to determine whether they are supported by substantial evidence. The new regulations do not say otherwise. At least one other district court has considered the new regulations and declined to find that "the Commissioner lacked authority to make changes to the rules governing how an ALJ considers and articulates the consideration of medical opinions and prior administrative medical findings." Patricia F. v. Saul , No. 19-5590-MAT, 2020 WL 1812233, at *4 (W.D. Wash. Apr. 9, 2020). That court noted, and this Court agrees, that reviewing courts "must, moreover, continue to consider whether the ALJ's analysis has the support of substantial evidence." Id.
II. Medical Opinion Analysis
Because this Court finds that the regulations were promulgated in a valid exercise of the Commissioner's authority, the Court will not reach Dany Z.’s argument that Dr. White's opinion should be controlling under the treating physician rule. However, the Court agrees with Dany Z. that even under the new regulations the ALJ's decision is not supported by substantial evidence. As explained above, the new regulations require ALJs to explicitly discuss the supportability and consistency of medical opinions. 20 C.F.R. § 416.920c(b)(2) ("... we will explain how we considered the supportability and consistency factors for a medical source's medical opinions"). Other district courts in the Second Circuit have found error and remanded social security cases for failure to describe these factors, and, for the reasons set forth below, this Court follows their example here. See, e.g., Brianne S. v. Comm'r of Soc. Sec. , No. 19-cv-1718-FPG, 2021 WL 856909, at *5 (W.D.N.Y. Mar. 8, 2021) (remanding to the ALJ with instructions to explicitly discuss the supportability and consistency of two opinions and explaining that an ALJ may not merely state that an examining physician's opinion is not consistent with the overall medical evidence); see also Raymond M. v. Comm'r of Soc. Sec. , No. 5:19-CV-1313 (ATB), 2021 WL 706645, at *8-9 (N.D.N.Y. Feb. 22, 2021).
The ALJ's "mental impairments" medical opinion analysis in this case is circular and underdeveloped. The ALJ found the opinions of Dr. Atkins and Dr. Reilly that Dany Z. could perform simple tasks for over two hours to be persuasive, "because the primary care provider treatment notes [sic] consistently how normal psychological functioning, with intact memory, logical and coherent thought process, and intact judgment and insight." AR 23. Then, the ALJ found the opinion of Dr. White to be only partially persuasive. Specifically, the persuasive part was her opinion that Dany Z. could complete simple tasks "due to largely normal mental status exams and because it is consistent with the opinions of Dr. Atkins and Dr. Reilly." AR 23. The rest of Dr. White's opinion was considered unpersuasive "because it is inconsistent with her own mental status exam notes that show largely normal functioning, with intermittent exacerbation related to situational stressors." AR 23.
Thus the ALJ discounted the opinion of Dr. White, who had a long relationship with Dany Z. that was reflected in a detailed record, because mental status exams performed by Dr. White had some normal findings. The ALJ used these same normal findings to give weight to the agency consultants, and then used those consultants to give less weight to Dr. White. Yet in discussing the weight given, the ALJ did not consider the PTSD diagnosis notes from those same examinations that would seem to be consistent with Dr. White's opinion. Nor did the ALJ explain why exacerbation related to situational stressors would not be fully consistent with Dr. White's opinion that Dany Z. could not cope with even normal work stress. Nor did the ALJ explain why Dany Z.’s own description of her activities, described in detail above, would not be consistent with Dr. White's opinion. The ALJ's conclusory statements alone do not meet the bar of substantial evidence. See Stacey v. Comm'r of SS , 799 F. App'x 7, 11 (2d Cir. 2020) (rejecting Commissioner's argument that ALJ's determination that claimant was able to concentrate for two hours was supported by the fact that multiple physicians found claimant to have a "normal" mental status, when those same physicians simultaneously concluded that the claimant had ADHD and difficulty concentrating: "[i]t would be improper to rely on these mental status evaluations to conclude that Stacey is capable of prolonged concentration while simultaneously ignoring the contrary conclusion of the very physicians who made the evaluations.").
The Court notes that the ALJ did mention Dr. White's PTSD notes and symptoms two pages earlier in the decision, once in a conclusory fashion by dismissing the PTSD as "related in part to remote gunshot injuries from 25 years ago" and once dismissing Dr. White's record of PTSD symptoms: Dr. White "stated the claimant has hypervigilance, avoidance behaviors, mood fluctuations, and represses memories, but did not further discuss those issues. She said the claimant's depression had improved since she has stabilized in her recovery, but the claimant under [sic] stress because she was court mandated to look for a job due to child support obligations, while she was also pursuing disability benefits." AR 21 (internal citations to exhibits omitted).
In the context of the old treating physician rule, the Second Circuit signaled that it may be especially important to give weight to treating physicians regarding mental health opinions because records of mental health diagnoses may be less clear than actual consultations. See Flynn v. Comm'r of SS , 729 F. App'x 119, 122 (2d Cir. 2018) ("The treatment provider's perspective would seem all the more important in cases involving mental health, which are not susceptible to clear records such as x16 rays or MRIs. Rather, they depend almost exclusively on less discretely measurable factors, like what the patient says in consultations."); see also Velazquez v. Barnhart , 518 F. Supp. 2d 520, 524 (W.D.N.Y. 2007) ("In the context of a psychiatric disability diagnosis, it is improper to rely on the opinion of a non-treating, non-examining doctor because the inherent subjectivity of a psychiatric diagnosis requires the physician rendering the diagnosis to personally observe the patient."). This logic has not disappeared in the face of the new regulations, because although an ALJ need only explicitly discuss two factors under the new regulations, an ALJ's decision must still be supported by substantial evidence. Some normal mental exams, or some general statements of improvement, still fail to constitute substantial evidence supporting a determination of a denial of disability where other evidence in the record was ignored. Jacobs v. Saul , 482 F. Supp. 3d 23, 28 (E.D.N.Y. 2020) (remanding to ALJ to "consider the entirety" of records from a medical source, rather than only noting parts of the records where claimant was "doing well" and symptoms were improving, despite other records describing worse symptoms and a medical crisis); see also Garrison v. Colvin , 759 F.3d 995, 1017 (9th Cir. 2014) (explaining that "while discussing mental health issues, it is error to reject a claimant's testimony merely because symptoms wax and wane in the course of treatment. Cycles of improvement and debilitating symptoms are a common occurrence, and in such circumstances it is error for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working.").
The new regulations cannot be read as a blank check giving ALJs permission to rely solely on agency consultants while dismissing treating physicians in a conclusory manner. On the contrary, many district courts in the Second Circuit, when presented with these regulations, have concluded that the factors are very similar to the analysis under the old rule. See, e.g., Cuevas v. Comm'r of Soc. Sec. , No. 20-CV-0502 (AJN) (KHP), 2021 WL 363682, at *9 (S.D.N.Y. Jan. 29, 2021) (surveying Second Circuit district court level cases considering the new regulations, and concluding that they show that "the essence" of the treating physician's rule remains the same, and "the factors to be considered in weighing the various medical opinions in a given claimant's medical history are substantially similar" – then noting that this "is not surprising considering that, under the old rule, an ALJ had to determine whether a treating physician's opinion was supported by well-accepted medical evidence and not inconsistent with the rest of the record before controlling weight could be assigned."); see also Shawn H. v. Comm'r of Soc. Sec. , No. 2:19-CV-113, 2020 WL 3969879, at * 6 (D. Vt. July 14, 2020) ("Even though ALJs are no longer directed to afford controlling weight to treating source opinions – no matter how well supported and consistent with the record they may be – the regulations still recognize the ‘foundational nature’ of the observations of treating sources, and ‘consistency with those observations is a factor in determining the value of any [treating source's] opinion.’ " (alteration in original) (quoting Barrett v. Berryhill , 906 F.3d 340, 343 (5th Cir. 2018) )).
The ALJ failed to fully explain his consideration of all of the medical opinion evidence, and this Court finds that no substantial evidence in the record supports the ALJ's dismissal of Dr. White's opinion.
III. Step Two Analysis
Nor did the ALJ fully consider Dr. Waheed's findings. In the ALJ's decision, he found Dany Z.’s spine and leg condition to be non-severe. In making this finding, he wrote in part:
Neurologist Dr. Waheed, M.D. evaluated the claimant in October 2017. The claimant reported a history of gunshot injury about 25 years ago. The claimant reported that, after extensive rehabilitation, she did not have any residual deficit until about five years ago when she developed left leg problems although Dr. Waheed noted complaints of left leg problems for 11 years. She reported left leg weakness, diffuse pain in the left leg and paraspinals, and stated she sometimes cannot bear weight on the left leg. She also complained of similar problems in the right leg that worsens with walking, and said she sometimes needs to sit. However, objective diagnostic testing showed mild or no findings supporting her reported symptoms. He stated a CT myelogram of the thoracic spine in 2015 showed a left central disk protrusion at C6-7 mildly indenting the spinal cord. EMGs in 2011 and [sic] was normal. Dr. Waheed also completed an EMG that was normal. A myelogram of the cervical spine in 2016 showed mild degenerative changes without significant spinal stenosis. An MRI of the lumbar spine in 2011 showed mild facet disease and mild clumping of the nerve roots of the cauda equine. Although he stated some clinical signs "could be suggestive" of Brown-Sequard syndrome, he did not diagnose the impairment. No hand impairment was diagnosed. She was to return after additional testing following this October 2017 exam, although no further records with this provider are in evidence. In April 2018, Ms. Bouchard stated she had good balance. She advised continued use of Lyrica, ordered pool therapy, recommended no smoking, and suggested massage.
AR 17-18 (internal citations to exhibits omitted) (emphasis in original). Despite all this detail, the ALJ ignored Dr. Waheed's findings of upper motor neuron signs suggestive of a positive Hoffmann sign bilaterally, spasticity in the lower extremities that was worse on the left, hyperreflexia on the left, and a gait that dragged on the left. AR 1095. Furthermore, though this passage seems to suggest that a normal EMG counts against a diagnosis of Brown-Sequard symptom, Dr. Waheed instead wrote that "[h]er 2 EMGs were normal excluding the possibility of peripheral nervous system dysfunction." Id. The Court also notes that an ALJ may not "substitute [their] own expertise or view of the medical proof for the treating physician's opinion." See Shaw v. Chater , 221 F.3d 126, 134 (2d Cir. 2000).
IV. Award of Benefits
The court, after reviewing the decision of the Commissioner may, under 42 U.S.C. § 405(g), affirm, modify, or reverse the Commissioner's decision with or without a remand for a rehearing. The court also may direct the Commissioner to award benefits, but that decision should be made only when the administrative record in the case has been fully developed and when substantial evidence on the record as a whole indicates that a claimant is entitled to benefits. See, e.g., Balsamo v. Chater, 142 F.3d 75 (2d Cir. 1998). A remand directing the Commissioner to award benefits, rather than a remand for further proceedings, is appropriate when the record provides "persuasive evidence of total disability that rendered any further proceedings pointless." Williams v. Apfel , 204 F.3d 48, 50 (2d Cir. 1999). When there are gaps left in the administrative record, a remand for further development of the evidence is appropriate. See Rosa v. Callahan , 168 F.3d 72, 82-83 (2d Cir. 1999). Yet where the reversal is based solely on the Commissioner's failure to meet his burden of marshalling substantial evidence of the claimant's capability of gainful employment, "no purpose would be served" by a remand for additional proceedings unless the Commissioner could offer additional evidence. Carroll v. Secretary of Health & Human Services , 705 F.2d 638, 644 (2d Cir. 1983).
In this case, even without taking into account Dany Z.’s leg pain, Dr. White's detailed testimony asserts that Dany Z. would be off task at least 20% of the time, and that she would likely be on average absent from work about four times per month. Dany Z. herself indicated that sometimes she stays in bed for days and even cancels appointments, and that she cannot concentrate on reading like she used to. AR 264, 266. At the hearing on August 2, 2018, she explained that she can only read maybe two chapters before putting her reading down, and that she will stay in bed for four days sometimes, every three weeks. AR 85-86. At the hearing, a vocational expert, Christine Spaulding, testified that if the limitation of being off task up to 15% of the day were added, there would be no jobs available. AR 94-95. Similarly, no jobs would be available if the individual missed two or more days of work on an ongoing and chronic basis. AR 95.
For these reasons, there is substantial evidence indicating that Dany Z. was disabled during the alleged disability period. Had the ALJ properly considered Dr. White's opinion under the new regulations, it is clear that he would have found, based on the VE's testimony and other substantial evidence in the record, that Dany Z. would not have been able to perform any work. See Stacey v. Comm'r of Soc. Sec. , 799 Fed. App'x 7 (2d Cir. 2020) (remanding for benefits where the VE testified without contradiction that jobs did not exist for a claimant with the limitations described in the opinion of the treating physician, who should have been given controlling weight). As noted above, the new regulations have done away with giving treating physicians controlling weight. They have not done away with the basic truth that the extent of the treatment relationship, and the extent of the examinations, are valued factors meant to be taken into account by the ALJ. This is why both of these factors are still in the new regulations (although they are not considered the "most important" factors and thus need not be explained in the decision). The new regulations do not allow the ALJ to disregard the opinion of Dr. White in a conclusory fashion and without substantial evidence for doing so. The non-examining opinion of Dr. Atkins and Dr. Reilly, combined with normal mental health exams from Dr. White herself, does not amount to substantial evidence supporting a finding of non-disability. The Court is therefore not persuaded that remand for additional fact-finding would serve any purpose.
Conclusion
For the reasons set forth above, the Court grants Dany Z.’s motion (ECF No. 7), denies the Commissioner's motion (ECF No. 10), and REMANDS for a calculation of disability benefits.