Opinion
1:19-CV-00593 EAW
2021-03-23
KEVIN E., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Howard D. Olinsky, Olinsky Law Group, Syracuse, NY, for Plaintiff. Dennis Canning, Frank D. Tankard, Social Security Administration Office of the General Counsel, Kansas City, MO, for Defendants.
Howard D. Olinsky, Olinsky Law Group, Syracuse, NY, for Plaintiff.
Dennis Canning, Frank D. Tankard, Social Security Administration Office of the General Counsel, Kansas City, MO, for Defendants.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Represented by counsel, Plaintiff Kevin E. ("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. 14; Dkt. 17), and Plaintiff's reply (Dkt. 18). For the reasons discussed below, Plaintiff's motion (Dkt. 14) is granted in part, the Commissioner's motion (Dkt. 17) is denied, and the case is remanded to the Commissioner for further proceedings consistent with this Decision and Order.
BACKGROUND
Plaintiff protectively filed his application for DIB on December 8, 2014. (Dkt. 5 at 14, 90). In his application, Plaintiff alleged disability beginning December 9, 2012, due to amputated fingers on his left hand and herniated discs in his lumbar, thoracic, and cervical spine. (Id. at 14, 91). Plaintiff's application was initially denied on April 22, 2015. (Id. at 14, 101-06). A video hearing was held before administrative law judge ("ALJ") Benjamin Chaykin on December 11, 2017. (Id. at 14, 46-89). Plaintiff appeared in Buffalo, New York and the ALJ presided over the hearing from Alexandria, Virginia. (Id. ). At the hearing, Plaintiff amended his alleged onset date to April 5, 2016. (Id. at 14). On February 22, 2018, the ALJ issued an unfavorable decision. (Id. at 11-24). Plaintiff requested Appeals Council review; his request was denied on March 8, 2019, making the ALJ's determination the Commissioner's final decision. (Id. at 5-7). 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, 2019. (Dkt. 5 at 16). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity since April 5, 2016, the alleged onset date. (Id. ). At step two, the ALJ found that Plaintiff suffered from the severe impairments of: "degenerative disc disease ; left hand finger amputations and contractures; obesity ; affective disorder; anxiety disorder and attention deficit and hyperactivity disorder (ADHD)." (Id. ). The ALJ further found that Plaintiff's medically determinable impairments of hypothyroidism, hyperlipidemia, vertigo, dyspnea on exertion, hypertension, fatty liver, bilateral hearing loss, deviated septum, chronic sinusitis, GERD, neuropathy, and/or history of right carpal tunnel syndrome, to be non-severe. (Id. at 17). With respect to Plaintiff's representations that he suffered from chest pain, right upper quadrant pain, and palpitations, the ALJ concluded that these were not medically determinable impairments. (Id. ).
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. ). The ALJ particularly considered the criteria of Listings 1.04, 1.05, 12.04, 12.06, and 12.11 in reaching his conclusion, as well as considering the effect of Plaintiff's obesity as required by Social Security Ruling ("SSR") 02-1p. (Id. at 17-19).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b), except:
(1) no climbing of ropes, scaffolds or ladders; (2) occasional climbing of ramps or stairs; (3) occasional stooping, crouching, balancing, kneeling or crawling; (4) frequent overhead reaching; (5) frequent handling and fingering; (6) limited to simple, routine and repetitive tasks; and (7) limited to occasional interaction with supervisors, co-workers and the public.
(Id. at 19-20). At step four, the ALJ found that Plaintiff was unable to perform any past relevant work. (Id. at 22-23).
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 mail clerk and plastic hospital products assembler. (Id. at 23-24). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id. at 24).
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 improperly substituted his lay judgment over the opinion of medical professionals when assessing Plaintiff's mental limitations, and (2) the ALJ failed to give good reasons for rejecting the opinion offered by Plaintiff's treating psychiatrist, Maria Nickolova, M.D, and failed to develop the record. (Dkt. 14-1 at 1, 12-25). For the reasons explained below, the Court finds that the ALJ failed to properly weigh the opinion offered by Dr. Nickolova, and that this error requires remand for further administrative proceedings.
A. Assessment of Dr. Nickolova's Opinion
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).
Dr. Nickolova completed a "Mental Impairment Questionnaire (RFC & Listings)" on June 21, 2017. (Dkt. 5 at 588-93). Plaintiff treated with Dr. Nickolova monthly. (Id. at 588). Plaintiff's current GAF was 51, and his symptoms included sleep disturbance, personality change, mood disturbance, anhedonia or pervasive loss of interest, psychomotor agitation or retardation, difficulty thinking or concentrating, social withdrawal or isolation, decreased energy, and generalized persistent anxiety. (Id. ). His mental status examination revealed that he was anxious and depressed, with fair eye contact, attention span, and concentration, and slow motor activity. (Id. at 589). Plaintiff's treatment included medical management and therapy, and his prognosis was fair. (Id. ). According to Dr. Nickolova, Plaintiff would be absent from work more than three times per month due to his impairments or treatment. (Id. at 590). Regarding Plaintiff's mental ability to perform unskilled work, he had a "fair" ability (defined as "ability to function in this area is seriously limited, but not precluded") in the following areas of functioning: remember work-like procedures; understand and remember very short and simple instructions; carry out very short and simple instructions; maintain regular attendance and be punctual within customary, usually strict tolerances; sustain an ordinary routine without special supervision; work in coordination with or proximity to others without being unduly distracted; perform at a consistent pace without an unreasonable number and length of rest periods; ask simple questions or request assistance; accept instructions and respond appropriately to criticism from supervisors; get along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes; respond appropriately to changes in a routine work setting; deal with normal work stress; and be aware of normal hazards and take appropriate precautions. (Id. at 590-91). Plaintiff had a "poor or none" ability (defined as "no useful ability to function in this area") in the following categories: maintain attention for two hour segments; make simple work-related decisions; and complete a normal workday and workweek without interruptions from psychologically based symptoms. (Id. ). Dr. Nickolova explained that Plaintiff's limited ability to function in these categories was due to his ADHD, which was the "predominantly inattentive type," and his major depressive disorder. (Id. at 591). In terms of Plaintiff's ability to perform semi-skilled and skilled work, he had a "fair" ability to understand and remember detailed instructions, carry out detailed instructions, and set realistic goals or make plans independently of others, and a "poor or none" ability to deal with stress of semiskilled and skilled work. (Id. ). For mental abilities and aptitudes to do particular types of jobs, Plaintiff had a "fair" ability to interact appropriately with the general public, maintain socially appropriate behavior, adhere to basic standards of neatness and cleanliness, travel in unfamiliar places, and use public transportation. (Id. at 592). Pursuant to a five-point rating scale for areas of mental functioning, as done independently, appropriately, effectively and on a sustained basis, Plaintiff had a "moderate" ability (defined as "ability is fair") to understand, remember, or apply information, interact with others, concentrate, persist, or maintain pace, and adapt or manage himself. (Id. ).
The ALJ discussed Dr. Nickolova's opinion in the written determination, which he gave "moderate weight." (Dkt. 5 at 22). The ALJ noted that Dr. Nickolova's opinion was "essentially identical" to the opinion offered by Monica Reeves, LCSW-R, and further explained that Dr. Nickolova found moderate "paragraph B" limitations, that Plaintiff was likely to miss work more than three times per month, that he had a poor ability for maintaining attention, making simple decisions, completing a workday/workweek without psychological interruptions, and for dealing with stress in a semiskilled to skilled setting. (Id. ). The explanation offered by the ALJ for his discounting Dr. Nickolova's opinion was as follows:
Although the claimant was psychiatrically hospitalized in 2016, the updated evidence is consistent with improvement, noting coherent thoughts, intact memory, fair concentration, and good judgment (Exhibit 11F). As such, the undersigned gives th[is] opinion[ ] no more than moderate weight.
(Id. ).
In response to Plaintiff's argument that the ALJ failed to properly weigh Dr. Nickolova's opinion, the Commissioner concedes that "[a]lthough the Court could have more extensively discussed each factor," a "searching review of the record" establishes that the substance of the treating physician rule was not traversed, and that the ALJ provided the required good reasons. (Dkt. 17-1 at 22). For the reasons explained below, the Court disagrees.
The ALJ's analysis of Dr. Nickolova's opinion falls far short of what is required by the treating physician rule. As an initial matter, pursuant to the Second Circuit's decision in Estrella , an ALJ's failure to explicitly apply the above-mentioned factors is procedural error, unless the Court's review of the record confirms "that the substance of the treating physician rule was not traversed." Estrella , 925 F.3d at 96. Here, upon reviewing the record, it is not clear to the Court that the ALJ considered the required factors when assessing Dr. Nickolova's opinion, including the frequency, length and nature of the treatment relationship, whether her opinion was supported by other evidence in the record, and the consistency of the opinion with the record as a whole. The ALJ's failure to explain how he considered these factors is particularly problematic given that Dr. Nickolova treated Plaintiff every month and specifically explained why she found Plaintiff to have severe limitations in several areas of mental functioning. See Lee G. v. Comm'r of Soc. Sec. , No. 5:19-CV-1558 (DJS), 2021 WL 22612, at *4 (N.D.N.Y. Jan. 4, 2021) ("[j]udicial deference to the opinion of a treating physician is especially important in the context of mental illness"); Bodden v. Colvin , No. 14-CV-08731(SN), 2015 WL 8757129, at *9 (S.D.N.Y. Dec. 14, 2015) ("Where mental health treatment is at issue, the treating physician rule takes on added importance. A mental health patient may have good days and bad days; [ ]he may respond to different stressors that are not always active. Thus, the longitudinal relationship between a mental health patient and her treating physician provides the physician with a rich and nuanced understanding of the patient's health that cannot be readily achieved by a single consultative examination."). The Court notes that Dr. Nickolova's opinion is consistent with the opinion offered by Ms. Reeves, which was completed on June 22, 2017. (See Dkt. 5 at 630-35). Ms. Reeves also treated Plaintiff monthly. (Id. at 630). Although the ALJ acknowledged that Dr. Nickolova was Plaintiff's treating psychiatrist, as the Second Circuit recently explained, "merely acknowledging the existence of treatment relationships is not the same as explicitly considering ‘the frequency, length, nature, and extent of treatment.’ " Ferraro v. Saul , 806 F. App'x 13, 15 (2d Cir. 2020).
Further, the Court finds that the ALJ failed to give the requisite "good reasons" for not affording Dr. Nickolova's opinion controlling weight. For example, the ALJ did not explain why he failed to credit Dr. Nickolova's opinion that Plaintiff would be absent for more than three days per month, which would have precluded employment (see Dkt. 5 at 87), and was consistent with Plaintiff's hearing testimony that he had to drop a class in college because it was too overwhelming (id. at 53), was absent from one of his college classes 37 days out of the semester due to his anxiety (id. at 54), and he was unable to care for his young daughter two to three times per month (id. at 73). Further, the sole reason the ALJ offered for declining to adopt the opinion offered by Dr. Nickolova—that Plaintiff's mental functioning had improved since he was hospitalized twice in mid-2016—has no bearing on Dr. Nickolova's opinion, which she rendered in June 2017, one year after Plaintiff's hospitalizations.
Dr. Nickolova's opinion, which assessed Plaintiff as having serious limitations for performing even unskilled work, including in his ability to interact with others, plainly conflicts with the RFC, which requires that Plaintiff "occasionally" interact with supervisors, co-workers, and the public. Further, the determination that Plaintiff can work is contrary to Dr. Nickolova's opinion that Plaintiff would be absent three or more days per month. Accordingly, remand is required. On remand, the ALJ should properly apply the treating physician rule when assessing Dr. Nickolova's opinion, including considering it in light of the above-mentioned factors. Should the ALJ determine that Dr. Nickolova's opinion is not entitled to controlling weight, he must offer good reasons for the weight he affords her opinion, and ensure that the record contains medical opinion evidence from which he can adequately assess Plaintiff's mental RFC.
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. 14) 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. 17) is denied.
SO ORDERED.