Opinion
20-CV-3827 (JPO)(KNF)
03-29-2022
ELIZABETH ANNE PARRY, Plaintiff, v. COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.
TO THE HONORABLE J. PAUL OETKEN, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
KEVIN NATHANIEL FOX, UNITED STATES MAGISTRATE JUDGE.
Elizabeth Anne Parry (“Parry”) commenced this action against the Commissioner of Social Security (the “Commissioner”), seeking review of an administrative law judge's (“ALJ”) February 20, 2019 decision finding Parry ineligible for disability insurance benefits, pursuant to Title II of the Social Security Act (“SSA”), 42 U.S.C. §§ 401-43, and Supplemental Security Income benefits, pursuant to Title XVI of the SSA, 42 U.S.C. §§ 1381-1385. Before the Court is Parry's motion for judgment on the pleadings, Docket Entry No. 18, and the Commissioner's cross-motion for judgment on the pleadings, Docket Entry No. 23.
ALJ'S DECISION
The ALJ found that Parry: (1) meets the SSA insured status requirements through December 31, 2015; (2) has not engaged in substantial gainful activity since August 5, 2011, the alleged disability onset date; (3) “has the following severe impairments: fibromyalgia, history of right shoulder injury, hypermobility syndrome, somatic pain disorder, post-traumatic stress disorder, anxiety disorder, depressive disorder, and attention deficit hyperactivity disorder”; and (4) does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart B, Appendix 1.
The ALJ found that Parry has the residual functional capacity (“RFC”) to
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) in that she can lift and/or carry, and push and/or pull, 20 pounds occasionally, and 10 pounds frequently. She can sit, with normal breaks, for a total of 6 hours per 8-hour workday, and can stand and/or walk, with normal breaks, for a total of 6 hours per 8-hour workday. The claimant can occasionally climb ramps and stairs, and can occasionally climb ladders, ropes, or scaffolds. She can occasionally balance, stoop, kneel, crouch, and crawl. In terms of environmental limitations, the claimant can have occasional exposure to pulmonary irritants such as fumes, dusts, gases, noxious odors, and poorly ventilated areas. She can work in a moderate noise intensity environment as defined in the [Selected Characteristics of Occupations]. In terms of mental limitations, the claimant can understand, remember, and apply instructions to perform simple tasks. She can make simple work-related decisions. She can maintain concentration to work at a consistent pace for two hours before and after normal breaks, in jobs which do not require teamwork or tandem tasks for the completion of assignments, or in jobs such as an assembly line where she has no control over the pace of work. She can tolerate occasional interaction with supervisors and co-workers, but should have no interaction with the general public.
In reaching the RFC determination, the ALJ considered Parry's history of right shoulder pain, hypermobility syndrome, and fibromyalgia. According to the ALJ, Parry's “physical examination findings have actually been relatively good. [Parry] ambulates with normal gait and station, with no need for an assistive device....She can walk on her heels and toes without difficulty, and can perform a full squat....[Parry] exhibits good manual dexterity, and her extremities exhibit no sensory, motor, or reflex deficits.”
The ALJ considered Parry's attention deficit hyperactivity disorder, depression, anxiety, and post-traumatic stress disorder. The ALJ found that Parry's “mental health conditions have been treated with medication and therapy, and her symptoms appear to be largely controlled. Some restrictions are certainly appropriate, but there is no evidence that [Parry's] psychological conditions result in debilitating limitations.”
In reaching the RFC, the ALJ gave considerable weight to the opinion of State agency medical consultant Dr. R. Mohanty (“Dr. Mohanty”), because “Dr. Mohanty's opinion is well-explained, and is well-supported by the evidence, including [Parry's] treatment records and the examination findings of [consultative examiner] Dr. [John] Caruso [(“Dr. Caruso”)].” The ALJ considered the opinion of consulting psychologist Dr. Alison Murphy (“Dr. Murphy”), who examined Parry on December 1, 2016, that Parry's “mental impairments do not result in limitations in her work-related functional abilities.” Dr. Murphy “noted that [Parry's] thought processes were goal-directed and coherent, and found [Parry's] memory, attention, and concentration abilities to be intact.” The ALJ noted that Dr. Murphy's findings were consistent with Parry's treatment records, which indicated “normal mood and affect, with intact memory, attention, concentration, and abstract reasoning abilities.” However, the ALJ determined that a more restrictive RFC than that assessed by Dr. Murphy was appropriate.
The ALJ considered the opinion of Dr. John Reed (“Dr. Reed”), Parry's physician, that Parry “is incapable of performing even sedentary exertional work.” The ALJ found that this degree of limitation was not consistent with “the physical examination findings and treatment records discussed above.” Additionally, the ALJ noted that Parry “met with Dr. Reed for the purpose of completing her disability paperwork, and there is no evidence that an examination was actually performed, suggesting that the form was completed based solely upon [Parry's] own subjective reporting.”
The ALJ considered two opinion statements completed by Parry's psychologist, Dr. Lore Hannes (“Dr. Hannes”), which the ALJ characterized as “somewhat contradictory.” In the first statement, Dr. Hannes opined “moderate limitations in [Parry's] attention and concentration, ability to interact with others, ability to maintain socially appropriate behavior, ability to follow complex instructions, and to perform low stress tasks.” The ALJ found this opinion “somewhat persuasive, to the extent that it indicates that [Parry] has moderate limitations in the domains of functioning”; however, the ALJ did not find persuasive Dr. Hannes's opinion that Parry is “very limited” in her ability to use public transportation due to physical pain, because “the claimant's pain levels are inherently subjective, and are better addressed by sources who are more familiar with her physical impairments.” In her second statement, Dr. Hannes opined that Parry “is unable to work due to her physical and mental impairments, specifically noting a limiting ability to maintain focus and attention.” The ALJ assigned this opinion “little weight, ” because the issue of whether Parry can work is reserved to the Commissioner and because, according to the ALJ, this second opinion is inconsistent with the first, which found moderate limitations. The ALJ noted that Parry's “examination findings, as noted above, consistently reflect intact attention and concentration abilities.”
The ALJ assigned “little weight” to the 2011 opinion of Dr. John Hughes (“Dr. Hughes”) that Parry was unable to return to work, because “Dr. Hughes'[s] conclusion was not explained, and was not consistent with his contemporaneous examination, which he noted was unremarkable.”
The ALJ found further that Parry “is unable to perform any past relevant work”; was a younger individual age 18-49 on the alleged disability onset date; and “has at least a high school education and is able to communicate in English.” The ALJ found that transferability of job skills is not an issue because Parry does not have past relevant work.
Considering Parry's age, education, work experience, and RFC, the ALJ determined that jobs exist in significant numbers in the national economy that Parry can perform. The ALJ noted that the vocational expert testified that an individual with Parry's age, education, work experience, and RFC would be able to perform the requirements of occupations such as folding machine operator, collator operator, and wire wrapping machine operator. The ALJ concluded that Parry has not been under a disability from August 5, 2011, though the date of the decision.
PARRY'S CONTENTIONS
Parry contends that: (1) the ALJ did not analyze correctly the medical evidence of record; (2) the ALJ's RFC determination is not supported by substantial evidence; and (3) the vocational expert's testimony, based on that RFC determination, is “unreliable.”
Parry asserts that the ALJ did not consider Parry's mental and physical impairments in combination and the impact of those impairments' interaction with one another, even though “the medical evidence of record is replete with indications that [Parry's] physical impairments and [Parry's] mental impairments interact with each other to disable [Parry] from ability to perform any type of SGA [substantial gainful activity].” According to Parry, these interactions were noted in her hearing testimony as well as by her primary care physician, Dr. Reed, and her treating psychologist, Dr. Hannes.
Parry contends that because her claim was filed prior to March 27, 2017, the treating physician rule applies to her claim; however, the ALJ did not give her treating physicians' opinions controlling weight. Instead, the ALJ gave “considerable weight” to the opinion of Dr. Mohanty, a state-agency consultant who did not examine Parry; according to Parry, Dr. Mohanty is a pediatrician and is not qualified to assess her. Parry contends that the opinions of a consultant who has not examined her, such as Dr. Mohanty, can be given weight “only insofar as they are supported by evidence in the case record, ” which is not the case here.
Parry maintains that the ALJ's RFC determination is not supported by substantial evidence, because Parry's shoulder injuries and multiple chronic medical conditions are well documented in the records of Parry's medical providers. Parry contends that the opinion evidence in the record confirms that she in unable to perform the physical requirements of light work. For example, on July 25, 2016, Dr. Reed noted that Parry “has fatigue; chronic joint and muscle pain present for many years; and fibromyalgia.” Dr. Reed opined that Parry could lift less than 10 pounds occasionally and stand and/or walk for two hours per day. Dr. Reed noted that Parry's impairments had been present for five years and opined that the expected duration of her impairments was indefinite.
Parry asserts that the evidence in the record supports that she is unable to perform the mental requirements of light work. She testified at the hearing about her feelings of isolation, anxiety, and depression. Dr. Hannes opined that Parry is moderately limited in five out of eight mental functions associated with work and that Parry could possibly return to work in one year only if Parry's pain is adequately addressed and if Parry responds to further treatment. Parry contends that mental health treating sources may properly rely on a patient's reports of subjective symptoms.
Parry maintains that the vocational expert's testimony is “unreliable.” Parry contends that she is not capable of the interactions with others or the physical demands of the jobs that the ALJ determined she can perform: folding machine operator, collator operator, and wiring wrapping machine operator. Additionally, Parry suggests that the description of each of these jobs in the Dictionary of Occupational Titles (“DOT”) is outdated, as each description has not been updated for at least 35 years.
Parry requests that the Commissioner's decision be reversed, and the case remanded for further administrative proceedings.
COMMISSIONER'S CONTENTIONS
The Commissioner contends that the ALJ's RFC determination is supported by substantial evidence, including “progress notes and medical opinions of record that, while showing some limitations, were otherwise inconsistent with [Parry's] statements about the intensity, persistence, and limiting effects of her symptoms.” According to the Commissioner, the medical evidence in the record supports the ALJ's determination that Parry's physical impairments would not prevent her from performing a range of light work, including the records of Horizon Family Medical, which indicate that Parry had “normal gait and neurological findings, and she was not in acute distress”; moreover, these records indicate that at her visits to Horizon Family Medical, Parry “denied having any back pain, joint stiffness, muscle aches, shoulder pain, joint pain, sciatica, swollen joints, gait abnormality, numbness, tingling, loss of coordination, or low back pain.” Additionally, the records of New Windsor Family Medicine from September 22, 2015, and April 9, 2016, indicate that Parry “appeared healthy and walked with a normal gait, and that her neck, spinal contour, and upper and lower extremities were normal to inspection and palpation.” Medical providers at Cornerstone Family Healthcare-Newburgh Endocrinology noted in their records from May 14, 2015, to August 17, 2018, that Parry exhibited a full range of motion in all joints.
The Commissioner contends that Dr. Caruso's examination of Parry also provides support for the ALJ's RFC determination. Dr. Caruso noted that Parry had a normal examination, other than the exhibition of some fibromyalgia trigger points and some limitation in the range of motion in her hips. Dr. Caruso assessed mild limitations with activities requiring acute hearing and opined that Parry should avoid physical and chemical irritants that might exacerbate her asthma. The Commissioner maintains that the ALJ also “reasonably gave weight to the opinion of State agency medical consultant Dr. Mohanty to the extent that it was consistent with Dr. Caruso's findings and progress notes of record.”
The Commissioner asserts that the ALJ “properly gave little weight to Dr. Reed's highly restrictive assessment of [Parry's] ability to perform sedentary activities because it was not consistent with other medical opinions and physical examination findings of record, including in Dr. Reed's own treatment notes.” The Commissioner maintains that on July 25, 2016, when Parry met with Dr. Reed to request that he complete disability paperwork, Dr. Reed did not perform a physical examination of Parry and noted that she “appears healthy and well-developed”; moreover, during a previous appointment, Dr. Reed documented that Parry walked with a normal gait and her upper and lower extremities were normal to inspection and palpation. Dr. Reed noted later, on February 1, 2017, that Parry presented with normal gait, normal upper and lower extremity findings, 5/5 strength and motor functioning in all extremities, and intact sensation.
The Commissioner contends that substantial evidence supports the ALJ's finding that Parry could
understand, remember, and apply instructions to perform simple tasks. She can make simple work-related decisions. She can maintain concentration to work at a consistent pace for two hours before and after normal breaks, in jobs which do not require teamwork or tandem tasks for the completion of assignments, or in jobs such as an assembly line where she has no control over the pace of work. She can tolerate occasional interaction with supervisors and co-workers, but should have no interaction with the general public.
The Commissioner maintains that in support of this finding the ALJ noted properly “progress notes indicating that [Parry] exhibited intact attention and concentration, average intellectual functioning, and intact memory.” On multiple occasions, Dr. Hannes noted that Parry had an “excellent” response to treatment and a good prognosis for her condition. In September 2017, Dr. Hannes noted that Parry had “overall” improved mood and lower anxiety. In 2016 and 2017, psychiatric nurse practitioner Hugh McKenzie (“McKenzie”) noted that Parry “did not have paranoia or delusions, denied hallucinations and suicidal ideations, presented with mild depression and some anxiety, and exhibited fair judgment and insight.” McKenzie also indicated that Parry reported that her depression was “mostly situational” due to her family situation, and that she presented with improved mood and less anxiety in June 2016 and April 2017. Dr. Lisa Batson's mental status examinations support further the ALJ's RFC determination.
The Commissioner maintains that the ALJ “appropriately weighed the opinion evidence of record in determining [Parry's] RFC.” The ALJ noted correctly that Dr. Murphy's opinion was supported by her examination findings and consistent with Parry's treatment records, but found reasonably that other evidence in the record supported a more limited RFC determination than that assessed by Dr. Murphy.
The Commissioner maintains that the ALJ provided good reasons for declining to give significant or controlling weight to Dr. Hannes's opinion that Parry was significantly limited in her ability to maintain attention and concentration. According to the Commissioner, the ALJ noted that this opinion was inconsistent with Dr. Hannes's progress notes, which consistently document intact attention and concentration and note a good prognosis and adequate to excellent response to treatment. The Commissioner asserts that the ALJ noted correctly that Dr. Hannes's opinion that Parry was unable to work was an opinion on an issue reserved to the Commissioner, i.e., whether Parry is disabled, to which the ALJ need not defer. The Commissioner contends that the ALJ applied the treating physician rule properly, because under that rule, an ALJ need not give controlling weight to a treating physician's opinion when it is inconsistent with other substantial evidence in the record. According to the Commissioner, an ALJ need not recite each factor listed in 20 C.F.R. §§ 404.1527(c), 416.927(c), if the ALJ's reasoning and adherence to the regulations are clear.
The Commissioner contends that the ALJ considered appropriately Parry's reports of her symptoms, including pain, by considering the extent to which Parry's alleged symptoms were consistent with the objective medical evidence and other evidence in the record. At the hearing, Parry reported experiencing muscle pain, usually related to overextension of a joint due to her hypermobility. Parry reported that her pain improved after her right shoulder surgery in 2016. Parry testified that she engaged in activities such as driving to medical appointments, doing laundry, washing dishes, cooking meals, and shopping. Parry also testified that her depression had improved because recently she had been able to reach out to her therapist for help. Consistent with this testimony, Parry reported to her medical providers that she was engaging in various daily activities. According to the Commissioner, Parry's reports of daily activities are inconsistent with her allegations of completely disabling impairments and support the ALJ's RFC determination.
The Commissioner asserts that substantial evidence supports the ALJ's finding that Parry can perform jobs existing in significant numbers in the national economy, because substantial evidence supports the finding on which the hypothetical posed, at the hearing, to the vocational expert is based. In addition, the Commissioner contends that Parry's suggestion that the DOT entries for folding machine operator, collator operator, and wire wrapping machine operator are outdated and unreliable is meritless, because 20 C.F.R. §§ 404.1566(d), 416.966(d) take administrative notice that the DOT is a reliable source of information on jobs existing in the national economy. Moreover, 20 C.F.R. §§ 404.1566(e), 416.966(e) permit an ALJ to use the services of a vocational expert. Here, the vocational expert acknowledged that the “DOT did not define absences, being off task, team or tandem work, or an employee's control over pace of work, and explained that her testimony was based on both the DOT and her thirty-plus years of experience in vocational rehabilitation.” The Commissioner maintains that the ALJ relied properly on the vocational expert's testimony.
The Commissioner requests that the court affirm the ALJ's decision, deny Parry's motion for judgment on the pleadings, and grant the Commissioner's motion for judgment on the pleadings.
PARRY'S REPLY
In reply, Parry contends that the ALJ cherry-picked evidence in the record impermissibly to conclude that Parry is not disabled; however, “a thorough review of treatment notes shows plenty of evidence in support of disability.” Parry maintains that the ALJ should not have given considerable weight to the opinion of non-examining medical consultant Dr. Mohanty, who reviewed medical records on January 26, 2017, two years before the hearing date. Parry asserts that the ALJ erred in giving Dr. Mohanty's opinion more weight than any examining or treating source, including the opinions of treating physician Dr. Reed and treating psychologist Dr. Hannes. According to Parry, under the treating physician rule, the opinions of Dr. Reed and Dr. Hannes should have been given controlling weight. Parry contends that, aside from Dr. Mohanty's opinion, all other medical opinions in the record indicate Parry is seriously limited in, or precluded from, performing substantial gainful activity.
Parry contends that because the RFC determination is not supported by substantial evidence, the ALJ's conclusion that Parry is able to perform work existing in significant numbers in the national economy is likewise unsupported by substantial evidence. Parry asserts that the vocational expert relied on an outdated DOT. Parry maintains that the Social Security Administration “is projected to being using data from O*NET Standard Occupational Classification and has stated that its new Occupational Information System (“OIS”) will incorporate data from other government surveys, including the DOL Occupational Information Network (O*NET). Parry contends that, according to O*NET, all jobs the ALJ found that Parry could perform have requirements that Parry is not capable of fulfilling. For example, 79 percent of folding machine operator jobs require constant contact with others and 81 percent of such jobs require daily decision making; 81 percent of collator operator jobs require daily face-to-face discussion and 85 percent have time pressures; 72 percent of wiring wrapping machine operator jobs have daily exposure to contaminants, 70 percent require standing continually or almost continually, and 63 percent have daily time pressures. According to Parry, the requirements of these jobs are not compatible with the ALJ's RFC determination; therefore, the ALJ erred in relying on the outdated DOT entries and the ALJ's finding that jobs exist in significant numbers in the national economy that Parry can perform is not supported by substantial evidence.
LEGAL STANDARD
“After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). “The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
A district court may set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by “substantial evidence” or if the decision is based on legal error. Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (citations omitted). “Failure to apply the correct legal standard constitutes reversible error, including, in certain circumstances, failure to adhere to the applicable regulations.” Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (internal citations omitted).
To qualify for disability benefits, an individual must be unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see 42 U.S.C. § 1382c(a)(3)(A). The Social Security Administration's regulations establish a five-step process for determining a disability claim. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
If at any step a finding of disability or nondisability can be made, the [Social Security Administration] will not review the claim further. At the first step, the agency will find nondisability unless the claimant shows that he is not working at a “substantial gainful activity.” At step two, the [Social Security Administration] will find nondisability unless the claimant shows that he has a “severe impairment, ” defined as “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities.” At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the [Social Security Administration] assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled. If the claimant survives the fourth stage, the fifth, and final, step requires the [Social Security Administration] to consider so-called “vocational factors” (the claimant's age, education, and past work experience), and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S.Ct. 376, 379-80 (2003) (internal citations omitted).
“Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record.” Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996). However, when there is sufficient evidence in the record for the ALJ to determine whether the claimant is disabled, the ALJ will decide based on that evidence. See 20 C.F.R. §§ 404.1520b(a), 416.920b(a). If there is insufficient evidence in the record to determine whether the claimant is disabled, the ALJ may take additional actions to develop the record, including recontacting a medical source or requesting additional existing evidence. See 20 C.F.R. §§ 404.1520b(b), 416.920b(b).
For claims filed before March 27, 2017, the treating physician rule applies: if “a treating source's medical opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, ” it is given “controlling weight.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
When we do not give the treating source's medical opinion controlling weight, we apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) of this section, as well as the factors in paragraphs (c)(3) through (c)(6) of this section in determining the weight to give the medical opinion. We will always give good reasons in our notice of determination or decision for the weight we give your treating source's medical opinion.20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
The factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) are the “[l]ength of the treatment relationship and the frequency of examination” and “[n]ature and extent of the treatment relationship.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). The factors listed in paragraphs (c)(3) through (c)(6) are evidentiary supportability, consistency of the opinion with the record as a whole, and medical specialization of the treating source. See 20 C.F.R. §§ 404.1527(c)(3)-(c)(6), 416.927(c)(3)-(c)(6); see also Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008).
In the Second Circuit, these factors are known as the Burgess factors, and an ALJ's failure to apply them explicitly when declining to give controlling weight to a treating physician's opinion is a procedural error. See Estrella v. Berryhill, 925 F.3d 90, 95-96 (2d Cir. 2019). In the absence of other good reasons for the weight assigned to the treating physician's opinion, failure to apply the Burgess factors is grounds for remand. Id. at 96. Although a treating physician's conclusion that a claimant is disabled is not entitled to controlling weight, as this determination is reserved to the Commissioner, see 20 C.F.R. §§ 404.1527(d)(1), (d)(2), 416.927(d)(1), (d)(2), when an ALJ discounts a treating physician's opinion that a claimant is disabled, the ALJ is obligated to give good reasons for doing so. See Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999) (explaining that the regulations requiring an ALJ to give good reasons for not crediting a treating physician's opinions exist to help claimants understand the disposition of their cases). Additionally, the Commissioner “generally give[s] more weight to the medical opinion of a specialist about medical issues related to his or her area of specialty than to the medical opinion of a source who is not a specialist.” 20 C.F.R. §§ 404.1527(c)(5), 416.927(c)(5).
In determining whether jobs exist in significant numbers in the national economy which the claimant can perform, the Commissioner “take[s] administrative notice of reliable job information available from various governmental and other publications. For example, [the Commissioner] will take administrative notice of . . . Dictionary of Occupational Titles, published by the Department of Labor.” 20 C.F.R. §§ 404.1566(d), 416.966(d). “In making disability determinations, [Social Security Administration adjudicators] rely primarily on the DOT (including its companion publication, the [Selected Characteristics of Occupations]) for information about the requirements of work in the national economy.” Social Security Ruling (“SSR”) 00-4p. “If the issue in determining whether you are disabled is whether your work skills can be used in other work and the specific occupations in which they can be used, or there is a similarly complex issue, [Social Security Administration adjudicators] may use the services of a vocational expert or other specialist. [Social Security Administration adjudicators] will decide whether to use a vocational expert or other specialist.” 20 C.F.R. §§ 404.1566(e), 416.966(e).
APPLICATION OF LEGAL STANDARD
Dr. Reed
Parry filed her application for disability insurance benefits and Supplemental Security Income benefits on June 9, 2016. Because her application was filed before March 27, 2017, the ALJ was required to follow the treating physician rule when determining whether Parry is disabled.
The ALJ did not specify the degree of weight assigned to Dr. Reed's opinion that, as the ALJ put it, Parry is “incapable of performing even sedentary exertional work.” Dr. Reed opined that Parry could lift less than ten pounds occasionally; stand for two hours per day; walk for two hours per day; and sit for six hours per day. The ALJ did not assign controlling weight to this opinion, as he described it as “inconsistent with the physical examination findings and treatment records” in the record. The ALJ noted further that Parry “met with Dr. Reed for the purpose of completing her disability paperwork, and there is no evidence that an examination was actually performed, suggesting that the form was completed based solely on [Parry's] own subjective complaints.”
The treating physician rule provides that treating physicians' opinions are entitled to more weight because “these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical evidence alone or from reports of individual examinations, such as consultative examinations.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Nowhere in the ALJ's decision does he acknowledge the treatment relationship that Dr. Reed had with Parry, beyond his description of Dr. Reed as “the claimant's physician.” Dr. Reed treated Parry as her primary care physician beginning on March 12, 2015; Dr. Reed's treatment records document that Parry visited him six more times in the sixteen months between that date and Parry's visit to Dr. Reed for the purpose of having the Physical Assessment for Determination of Employability form completed on July 25, 2016. Therefore, Dr. Reed had exactly the kind of treatment relationship with Parry that the treating physician rule contemplates.
Under the treating physician rule, an ALJ must “either [] give [the treating physician's] opinions controlling weight or [] provide good reasons for discounting them.” Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010); see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (“We will always give good reasons in our notice of determination or decision for the weight we give your treating source's medical opinion.”) Here, the ALJ erred by (1) not explaining what weight he gave to Dr. Reed's opinion; and (2) not giving a good reason to discount Dr. Reed's opinion. Parry's visit to Dr. Reed, her treating physician, for the purpose of completing disability paperwork is not a good reason to discount Dr. Reed's opinion. Moreover, the fact that Dr. Reed may have relied on Parry's subjective complaints does not undermine his opinion about her functional limitations, as “[a] patient's report of complaints, or history, is an essential diagnostic tool.” Green-Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir. 2003) (quoting Flanery v. Chater, 112 F.3d 346, 350 (8th Cir. 1997)). This is especially true when a patient presents with fibromyalgia, a disabling impairment that eludes measurement by objective evidence. See Id. at 108. Moreover, Dr. Reed's opinion was presumably based not only on what Parry reported to him on July 25, 2016, but on his observations as her treating physician made over the course of several meetings during the prior sixteen months.
In failing to assign Dr. Reed's opinion “controlling weight, ” the ALJ failed to consider and discuss the Burgess factors, including “(1) the frequen[cy], length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is a specialist.” Estrella, 925 F.3d at 95-96; see Burgess, 537 F.3d at 129. Nowhere in his decision does the ALJ acknowledge the frequency, length, nature, or extent of the treatment Dr. Reed provided to Parry. While the ALJ explained that Dr. Reed's opinion “was not consistent with the physical treatment findings and treatment records discussed above, ” the ALJ did not specify whether he considered Dr. Reed's opinion to be unsupported by the medical evidence in Dr. Reed's records, inconsistent with other medical evidence in the record, or both. “An ALJ's failure to ‘explicitly' apply the Burgess factors when assigning weight at step two is a procedural error, ” and is grounds for remand if the ALJ has not otherwise provided good reasons for his assignment of weight to the opinion of the treating physician. Estrella, 925 F.3d at 96. As discussed above, the ALJ did not provide good reasons for his failure to assign controlling weight to Dr. Reed's opinion. Thus, the ALJ's failure to apply the Burgess factors is legal error and warrants remand.
Dr. Hannes
The treating physician rule gives deference to “a treating source's medical opinion on the issue(s) of the nature and severity of your impairment(s).” “Acceptable medical sources” include “licensed or certified psychologists” as well as “licensed physicians.” 20 C.F.R. §§ 404.1513(a)(1) & (2), 416.913(a)(1) & (2) (Effective September 3, 2013, to March 26, 2017). Therefore, the opinion of a treating psychologist such as Dr. Hannes is subject to the treating physician rule. See Stacey v. Comm'r of Soc. Sec. Admin., 799 Fed. App'x 7, 9 (2d Cir. 2020) (summary order) (applying treating physician rule to claimant's treating psychologist).
The ALJ found Dr. Hannes's June 16, 2016 opinion “somewhat persuasive” and assigned “little weight” to Dr. Hannes's November 3, 2016 opinion, explaining that the opinion statements are “somewhat contradictory” in that the later opinion, in which Dr. Hannes opined that Parry is unable to work due to her physical and mental impairments, particularly her ability to focus and maintain attention, was inconsistent with the earlier opinion, in which Dr. Hannes opined that Parry had moderate limitations in understanding and remembering complex instructions, maintaining attention and concentration, interacting appropriately with others, maintaining socially appropriate behavior, and completing low-stress, simple tasks. The ALJ rejected Dr. Hannes's opinion, contained in her June 16, 2016 statement, that Parry was “very limited” in her ability to use public transportation due to pain, because “the inability to use public transit is not addressed in [Parry's] treatment records” and “[Parry's] pain levels are inherently subjective, and are better addressed by sources who are more familiar by her physical impairments.” The ALJ explained further that Dr. Hannes's opinion concerning whether Parry could work was on a “question that is reserved to the Commissioner” and that Parry's “examination findings, as noted above, consistently reflect intact attention and concentration abilities.”
The “examination findings” to which the ALJ makes citation earlier in his decision, which, according to the ALJ, reflect “intact attention and concentration abilities, ” are stray notations sprinkled throughout the record, many of them appearing in the records of medical providers from whom Parry sought care related to physical ailments unrelated to any mental impairments. These stray notations do not constitute substantial evidence sufficient to reject the opinion of Parry's treating psychologist. Dr. Hannes's own records note that Parry sought psychological care for her symptoms of anxiety, chronic pain, concentration, depression, inattention, isolation, “harsh/critical/low self compassion”, and “trauma-past, ” contrary to the ALJ's assertion that Parry's treatment records “indicate normal mood and affect, with intact memory, attention, concentration, and abstract reasoning abilities.” Dr. Hannes's records note repeatedly that Parry's symptoms' impact on her functional status is high in the domains of “relational, ” “occupational/school, ” and “physical.”
If the ALJ thought that Dr. Hannes's two opinion statements were inconsistent, the ALJ should have contacted Dr. Hannes for clarification as part of his affirmative duty to develop the record, especially given that impairments due to mental health can fluctuate over time. See Estrella, 925 F.3d at 98. Instead, the ALJ chose arbitrarily to prioritize Dr. Hannes's June 16, 2016 opinion statement, which more closely fit the ALJ's own view that Parry is not disabled. Moreover, the ALJ's assertion that physical pain should be addressed by sources more familiar with Parry's physical impairments is belied by the ALJ's rejection of Dr. Reed's opinion that Parry cannot work due to pain, even though Dr. Reed is a treating source very familiar with Parry's physical impairments. This supports further the impression that the ALJ was determined to prioritize improperly his own view that Parry is not disabled over the views of Parry's treating medical providers. Under the circumstances, the ALJ did not give “good reasons” for failing to give either of Dr. Hannes's opinions controlling weight.
Furthermore, in declining to give Dr. Hannes's opinions controlling weight, the ALJ failed to apply explicitly the Burgess factors. The ALJ did not consider the frequency, length, nature, or extent of the treatment Dr. Hannes provided to Parry, even though in her November 3, 2016 letter, which the ALJ considered, Dr. Hannes stated that Parry “has been in weekly therapy with me since May of 2014.” The ALJ also failed to consider the amount of medical evidence supporting Dr. Hannes's opinions, and the fact that Dr. Hannes is a specialist in psychology.
Given that the ALJ did not give “good reasons” for declining to assign Dr. Hannes's opinions controlling weight, the ALJ's failure to apply the Burgess factors when evaluating Dr. Hannes's opinions is legal error warranting remand.
Vocational Expert's Testimony
Parry challenges the ALJ's reliance on the vocational expert's testimony that Parry could perform the requirements of the folding machine operator; collator operator; and wiring wrapping machine operator occupations. The ALJ determined that the vocational expert's testimony was consistent with the information contained in the DOT. Parry contends that the DOT is outdated, and that the information contained in more current databases, such as O*NET, indicates that the above-noted occupations have requirements that are not consistent with the ALJ's RFC determination. Parry makes citation to Occupational Information System Project, Social Security Administration, https://www.ssa.gov/disabilityresearch/occupationalinfo systems.html (last visited Dec. 1, 2021), for the proposition that the Social Security Administration “is projected to begin using data from O*NET Standard Occupational Classification and has stated that its new Occupational Information System (“OIS”) will incorporate data from other government surveys, including the DOL Occupational Information Network (O*NET)”
Pursuant to 20 C.F.R. §§ 404.1566(d), 416.966(d), in determining whether jobs exist in the national economy which a claimant can perform, the Commissioner “will take administrative notice of reliable job information available from various governmental and other publications. For example, [the Commissioner] will take notice of . . . Dictionary of Occupational Titles, published by the Department of Labor.” See also SSR 00-4p (“In making disability determinations, we rely primarily on the DOT (including its companion publication, the [Selected Characteristics of Occupations]) for information about the requirements of work in the national economy.”)
The Social Security Administration's website, to which Parry makes citation, acknowledges that the DOT has not been updated since 1991 and that the Social Security Administration needs to use “information that reflects current occupations and their requirements”; therefore, the Social Security Administration is “developing a new Occupational Information System (OIS), which will replace the DOT as the primary source of occupational information [Social Security Administration] staff use in our disability adjudication process.” However, the date on which the OIS will replace the DOT is not given, and the website indicates that work on this project is ongoing.
Given that the regulations expressly take administrative notice of the information in the DOT, the ALJ did not err in relying on the information in the DOT or on the vocational expert's testimony, based on the DOT and the vocational expert's experience, that jobs exist in the national economy that Parry can perform. Therefore, remand on this ground is not warranted.
RECOMMENDATION
For the foregoing reasons, I recommend that: (1) the plaintiff's motion for judgment on the pleadings, Docket Entry No. 18, be granted and the matter remanded to the Commissioner; and (2) the Commissioner's motion for judgment on the pleadings, Docket Entry No. 23, be denied.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court. Any requests for an extension of time for filing objections must be directed to Judge Oetken. Failure to file objections within fourteen (14) days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).