Opinion
1:18-CV-01214 EAW
2020-01-22
Daniel Richard WAGNER, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Richard G. Abbott, Pusatier, Sherman, Abbott & Sugarman, Kenmore, NY, for Plaintiff. Dennis J. Canning, Office of the General Counsel Social Security Administration, Kansas City, MO, Maria Pia Fragassi Santangelo, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
Richard G. Abbott, Pusatier, Sherman, Abbott & Sugarman, Kenmore, NY, for Plaintiff.
Dennis J. Canning, Office of the General Counsel Social Security Administration, Kansas City, MO, Maria Pia Fragassi Santangelo, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge INTRODUCTION
Represented by counsel, plaintiff Daniel Richard Wagner ("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. 9; Dkt. 13). For the reasons discussed below, the Commissioner's motion (Dkt. 13) is denied, Plaintiff's motion (Dkt. 9) is granted in part, and this matter is remanded for further administrative proceedings.
BACKGROUND
Plaintiff protectively filed his application for DIB on July 20, 2015. (Dkt. 6 at 13, 73). In his application, Plaintiff alleged disability beginning July 10, 2010, due to back injury and reflex sympathetic dystrophy syndrome (RSD). (Id. at 62). Plaintiff's application was initially denied on September 30, 2015. (Id. at 78-89). At Plaintiff's request, a hearing was held before administrative law judge ("ALJ") Paul Georger in Buffalo, New York, on September 5, 2017. (Id. at 28-61). On December 22, 2017, the ALJ issued an unfavorable decision. (Id. at 10-22). Plaintiff requested Appeals Council review; his request was denied on September 28, 2018, making the ALJ's determination the Commissioner's final decision. (Id. at 4-9). This action followed.
When referencing the page number(s) of docket citations in this Decision and Order, the Court will cite to the CM/ECF-generated page numbers that appear in the upper righthand corner of each document.
LEGAL STANDARD
I. District Court Review
"In reviewing a final decision of the [Social Security Administration ("SSA") ], this Court is limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard." Talavera v. Astrue , 697 F.3d 145, 151 (2d Cir. 2012) (quotation omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner is "conclusive" if it is supported by substantial evidence. 42 U.S.C. § 405(g). "Substantial evidence means more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Moran v. Astrue , 569 F.3d 108, 112 (2d Cir. 2009) (quotation omitted). It is not the Court's function to "determine de novo whether [the claimant] is disabled." Schaal v. Apfel , 134 F.3d 496, 501 (2d Cir. 1998) (quotation omitted); see also Wagner v. Sec'y of Health & Human Servs. , 906 F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary's decision is not de novo and that the Secretary's findings are conclusive if supported by substantial evidence). However, "[t]he deferential standard of review for substantial evidence does not apply to the Commissioner's conclusions of law." Byam v. Barnhart , 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley v. Heckler , 748 F.2d 109, 112 (2d Cir. 1984) ).
II. Disability Determination
An ALJ follows a five-step sequential evaluation to determine whether a claimant is disabled within the meaning of the Act. See Parker v. City of New York , 476 U.S. 467, 470-71, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). At step one, the ALJ determines whether the claimant is engaged in substantial gainful work activity. See 20 C.F.R. § 404.1520(b). 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, 2015. (Dkt. 6 at 15). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity since July 10, 2010, the alleged onset date, through the date last insured. (Id. ).
At step two, the ALJ found that through the date last insured Plaintiff suffered from the severe impairments of degenerative disc disease of the lumbar spine status post disc replacement and fusion surgery and reflex sympathetic dystrophy of the right leg. (Id. ). The ALJ further found that Plaintiff's medically determinable impairment of bilateral carpal tunnel syndrome was non-severe. (Id. ).
At step three, the ALJ found that through the date last insured Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of any Listing. (Id. at 16).
Before proceeding to step four, the ALJ determined that through the date last insured Plaintiff retained the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b), except that Plaintiff:
can lift, carry, push and pull up to twenty pounds occasionally and ten pounds frequently, can sit, stand or walk for up to six hours in an eight-hour day and can occasionally climb stairs, ramps, ropes, ladders and scaffolds.
(Id. ). At step four, the ALJ relied on the testimony of a vocational expert ("VE") and found that through the date last insured Plaintiff was capable of performing past relevant work ("PRW") as a Dental Laboratory Technician (Dictionary of Occupational Titles #712.381-018). (Id. at 18). Accordingly, the ALJ found Plaintiff was not disabled as defined in the Act at any time from the alleged onset date through the date last insured. (Id. ).
II. Remand of this Matter for Further Proceedings is Required
Plaintiff asks the Court to reverse, or in the alternative, to remand this matter to the Commissioner. Plaintiff argues the ALJ's decision was unsupported by substantial evidence because the ALJ failed to: (1) give controlling weight to Plaintiff's treating sources; and (2) correctly assess Plaintiff's credibility. (Dkt. 9-1 at 12-20). For the reasons discussed below, the Court concludes remand is necessary as the ALJ failed to provide good reasons for giving "little weight" to the opinion of Plaintiff's treating physician Dr. Cameron Huckell.
A. The ALJ Failed to Apply the Treating Physician Rule by Not Giving Good Reasons for Rejecting the Opinion of Plaintiff's Treating Physician
Plaintiff argues the ALJ erred by not giving controlling weight to the opinions of Dr. Robert Erickson, Dr. Jeremy Lindstrom, Dr. Cameron Huckell, and Dr. James G. Egnatchik, all of whom are Plaintiff's treating sources. (Id. at 12).
The treating physician rule provides that 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). An ALJ can refuse to allot controlling weight to a treating physician's medical opinion, but in doing so 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:
The treating physician rule applies to claims filed before March 27, 2017. 20 C.F.R. § 404.1527. The current version of the SSA's regulations eliminate the treating physician rule, but those regulations apply only to cases filed on or after March 27, 2017. 20 C.F.R. § 404.1520c.
(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 consider these factors in assigning weight to a treating physician's opinion can constitute grounds for a remand. See Clark v. Astrue , No. 08 Civ. 10389 (LBS), 2010 WL 3036489, at *4 (S.D.N.Y. Aug. 4, 2010) (opining that ALJ "committed legal error" when he "fail[ed] to explicitly consider all the required factors [articulated in Halloran ] when evaluating [the treating physician's] opinion").
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." (internal quotation marks omitted)). "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). The Second Circuit "[does] not hesitate to remand when the Commissioner's decision has not provided ‘good reasons’ for the weight given to a [treating physician's] opinion and [it] will continue remanding when [it] encounter[s] opinions from [ALJs] that do not comprehensively set forth reasons for the weight assigned to a treating physician's opinion." Halloran , 362 F.3d at 33.
"In analyzing a treating physician's report, ‘the ALJ cannot arbitrarily substitute [her] own judgment for competent medical opinion.’ " Rosa v. Callahan , 168 F.3d 72, 79 (2d Cir. 1999) (quoting McBrayer v. Sec'y of Health & Human Servs. , 712 F.2d 795, 799 (2d Cir. 1983) ). Thus, an ALJ's subjective impression regarding the validity of a claimant's impairments does not constitute a "good reason" to disregard a treating physician's opinion. See Clark , 2010 WL 3036489, at *5 (opining that ALJ's subjective impression of claimant's impairments was not a "good reason" to disregard treating source's opinion).
Here, the ALJ did not err by not affording controlling weight to the opinions of Dr. Lindstrom, Dr. Erickson, and Dr. Egnatchik. Dr. Lindstrom, a chiropractor, is not an "acceptable medical source" and, thus, is not entitled to controlling weight under the treating physician rule. See Brush v. Berryhill , 294 F. Supp. 3d 241, 259 (S.D.N.Y. 2018) (citing Diaz v. Shalala , 59 F.3d 307, 313-14 (2d Cir. 1995) ). Moreover, even if Dr. Lindstrom was an acceptable medical source, Dr. Lindstrom's classification of Plaintiff's disability as "permanent total disability" is not entitled to controlling weight. "[S]ome kind of findings—including the ultimate finding of whether a claimant is disabled and cannot work—are ‘reserved to the Commissioner.’ ... A treating physician's statement that the claimant is disabled cannot itself be determinative." Snell v. Apfel , 177 F.3d 128, 133 (2d Cir. 1999) (quoting 20 C.F.R. §§ 404.1527(d)(2), 404.1527(d)(4), 404.1527(e)(1) ).
As to Dr. Erickson and Dr. Egnatchik, Plaintiff does not cite specific opinions to which the ALJ purportedly failed to afford proper weight. The Social Security Regulations define "medical opinions" as "statements from physicians ... or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including symptoms, diagnosis and prognosis." 20 C.F.R. § 404.1527(a)(2). The record contains only Dr. Egnatchik's treatment records documenting Plaintiff's low back pain and recommendation that Plaintiff undergo an anterior lumbar disc replacement surgery (Dkt. 6 at 283-96), and Dr. Erickson's treatment records documenting Plaintiff's range of motion as minimally to moderately limited ( id. at 562-705, 768-857). The treatment notes of Dr. Egnatchik and Dr. Erickson do not "reflect judgments about the nature and severity of [Plaintiff's] impairment(s), including [his] symptoms, diagnosis, and prognosis," and thus do not constitute medical opinions. 20 C.F.R. § 404.1527(a)(2) ; see Briody v. Comm'r of Soc. Sec. , No. 18-cv-7006 (ALC), 2019 WL 4805563, at *10 n.5 (S.D.N.Y. Sept. 30, 2019) (doctor's statement detailing the plaintiff's history of seizures did not "reflect a judgment with regard to the nature and severity of [the] plaintiff's limitations beyond a mere diagnosis and description of symptoms" and thus was not a medical opinion).
However, as to Dr. Huckell's opinion, the Court concludes that the ALJ failed to provide "good reasons" for declining to afford it controlling weight. The ALJ rejected Dr. Huckell's opinion on the basis that it was "conclusory" and did not contain a "functional assessment of [Plaintiff's] abilities and limitations." (Dkt. 6 at 18). The ALJ correctly rejected Dr. Huckell's opinion to the extent it opined that Plaintiff was partially disabled. See Snell , 177 F.3d at 133 ; Micheli v. Astrue , 501 F. App'x 26, 28 (2d Cir. 2012). However, the ALJ erred in concluding Dr. Huckell did not provide a functional assessment of Plaintiff's abilities and limitations, as the record contained two functional assessments completed by Dr. Huckell. (See Dkt. 6 at 338, 343). The ALJ's assessment of Dr. Huckell's opinion was thus necessarily incomplete, because it was based on a factual error and did not include any consideration of the functional assessments provided by Dr. Huckell. Remand is required under these circumstances.
The Commissioner essentially argues that the ALJ's failure to evaluate Dr. Huckell's opinion was harmless because Dr. Huckell's RFC was "generally consistent with the ALJ's [RFC] that limited Plaintiff to light work with some non-exertional limitations." (Dkt. 13-1 at 20). However, Dr. Huckell's most recent RFC assessment provided that Plaintiff should avoid: repetitive forward bending, stooping, reaching, twisting, crawling, climbing; lifting anything greater than 20 pounds; and prolonged sitting, standing or walking for more than two hours at one time without a break. (Dkt. 6 at 338). By contrast, the ALJ's RFC assessment does not include any limitations as to Plaintiff's ability to reach, twist, and crawl, and it includes less restrictive limitations as to Plaintiff's ability to sit, stand, and walk. These inconsistencies between Dr. Huckell's opinion and the RFC assessment preclude any finding of harmless error. See Price v. Comm'r of Soc. Sec. , No. 14-CV-9164 (JPO), 2016 WL 1271501, at *4 (S.D.N.Y. Mar. 31, 2016) (finding failure to apply treating physician rule not harmless error where it was not clear what conclusion the ALJ would have reached upon proper application of the legal standards).
The Commissioner also argues there was no error because the Plaintiff's RFC assessment was supported by Dr. Abrar Siddiqui's opinion. (Dkt. 13-1 at 22). However, the Commissioner's post-hoc rationalization cannot serve as a substitute for the ALJ's findings, especially where the ALJ expressly and erroneously concluded there were no functional assessments by Dr. Huckell. See Marthe v. Colvin , No. 6:15-cv-06436(MAT), 2016 WL 3514126, at *8 (W.D.N.Y. June 28, 2016) ("The Commissioner has attempted to justify the ALJ's application of the treating physician rule by offering new reasons, not considered by the ALJ in rendering his decision ... [h]owever, no such explicit findings were made by the ALJ, and this Court is not permitted to accept the Commissioner's post-hoc rationalizations for the ALJ's determination."); Petersen v. Astrue , 2 F. Supp. 3d 223, 234 (N.D.N.Y. 2012) ("[T]his Court may not create post-hoc rationalizations to explain the Commissioner's treatment of evidence when that treatment is not apparent from the Commissioner's decision itself." (internal quotations and citation omitted)). The ALJ in this case did not rely on Dr. Siddiqui's opinion in rejecting Dr. Huckell's opinion, and thus the alleged inconsistencies between the two physicians' findings cannot constitute the requisite good reasons under the treating physician rule. Remand of this matter for appropriate consideration of Dr. Huckell's opinion by the ALJ in the first instance is required.
B. Plaintiff's Remaining Argument
As set forth above, Plaintiff also argues the ALJ erred in assessing Plaintiff's credibility. 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. , Insalaco v. Comm'r of Soc. Sec. , 366 F. Supp. 3d 401, 410 (W.D.N.Y. 2019) (declining to reach additional arguments where the court had determined remand for further administrative proceedings was necessary); Bell v. Colvin , No. 5:15-CV-01160 (LEK), 2016 WL 7017395, at *10 (N.D.N.Y. Dec. 1, 2016) (declining to reach remaining arguments where the court had already determined remand was warranted).
CONCLUSION
For the foregoing reasons, the Commissioner's motion for judgment on the pleadings (Dkt. 13) is denied, Plaintiff's motion for judgment on the pleadings (Dkt. 9) is granted in part, and the matter is remanded for further administrative proceedings consistent with this Decision and Order.
SO ORDERED.