Opinion
1:19-CV-00806 EAW
2021-02-02
ELLEN KATHLEEN H., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Amy C. Chambers, Kenneth R. Hiller, Law Offices of Kenneth Hiller, PPLC, Amherst, NY, for Plaintiff. Laura Ridgell Boltz, Michael Arlen Thomas, Office of the General Counsel Social Security Administration, Denver, CO, for Defendant.
Amy C. Chambers, Kenneth R. Hiller, Law Offices of Kenneth Hiller, PPLC, Amherst, NY, for Plaintiff.
Laura Ridgell Boltz, Michael Arlen Thomas, Office of the General Counsel Social Security Administration, Denver, CO, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Represented by counsel, Plaintiff Ellen Kathleen H. ("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 her 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. 13; Dkt. 17), and Plaintiff's reply (Dkt. 18). For the reasons discussed below, Plaintiff's motion (Dkt. 13) is granted in part and the Commissioner's motion (Dkt. 17) is denied.
BACKGROUND
Plaintiff protectively filed her application for DIB on October 17, 2016. (Dkt. 7 at 20, 113). In her application, Plaintiff alleged disability beginning April 23, 2015, due to anxiety, bipolar disorder, migraines, panic attacks, insomnia, and depression. (Id. at 20, 114-15). Plaintiff's application was initially denied on December 13, 2016. (Id. at 20, 133-143). At Plaintiff's request, a video hearing was held before administrative law judge ("ALJ") Collin Delaney on July 19, 2018. (Id. at 20, 35-67). Plaintiff appeared in West Seneca, New York, and the ALJ presided over the hearing from Alexandria, Virginia. (Id. ). On September 11, 2018, the ALJ issued an unfavorable decision. (Id. at 17-34). Plaintiff requested Appeals Council review; her request was denied on April 19, 2019, making the ALJ's determination the Commissioner's final decision. (Id. at 5-8). 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 June 30, 2018. (Dkt. 7 at 22). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity since April 23, 2015, the alleged onset date, through the date last insured of June 30, 2018. (Id. ).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of: "migraine disorder ; bipolar disorder ; and anxiety." (Id. ). The ALJ further found that Plaintiff's medically determinable impairments of gastroesophageal reflux disorder (GERD) and substance abuse disorder were non-severe. (Id. at 22-23).
At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of any Listing. (Id. at 23). The ALJ particularly considered the criteria of Listings 12.04 and 12.06 in reaching his conclusion. (Id. at 23-25).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC to perform a full range of work at all exertional levels but with the following non-exertional limitations:
can never climb ladders, ropes or scaffolds; occasional concentrated exposure to hazards such as moving, dangerous machinery and unprotected heights; is limited to simple, routine and repetitive tasks; assume that the individual can never be exposed to strobe lights, to flashing lights or to bright lights, such as those found on a theater stage; no exposure to noise at an intensity level
categorized as very loud by the DOT and the SCO, defined such as the front row of a rock concert, jack hammering, or a rocket engine test; up to one unscheduled absence per month; and no contact with the general public, but occasional contact with supervisors and coworkers.
(Id. at 25). At step four, the ALJ found that Plaintiff was unable to perform any past relevant work. (Id. at 33).
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 marker, photocopying machine operator (scanner), and router. (Id. at 33-34). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id. at 34).
II. Remand of this Matter for Further Proceedings is Necessary
Plaintiff asks the Court to remand this matter to the Commissioner, arguing (1) the ALJ erred in evaluating the opinions offered by M. Sadiqur Rahman, M.D., Plaintiff's treating psychiatrist, and (2) the ALJ failed to develop the record. (Dkt. 13-1 at 2, 17-30). For the reasons set forth below, the Court finds that the ALJ erred by rejecting Dr. Rahman's opinions and formulating the RFC without adequate support in the record. This error necessitates remand for further administrative proceedings.
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, he must "give good reasons in [his] notice of determination or decision for the weight [he 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).
Plaintiff began treating with Dr. Rahman in January 2008 and visited him monthly. (Dkt. 7 at 55). Dr. Rahman provided two opinions addressing Plaintiff's mental functional limitations. The first opinion is dated November 9, 2016. (Id. at 395-98). Plaintiff's diagnoses included bipolar disorder and anxiety disorder, with symptoms that included mood fluctuations and anxious mood affecting interpersonal communication. (Id. at 395). Dr. Rahman found that Plaintiff was "limited" (as opposed to having "no limitation") in the following categories: understanding and memory; sustained concentration; social interaction; and adaptation. (Id. at 396-97).
Dr. Rahman performed a second assessment on May 9, 2018. (Id. at 471-75). He noted bipolar disorder and anxiety, and her GAF from the past year was 55. (Id. at 471). Plaintiff's response to treatment was limited, and her prognosis was guarded. (Id. ). Her symptoms included impairment in impulse control, difficulty thinking or concentrating, intensive and unstable interpersonal relationships and impulsive and demanding behavior, and easy distractibility. (Id. at 472). Dr. Rahman opined that Plaintiff had marked limitations (defined as "the individual's functioning in the area independently, appropriately, effectively and on a sustained basis is seriously limited") in her ability to understand, remember, and apply information, and extreme limitations (defined as "the individual is not able to function in the area independently, appropriately, effectively and on a sustained basis") in her ability to interact with others, concentrate, persist or maintain pace, and adapt or manage herself. (Id. at 473). Plaintiff was moderately limited (meaning "the individual's functioning in the area independently, appropriately, effectively and on a sustained basis is fair") in the following areas: carry out very short and simple instructions; make simple work-related decisions; ask simple questions or request assistance; be aware of normal hazards and take appropriate precautions; and maintain socially appropriate behavior. (Id. at 474). Plaintiff was markedly limited in the following areas: understand and remember very short and simple instructions; adhere to basic standards of neatness and cleanliness; and travel in an unfamiliar place. (Id. ). Plaintiff had extreme limitations in the following areas: remember work-like procedures; maintain attention for a two-hour segment; 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; complete a normal workday and workweek without interruptions from psychologically based symptoms; perform at a consistent pace without an unreasonable number and length of rest periods; 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; interact appropriately with the general public; and use public transportation. (Id. ). In response to a question asking how often Plaintiff would be absent to work, Dr. Rahman stated that Plaintiff was "not able to work at present." (Id. at 475).
The ALJ found Dr. Rahman's opinions to be "not credible" and gave them only "little weight." (Id. at 31). As to the May 2018 opinion, the ALJ noted that the final responsibility for deciding whether a claimant is "disabled" is reserved to the Commissioner. (Id. ). Further, the ALJ found that Dr. Rahman's opinions were "overly severe" with respect to Plaintiff's actual functional abilities and limitations, as reflected by the objective medical evidence and when compared to Dr. Rahman's own treatment notes, which demonstrated that Plaintiff had improvement with treatment, good social functioning, intact memory and concentration, and overall stability. (Id. ).
The only other opinion evidence in the record relating to Plaintiff's mental functional limitations was from L. Blackwell, Ph.D., the non-examining state agency psychiatric consultant, who concluded that Plaintiff could perform simple tasks. (Id. at 120; see also id. at 30). The ALJ found that Dr. Blackwell's opinion was "very consistent with the overall record, with regards to limiting the claimant to unskilled work due to concentration difficulties imposed by her psychiatric impairments." (Id. at 30). Because Dr. Blackwell did not consider Plaintiff's potential social functioning limitations, the ALJ afforded the opinion "partial weight," but gave "great weight" to the portion of the opinion limiting Plaintiff to simple, routine and repetitive tasks. (Id. ).
The Court has reviewed Dr. Rahman's opinions, as well as his treatment records. The medical record reveals that Plaintiff has experienced ongoing mental health problems for over ten years, during which Dr. Rahman was her treating psychiatrist. Despite that at times Plaintiff reported some improvement in her mood and had intact memory and concentration, other examinations reveal that she experienced continuing anxiety. (See, e.g. , Dkt. 7 at 419 (on November 7, 2016, Plaintiff had fluctuations in her mood, anxious mood, poor sleep, felt anxious around others, had no interest in pleasurable activities, and could not shop or manage money); id. at 462 (on April 19, 2018, Plaintiff still experienced days when she had poor motivation, became withdrawn, and isolated herself); id. at 483 (on June 22, 2018, Plaintiff reported feeling less anxious, but was depressed, had poor motivation for her usual activities, and had significant difficulties in sustaining attention and concentration)). In his May 2018 opinion, Dr. Rahman assessed that Plaintiff had serious limitations in interacting with others, which the ALJ failed to fully address, including that Plaintiff was unable to get along with co-workers or peers without distracting them and could not accept instructions and respond appropriately to criticism. This opinion conflicts with the RFC, which requires Plaintiff to engage in occasional contact with co-workers and supervisors. "Judicial deference to the opinion of a treating physician is especially important in the context of mental illness[.]" 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). "While the ALJ is certainly entitled to give more weight to the other physicians’ opinions if supported by substantial evidence, he should do so with caution, particularly given the mental health nature of [p]laintiff's claims." Id. at *7. See also Moscatello v. Saul , No. 18-CV-1395 (BCM), 2019 WL 4673432, at *11 (S.D.N.Y. Sept. 25, 2019) ("Where mental health treatment is at issue, the ‘longitudinal picture’ takes on added significance.").
Aside from the opinion offered by Dr. Blackwell, who did not examine Plaintiff, Dr. Rahman's assessments are the only opinions in the record addressing Plaintiff's mental functional limitations. For example, there is no opinion offered by a consultative examiner, who would have conducted an in-person examination of Plaintiff. While the ALJ may rely on opinions of non-examining state agency medical consultants when formulating the RFC, see Woytowicz v. Comm'r of Soc. Sec. , No. 5:15-CV-0960 (GTS/WBC), 2016 WL 6427787, at *5 (N.D.N.Y. Oct. 5, 2016), adopted , 2016 WL 6426385 (N.D.N.Y. Oct. 28, 2016), Dr. Blackwell's opinion is dated December 2016 (Dkt. 7 at 120), and therefore he did not have the benefit of Dr. Rahman's May 2018 assessment when he rendered his opinion that Plaintiff could perform simple tasks. Under the circumstances, Dr. Blackwell's opinion may not fill the gap in the record created by the ALJ's rejection of Dr. Rahman's opinions. See, e.g., Jazina v. Berryhill , No. 3:16-CV-01470(JAM), 2017 WL 6453400, at *7 (D. Conn. Dec. 13, 2017) ("Not only did the ALJ err in weighing of the treating physicians’ opinions, but the ALJ also erred in allowing the opinions of the state agency medical consultants to override the opinions of the treating physicians."); see also Robinson v. Saul , No. 3:18-cv-01605 (KAD), 2020 WL 652515, at *9 (D. Conn. Feb. 11, 2020) ("[T]he ALJ may not credit a non-examining physician's opinion over that of a treating physician's where the non-examining physician's opinion considered less than the full record and the subsequent medical evidence may have altered the opinion." (citation omitted)); Feuer v. Saul , No. CV 16-5732 (ADS)(GRB), 2019 WL 9042872, at *10 (E.D.N.Y. Aug. 30, 2019) ("Where, as here, the non-examining consultant failed to consider the entirety of a plaintiff's medical records and the ALJ relied on the non-examining consultant to override the opinion of treating physicians, the Second Circuit has found remand appropriate."), adopted , 2020 WL 1316528 (E.D.N.Y. Mar. 20, 2020). Accordingly, remand is required. On remand, the ALJ should discuss the entirety of Dr. Rahman's opinions relating to Plaintiff's mental functioning. Should the ALJ determine that Dr. Rahman's opinions are not entitled to controlling weight, he must obtain additional opinion evidence from which he can reliably and adequately assess Plaintiff's mental functional limitations.
CONCLUSION
For the foregoing reasons, Plaintiff's motion for judgment on the pleadings (Dkt. 13) is granted to the extent that the matter is remanded for further administrative proceedings. Defendant's motion for judgment on the pleadings (Dkt. 17) is denied.
SO ORDERED.