CHARLES J. SIRAGUSA, District Judge.
This Social Security Supplemental Security Income case is before the Court on Plaintiff's motion for judgment on the pleadings, filed on April 6, 2018, ECF No. 9, and the Commissioner's cross-motion for judgment on the pleadings, filed on June 5, 2018, ECF No. 13. The Court has reviewed the papers filed by the parties and heard oral argument on October 25, 2018. For the reasons stated below, the Court denies the Commissioner's motion, and grants Plaintiff's motion.
Plaintiff applied for supplemental security income ("SSI") on February 19, 2014, alleging a disability beginning on March 1, 2013. The Commissioner denied her claim, and she asked for hearing. Plaintiff appeared via video before an Administrative Law Judge ("ALJ") in Alexandria, Virginia. Gerry J. Ruiz, Esq., represented Plaintiff at the hearing. The ALJ issued a decision on April 28, 2016, finding that Plaintiff retained the residual functional capacity to perform light work and was, therefore, not disabled. Through testimony from a vocational expert, the ALJ determined she could work as an information clerk, ticket seller, rental clerk, charge account clerk, inserter, or order clerk. R. 19. Plaintiff appealed the ALJ's decision to the Social Security Appeals Council, and on June 30, 2017, the Council denied her request for review. Plaintiff started this action pursuant to 42 U.S.C. § 405(g) on August 29, 2017.
In her motion, Plaintiff raises three issues:
Pl.'s Mem. of Law 1, Apr. 6, 2018, ECF No. 9-1. The Commissioner asserts that the ALJ's decision is supported by substantial evidence.
Title 42 U.S.C. § 405(g) grants jurisdiction to district courts to hear claims based on the denial of Social Security benefits. Section 405(g) provides that the District Court "shall have the 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) (2007). The section directs that when considering such a claim, the Court must accept the findings of fact made by the Commissioner, provided that such findings are supported by substantial evidence in the record. Substantial evidence is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 149 (1997).
When determining whether substantial evidence supports the Commissioner's findings, the Court's task is "to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn." Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam)). Section 405(g) limits the scope of the Court's review to two inquiries: determining whether the Commissioner's findings were supported by substantial evidence in the record as a whole, and whether the Commissioner's conclusions are based upon an erroneous legal standard. Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003); see also Mongeur, 722 F.2d at 1038 (finding a reviewing court does not try a benefits case de novo).
Under Rule 12(c), the Court may grant judgment on the pleadings where the material facts are undisputed and where judgment on the merits is possible merely by considering the contents of the pleadings. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988).
An ALJ must give a treating physician's opinion "controlling weight" when it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with substantial evidence in [the] case record." 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see also Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. 1999) (citing regulation); Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993). "`While an administrative law judge is free to resolve issues of credibility as to lay testimony or to choose between properly submitted medical opinions, he is not free to set his own expertise against that of a physician who testified before him." McBrayer v. Sec'y of Health & Human Servs., 712 F.2d 795, 799 (2d Cir. 1983) (quoting Gober v. Matthews, 574 F.2d 772, 777 (3d Cir. 1978)).
When an ALJ does not give a treating physician's opinion controlling weight, he must consider a number of factors to determine the appropriate weight to assign, including (1) the frequency of the physician's examination of the claimant, and the length, nature and extent of the treatment relationship; (2) the evidence in support of the treating physician's opinion; (3) the consistency of the opinion with the record as a whole; (4) whether the opinion is from a specialist; and (5) other factors brought to the ALJ's attention that tend to support or contradict the opinion. See 20 C.F.R. § 404.1527(c). "Failure to provide `good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (citation omitted); see also Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).
The ALJ "afforded little weight" to treating physician Taj T. Nguyen, M.D.'s ("Dr. Nguyen") two opinions, one on Plaintiff's mental capacity, R. 470, and one on her physical capacity, R. 465. The ALJ wrote about Dr. Nguyen's mental capacity assessment: "This opinion is afforded little weight, as it is inconsistent with the medical evidence of record as a whole. Specifically, it is internally inconsistent with Dr. Nguyen's treatment notes, which reveal mostly normal mental status exams and indicate no psychiatric hospitalizations during the relevant period." About Dr. Nguyen's physical report, he wrote: "This opinion is afforded little weight, as it is not consistent with the medical evidence of record as a whole, which does not indicate any significant treatment of surgery or injections or hand stiffness or back pain. In addition, her diabetes mellitus is treated with long-acting Metformin and Lantus with only mild non-proliferative retinopathy."
Plaintiff sums up the ALJ's determination in this sentence: "Thus, the sole reason the ALJ gave for rejecting this opinion was that, in the ALJ's view, it was contradicted by three pages of the 571-page record." Pl.'s Mem. 10-11. Plaintiff argues that stating Dr. Nguyen's assessments were inconsistent with the record is an insufficient reason for rejecting his opinions.
It is true a statement that the treating doctor's opinion is inconsistent with the Record does not comply with the Commissioner's rule to give a good explanation for rejecting a treating physician's opinion. See, Gunter v. Comm'r of Soc. Sec., 361 F. App'x 197, 200 (2d Cir. 2010) (summary order) ("Here, the ALJ's incantatory repetition of the words `substantial evidence' gives us no indication at all of why he chose to credit the opinions of the consulting physicians over that of Dr. Nidus."). However, here, with respect to Plaintiff's mental capacity, the ALJ also commented on Dr. Nguyen's psychiatric report, finding that it was inconsistent with the doctor's treatment notes, which showed mostly normal mental status examinations and no mental health hospitalizations.
In that regard, the Record shows that Plaintiff received mental health treatment from 2012 to 2013 from Genesee Mental Health Center, had no psychiatric hospitalization history, and was not receiving any mental health treatment at the time of this proceeding. R. 252. A Discharge Summary Service Plan dated June 22, 2012, contained this information:
R. 306-07. Psychologist Adam Brownfield, Ph.D., on April 9, 2014, performed a mental status examination on a consultative basis. His conclusions were:
R. 254-55. On April 25, 2014, State agency psychological consultant G. Kleinerman, M.D., reviewed Plaintiff's medical records, including Dr. Brownfield's assessment, and concluded the following:
R. 82. During an examination of Plaintiff on June 24, 2015, Dr. Nguyen noted that Plaintiff psychiatric and behavioral examination results were: "Negative for confusion and decreased concentration. The patient is nervous/anxious." R. 429. He also wrote: "Psychiatric: She has a normal mood and affect." R. 429. Dr. Nguyen prescribed Wellbutrin. R. 430.
In an examination on September 24, 2015, Dr. Nguyen observed: "Psychiatric: She has a normal mood and affect." R. 548. He continued her prescription for Wellbutrin. R. 549.
Therefore, the Court agrees that Dr. Nguyen's mental examination notes do not support his mental capacity assessment. Further, the consultative examiner, and the State agency medical expert provide substantial evidence to support the ALJ's rejection of Dr. Nguyen's opinion that Plaintiff's mental residual functional capacity would not permit her to work.
Turning to Dr. Nguyen's physical medical source statement, the ALJ cited to the conservative treatment of Plaintiff's back and hand pain in rejecting the doctor's conclusion that Plaintiff would be unable to work. The ALJ did not specifically discuss Dr. Ngyuen's treating relationship, but did acknowledge that he was Plaintiff's primary care physician. R. 13 ("The claimant has only received conservative care of prescription medication from her primary care physician; however, she has not seen a mental health provider for treatment during the relevant period. . . ."); R. 15 ("She has seen Dr. Nguyen, her primary care physician, for ten years."); R. 16 ("On September 25, 2015, treating physician, Dr. Nguyen opined that the claimant had moderate limitations her ability to understand and remember, sustain concentration and persistence, interact with others, and take appropriate precautions."). Dr. Nguyen's examined Plaintiff on February 12, 2013, and observed: "The patient presents with pain that is acute. The symptoms are located in the low back." R. 411. He prescribed Flexeril and referred her to Unity Spine Center. R. 412. The evidence from the visit to Unity Spine Center on February 12, 2013, indicates that Plaintiff was discharged "to home ambulatory. . . . Prescriptions given X 2." R. 507.
Regarding Dr. Nguyen's physical assessment, the ALJ wrote:
R. 16. As with his mental capacity assessment, Dr. Nguyen's physical assessment is not supported by his own treatment notes or other medical reports included in the Record. Plaintiff's back pain appears to have been successfully treated with physical therapy and medications. Her activities of daily living do not support that she was limited to the point where she could not do work. Dr. Nguyen stated in his physical assessment that Plaintiff could occasionally lift less than ten pounds, but never anything above that. R. 465. Plaintiff testified at the ALJ's hearing that in 1999 through 2000, she could lift about ten pounds. R. 36-37. She testified that lifting or carrying causes her hands to cramp up. R. 54. She further testified that a gallon of milk was too heavy for her to lift, unless she used two hands. R. 54-55
In reaching his determination that Plaintiff was not disabled, the ALJ found that Plaintiff can do light work. "Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." 20 C.F.R. § 417.967(b). The only medical opinion concerning Plaintiff's ability to lift is that from Dr. Nguyen. R. 465. To conclude that Plaintiff is capable of light work, the ALJ must rely on some medical evidence that she is capable of the physical demands of light work. The medical record does contain references to Plaintiff's inability to lift objects. R. 54, 222, 230, 231, 264, 278, 332, 391, 404, 517, 519, 542, 544. Most of those instances involved chest pain upon lifting her left arm. The record does not contain medical evidence that Plaintiff's ability to lift objects weighing up to ten pounds is restricted, only her own testimony. Further, the lifting problem she testified about concerned her hand cramping up, not back pain, or chest pain. R. 54. The ALJ pointed to this note in a follow-up exam report by Dr. Nguyen: "Right hand. Neurological: She is alert and oriented to person, place, and time. She has normal reflexes. No cranial nerve deficit. Coordination normal." R. 283. The Record is devoid of support for Dr. Nguyen's very restrictive conclusions about Plaintiff's physical capabilities.
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since February 19, 2014. Plaintiff contends that the ALJ erred at step two of the sequential analysis by failing to find that Plaintiff's lower back pain, arthritis, anxiety and depression were non-severe impairments. The Commissioner contends that the ALJ properly determined that those impairments were not severe since "they did not cause more than minimal limitation in Plaintiff's ability to function. . . ." Comm'r Mem. of Law 15-16, Jun. 5, 2018, ECF No. 13-1. Further, the Commissioner argues that because the ALJ considered "the effects of all of claimant's impairments through the remainder of the sequential evaluation process, any error at step two is harmless." Id. at 16. Although Plaintiff has preserved the alleged error for review, the Court finds that any error at step two was harmless. Reices-Colon v. Astrue, 523 F. App'x 796, 798 (2d Cir. 2013) (summary order).
Plaintiff points out that only Dr. Nguyen provided any medical opinion about Plaintiff's physical limitations. Pl.'s Mem. of Law 15. The Commissioner responds that the ALJ is not required to have medical support for her RFC determination, citing Matta v. Astrue, 508 F. App'x 53, 57 (2d Cir. 2013), in which the Court of Appeals wrote that "[t]he treatment notes support the ALJ's conclusion that plaintiff was stable and responded well to treatment. There is substantial record evidence to support the ALJ's determination." The Commissioner cites to a Sixth Circuit case which holds that the ALJ does not need to rely on a medical opinion in making her physical RFC determination. The Sixth Circuit wrote in Rudd v. Comm'r of Soc. Sec., 531 F. App'x 719, 728 (6th Cir. 2013):
Rudd, 531 F. App'x at 728 (citing Ulman v. Comm'r of Soc. Sec., 693 F.3d 709, 714 (6th Cir. 2012)). Notwithstanding the Sixth Circuit rule, the overwhelming majority of cases in this District hold just the opposite. Stemming from a 2010 Eastern District case, Hilsdorf v. Comm'r of Soc. Sec., 724 F.Supp.2d 330 (E.D.N.Y. 2010), a long line of cases in this District follow the logic in the Hilsdorf case, where the district court reasoned:
Hilsdorf v. Comm'r of Soc. Sec., 724 F.Supp.2d 330, 347 (E.D.N.Y. 2010). Citing this case, the Honorable Frank P. Geraci Jr., Chief Judge of this Court, in Cutre v. Berryhill, No. 17-CV-135-FPG, 2018 WL 3968385, at *3 (W.D.N.Y. Aug. 20, 2018), wrote:
See also Caswell v. Berryhill, No. 17-CV-6133-FPG, 2018 WL 4404578, at *5 (W.D.N.Y. Sept. 17, 2018) (same). The Honorable Michael A. Telesca in Ubiles v. Astrue, No. 11-CV-6340T MAT, 2012 WL 2572772, at *12 (W.D.N.Y. July 2, 2012), held the same, again following the reasoning in Hillsdorf. The undersigned has also adhered to this reasoning in Rodgers v. Colvin, No. 16-CV-6739-CJS, 2018 WL 446220, at *2-3 (W.D.N.Y. Jan. 17, 2018) (ALJ's RFC determination cannot stand in the absence of medical opinion in support of functional capabilities). The Court is aware of one deviation from this reasoning, see, e.g., Altman v. Berryhill, No. 15-CV-00967-MAT-JJM, 2017 WL 5634731, at *5 (W.D.N.Y. Nov. 7, 2017), report and recommendation adopted, No. 1:15-CV-00967 (MAT), 2017 WL 5629964 (W.D.N.Y. Nov. 22, 2017) (involving relatively minor physical impairments), the cases have consistently held that an ALJ must have medical support for her RFC determination. What would otherwise, in analogous circumstance, an ALJ could determine that a claimant could sustain medium or heavy work?
Because the Court has found that the ALJ reasonably gave little weight to Dr. Nguyen's physical assessment, as it was unsupported by his treatment notes, the Record contains no medical evidence to support the ALJ's conclusion that Plaintiff is capable of light work. Plaintiff's testimony and the medical records do not establish that her impairments are relatively minor. Accordingly, the ALJ's RFC determination is unsupported by substantial evidence.
For the reasons stated above, the Court grants Plaintiff's motion, ECF No. 9, and denies the Commissioner's motion, ECF No. 13. Pursuant to the fourth sentence of 42 U.S.C. 405(g), the Commissioner's decision is reversed, and this case is remanded for a new hearing. Furthermore, the Court directs the Commissioner to expedite this case.
IT IS SO ORDERED.