MICHAEL A. TELESCA, District Judge.
Represented by counsel, Rosalia Dueno ("Plaintiff") instituted this action pursuant to Titles II and XVI of the Social Security Act ("the Act"), seeking review of the final decision of the Acting Commissioner of Social Security ("the Commissioner")
Plaintiff protectively filed applications for DIB and SSI on December 16, 2009, alleging a disability onset date of January 20, 2008. Her claim was initially denied April 9, 2010. On May 7, 2010, Plaintiff filed a timely written request for hearing, and on July 21, 2011, the first hearing was conducted via videoconference by Administrative Law Judge MaryJoan McNamara ("ALJ McNamara"). Plaintiff appeared with her attorney in Buffalo, New York, and testified via videoconference. (T.150-87).
During the interim, Plaintiff hired a new attorney, who is currently representing her on this appeal. ALJ McNamara conducted the second hearing via videoconference on March 26, 2012, at which Plaintiff appeared with her representative in Buffalo, New York, and testified. Impartial vocational expert George J. Starosta ("the VE") also testified at the hearing. On May 10, 2012, ALJ McNamara rendered a partially favorable decision, awarding DIB and SSI benefits to Plaintiff for a closed period from January 20, 2008, through September 12, 2011. (T.223-47). ALJ McNamara found that Plaintiff's RFC for this period to be light work with only occasional climbing of ramps and stairs; occasional balancing, stooping, crouching, pushing and pulling; frequent kneeling and crawling; a sit/stand at will option; and allowance for being offtask more than two or more days per month, "most likely due to interfering pain or other reasons." (T.231). However, ALJ McNamara found that beginning on September 13, 2011, Plaintiff was no longer disabled. Confusingly, the ALJ repeated the exact same RFC for the non-disability period. (T.237-38).
Plaintiff then timely filed a request for review of the ALJ's decision with the Appeals Council on May 21, 2012. (T.383-86). Plaintiff asserted that ALJ McNamara's decision contained "significant errors of law regarding the period of September 12, 2011, and ongoing" which required "outright revers[al]" or remand for a new hearing. (T.384).
The Appeals Council granted Plaintiff's request review and issued a remand order on December 12, 2013, vacating ALJ McNamara's May 10, 2012 decision and remanding the claim for further proceedings. (T.249-52). The Appeals Council found the first ALJ's RFC assessment on which she based a finding of disability to be unsupported by substantial evidence. The remand order directed the ALJ to (1) obtain additional evidence, which may include consultative examinations and medical source statements, concerning Plaintiff's impairments of degenerative disc disease and any impairments resulting from the past motor vehicle accident ("MVA") to complete the administrative record; (2) "if necessary, obtain evidence from a medical expert regarding medical improvement" of Plaintiff's impairments of degenerative disc disease and any impairments resulting from the past MVA, including "clarification regarding any inconsistencies in the medical record"; (3) give further consideration to Plaintiff's maximum residual functional capacity ("RFC") and provide an appropriate rationale with specific references to evidence of record in support of the assessed limitations; and, (4) if warranted by the expanded record, obtain supplemental evidence from a VE to clarify the effect of the assessed limitations on the occupational base by posing hypothetical questions which reflect the specific capacity and limitations established by the record as a whole. (T.251).
On July 15, 2014, a third hearing was conducted by Administrative Law Judge Donald T. McDougall ("ALJ McDougall") in Buffalo, New York, at which Plaintiff appeared with her attorney and testified. (T.188-214). ALJ McDougall did not call any witnesses.
On July 23, 2014, ALJ McDougall rendered an unfavorable decision (T.44-71), finding that Plaintiff has not been under a disability, as defined in the Act, from January 20, 2008, through the date of the decision. (T.64). In particular, the second ALJ found that Plaintiff had the RFC to perform the full range of light work, without any non-exertional limitations.
Plaintiff filed a request for review of the ALJ's decision with the Appeals Council on July 23, 2014. Plaintiff also submitted records from two of her treatment providers. On November 27, 2015, the Appeals Council denied her request for review, making the ALJ's decision the final determination of the Commissioner. Plaintiff timely commenced this action.
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. 42 U.S.C. § 405(g); see also Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). The district court must accept the Commissioner's findings of fact, provided that such findings are supported by "substantial evidence" in the record. See 42 U.S.C. § 405(g) (the Commissioner's findings "as to any fact, if supported by substantial evidence, shall be conclusive"). "Substantial evidence means `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"
Plaintiff argues that, on remand from the Appeals Council, ALJ McDougall demonstrated bias against her by failing to keep the record open for the full period of time he said he would at the hearing and by taking actions inconsistent with the Appeals Council's remand order.
"It cannot be disputed that litigants seeking Social Security benefits are entitled to have a fair and impartial decision-maker. Indeed, a basic element of due process is the right to an impartial and unbiased adjudication of a claim."
At the remand hearing on July 15, 2014, ALJ McDougall stated that he would leave the record open for 14 days in order for Plaintiff's attorney to obtain the office notes from treating pain management specialist Dr. Amrit Singh. However, the ALJ closed the record after 7 days and issued his fully unfavorable decision on July 23, 2014, (T.47), and offered no explanation as to why he closed the record prior to 14 days.
However, the Court cannot deem this procedural irregularity to be harmless, since in weighing Dr. Singh's opinions, the ALJ discounted them as being unsupported by "objective evidence." The office treatment notes from Dr. Singh that are in the record contain detailed clinical findings, which suggests that any missing records would be similarly supported.
Plaintiff contends that ALJ McDougall impermissibly exceeded the scope of the Appeals Council's remand order. The Commissioner's regulations provide that, upon remand, an ALJ "shall take any action that is ordered by the Appeals Council and may take any additional action that is not inconsistent with the Appeals Council's remand order." 20 C.F.R. §§ 404.977(b), 416.1477(b). "Accordingly, reviewing courts have found that failure to comply with the Appeals Council's remand order may be grounds for remand."
Plaintiff characterizes the Appeals Council's directive as remanding the claim because ALJ McNamara, the first ALJ, did not adequately address the issue of Plaintiff's medical improvement after September 12, 2011. Plaintiff asserts the second ALJ overstepped his authority by focusing on the period prior to September 13, 2011, and rejecting the first ALJ's RFC assessment for the closed period of disability. However, contrary to Plaintiff's contention, the Appeals Council did dispute the first ALJ's RFC for light exertion work with several additional limitations, stating that
(T.250). Thus, the Appeals Council found the first ALJ's RFC assessment on which she based a finding of disability to be unsupported by substantial evidence. (
Plaintiff contends that the second ALJ arbitrarily substituted his own judgment as a lay person for the competent opinions submitted by multiple medical experts. As Plaintiff notes, "while an [ALJ] 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 [submitted an opinion to or] testified before him."
Plaintiff's brief cites foregoing line of cases, but her argument appears to be focused on the lack of medical expert opinion supporting the second ALJ's RFC assessment for light work without any non-exertional limitations. Specifically, Plaintiff contends that the second ALJ's RFC assessment does not align with any of the competent opinions from medical experts in the record. The Commissioner counters that an ALJ's RFC finding need not need track any single medical opinion.
The Commissioner argues that the second ALJ's RFC assessment for light work with no non-exertional limitations is not inconsistent with the report issued by consultative physician Donna Miller, D.O. on February 26, 2010. This is the opinion to which the second ALJ assigned the most weight. At that time, Dr. Miller observed that Plaintiff could squat 30 percent of normal out of fear of back pain; could heel-toe walk without difficulty; had limited lumbar spine range of motion ("ROM") (extension to 5 degrees, flexion to 45 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 20 degrees bilaterally); had limited cervical spine ROM (extension to 30 degrees, flexion to 45 degrees, lateral flexion to 30 degrees bilaterally, rotation to 40 degrees bilaterally); and limited ROM in the shoulders bilaterally due to neck pain. (T.824). For her medical source statement, Dr. Miller opined that Plaintiff had only "mild" limitations in bending, turning, twisting, lifting, and carrying. (T.825). Dr. Miller did not mention any of the other major exertional demands, including sitting, standing, and walking.
Dr. Miller examined Plaintiff a second time, after the Appeals Council remand. In her report dated March 19, 2014 (T.926-29), Dr. Miller's clinical observations and opinion diverged from her first report. On examination, Dr. Miller observed that Plaintiff could only squat to 25 percent of normal and had trouble walking on her heels; this represented a worsening from the prior examination. Plaintiff's lumbar spine ROM measurements were the same except her flexion was decreased to 35 degrees. Two of her cervical spine ROM measurements were the same but her flexion and rotation had both decreased to 30 degrees. Dr. Miller wrote that it was "questionable if [Plaintiff] was putting full effort" into the examination. (T.928). Nonetheless, Dr. Miller opined that Plaintiff has "moderate limitation for heavy lifting, carrying/bending, pushing, and pulling." (T.929). Dr. Miller expanded upon this opinion in a "Medical Assessment of Ability to Do Work-Related Activities (Physical)" issued the same date. (T.930-35). In pertinent part, Dr. Miller indicated that Plaintiff can sit for 6 hours, stand for 4 hours, and walk for 4 hours in an 8-hour workday; can occasionally lift and/or carry up to 10 pounds, can never stoop, kneel, climb ladders or scaffolds, crouch, or crawl; can occasionally balance and climb stairs and ramps; can never operate foot controls with both feet; and can never push or pull with her hands. (T.930-33). Thus, in contrast to her 2010 medical source statement which was not inconsistent with the lifting and carrying demands of light work,
Even though the 2014 opinion included a detailed function-byfunction physical RFC assessment, the ALJ discounted it in favor of the more remote 2010 opinion which was unaccompanied by a detailed function-by-function physical RFC assessment. Specifically, the ALJ determined that Dr. Miller's 2010 opinion should be given "great weight" because it was "consistent with her examination" of Plaintiff and consistent with Plaintiff's reported activities of cooking daily, cleaning twice a week, shopping twice a month, providing childcare daily, and performing personal care daily. (T.62). In contrast, the ALJ found that Dr. Miller's 2014 opinion should be "given some, but not great weight." (T.63). As reasons for discounting Dr. Miller's more recent opinion, the ALJ noted that Dr. Miller "questioned whether or not the claimant put forth full effort," which was "very significant to [him]." (T.63). However, Dr. Miller also noted, during the 2010 examination, that Plaintiff's ability to squat and her cervical ROM were decreased out of fear of back and neck pain. It is unclear why Dr. Miller attributed different motives to Plaintiff, but it is entirely plausible that what Dr. Miller perceived as "questionable effort" during the 2014 examination was due to Plaintiff's apprehension about exacerbating her pain. The ALJ made no attempt to obtain clarification on this point from Dr. Miller, which suggests that he was cherry-picking the evidence. "[W]hile administrative law judges are entitled to resolve conflicts in the evidentiary record, they cannot pick and choose only evidence that supports their particular conclusions."
The second ALJ also cited the purportedly "normal physical examinations since January 2012" as a reason for discrediting Dr. Miller's 2014 opinion. (T.63). This is a wholly inaccurate characterization of the record. For instance, on January 12, 2012, Plaintiff reported to her surgeon, Dr. Cappuccino, that over the past couple of months, her back pain "has been escalating in severity," especially when trying to return to neutral from a forward flexed position. (T.874). She was also having "difficult time procuring restorative sleep" due to her pain. While there was no superficial tenderness on palpation, Dr. Cappuccino noted that her pain "does reside at the pelvic brim line in the center of the back" and she had "discomfort higher up in her mid back." (
Plaintiff returned to Dr. Cappuccino on May 9, 2014, with continuing mechanical back pain, though she had some improvement in her left lower extremity discomfort. Findings on clinical examination were improved over the July 2012 appointment. (T.937). Plain x-rays taken that day showed evidence of a "possible gap between the inferior and superior endplates where the bone/metal interface is located," but "gross failure" of the prosthesis was not identified. (T.939).
On May 28, 2014, Plaintiff's car was sideswiped by another car, which caused a subsequent increase in her lower back pain. (T.10). At her visit on June 3, 2014, Dr. Singh observed many abnormal clinical findings, including positive straight-leg raises in the supine position bilaterally (low back pain at 60 degrees on the right and at 65 degrees on the left), markedly limited lumbar extension, marked pain with straightening from a flexed position, mild unsteadiness with a positive Trendelenburg's sign on the right, increased pain in the lower back with the FABER test and hip rotation bilaterally, and tenderness at the mid — and lower-lumbar spinous processes, the sacroiliac joints, and greater trochanters bilaterally. (T.987).
The records from Dr. Singh and Dr. Lewis submitted to the Appeals Council in 2015 likewise show continued complaints of back pain and abnormal examinations. Plaintiff returned to Dr. Singh on September 5, 2014, reporting that her pain had returned to the previous level. (T.10). She again had multiple abnormal clinical findings, as at the previous appointment. Dr. Singh recommended that she be evaluated by a neurosurgeon.
On October 5, 2014, Plaintiff saw Dr. Lewis for a neurosurgical consult, as Dr. Cappuccino no longer accepted her insurance. She reported significant lower back pain and intermittent leg pain. (T.12). Dr. Lewis observed "severe[ly] restricted" ROM of the lumbar spine on flexion and extension. (T.13). A lumbar spine MRI and a reconstruction CT scan of the lumbar spine were ordered; according to the radiologist, these showed mild reduction of the disc space at L5-S1 without evidence of central canal stenosis or foraminal narrowing. (T.15). On November 5, 2014, Dr. Lewis personally reviewed the CT and MRI scans, and he determined that there was a disc herniation at L4-L5, and that the posterior portion of the disc herniation had not been fully removed during the prior surgery. (T.17). Dr. Lewis concluded that the 2011 surgery had failed. (T.17). On examination, Plaintiff walked with a slow and caution gait, had some trouble getting up from a seated position, and had diffuse low back pain. Dr. Lewis recommended corrective surgery to remove the artificial disc and to perform a fusion at L4-L5. (T.18).
Plaintiff returned to Dr. Singh on December 5, 2014, with complaints of sharp lower back pain radiating to her legs bilaterally. (T.8). Dr. Singh again noted multiple abnormal clinical findings on examination, unchanged from the previous appointments. He noted that Plaintiff's insurance company had denied Dr. Lewis' request for surgical authorization.
On April 30, 2015, Plaintiff underwent corrective back surgery with Dr. Lewis and Dr. Timothy R. Rasmusson. The procedure entailed explantation of the artificial disc at L4-L5 placed by the previous surgeon, Dr. Cappuccino, and performance of a lateral lumbar interbody fusion ("LLIF") at L4-L5. (T.23-25). On May 12, 2015, at a follow-up with Dr. Lewis, Plaintiff was doing "fairly well" but was still having back pain, muscle spasms, right psoas muscle weakness, and right lower extremity radiculopathy. (T.29). At another follow-up on July 7, 2015,
Contrary to ALJ McDougall's assertion, the record up until the date of his decision on July 23, 2014, does not show "normal physical examinations since January 2012" with "only a few exacerbations" in Plaintiff's symptoms. These reasons for discounting Dr. Miller's 2014 opinion rely on a mischaracterization of the record and therefore are not supported by substantial evidence. The ALJ's further assertion that there is "little to no objective evidence to support the claimant's complaints," (T.53), also is a blatant mischaracterization of the record.
Relatedly, the Court finds that the ALJ erred in weighing the opinions from treating pain management specialist Dr. Singh and treating orthopedic surgeon Dr. Cappuccino. According to the treating physician rule of deference, the medical opinion of a claimant's treating physician or psychiatrist will be given "controlling" weight if that opinion "is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record." 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). The rationale for according well-supported treating physicians' opinions controlling weight is that they "[a]re likely to be [from] the medical professionals most able to provide a detailed [and] longitudinal picture of [the claimant's] medical impairment(s). . . ." 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). Unless an ALJ gives controlling weight to a treating source opinion, he is required to consider a number of factors in deciding the weight to be accorded to the treating source. 20 C.F.R. §§ 404.1527(c), 416.927(c). Failure to provide "good reasons" for not crediting the opinion of a claimant's treating physician is a ground for remand.
Here, the ALJ determined that he should not give Dr. Singh's opinions "controlling weight since [the doctor] did not provide any objective evidence as to the basis of his opinion." (T.60). The ALJ's requirement of "objective evidence" misapplies the regulations regarding the types of evidence with which a medical opinion should be supported. "`[M]edically acceptable clinical and laboratory diagnostic techniques' include consideration of `[a] patient's report of complaints, or history, [a]s an essential diagnostic tool.'"
The ALJ likewise erred in weighing Dr. Cappuccino's opinions and statements. Dr. Cappucinno began treating Plaintiff on November 8, 2010, for complaints of severe, intractable back pain. (T.835). Upon review of her lumbar x-rays, he noted significant lumbar list, paralumbar spasm, facet changes at L5-S1, and narrowing at L4-L5 and L5-S1. (T.835, 839). On examination, Dr. Cappuccino observed painful loss of motion on cervical flexion to 30 degrees, a positive Spurling's sign bilaterally, visual and palpable spasms on the trapezius bilaterally, point tenderness over the cervical prominence, proximal grade weakness of 4/5 in the deltoids and biceps, worse on the right; paraspinal discomfort with percussion over mid-thoracic spine, pain with protraction and retraction of the scapula, and lumbar flexion markedly limited to 45 degrees. (T.835-36). Dr. Cappuccino opined that Plaintiff was temporarily totally disabled from all work. (T.836). When Dr. Cappuccino saw Plaintiff on April 25, 2011, for complaints of worsening and near intractable axial lower back pain, he noted that the MRI showed evidence of disc dessication and decreased joint space height predominantly at L4-L5. (T.832). Based on his findings, Dr. Cappuccino indicated that Plaintiff was a "good candidate for lateral-based total disc replacement at L4-L5." (T.832). Throughout the treatment period, Dr. Cappuccino opined that Plaintiff remained temporarily and totally disabled from all forms of work. (
During the time period Plaintiff was seeing Dr. Cappuccino, she was also treating with chiropractor Dr. William M. Brierley. (T.883-92, 897). On December 11, 2009; February 10, 2010; December 18, 2011; and March 25, 2012, Dr. Brierley completed Medical Examination for Employability Assessments (T.550-51, 882-83, 826-27, 895-99). In December 2009, and February 2010, he opined that Plaintiff was "very limited" in sitting, standing, lifting, bending, pushing, and pulling, and "moderately limited" in walking and climbing stairs. (T.550, 881). On March 25, 2010, Dr. Brierley stated that Plaintiff cannot tolerate prolonged sitting due to pain. (T.828). In the December 2011 Medical Examination for Employability Assessment, Dr. Brierley indicated that Plaintiff was "very limited" in sitting, standing, lifting, bending, pushing, and pulling, as well as climbing stairs and "moderately limited" in walking. (T.826). On March 25, 2012, Dr. Brierley opined that Plaintiff cannot work a light or sedentary job, even if she were allowed to alternate sitting and standing. Dr. Brierley set forth functional limitations to support his opinion in the Physical Capacities Evaluation, namely, that Plaintiff was limited to 2 hours of sitting, 2 hours standing, and 2 hours of walking in an 8-hour workday,
The Court recognizes that Dr. Brierley's opinions are not entitled to the presumption of deference accorded to treating physician opinions, since chiropractors are not acceptable medical sources. Nevertheless, the Commissioner's policy ruling, SSR 06-03p, recognizes that information "other sources" "may be based on special knowledge of the individual and may provide insight into the severity of the impairment(s) and how it affects the individual's ability to function." SSR 06-03p, 2006 WL 2329939, at *2 (S.S.A. Aug. 9, 2006). Indeed, "[d]epending on the particular facts in a case, and after applying the factors for weighing opinion evidence, an opinion from a medical source who is not an `acceptable medical source' may outweigh the opinion of an `acceptable medical source'. . . ."
In sum, because ALJ McDougall's RFC of a full range of light work with no limitations throughout the entire period commencing January 20, 2008, relies on various mischaracterizations of the record, the Court cannot find it to be supported by substantial evidence.
In her request for review to the Appeals Council following the second ALJ's decision, Plaintiff's attorney submitted records from Dr. Singh (T.8-11) covering the period from September 5, 2014, to December 5, 2014; and records from Dr. Lewis (T.12-34) covering the period from October 5, 2014, to July 8, 2015. The Appeals Council rejected review, stating that these records were "new information. . . about a later time" and "does not affect the decision about whether you were disabled beginning on or before July 23, 2014." (T.2). Since the Court has found alternative bases for remanding Plaintiff's case, it need not resolve whether the Appeals Council erred in declining to consider the additional evidence. These treatment notes are now part of the record and have been considered by this Court.
Plaintiff contends that the ALJ failed to perform a functionby-function assessment of her functional limitations before formulating the RFC. As Plaintiff notes, SSR 96-8p directs that an "RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis;" it is "[o]nly after that may RFC be expressed in terms of the exertional levels of work. . . ." SSR 96-8p, 1996 WL 374184, at *1 (S.S.A. July 2, 1996). This analysis requires assessing a claimant's ability "to perform each of seven strength demands: [s]itting, standing, walking, lifting, carrying, pushing, and pulling. Each function must be considered separately[.]"
Plaintiff contends that the second ALJ failed to develop the record in accordance with the Appeals Council's order inasmuch as he found that a "medical expert [was] not `necessary' for a proper adjudication of the claim following remand." (T.48). As noted above, the Appeals Council had instructed the ALJ to obtain, "if necessary, . . . evidence from a medical expert regarding medical improvement" of Plaintiff's impairments of degenerative disc disease and any impairments resulting from the 2008 MVA. Instead, the second ALJ ordered Plaintiff to undergo a second consultative examination by family practitioner Dr. Miller, who did not find medical improvement but noted some worsened clinical findings and issued a more restrictive RFC as compared to her 2010 report. However, as discussed above, the second ALJ rejected Dr. Miller's — report in favor of her 2010 report for reasons that the Court found were unsupported by substantial evidence.
The phrasing of the Appeals Council's order appears to grant discretion to the ALJ as to whether or not to retain a medical expert. However, since the Court has found alternative bases for reversing the Commissioner's decision, it need not resolve whether the ALJ's decision not to retain a medical expert such as a neurosurgeon was reversible error.
Likewise, the Court need not consider whether the second ALJ's failure to subpoena the medical records from Plaintiff's no-fault insurance carrier (which the first ALJ had identified as relevant) was reversible error.
Under 42 U.S.C. § 405(g), the district court has the power to affirm, modify, or reverse the ALJ's decision with or without remanding for a rehearing. As discussed above, ALJ McDougall committed multiple factual and legal errors in weighing the record evidence and the opinions provided by Plaintiff's treating physicians and the consultative physician, and cherry-picked the record in order to justify assigning the greatest weight to the least restrictive opinion, that is, consultative physician Dr. Miller's 2010 report. In the present case, the record is complete, and contains multiple functional assessments by individuals who have actually treated or examined Plaintiff.
The standard for directing a remand for calculation of benefits is met where the record persuasively demonstrates the claimant's disability,
For the foregoing reasons, the Court finds that the Commissioner's decision was legally erroneous and is not supported by substantial evidence. It therefore is reversed. Accordingly, Defendant's motion for judgment on the pleadings is denied, and Plaintiff's motion for judgment on the pleadings is granted, and the case is remanded solely for the calculation and payment of benefits. The Clerk of Court is directed to close this case.