JAMES C. FRANCIS, IV, District Judge.
Plaintiff Nasheen Stroud brings this action under sections 405(g) and 1383(c)(3) of the Social Security Act (the "Act"), 42 U.S.C. §§ 405(g), 1383(c)(3), seeking review of a determination of the Commissioner of Social Security (the "Commissioner") denying her applications for Supplemental Social Security Income and Disability Insurance Benefits. The parties have submitted cross-motions for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons that follow, I recommend denying the Commissioner's motion, granting the plaintiff's motion, and remanding the case to the Commissioner.
Ms. Stroud was born in 1979 and, on the alleged disability onset date of December 14, 2010, was 31 years old. (R. at 109).
Megan Collins, M.D., examined Ms. Stroud on January 5, 2010. (R. at 207). She recorded that the plaintiff was five feet, four inches tall and weighed 216 pounds. (R. at 207). Ms. Stroud reported having low blood sugar that morning, which became high after she drank a glass of orange juice. (R. at 207). Her peripheral pulses were 2+ on the right side, but Dr. Collins could not feel the pulse on the left side. (R. at 207). Dr. Collins diagnosed "[d]iabetes with ketoacidosis,
On July 16, 2010, Dr. Collins noted the plaintiff's weight at 223 pounds, and found that she was pleasant, alert, and well-nourished. (R. at 157). Ms. Stroud had a normal pharynx and tonsils; no lesions in her oral cavity; a supple neck with no lymphadenopathy; regular heart rate and rhythm; clear lungs; a peripheral pulse of 2+; and no tinea or callusses on her feet. (R. at 157). She diagnosed type 1 diabetes with ketoacidosis and noted that Ms. Stroud's glucose was well-controlled. (R. at 157).
Ms. Stroud visited Dr. Collins again on October 22, 2010, and December 8, 2010. At both visits, Dr. Collins diagnosed type 1 diabetes mellitus, noting it was controlled; carpal tunnel syndrome; and unspecified vitamin D deficiency. (R. at 159, 161). She was also diagnosed with a urinary tract infection in December. (R. at 161). Ms. Stroud's weight was stable, 221 pounds in October and 222 pounds in December. (R. at 159, 161). Examination of the plaintiff's extremities revealed that she had no thenar atrophy in the right hand and her hand grip was 5/5. (R. at 159, 161). In October, flexing of her wrists caused numbness of all fingers except the fourth; this is not mentioned in the notes from December. (R. at 159, 161). A foot exam in December showed normal circulation and "monofilament sensation to vibration intact." (R. at 161).
The first medical record submitted from the period after Ms. Stroud's alleged disability onset date is a December 19, 2010 report from an eye examination by Eli Marcovici, M.D., which diagnoses diabetes mellitus without retinopathy and recommends another visit in one year. (R. at 163).
Referred by the New York State Division of Disability Determinations, the plaintiff visited internist Robert Dickerson, D.O., for a consultative examination on March 24, 2011. (R. at 150). Dr. Dickerson noted her height as five feet, five inches and her weight as 226 pounds. Ms. Stroud reported that she cooked, did laundry, and shopped once per week; groomed herself daily; and watched television, listened to the radio, and socialized with friends in her leisure time. (R. at 151). Her general appearance, gait, and station were normal and unrestricted. (R. at 151). Dr. Dickerson found no abnormality in her skin, lymph nodes, head, face, eyes, ear, nose, throat, neck, chest, lungs, heart, abdomen, neurology, or extremities. (R. at 151-52). Ms. Stroud had full flexion, extension, lateral flexion bilaterally, and rotary movement bilaterally in her cervical spine and lumbar spine; no abnormality in her thoracic spine; and full range of motion bilaterally in her hips, knees, ankles, shoulders, elbows, forearms, and wrists. (R. at 152). Dr. Dickerson detected no subluxations, contractures, ankylosis, thickening, redness, heat, swelling, or effusion. (R. at 152). Ms. Stroud's joints were stable and nontender. Although her hand and finger dexterity was intact and her grip strength 5/5 bilaterally, Phalen's test
On April 4, 2011, Dr. Collins examined Ms. Stroud, noting that she complained of numbness in her right forearm and the first three fingers of her right hand, but had not seen a neurologist. (R. at 164). Dr. Collins reported the plaintiff's weight as 228 pounds and noted nothing abnormal in her appearance, oral cavity, lungs, heart, or feet. (R. at 164). Her diagnosis was type 1 diabetes with ketoacidosis not stated as uncontrolled, carpal tunnel syndrome, and unspecified vitamin D deficiency. (R. at 164). Dr. Collins referred Ms. Stroud to an endocrinologist and a neurologist. (R. at 165).
A medical record from endocrinologist Edward Colt, M.D., dated May 4, 2011, noted that Ms. Stroud's ophthalmic examination of December 2010 showed no retinopathy; that her last PAP smear, in September 2009, was normal; and that her current medications included Lantus solution, Novolog solution, and vitamin D tablets.
Dr. Collins' progress notes for Ms. Stroud's July 18, 2011 visit indicate that her diabetes was not currently controlled. (R. at 174). The plaintiff weighed 226 pounds and had no chest pain, vomiting, diarrhea, shortness of breath, or cough. (R. at 174). The diagnosis was uncontrolled type 1 diabetes. (R. at 175). Dr. Collins referred Ms. Stroud to a diabetes group education class, a nutrition clinic, and another endocrinologist. (R. at 175).
Dr. Collins again noted that Ms. Stroud's diabetes was uncontrolled in her August 16, 2011 progress notes. (R. at 177). At that visit, the plaintiff reported a thiamine deficiency. (R. at 177). Her weight had decreased to 220 pounds. (R. at 177). Dr. Collins assessed Ms. Stroud with uncontrolled type 1 diabetes without mention of complication and "other and unspecified manifestations of thiamine deficiency," noting that she would require 100 micrograms of thiamine four times per week. (R. at 177-78).
Endocrinologist Jeanine Albu, M.D., examined Ms. Stroud on September 28, 2011, pursuant to Dr. Collins' reference. (R. at 191). She noted that Ms. Stroud was severely obese and had suffered diabetic ketoacidosis three times. (R. at 191). She diagnosed Ms. Stroud with uncontrolled type 1 diabetes mellitus and acute sinusitis, ordering a follow-up in three months. (R. at 191).
On November 4, 2011, Dr. Collins noted the plaintiff's weight to be 216 pounds. (R. at 194). She conducted a depression screening and found no evidence of depression. (R. at 193). Ms. Stroud reported no chest pain, edema, palpitations, or shortness of breath with exertion. (R. at 194). She also had no nausea, vomiting, diarrhea, fever, loss of appetite, dysuria, or cough. (R. at 194). She asserted that she had low blood sugar rarely — less than once per week. (R. at 194). Her extremities showed no edema, her feet had no ulcers or tinea, and her peripheral pulses were 2+ bilaterally. (R. at 194). Dr. Collins' diagnosis was type 1 diabetes mellitus without mention of complication, not stated as uncontrolled. (R. at 194). Ms. Stroud was referred to Dr. Marcovici for an eye examination (R. at 194), which found nonproliferative diabetic retinopathy in both eyes
Neurologist Ritesh Ramdhani, M.D.,
On January 19, 2012, Ms. Stroud visited Dr. Collins "mostly to have disability forms filled out" for diabetes and carpal tunnel syndrome. (R. at 195). Dr. Collins reported that Ms. Stroud's diabetes was controlled, stated that she did not think Ms. Stroud was disabled by the diabetes, and indicated that any opinion on carpal tunnel syndrome should come from a neurologist. (R. at 195). However, the progress note indicates that Dr. Collins referred Ms. Stroud to a diabetes educator on account of "poorly controlled diabetes." (R. at 196).
A "Multiple Impairment Questionnaire" filled out by Dr. Collins on that same date diagnoses Ms. Stroud with uncontrolled type 1 diabetes mellitus, noting low sensation in both of Ms. Stroud's hands and fingers, and carpal tunnel syndrome. (R. at 180). She listed Ms. Stroud's primary symptoms as decreasing sensation in her hands, upper neck pain, frequent hypoglycemia, and depression, noting that the plaintiff complained of a tingling sensation and constant pain that travels up her arm to her neck. (R. at 181-82). Her level of pain was estimated at eight on a ten-point scale, and her fatigue at nine on a ten-point scale. (R. at 182). Assessing Ms. Stroud's functional capacity, Dr. Collins reported that she could sit for two hours of an eight-hour day and stand or walk for up to one hour, and that she should move around for 15 to 30 minutes every 30 minutes to one hour. (R. at 182-83). Ms. Stroud could lift 0-5 pounds occasionally, but never anything heavier, and could not carry even zero to five pounds. (R. at 183). According to Dr. Collins, Ms. Stroud had "marked" limitation in grasping, turning, and twisting objects, and in using her fingers or hands for fine manipulations, and moderate limitations in using her arms for reaching. (R. at 183-84). Dr. Collins opined that Ms. Stroud's symptoms would increase if she were placed in a competitive work environment; that her condition interfered with her ability to keep her neck in a constant position and her ability to concentrate; that she could not perform a full-time competitive job that required activity on a sustained basis; and that she could tolerate only low work stress, because stress caused low blood sugar. (R. at 184-85). She also had psychological limitations. (R. at 185-86). Her condition was expected to last at least 12 months. (R. at 185).
ALJ Kenneth G. Levin held a hearing on February 6, 2012. Ms. Stroud, who was represented by an attorney at the hearing, testified that she had constant tingling in her hands — trouble with her right hand had caused her to stop working as a hairstylist — which sometimes extended up to her shoulder. (R. at 38, 41). At the recommendation of a neurologist, she had scheduled an EMG later in the month of February. (R. at 43). When she had low blood sugar, which made her dizzy, disoriented, and caused her to sweat, she ate food with sugar to alleviate these symptoms. (R. at 41). Sometimes she overcompensated by eating too much candy, requiring her to take insulin. (R. at 42). She reported that she could walk up to ten blocks and stand for 45 minutes at a time. (R. at 45). Back pain limited her sitting to 30 minutes; however, she testified that she had not sought treatment for her back pain. (R. at 45). She could lift but not carry up to five pounds. (R. at 46). Ms. Stroud further testified that she did not do housework other than cleaning her room and that she slept most of the day, but was unable to sleep through the night because low blood sugar would awaken her. (R. at 46-47). She did, however, socialize with friends when they came over, and exercised by jogging and walking in place. (R. at 47).
The medical expert
In response to the ALJ's hypothetical question, the vocational expert
The ALJ denied Ms. Stroud's claim on February 22, 2014. She requested review by the Appeals Council, which denied the request on March 12, 2013. (R. at 1-6).
A federal court reviewing the Commissioner's decision "may set aside a decision of the Commissioner if it is based on legal error or if it is not supported by substantial evidence."
Substantial evidence in this context is "`more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"
A claimant is disabled under the Act and therefore entitled to benefits if she can demonstrate that she is 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);
The Social Security Administration has created a five-step sequential analysis for evaluating disability. 20 C.F.R. § 404.1520. First, the claimant must demonstrate that she is not currently engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i), (b). Next, the claimant must prove that she has a severe impairment that "significantly limits [her] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c);
At each stage of the analysis, the ALJ "must adequately explain his analysis and reasoning in making the findings on which his ultimate decision rests, and must address all pertinent evidence."
The ALJ determined that Ms. Stroud had not engaged in substantial gainful activity since December 14, 2010, and that she suffered from a severe combination of impairments: insulindependent diabetes mellitus, mild to moderate obesity, and possible carpal tunnel syndrome in her right hand. (R. at 30). Her impairments did not meet or medically equal a listed impairment. (R. at 30).
Finding the plaintiff "not a particularly credible witness," the ALJ agreed that she had the residual functional capacity outlined by the medical expert at the hearing: no limits on sitting or fingering and handling; ability to stand and walk for six hours out of an eight-hour workday; and ability to lift and carry up to 20 pounds primarily in her left hand with assistance from the right. (R. at 29-30, 50). Given this functional capacity, the ALJ found, at step four, that Ms. Stroud could perform her past relevant work as a telephone operator, meaning she was not disabled. (R. at 30).
The ALJ then found that, even assuming that carpal tunnel syndrome compromised the plaintiff's ability to perform work that required more than occasional fingering, there were jobs in the national economy in significant numbers that she could perform, specifically, messenger, usher, marker, and surveillance system operator. (R. at 30). Thus, he found, in the alternative, that Ms. Stroud was not disabled at step five. (R. at 30).
Ms. Stroud first argues that the ALJ erred in his consideration of Dr. Rhamdani's Wellness Plan Report. According to the plaintiff, the ALJ considered and dismissed the neurologist's report in one sentence: "Although he was unwilling to say more without an EMG, he did check the box that she could not work for 12 months." (Pl. Memo. at 11; R. at 28). This is insufficient, she contends, because the ALJ did not explain the weight that he gave to the report or determine whether the opinion was supported by the record. (Pl. Memo. at 11-13). Indeed, the plaintiff asserts that "it is [] unclear whether [the ALJ] considered [the opinion] in rendering his decision." (Pl. Memo. at 13). As the Commissioner points out, this is both factually and legally incorrect. (Memorandum of Law in Opposition to Plaintiff's Motion for Judgment on the Pleadings and in Further Support of the Commissioner's Motion for Judgment on the Pleadings ("Reply") at 3-5).
The ALJ considered Dr. Ramdhani's report in connection with other evidence in the record. He noted the plaintiff's repeated tentative diagnoses of carpal tunnel syndrome and the neurologist's recommendation that she have an EMG to aid in diagnosis. (R. at 29). He further found that, although she had a positive Phalen's test, the medical expert noted that there was no thenar atrophy, which indicated that any carpal tunnel syndrome in her right hand was mild, at worst. Moreover, the ALJ recognized Dr. Ramdhani's diagnosis of carpal tunnel syndrome on her right side and, at step five of the sequential analysis, assumed "right-sided CTS prevent[ing] [Ms. Stroud] from work requiring more than occasional fingering." (R. at 30). The fact that the ALJ did not credit Dr. Ramdhani's opinion that the plaintiff was unable to work for at least twelve months is of no moment — indeed, as the plaintiff recognizes, that issue is reserved to the Commissioner. (Pl. Memo. at 11); 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1) (stating that "[a] statement by a medical source that you are `disabled' or `unable to work' does not mean that we will determine that you are disabled" because that determination is "reserved to the Commissioner");
The plaintiff also argues that the ALJ should have contacted Dr. Ramdhani after Ms. Stroud's scheduled EMG to allow him to bolster his opinion. The law did not require the ALJ to follow-up with Dr. Ramdhani when he already had a report from the neurologist reflecting a medical opinion in connection with the plaintiff's visit.
The plaintiff next asserts that the ALJ improperly evaluated Dr. Collins' opinion when he assigned no weight to her January 19, 2012 Multiple Impairment Questionnaire because her answers there appeared inconsistent with her progress notes of the same date. (Pl. Memo. at 14-15; R. at 29). The plaintiff complains that the ALJ did not follow the proper legal standard for determining whether to give Dr. Collins' opinion "controlling weight" as the opinion of a treating physician (Pl. Memo. at 15-16), that "the basis for discounting [the] opinion was an unwarranted attack on [Dr. Collins'] professional integrity" (Pl. Memo. at 16), and that the ALJ should have sought clarification of the opinion rather than dismissing it entirely (Pl. Memo. at 17).
The plaintiff is correct on this last point. There is no dispute that Dr. Collins was the plaintiff's treating physician — a fact that the ALJ recognized. (R. at 28). A treating physician's opinion should be given controlling weight as long as it is supported by facts and not inconsistent with other substantial evidence in the record.
"[I]f a physician's report is believed to be insufficiently explained, lacking in support, or inconsistent with the physician's other reports, the ALJ must seek clarification and additional information . . . to fill any clear gaps before rejecting the doctor's opinion."
Here, Dr. Collins' answers on the questionnaire were unquestionably inconsistent with her treatment notes. But the ALJ should have further developed the record in order to resolve the inconsistency.
The plaintiff contends that the ALJ's finding that the plaintiff's subjective complaints were "not particularly credible" was not supported by substantial evidence. (R. at 29; Pl. Memo. at 17).
Where an ALJ determines that the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged, "the ALJ must consider `the extent to which [the claimant's] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence of record.'"
If the plaintiff's statements about her symptoms "are not substantiated by the objective medical evidence, `the ALJ must engage in a credibility inquiry.'"
Moreover, "`[b]ecause the ALJ has the benefit of directly observing a claimant's demeanor and other indicia of credibility,' his decision to discredit subjective testimony is `entitled to deference' and may not be disturbed on review if his disability determination is supported by substantial evidence."
The ALJ's determination is supported by the record. First, the ALJ noted that the plaintiff appeared to prevaricate regarding whether Dr. Collins had a discussion with her about whether the doctor thought she was disabled. (R. at 29, 43-44). Ms. Stroud at first said, twice, that no such conversation had taken place. (R. at 43-44). However, when confronted with the progress notes from Ms. Stroud's January 19, 2012 examination, which state that Dr. Collins "informed her that [she] d[id] not deem her disabled" by diabetes mellitus, the plaintiff admitted that she had such a conversation. (R. at 44). It was reasonable for the ALJ to rely on this in making his credibility determination.
The ALJ also found Ms. Stroud's testimony regarding her back pain and inability to sit not to be credible. He noted during the hearing that Ms. Stroud had not sought treatment for such a complaint.
Finally, the plaintiff objects to the ALJ's consideration of her work history, which he found "extremely unimpressive." (Pl. Memo. at 18; R. at 30). Ms. Stroud notes that she worked as a phone operator for a number of years. (Pl. Memo. at 18). However, as the Commissioner points out, "she [] never earned more than $12,937.00 in any year, and during seven years of her adult life, [she] earned less than $10,000 per year. (Reply at 13). "A claimant's unexplained poor work history may negatively impact on the claimant's credibility."
For these reasons, I recommend denying the defendant's motion for judgment on the pleadings and granting the plaintiff's motion for judgment on the pleadings, vacating the Commissioner's decision denying the plaintiff benefits, and remanding the case for further proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g).
