LAWRENCE J. VILARDO, District Judge.
On May 2, 2016, the plaintiff, Sarah E. Deck, brought this action under the Social Security Act (the "Act"). Docket Item 1. She seeks review of the determination by the Commissioner of Social Security (the "Commissioner") that she was not disabled. Id. On October 26, 2016, Deck moved for judgment on the pleadings, Docket Item 9, and on March 10, 2017, the Commissioner responded and cross moved for judgment on the pleadings, Docket Item 12.
For the reasons stated below, this Court finds that the Commissioner did not apply the correct legal principles in making his decision. Accordingly, that decision is vacated, and this claim is remanded for further administrative proceedings consistent with this decision.
On August 11, 2012, Deck applied for Title II disability insurance benefits. Tr. 81. She claimed that she had been disabled since October 12, 2009, due to neck, back, and shoulder injuries, as well as several other ailments. Tr. 81. On October 30, 2012, Deck received notice that her application was denied. Tr. 25. She requested a hearing before an administrative law judge ("ALJ"), which was held on March 24, 2014. Tr. 25. The ALJ then issued a decision on September 4, 2014, concluding that Deck was not disabled. Tr. 25-39. Deck requested review of the ALJ's decision, but the Appeals Council denied her request, and the ALJ's decision became final.
Deck's physical ailments began on October 12, 2009, when she was involved in a motor vehicle accident. Tr. 52. Because of injuries sustained in the accident, Deck suffered from pains in her left shoulder, cervical spine, and lumbar spine, and she suffered from other minor ailments as well. Id. at 54-59
After she was treated in the emergency room following her accident, Deck saw Christopher Mutty, M.D., an orthopedic surgeon, who diagnosed a rotator cuff injury and a Class II joint separation in her left shoulder. Tr. 53, 231. Dr. Mutty recommended that she "remain nonweightbearing on [her] left upper extremity" and that she should "remain out of work [for] . . . two weeks." Tr. 231.
Later, Deck began seeing Edward D. Simmons, M.D., another orthopedic surgeon, for treatment of her shoulder, cervical spine,
On March 23, 2010, during the period she was being seen by Dr. Simmons, Daniel Wild, M.D., another orthopedic surgeon, performed an independent medical examination on Deck. Tr. 263-269. He concluded that Deck "has a disability and she is unable to perform her normal work as a speech pathologist." Tr. 268.
During this same time period, Deck saw A. Marc Tetro, M.D., a specialist in hand, shoulder, and elbow surgery. Tr. 306-21. Dr. Tetro gave Deck two injections in her left shoulder, Tr. 292-96, but when they did not relieve Deck's pain, Dr. Tetro recommended surgery. On April 4, 2011, Kevin J. Gibbons, M.D., a neurosurgeon, also recommended surgery. Tr. 56, 424-27.
On May 31, 2011, Dr. Gibbons performed surgery—a "three level fusion and discectomy"
Deck herself said that she was able to dress, drive, bathe, and prepare food daily. Tr. 183, 479. At her hearing, she said that she could do light shopping and cleaning but needed assistance doing the laundry. Tr. 61-62. And Deck said that she had to perform physical therapy exercises daily to loosen her back. Tr. 182.
During this same time period, Deck also suffered from left leg pain, migraine headaches, and psychiatric ailments. Julio Alvarez, M.D., began treating Deck on March 19, 2013, for her left leg swelling. Tr. 524. On June 20, 2013, Dr. Alvarez diagnosed Deck with left leg iliac vein stenosis.
On May 9, 2011, Deck began treatment with Laszlo Mechtler, M.D., a neurologist, for her headaches. Tr. 391. On January 20, 2012, Dr. Mechtler diagnosed Deck with migraines and cervicalgia.
Finally, on September 28, 2012, Thomas Ryan, PhD, a psychologist, conducted a "Psychiatric Consultative Examination." Tr. 477-80.
To assess a claimant's social security application, an ALJ must evaluate the claim under the SSA's five-step evaluation process for disability determinations. See 20 C.F.R. § 404.1520. At the first step, the ALJ determines whether the claimant is currently engaged in substantial gainful employment. If so, the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(i). At step two, the ALJ decides whether the claimant is suffering from any severe impairments. 20 C.F.R. § 404.1520(a)(4)(ii). If there are no severe impairments, the claimant is not disabled.
At step three, the ALJ determines whether any severe impairments meet or equal an impairment listed in SSA's regulations. 20 C.F.R. § 404.1520(a)(4)(iii). If the claimant has a severe impairment or impairments that meet or equal one listed in the regulations, the claimant is disabled. Id. But if the ALJ finds that no severe impairment meets one listed, the ALJ proceeds to step four. Id.
As part of step four, the ALJ determines the claimant's residual functional capacity ("RFC"). See 20 C.F.R. §§ 404.1520(a)(4)(iv); 404.1520(d)-(e). The RFC is a holistic assessment of the claimant—addressing both severe and nonsevere medical impairments—that evaluates whether the claimant can perform past relevant work or other work in the national economy. When determining a plaintiff's RFC for claims filed before March, 27, 2017,
After determining the claimant's RFC, the ALJ completes step four. If a claimant can perform past relevant work, the claimant is not disabled and the analysis ends. But if the claimant cannot, the ALJ proceeds to step five. 20 C.F.R. §§ 404.1520(a)(4)(iv); 404.1520(f). In the fifth and final step, the Commissioner must present evidence showing that the claimant is not disabled because the claimant is physically and mentally capable of adjusting to an alternative job. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); 20 C.F.R. § 404.1520(a), (g). More specifically, the Commissioner bears the burden of proving that a claimant "retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy." Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
In this case, the ALJ determined at step one that Deck was not currently engaged in "substantial gainful activity." Tr. 26. At step two, the ALJ found that Deck had the following severe impairments: "cervical spine disc herniation status post discectomy and fusion, lumbar spine disc bulge/protrusion, left shoulder rotator cuff tendonitis and acromioclavicular joint separation, left leg venous insufficiency, and headaches." Id. At step three, the ALJ determined that these severe impairments did not medically equal the criteria of any impairment listed in 20 C.F.R. 404, Subpart P, Appendix 1. Tr. 30.
In assessing Deck's RFC, the ALJ determined that Deck could perform sedentary work, as defined in 20 C.F.R. §§ 404.1567(a),
The ALJ based these findings on the opinions of Deck's physicians and the other available medical evidence. Tr. 37. The ALJ did not give significant consideration to Deck's subjective complaints, concluding that they "may have been overstated." Tr. 36. Moreover, the ALJ arrived at his conclusion notwithstanding the treating sources' medical opinions because: (1) those doctors' statements that Deck was disabled were opinions regarding matters exclusively reserved for the Commissioner and therefore not to be given significant weight, and (2) each doctor failed to provide a function-byfunction assessment of Deck's RFC. Tr. 37. Thus, Deck's treating source medical opinions were not necessarily inconsistent with the ALJ's findings that she still had the residual capacity to perform sedentary work. See Tr. 37. Although Dr. Miller was not a treating source and examined Deck only once, the ALJ gave her opinion significant weight because "she based her opinion on a thorough evaluation of the claimant and her opinion was consistent with her examination findings." Id. This was the only opinion afforded significant weight by the ALJ. Id.
At step 4, the ALJ determined that Deck can perform past relevant work as a speech language pathologist and faculty member. Id. Alternatively, at step 5, the ALJ concluded that Deck also can perform "jobs existing in significant numbers in the national economy." Tr. 38. Specifically, the ALJ determined Deck can work as the director of a speech and hearing clinic. Id.
Deck raises several objections to the ALJ's formulation of her RFC. First, Deck argues that the ALJ erred in not affording the opinions of Dr. Mutty, Dr. Tetro, and Dr. Simmons controlling weight under the treating physician rule. Docket Item 9-1 at 16. Deck also argues that the ALJ did not give the opinion of Dr. Wild proper weight. Id. at 17-18. Finally, Deck argues that in formulating her RFC, the ALJ improperly discounted the credibility of her subjective complaints. Id. at 21-25.
"The scope of review of a disability determination . . . involves two levels of inquiry." Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). The court "must first decide whether [SSA] applied the correct legal principles in making the determination." Id. This includes ensuring that the court is "satisfied that the claimant has had a full hearing under the . . . regulations and in accordance with the beneficent purposes of the Social Security Act." Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990). Then, the court "decide[s] whether the determination is supported by `substantial evidence.'" Johnson, 817 F.2d at 985 (quoting 42 U.S.C. § 405(g)). "Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to correct legal principles." Id. at 986. "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." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
Under SSA regulations,
Here, Dr. Mutty, Dr. Tetro, Dr. Gibbons, and Dr. Simmons all qualify as treating sources under § 404.1527(a)(2) because Deck saw each doctor for treatment several times over the relevant period.
Deck argues principally that the ALJ's opinion does not give controlling weight to the plaintiff's treating sources. Docket Item 9-1 at 15-20. She focuses on the ALJ's statement in his decision that:
Id. at 18 (quoting Tr. 37). Deck characterizes the statement—and a series of short paragraphs in the ALJ's decision describing the opinions of Deck's treating physicians that she was incapable of working or physically disabled, Tr. 36—as rejecting the opinions of treating physicians solely because they use terms reserved for opinions by the Commissioner. Docket Item 9-1 at 18.
The ALJ's decision in Deck's case could certainly have been written in a manner that more effectively promotes judicial review. Nevertheless, "a searching review of the record" assures this Court that Deck "received the rule's procedural advantages." Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam).
For example, Dr. Tetro concluded that Deck was disabled, basing his conclusion on his assessment of Deck's left shoulder injuries and limited range of movement. Tr. 281-282, 294-296. Although the ALJ did not accept Dr. Tetro's ultimate conclusion that Deck was disabled, Tr. 36, he did credit Dr. Tetro's conclusions regarding her left shoulder injuries, Tr. 33. Likewise, Dr. Simmons concluded that Deck was disabled from work, Tr. 36 (citing Tr. 363, 366, 368, 371, 374, 377, and 381), basing that conclusion on Deck's cervical and spinal injuries, Tr. 363, 366, 371, 377, 380. Although the ALJ did not accept as conclusive Dr. Simmons's determination that Deck was disabled, Tr. 36, he did credit Dr. Simmons's findings on her cervical and lumbar spinal injuries, Tr. 33-34.
In sum, ALJ's determination that Deck has the residual function capacity to perform sedentary work under the Social Security Act was not based on a failure to give the medical opinions of her treating sources controlling weight. Instead, it was based on his determination that Deck maintained a capacity to do some work regardless of her physical injuries. Tr. 36-37. Stated another way, the ALJ rejected the ultimate conclusions of the treating sources, but he accepted their findings. And that is not an analytical error.
Nevertheless, the ALJ failed to apply the correct legal principles in his decision because he failed to recontact Deck's treating sources regarding what he believed to be inadequacies in their medical opinions. See Tr. 37. The Social Security Act provides that:
42 U.S.C. § 423(d)(5)(B). "Even when a claimant is represented by counsel, it is the well-established rule in our circuit `that the social security ALJ, unlike a judge in a trial, must on behalf of all claimants . . . affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding.'" Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir. 2009). "Because treating source evidence (including opinion evidence) is important, if the evidence does not support a treating source's opinion on any issue reserved to the Commissioner and the adjudicator cannot ascertain the basis of the opinion in the case record, the adjudicator must make `every reasonable effort' to recontact the source for clarification of the reasons for the opinion." SSR 96-5p, 1996 WL 374183, at *6.
Here, the ALJ stated that he did not give weight to any of Deck's treating physicians because they failed to "provide[] a function-by-function assessment of the claimant's residual functional capacity," Tr. 37, apparently referring to the opinions of Dr. Mutty, Dr. Wild, Dr. Tetro, and Dr. Simmons. Tr. 36-37. But if the ALJ needed such an assessment to appreciate the conclusions of the treating physicians, then he should have recontacted those treating physicians to inquire whether they could provide that information. See Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) ("an ALJ cannot reject a treating physician's diagnosis without first attempting to fill any clear gaps in the administrative record"); Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) ("[E]ven if the clinical findings were inadequate, it was the ALJ's duty to seek additional information from [the treating physician] sue sponte"); Hall v. Astrue, 677 F.Supp.2d 617, 626 (W.D.N.Y. Dec. 20, 1996) ("An ALJ is required to recontact a treating physician in order to clarify the physician's opinion, when the opinion `contains a conflict or ambiguity that must be resolved.'") (quoting Stevens v. Comm'r of Soc. Sec'y Admin., 2008 WL 5057029, *5 (N.D.N.Y. Nov. 24, 2008)). In other words, the ALJ should not have discounted treating physicians' opinions that Deck was disabled or unable to work without inquiring about why they held those opinions and requesting the "function-byfunction assessment" that he believed was lacking. See Masher v. Astrue, 354 F. App'x 623, 628 (3d Cir. 2009) ("[t]he mere utterance of the word `disabled' does not make a physician's opinion `conclusory.' . . . Rather than focusing on the doctor's choice of words, the ALJ was obligated to examine the substantive evidence on which the physician's conclusion was based"). There is no indication that the ALJ made any such effort here. For that reason, the case is remanded to allow the ALJ to develop the record as needed and then reweigh the evidence.
Finally, Deck argues that the ALJ improperly discounted her credibility in formulating her RFC. Docket Item 9-1 at 21-24. "When determining a claimant's RFC, the ALJ is required to take the claimant's reports of pain and other limitations into account, but is not required to accept the claimant's subjective complaints without question; he may exercise discretion in weighing the credibility of the claimant's testimony in light of other evidence on the record." Watson v. Berryhill, 732 F. App'x 48, 51-52 (2d Cir. 2018) (quoting Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010)). Courts "defer to an ALJ's decision to discredit subjective complaints if the decision is supported by substantial evidence." Id. at 52 (quoting Aponte v. Sec'y, Dep't of HHS, 728 F.2d 588, 591 (2d Cir. 1984).
ALJs follow a two-step process in assessing the credibility of an individual's statements. Genier, 606 F.3d at 49; 20 C.F.R. § 404.1529; SSR 96-7P, 1996 WL 374186, at *2. First, "the ALJ must decide whether the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged." Genier, 606 F.3d at 49 (citing 20 C.F.R. § 404.1529(b)). If so, "at the second step, the ALJ must consider `the extent to which [the claimant's] symptoms can reasonably be accepted as consistent with the objective medical evidence and the other evidence' of record." Id. (quoting 20 C.F.R. § 404.1529(a)). "Whenever the individual's statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the adjudicator must make a finding on the credibility of the individual's statements based on a consideration of the entire case record." Watson, 732 F. App'x at 52 (quoting SSR 96-7p, 1996 WL 374186, at *2).
Here, the ALJ found that Deck's "medically determinable impairments could reasonably be expected to cause the alleged symptoms." Tr. 35. But at step two, the ALJ found that Deck's statements about the intensity, persistence, and limiting effects of her symptoms were only partly credible because (1) Deck was well enough to travel to Europe for a cruise in 2012, and (2) her "daily activities [were] not limited to the extent one would expect." Id. at 35-37. To support his conclusion that Deck's daily activities were not as limited as one would expect, the ALJ citied Deck's submissions that her injuries did not affect (1) her ability to dress and undress "using modifications," (2) her ability to bathe, (3) her ability to feed herself, (4) her ability to use the toilet, (5) her ability to "prepare simple less time consuming" meals with reduced standing time each day, (6) her ability to drive, and (7) her ability to shop in stores for groceries. Id. (citing Tr. 182-83, 185). He also cited Dr. Ryan's conclusions that, among other activities, Deck is able to dress, bathe, and groom herself, as well as Dr. Miller's conclusions that Deck cooks three times a week, does light cleaning and laundry with assistance, does light shopping, and showers and dresses daily. Id. at 36 (citing Tr. 479, 482). The ALJ nevertheless recognized that Deck "may experience some degree of pain and discomfort." Id.
In light of other evidence on the record, this Court might well reach a different conclusion if it were reviewing this matter de novo.
For the reasons stated above, the Commissioner's motion for judgment on the pleadings, Docket Item 12, is DENIED, and Deck's motion for judgment on the pleadings, Docket Item 9, is GRANTED in part and DENIED in part. The decision of the Commissioner is VACATED, and the matter is REMANDED for further administrative proceedings consistent with this decision.
SO ORDERED.