DocketNumber： 15-CV-1680 (WFK)
Judges： Hon, Kuntz
Filed Date： 3/22/2017
Status： Precedential
Modified Date： 11/7/2024
DECISION AND ORDER
Plaintiff Maria Dahlia C. Lim (“Plaintiff’), appearing pro se, brings this action under 42 U.S.C. § 405(g) and seeks review of the Commissioner of the Social Security Administration’s (the “Commissioner” or “Defendant”) August 28,2014 denial of her application for Social Security Disability (“SSD”) benefits. Compl. ¶ 1, 4, ECF No. 2. The Commissioner filed a motion for judgment on the pleadings on March 11, 2016, ECF No. 20, contending the Administrative Law Judge (“ALJ”) correctly applied the relevant legal standards and her decision is supported by substantial evidence. Def.’s Mem. Law. Supp. Mot. J. Pleadings (“Def.’s Mot.”) at 1, ECF No. 21. In her reply, Plaintiff argues the ALJ’s decision did not adequately account for certain medical evidence in the record in determining she had the residual functional capacity (“RFC”) to perform light work and that the ALJ failed to properly develop the record, so Plaintiff should be granted SSD benefits. See Pl.’s Affirmation Opp. Defi’s Mot. (“PL’s Opp.”), ECF No. 19. For the reasons set forth below, Defendant’s motion is DENIED and this action is remanded for further proceedings consistent with this decision.
BACKGROUND
Plaintiff was born on November 23, 1963, in the Philippines. Administrative Transcript (“Tr.”) at 7, ECF No. 23. She immigrated to the United States in March 1989 and became a U.S. citizen in or around 1997. Id at 7-8. Plaintiff had trained as a nurse in the Philippines and, after moving to the United States, she continued in that profession, working in Massachusetts and, later on, in New York. Id at 7-8. Plaintiff worked as a nurse continually between 1987 and 2010, when she found she could no longer work due to pain in her legs and lower back. Id at 13-17. Plaintiff has an extensive medical history, including diagnoses of severe asthma and allergies, id at 388-400, irritable bowel syndrome, id at 338-40, and carpal tunnel syndrome, id at 480, as well as her allegedly disabling conditions, fibromyal-gia,
Plaintiff applied for SSD on January 11, 2012, for a period of disability allegedly beginning on December 12, 2010. Id. at 117. After her initial application was denied on June 20, 2012, Plaintiff requested a hearing with an ALJ. Id. The ALJ, Marilyn P. Hoppenfeld, held a hearing on August 15, 2013, at which Plaintiff was represented by an attorney and testified on her own behalf. Id. at 1-97 (transcript of hearing), A medical expert, Dr. Levine (an orthopedic surgeon), and a vocational expert testified at the hearing as well. Id. at 61-78, 81-95. ALJ Hoppenfeld found Plaintiff did not have a disability within the meaning of the Social Security Act (the “Act”) between January 11, 2012, and August 28, 2014, the date of the decision. Id. at 129, Plaintiff appealed the ALJ’s decision to the Notice of Appeals Council, which declined to review the case on January 15, 2015. Id. at 98-100. This denial became the Commissioner’s final act.
DISCUSSION
I. Standard of Review
When a claimant challenges the Social Security Administration’s denial of disability benefits, the Court’s function is not to evaluate de novo whether the claimant is disabled, but rather to determine “whether the correct legal standards were applied and whether substantial evidence supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004), amended on reh’g, 416 F.3d 101 (2d Cir. 2005); see also 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive [.] ”); Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (applying a “substantial evidence” standard of review). Substantial evidence is “more than a mere scintilla”; it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consol, Edison Co. of N.Y., Inc. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). The substantial evidence test applies not only to the Commissioner’s factual findings, but also to inferences and conclusions of law drawn from those facts. See Carballo ex rel. Cortes v. Apfel, 34 F.Supp.2d 208, 214 (S.D.N.Y. 1999) (Sweet, J.). In determining whether the record contains substantial evidence to support a denial of benefits, the reviewing court must examine the entire record, weighing the evidence on both sides to ensure the claim “has been fairly •evaluated.” See Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983)).
It is the function of the SSA, not the federal district court, “to resolve evi-dentiary conflicts and to appraise the credibility of witnesses, including the claimant.” Carroll v. Sec’y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983) (citing Richardson, 402 U.S. at 399, 91 S.Ct. 1420); see also Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998) (“[Ijt is up to the agency, and not th[e] court, to weigh the conflicting evidence in the record[.]”). Although the ALJ need not resolve every conflict in the record, “the crucial factors in any determination must be set forth with sufficient specificity to enable [the reviewing court] to decide
To fulfill this burden, the ALJ must “adequately explain his reasoning in making the findings on which his ultimate decision rests” and must “address all pertinent evidence.” Kane v. Astrue, 942 F.Supp.2d 301, 305 (E.D.N.Y. 2013) (Kuntz, J.) (quoting Calzada, 753 F.Supp.2d at 269). “[A]n ALJ’s failure to acknowledge relevant evidence or to explain its implicit rejection is plain error.” Id (internal quotation marks - and citations omitted). Remand is warranted when “there are gaps in the administrative record or the ALJ has applied an improper legal standard.” Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999).
II. Analysis
A. Applicable Law
For the purpose of. disability benefits, disability is defined as the “inability 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 impairment in question must be of “such severity that [the claimant] is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy[.]” Id. § 423(d)(2)(A).
To determine whether a claimant is disabled, the Commissioner must apply the five-step sequential process set forth in 20 C.F.R. § 404.1520. See, e.g., Rosa, 168 F.3d at.77 (laying out the five-step process for evaluating disability claims). The. claimant bears the burden of proving .the first four steps, while the burden shifts to the Commissioner at the fifth step. Id. First, the Commissioner must determine whether the. claimant is engaged..,in “.substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is not so engaged, the second step is to determine whether the claimant has a “severe, medically determinable physical or mental impairment,” Id. §. 404.1520(a)(4)(ii). If the claimant has such an impairment, the third step is to determine whether the impairment or combination of impairments meets or equals one of the listings in Appendix 1 of the regulations. Id. § 404.1520(a)(4)(iii). If the .claimant’s impairment does not match any of the listings, the, fourth step is to determine whether the claimant’s residual functional capacity (“RFC”) allows the claimant to perform past relevant work. Id. § 404.1520(a)(4)(iv), If the claimant cannot perform past relevant work, the final step is to determine whether the claimant can perform another job based on his or her RFC, work experience, age, and education. Id. § 404.1520(a)(4)(v).
B. The ALJ’s Decision
The ALJ followed the five-step procedure in evaluating Plaintiffs claim -and found the following: (1) Plaintiff had.not engaged in gainful activity since December 12, 2010, the alleged onset , date of her disabling conditions;
With regard to the third factor, the ALJ did not indicate which listing(s) she had evaluated Plaintiff’s conditions for but noted she had relied on the medical expert, Dr. Levine, an orthopedic surgeon who never examined Plaintiff but who reviewed her medical records and heard her testimony at the hearing. Id. at 61. Dr. Levine “opined” Plaintiff did not have “an impairment or combination of impairments” that would satisfy this factor. Id. at 120. The ALJ further found the “medical evidence of record did not document signs, symptoms, , and/or laboratory findings indicating” such an impairment and “[n]o treating/examining, or non-examining medical source” had made such a finding. Id.
The ALJ also relied .heavily on Dr. Levine’s testimony in determining Plaintiff’s RFC at the fourth step. Dr. Levine, who specifically indicated he could only speak to Plaintiffs “musculoskeletal system,” found that Plaintiff had “a medically determinable impairment of chronic low back pain,- secondary to lumbosacral degenerative disc disease” (i e., arthritis of- the spine), and numerous “bulging or protruding discs” in her spine, but that these conditions did not meet or equal a listing. Id. at 65-66, 71. Dr. Levine' explained that, with regard- to Plaintiffs back pain, the MRI evidence showed no “neurologic compression” and that there was “frequent reference- to [Plaintiff] having normal strength, normal sensation; and normal gait” in her medical records, which “suggested] an absence of any type of nerve root or spinal cord compromise.” Id. at 71. Accordingly, his opinion, “orthopedically and objectively,” was that Plaintiff had the RPC necessary to, inter alia, sit six hours in an eight-hour work day with customary breaks, stand or walk for, four hours in an eight-hour work day with customary breaks, and occasionally lift 20 pounds. Id. at 72. ■
In forming this opinion, Dr. Levine acknowledged Plaintiffs medical “records are replete with pain complaints pretty much over [Plaintiffs] entire body” and found that a “diagnosis of chronic pain syndrome probably would be appropriate,” although one of Plaintiffs treating physicians, Dr. Annello, had indicated a diagnosis of fibromyalgia. Id. at 67-68. He also acknowledged that “[p]ain is a subjective phenomenon” and that he could not, based on the record, find that Plaintiff was not experiencing the pain she claimed, Id, at 78. Specifically, Dr. Levine explained that Plaintiffs physical examinations were “pretty normal” and so there was “minimal
The ALJ adopted Dr. Levine’s reasoning regarding Plaintiffs RFC, finding it was “consistent with the objective medical evidence,” id. at 120, despite Plaintiffs own testimony as to her limitations, id. at 121-22, and her treating physicians’ determinations that she suffered from fibro-myalgia, id. at 125-26. In reliance upon the vocational expert’s testimony, the ALJ found there were a number of jobs Plaintiff could still perform with her RFC, including General Clerk, Hotel Desk Clerk, File Clerk, and, if Plaintiff were limited to “simple, routine, repetitive, limited decision making jobs,” Ticket Taker/Usher. Id. at 123-24.
C. The ALJ Applied the Incorrect Legal Standard to Plaintiff’s Claims
The ALJ applied the wrong legal standard when she determined Plaintiffs “medically determinable impairments could not reasonably be expected to cause the alleged symptoms.” Id. at 127. This was based, in part, on a misreading of the record and overreliance on Dr. Levine’s testimony. Specifically, the ALJ analyzed Plaintiffs claims under a legal standard appropriate for musculoskeletal pain, which Dr. Levine was able to testify to, rather than for fibromyalgia, which was Plaintiffs chief complaint in her application for disability, id. at 218, and which is the predominant diagnosis of her treating physicians, see, e.g., id. at 493-98, 547-50, 555, 572-82 (notes from Dr. Annello and Dr. Ragone noting Plaintiffs fibromyalgia diagnosis). When the correct legal standard is applied, the ALJ’s decision is not supported by substantial evidence.
a. The ALJ Did Not Adhere to the Treating Physician Rule
In evaluating the available medical evidence as part of an application for disability benefits, “[t]he law gives special evidentiary weight to the opinion of the treating physician[s].” Clark, 143 F.3d at 118. Specifically, the regulations state:
Generally, [the SSA] give[s] more weight to opinions from [a claimant’s] treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a claimant’s] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). For these reasons, the opinion of a treating physician must be given controlling weight on the issue of the nature and severity of a claimant’s impairments, so long as the opinion “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [a claimant’s] case record.” Id. If the ALJ does not give a treating physician’s opinion controlling weight because it is not well-supported by medically acceptable clinical and laboratory diagnostic techniques and is inconsistent with other substantial evidence in the case record, then the ALJ must assess six factors to determine how much weight to afford the treating medical opinion and other medical opinions. See 20 C.F.R. §§ 404.1527(c), 416.927(c). These factors are: (1) whether the physician examined the claimant; (2) the nature and extent of the treatment relationship, including the length of the relationship and the frequency of examination; (3) the evidence in support of each
In her decision, the ALJ chose to credit the opinion of Dr. Levine, who had never examined Plaintiff, over the opinions of her treating physicians, particularly Dr. Annello and Dr. Ragone, pain management specialists who had been treating Plaintiff for fibromyalgia for many years. Tr. at 127. As noted, Plaintiffs medical records are replete with references to both her chronic pain symptoms and her history of fibromyalgia. See, e.g., id. at 493-98, 547-50, 555, 572-82. Further, Plaintiff was being treated with a number of medications, including Nucynta and Cymbalta, which are specifically used to treat fibro-myalgia, see, e.g., id. at 582 (January 30, 2012 note of Dr. Annello describing regimen of Cymbalta, Savella, and Nucynta to treat Plaintiffs fibromyalgia), and her physicians frequently noted that Plaintiff had 11 or greater of 18 tender points on her body, see, e.g., id. at 402, 404-06, 408, 412, 493, 577, which is a clinical sign that supports a fibromyalgia diagnosis, Green-Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir. 2003) (citing SSA Memorandum, Fi-bromyalgia, Chronic Fatigue Syndrome, and Objective Medical Evidence Require-mente for Disability Adjudication, at 5 .(May 11, 1998)). Although the ALJ acknowledged the reports of Dr. Annello and Dr. Ragone, she apparently discounted them because their treatment narratives did not consistently include references to Plaintiff having at least 11 of 18 tender points. See Tr. at 125. To further account for why she discounted the opinions of Dr. Annello and Dr. Ragone, who had treated Plaintiff for fibromyalgia for a number of years, in favor of the opinion of Dr. Levine, who had never examined Plaintiff, the ALJ indicated “the opinion of the medical expert was given great weight because it was most consistent with- the evidence of record that included objective evidence and physical examinations.” Id. at 127. In light of Plaintiffs diagnosis with fibro-myalgia,. -though, this was the incorrect legal standard to apply, and therefore the opinions of Plaintiffs treating physicians, should have been given greater, if not controlling, weight.
b. The ALJ Did Not Analyze Plaintiff’s Claims Under the Correct Standard for Fibromyalgia Diagnoses
In requiring “objective” evidence to support Plaintiffs subjective complaints of pain arising from fibromyalgia, the ALJ applied the incorrect legal standard in analyzing Plaintiffs condition. Specifically, the ALJ’s analysis was appropriate for subjective complaints of pain as connected with musculoskeletal conditions, which Dr. Le.vine was able to speak to and which must generally be supported by “medical signs and laboratory findings which show that [the claimant has] a medical impairment(s) which could reasonably be expected to produce the pain.” 20 C.F.R. § 404.1529(a); see also 42 U.S.C. § 423(d)(5)(A).
One such physical impairment is fibro-myalgia, see Soc. Sec. Ruling, Titles II & XVI: Evaluation of Fibromyalgia, SSR 12-2P (S.S.A. July 25, 2012), which is the primary condition Plaintiff complained of in applying for SSD' benefits.' The Second Circuit reviewed the standard applicable to a fibromyalgia diagnosis in Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir. 2003), and found the ALJ had erred by requiring “‘objective’ evidence for a disease that eludes such measurement.” In Green-Younger, the claimant had a history remarkably similar to that of the Plaintiff here: she suffered chronic pain that caused her difficulty in standing or sitting for prolonged periods, interfered with her sleep, and particularly affected her lower back and legs. Id. at 101. Her doctor had indicated her symptoms were “characteristic of fibromyalgia” as well as degenerative disc disease, chronic low back syndrome, peroneal neuropathy, and carpal tunnel syndrome, and, after many years of attempting treatments that did not alleviate her symptoms, the claimant and her physician determined she would be unable to return to work and the claimant applied for SSD benefits. Id. at 101-03. In denying the claimant’s application, an ALJ found there were “no objective medical findings” to support her subjective complaints of pain and discounted her treating physician’s diagnosis of fibromyalgia because it was “inconsistent with other substantial evidence of record,” including clinical and laboratory diagnostic tests that showed the claimant had, among other things, a full range of motion. Id. at 105. In overturning the ALJ’s decision, the Second Circuit found the ALJ had “misapplied SSA regulations” by, inter alia, “requiring objective evidence beyond the clinical findings for a diagnosis of fibromyalgia under established medical guidelines.” Id. at 106-07.
In so holding, the Second Circuit recognized fibromyalgia is a disease that “eludes” measurement with “objective” evidence, but rather is diagnosed when patients exhibit certain “clinical signs and symptoms” that may include “widespread pain in all four quadrants of the body and at least 11 of the 18 specified tender points on the body.” Id. at 107 (citation omitted). With this understanding, the Second Circuit found the claimant’s subjective complaints of pain were “bolster[ed]” by her doctor’s diagnosis of fibromyalgia, determined it was clear she would be unable to perform gainful work, and remanded the action for calculation of benefits. Id. at 108-09. Following this decision, a number of district courts have overturned denials of disability claims based on fibromyalgia where the ALJ’s determination turned on the lack of “objective” evidence in the record to support the claimant’s subjective complaints of pain. See Crysler v. Astrue, 563 F.Supp.2d 418, 440-41 (N.D.N.Y. 2008) (Kahn, J.) (remanding denial of SSD benefits where ALJ determined claimant’s fi-
c. The ALJ Failed to Adequately Develop the Record
Because this case will be remanded for further proceedings, this Court notes that the ALJ failed to develop the record with regard to Plaintiffs symptoms related to her mental capacities and impairments. “An ALJ has an affirmative duty to develop the administrative record in a disability benefits case.” Devora v. Barnhart, 205 F.Supp.2d 164, 172 (S.D.N.Y. 2002) (Gorenstein, J.) (citing Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999)). In this instance, the ALJ acknowledged Plaintiff was experiencing memory problems as a side effect of her medications, but she failed to inquire into their extent or impact on Plaintiffs functional capacities. See Tr. at 22-23, 54. The ALJ also declined, to request a consultative mental examination, despite apparently believing Plaintiff may have had psychological issues, see id. at 95 (deciding not to order-a psychiatric evaluation despite finding “[Plaintiff] has some emotional stuff’), and Plaintiffs attorney’s request that such an examination be conducted regarding the possible side effects of Plaintiffs medi-cátions, id. at 303. This decision is curious in light of the ALJ’s apparent skepticism regarding Plaintiffs mental health, as a fibromyalgia diagnosis primarily relies upon subjective reports of pain. Where, as here, Plaintiffs mental health symptoms and capacities are relevant to her RPC, the ALJ should have further developed the record on these issues. Cf. Rudder v. Chater, 94-CV-8431, 1997 WL 297009, at *6 (S.D.N.Y. June 4, 1997) .(Keenan, J.) (finding ALJ failed to adequately develop record where he didn’t inquire into impacts or intensity of neurological symptoms)
Given the ALJ’s failure to develop the record as to the extent and severity of Plaintiffs mental symptoms, the hypothetical she presented to the vocational expert did not fully account for Plaintiffs mental limitations, particularly the memory loss and “brain fog” caused by her pain medications, Tr. at 22-23, 54, 298, .303, which are a non-exertional limitation relevant to Plaintiffs capacity to return to work, see 20 C.F.R. § 416.969a(c) (defining nonexertional limitations to include “difficulty maintaining attention or concentrad
CONCLUSION
For the reasons stated herein, Defendant’s motion for judgment on the pleadings, ECF No. 20, is DENIED. The Court hereby REMANDS this action to the Social Security Administration for further administrative proceedings consistent with this opinion. Given how long Plaintiffs application for SSD benefits has been under consideration, the Commissioner is requested to complete such proceedings and issue a final determination within 120 days of this Order. The Commissioner shall update this Court by letter, copied to Plaintiff, within 90 days as to the progress that has been made on Plaintiffs claim. The Clerk of Court is respectfully instructed to close this case, subject to it being reopened for the purpose of enforcing this Order or any other proceedings, as necessary.
SO ORDERED.
. "[A] chronic disorder characterized by widespread pain, tenderness, and stiffness of muscles and associated connective tissue structures that is typically accompanied by fatigue, headache, and sleep disturbances.” Fibromyalgia, Merriam-Webster Dictionary (2017), https://www.merriam-webster.com/ dictionary/fibromyalgia.
. "[A]n inflammatory or degenerative lesion of a nerve marked especially by pain, sensory disturbances, and impaired or lost reflexes.”
. Her conditions were alternatively listed as fibromyalgia, degenerative disc disease, and asthma in a “Physical Residual Functional Capacity Assessment” that appears to have been completed by an employee of the SSA. Tr. at 136.
. The ALJ found Plaintiff had $12,135.74 of earnings in 2012 that had not been explained but found the issue to be “moot" because Plaintiff's claim was being denied, Id. at 119,
. "Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good1 deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 20 C.F.R. § 404.1567(b).
. "An -individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities
. Perhaps because she discounted Plaintiff's subjective complaints of pain, the ALJ also overstated the extent to which Plaintiff's testimony as to her "activities of daily living” supported an RFC of light work. See Tr. at 127. Plaintiff testified that she can only walk about five blocks without pain, id. at 43; she can only stand for half an hour without discomfort, id.; she can only sit for an hour without feeling "fidgety because of the pain,” id. at 45; she requires the assistance of her cousin or her son to clean or do the laundry, id. at 51, 53; she only cooks simple foods, such as those that can be cooked using a toaster, because she cannot lift heavy items or stand for long periods of time, id, at 52, 57; and.she often finds it difficult to dress herself due to pain and stiffness/ id. at 63. These stated limitations should be considered on remand,
. In this instance, the ALJ consulted the vocational expert about positions that Plaintiff could obtain if she was limited to "simple, routine, minimal decision making, repetitive work, [that is] known as low stress,” for which the vocational expert suggested Plaintiff could be a ticket taker/usher, office help, or library helper. Tr. at 90-93. Without an adequate record of the extent of Plaintiff's mental limitations, though, this generic question may not actually represent a reasonable work scenario for Plaintiff, who also suffers from limitations on her ability to stand, sit, walk, and use her hands.