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Fulmer v. Astrue

June 28, 2010

DEBRA J. FULMER PLAINTIFF,
v.
MICHAEL J. ASTRUE COMMISSIONER OF SOCIAL SECURITY, DEFENDANT,



REPORT AND RECOMMENDATION

I. Introduction

Plaintiff Debra J. Fulmer brings this action pursuant to the Social Security Act ("the Act"), 42 U.S.C. §§ 405(g), 1383(c)(3), seeking review of a final decision of the Commissioner of Social Security ("Commissioner"), denying her application for Disability Insurance Benefits ("DIB").*fn1 Specifically, Plaintiff alleges that the decision of the Administrative Law Judge ("ALJ") was not supported by substantial evidence and contrary to the applicable legal standards. The Commissioner argues that the decision was supported by substantial evidence and made in accordance with the correct legal standards.

II. Background

Plaintiff protectively filed for DIB on March 28, 2005, alleging an onset date of June 9, 2003 (R. at 52-54, 59).*fn2 Plaintiff alleges disability due to bilateral knee and leg impairments, as well as back, right hip, and mental impairments. Her application was denied initially on June 1, 2005*fn3 (R. at 29-31). Plaintiff filed a request for a hearing on June 22, 2005 (R. at 36).

On February 6, 2007, Plaintiff appeared before the ALJ (R. at 419). The ALJ considered the case de novo and, on February 22, 2007, issued a decision finding Plaintiff not disabled (R. at 16-25). The ALJ's decision became the Commissioner's final decision in this case when the Appeals Council denied Plaintiff's request for review on May 29, 2008 (R. at 6-10). On July 9, 2008, Plaintiff filed this action.

Pursuant to General Order No. 18, issued by the Chief District Judge of the Northern District of New York on September 12, 2003, this Court will proceed as if both parties had accompanied their briefs with a motion for judgment on the pleadings.*fn4

III. Discussion

A. Legal Standard and Scope of Review

A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383 (c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will only be reversed if the correct legal standards were not applied, or it was not supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) ("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 the correct legal principles."); see Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). "Substantial evidence" is evidence that amounts to "more than a mere scintilla," and it has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

"To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner's finding must be sustained "even where substantial evidence may support the plaintiff's position and despite that the court's independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's determination considerable deference, and may not substitute "its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

The Commissioner has established a five-step sequential evaluation process*fn5 to determine whether an individual is disabled as defined under the Social Security Act. See 20 C.F.R. §§ 416.920, 404.1520. The United States Supreme Court recognized the validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987), and it remains the proper approach for analyzing whether a claimant is disabled.

While the claimant has the burden of proof as to the first four steps, the Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S. at 146 n. 5; Ferraris v. Heckler, 728 F.2d 582 (2d Cir.1984).

The final step of the inquiry is, in turn, divided into two parts. First, the Commissioner must assess the claimant's job qualifications by considering his or her physical ability, age, education, and work experience. Second, the Commissioner must determine whether jobs exist in the national economy that a person having the claimant's qualifications could perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §§ 416.920(g); 404.1520(g); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983).

Based on the entire record, the Court recommends remand for failure to properly apply the treating physician rule.

B. Analysis

1. The Commissioner's Decision

In this case, the ALJ made the following findings with regard to factual information as well as the five-step process set forth above: (1) Plaintiff had not engaged in substantial gainful activity since her alleged onset date, June 9, 2003 (R. at 18); (2) Plaintiff's "degenerative joint disease of the lumbar spine and status-post lumbosacral laminotomy*fn6 and discectomy" were severe impairments (R. at 18); (3) Plaintiff's "diabetes mellitus, status-post hysterectomy, abnormal pap test, status post right femur fracture . . ., sleep apnea, obesity, atypical chest pain . . ., history of left knee pain and remote history of atrial flutter" were not severe impairments (R. at 20); (4) Plaintiff "d[id] not have an impairment or combination of impairments that me[t] or medically equal[ed] one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1" (R. at 20); (5) Plaintiff retained the residual functional capacity to lift or carry 20 pounds occasionally and 10 pounds frequently, stand or walk 6 hours in an 8-hour day and sit 6 hours in an 8-hour day. She can occasionally climb, balance and crawl.

She can understand remember and perform simple and some more complex tasks with supervision and independently, can maintain attention and concentration for tasks and can interact appropriately with others (R. at 21); (6) Plaintiff's statements concerning her symptoms "[we]re not entirely credible" (R. at 24); (7) Plaintiff "[wa]s unable to perform any past relevant work" (R. at 24); (8) At the time of Plaintiff's alleged onset date, she was a younger individual (R. at 24); (9) Plaintiff "ha[d] at least a high school education and [wa]s able to communicate in English" (R. at 24); (10) According to Medical-Vocational Rule 202.20,*fn7 "there [we]re jobs that exist[ed] in significant numbers in the national economy that [Plaintiff could] perform" (R. at 24-25). Ultimately, the ALJ found that Plaintiff was not under a disability at any time through the date of his decision (R. at 25).

2. Plaintiff's Claims:

Plaintiff argues that the decision of the ALJ is neither supported by substantial evidence nor made in accordance with the proper legal standards. Specifically, Plaintiff argues that a) the ALJ failed to properly apply the treating physician rule; b) the ALJ erred in failing to find several of Plaintiff's impairments to be severe; c) the ALJ erred in analyzing Plaintiff's credibility; d) the residual functional capacity ("RFC") is not supported by substantial evidence; e) the ALJ erred in finding Plaintiff obtained a high school education; and f) the ALJ erred in finding Plaintiff could perform work in the national economy in significant numbers.

a) The ALJ Erred in Applying the Treating Physician Rule Plaintiff argues that the ALJ erred in improperlyapplying the treating physician rule to the opinions from Plaintiff's i) treating physician, Dr. M.A. Rathika Martyn; and ii) treating back surgeon, Dr. Richard DiStefano. Plaintiff's Brief, pp. 21-23, 26-32.

i) The ALJ Erred in Evaluating Dr. Martyn's Opinions

Plaintiff argues that the ALJ erred in failing to grant controlling weight to Plaintiff's treating physician, Dr. Martyn. Plaintiff's Brief, pp. 21-23, 26-32. Plaintiff further argues that the ALJ erred in failing to re-contact Dr. Martyn and in failing to apply the required factors in evaluating her opinions. Plaintiff's Brief, pp. 22, 32.

After carefully reviewing the record, the Court concludes that the ALJ's reasons for failing to grant Dr. Martyn's opinions controlling weight are either unsupported by substantial evidence or the product of legal error.

Dr. Martyn supplied a medical source statement ("MSS") and a "complete medical report (physical)" in December 2005 (R. at 332-339). In a treatment note, dated December 20, 2005, Dr. Martyn stated that while she completed the Social Security Administration ("SSA") disability forms "to the best of [her] ability," her "one feeling [wa]s that the best way to objectively get results [wa]s to schedule [Plaintiff] for a functional capacity evaluation" (R. at 365). On May 29, 2006, Dr. Martyn completed a second MSS (R. at 378-83). The functional assessments in her second MSS were identical to the assessments in the December 2005 MSS (R. at 335-39, 378-83). Dr. Martyn also stated in her second report that there had been no change since December 2005 (R. at 383).

Dr. Martyn found that Plaintiff was limited to occasionally lifting less than ten pounds (R. at 335). Dr. Martyn opined that Plaintiff was limited to ten minutes of continuous sitting and standing. Id. Dr. Martyn opined that Plaintiff could sit and stand for a total of two hours in an eight hour workday, but would need unscheduled breaks every hour for fifteen minutes (R. at 335-36). Dr. Martyn found that Plaintiff would require periods of "walking around" approximately every ten to fifteen minutes (R. at 336). These periods of walking would each last ten minutes. Id. Finally, Dr. Martyn opined that Plaintiff could never climb, balance, kneel, crouch, crawl, stoop, or bend and twist at the waist (R. at 337).

According to the "treating physician's rule,"*fn8 the ALJ must give controlling weight to the treating physician's opinion when 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); see also Green-Younger v. Barnhart, 335 F.3d 99, 105 (2d Cir. 2003); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000). "Failure to provide 'good reasons' for not crediting the opinion of a claimant's treating physician is ground for remand." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (citing Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998)).

Even if a treating physician's opinion is deemed not to be deserving of controlling weight, an ALJ may nonetheless give it "extra weight" under certain circumstances. Under 20 C.F.R. ยง 404.1527(d)(1)-(6), the ALJ should consider the following factors when determining the proper weight to afford the treating physician's opinion if it is not entitled to controlling weight: (1) length of the treatment relationship and the frequency of examination, (2) nature and extent of the treatment relationship, (3) supportability of opinion, (4) consistency, (5) specialization of the treating physician, and (6) other factors. See de ...


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