United States District Court, N.D. New York
Offices of Steven R. Dolson Attorneys for Plaintiff.
Security Administration Office of Regional General Counsel,
Attorneys for Defendant.
COUNSEL: STEVEN R. DOLSON, ESQ. ANDREEA L. LECHLEITNER, ESQ.
MEMORANDUM-DECISION AND ORDER
CHRISTIAN F. HUMMEL, U.S. MAGISTRATE JUDGE
Goldie Medick brings this action pursuant to 42 U.S.C. §
405(g) seeking review of a decision by the Commissioner of
Social Security (“Commissioner” or
“defendant”) denying her applications for
supplemental security income benefits (“SSI”) and
disability insurance benefits. Dkt. No. 1
(“Compl.”). Plaintiff moves for a finding of
disability, and the Commissioner cross moves for a judgment
on the pleadings. Dkt. Nos. 9, 11. For the following reasons,
the determination of the Commissioner is remanded.
was born on January 20, 1980. T at 29. Plaintiff graduated
from high school and completed a vocational training program
for nursing. Id. Plaintiff obtained her nursing
license, and worked as a nurse (LPN) until 2007. Id.
Plaintiff once worked as a hotel front desk clerk.
Id. at 43. Plaintiff is 5'7" tall, and
weights approximately 370 pounds. Id. at 30, 320.
Plaintiff has a driver's license and is able to drive.
Id. Plaintiff last worked in 2007 as an LPN.
Id. at 30. Plaintiff protectively filed a Title II
application for disability and disability insurance benefits,
and a Title XVI application for supplemental security income
on March 19, 2013. Id. at 168-69;
187-197. Plaintiff alleged disability beginning on
January 13, 2011. Id. at 187. These applications
were denied on July 3, 2013. Id. at 51-59; 72-76.
Plaintiff filed a request for a hearing, and a hearing was
held on August 19, 2014. Id. at 24-50, 92-93. On
October 21, 2014, Administrative Law Judge
(“ALJ”) Joseph J. Brinkley determined that
plaintiff was not disabled. Id. at 10-20.
Plaintiff's timely request for review by the Appeals
Council was denied, making the ALJ's findings the final
determination of the Commissioner. Id. at 1-4.
Standard of Review
reviewing a final decision of the Commissioner, a district
court 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); Berry v.
Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Substantial
evidence is "more than a mere scintilla, " meaning
that in the record one can find "such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.'" Halloran v. Barnhart, 362
F.3d 28, 31 (2d Cir. 2004) (citing Richardson v.
Perales, 402 U.S. 389, 401 (1971) (internal citations
omitted)). The substantial evidence standard is "a very
deferential standard of review . . . . [This] means once an
ALJ finds facts, we can reject [them] only if a reasonable
factfinder would have to conclude otherwise."
Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d
443, 448 (2d Cir. 2012) (internal quotation marks omitted).
Where there is reasonable doubt as to whether the
Commissioner applied the proper legal standards, the decision
should not be affirmed even though the ultimate conclusion
reached is arguably supported by substantial evidence.
Martone v. Apfel, 70 F.Supp.2d 145, 148 (N.D.N.Y.
1999) (citing Johnson v. Bowen, 817 F.2d 983, 986
(2d Cir. 1987)). However, if the correct legal standards were
applied and the ALJ's finding is supported by substantial
evidence, such 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) (citation omitted).
Determination of Disability
individual who is under a disability shall be entitled to a
disability . . . benefit . . . ." 42 U.S.C. §
423(a)(1). Disability is defined as the "inability to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment . . .
which has lasted or can be expected to last for a continuous
period of not less than 12 months." Id. §
423(d)(1)(A). A medically-determinable impairment is an
affliction that is so severe that it renders an individual
unable to continue with his or her previous work or any other
employment that may be available to him or her based upon
age, education, and work experience. Id. §
423(d)(2)(A). Such an impairment must be supported by
"medically acceptable clinical and laboratory diagnostic
techniques." Id. § 423(d)(3).
Additionally, the severity of the impairment is "based
[upon] objective medical facts, diagnoses or medical opinions
inferable from [the] facts, subjective complaints of pain or
disability, and educational background, age, and work
experience." Ventura v. Barnhart, No.
04-CV-9018 (NRB), 2006 WL 399458, at *3 (S.D.N.Y. Feb. 21,
2006) (citing Mongeur v. Heckler, 722 F.2d 1033,
1037 (2d Cir. 1983)).
Second Circuit employs a five-step analysis, based on 20
C.F.R. § 404.1520, to determine whether an individual is
entitled to disability benefits:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity.
If he [or she] is not, the [Commissioner] next considers
whether the claimant has a ‘severe impairment'
which significantly limits his [or her] physical or mental
ability to do basic work activities.
If the claimant suffers such an impairment, the third inquiry
is whether, based solely on medical evidence, the claimant
has an impairment which is listed in Appendix 1 of the
regulations. If the claimant has such an impairment, the
[Commissioner] will consider him [or her] disabled without
considering vocational factors such as age, education, and
work experience; the [Commissioner] presumes that a claimant
who is afflicted with a ‘listed' impairment is
unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant's severe
impairment, he [or she] has the residual functional capacity
to perform his [or her] past work.
Finally, if the claimant is unable to perform his [or her]
past work, the [Commissioner] then determines whether there
is other work which the claimant could perform.
Berry, 675 F.2d at 467 (spacing added). The
plaintiff bears the initial burden of proof to establish each
of the first four steps. DeChirico v. Callahan, 134
F.3d 1177, 1179-80 (2d Cir. 1998) (citing Berry, 675
F.2d at 467). If the inquiry progresses to the fifth step,
the burden shifts to the Commissioner to prove that the
plaintiff is still able to engage in gainful employment
somewhere. Id. at 1180 (citing Berry, 675
F.2d at 467).
addition, an ALJ must set forth the crucial factors
justifying his findings with sufficient specificity to allow
a court to determine whether substantial evidence supports
the decision." Barringer v. Comm'r of Soc.
Sec., 358 F.Supp.2d 67, 72 (N.D.N.Y. 2005) (citing
Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.
1984)). However, a court cannot substitute its interpretation
of the administrative record for that of the Commissioner
where the record contains substantial support for the
ALJ's decision. See Yancey v. Apfel, 145 F.3d
106, 111 (2d Cir. 1998). 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). The 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 five-step disability sequential evaluation, the ALJ
determined that plaintiff had not engaged in substantial
gainful activity from January 13, 2011, the alleged onset
date, through October 21, 2014, the date of the
decision. T at 12. The ALJ found at step two that
plaintiff had the severe impairments of obesity, systemic
lupus erythematosus (“SLE”),  fibromyalgia,
diabetes mellitus, hypertension, neuropathy secondary to
diabetes, supraventricular tachycardia,  headache pain,
patellefemoral/lateral compartment chondrosis,  and degenerative
signal antero-or lateral meniscus. Id. At step
three, the ALJ determined that plaintiff did not have an
impairment or combination of impairments that met or
medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Id. at 13. The ALJ then concluded that plaintiff
retained the residual functional capacity ("RFC")
perform light work, as defined in 20 CFR 404.1567(b) and
416.967(b), except that the claimant: can occasionally use
the upper extremities to engage in overhead reaching,
pulling, pushing, and lifting; can frequently use the upper
extremities to handle, grasp, finger, and feel bilaterally.
She can also occasionally use the lower extremities to
repetitively operate foot/leg controls. She can occasionally
kneel, stoop, bend, and climb stairs/ramps, but must never
clumb ladders/ropes/scaffolds or crawl. She must also avoid
concentrated exposure to extreme hot or cold temperatures,
wetness, humidity, vibrations, and work hazards such as
unprotected height and dangerous machinery. Further, she is
limited to an office, noise level environment. In addition,
she is limited to unskilled tasks.
Id. at 13. At step four, the ALJ determined that
plaintiff is unable to perform any past relevant work.
Id. at 17. Considering plaintiff's RFC, age,
education, and work experience, together with the
Medical-Vocational Guidelines, the ALJ further concluded that
there were jobs existing in the national economy that
plaintiff was able to perform. Id. at 19. The ALJ
considered the testimony of a vocational expert
(“VE”), and concluded that, pursuant to SSR
00-4p, the VE's testimony was consistent with the
Dictionary of Occupational Titles (“DOT”).
Id. Thus, the ALJ concluded that plaintiff could
perform the jobs of office helper, order clerk, or envelope
addresser, and that these jobs exist in significant numbers
within the national economy. Id. Therefore, the ALJ
determined that plaintiff "has not been under a
disability, as defined under the Social Security Act, from
January 13, 2011, the alleged onset date, to the date of the
contends that the ALJ's decision is not based on
substantial evidence due to two reversible errors: (1) the
ALJ improperly accounted for the position of a single
decision maker, and (2) the ALJ failed to follow the treating
physician rule with regard to the opinions of Dr. Satterly
and Dr. Neupane. See generally Dkt. No. 9. Defendant
argues that the ALJ properly applied the treating physician
rule. Dkt. No. 11. Further, defendant contends that the
ALJ's “accounting for” the single decision
maker's opinion does not require remand. For the reasons
that follow, the matter is remanded to the Commissioner.
Treating Physician Rule
a treating physician's opinion is not binding on the
Commissioner, the opinion must be given controlling weight
when it is well supported by medical findings and not
inconsistent with other substantial evidence in the record.
Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002);
20 C.F.R. § 416.927(d). W here the treating
physician's opinion is contradicted by other substantial
evidence, the ALJ is not required to give the opinion
controlling weight. Halloran v. Barnhart, 362 F.3d
28, 32 (2d Cir. 2004). The ALJ must, however, properly
analyze the reasons that the report is rejected. Id.
An ALJ may not arbitrarily substitute his or her own judgment
for competent medical opinion. Rosa v. Callahan, 168
F .3d 72, 79 (2d Cir. 1999).
RFC assessment, Dr. Satterly provided that plaintiff's
diagnoses included Lupus, fibromyalgia, diabetes,
hypertension,  and obesity. T at 314. He provided that
plaintiff's prognosis was “permanent.”
Id. Her symptoms were reported as pain, swelling of
the joints, fatigue, numbness, headaches, imbalance, frequent
falls, forgetfulness, and lack of concentration. Id.
Dr. Satterly indicated that plaintiff experienced “pain
in all joints but especially hands, feet[;] muscle
tenderness, back shoulder[, ] legs due to fibromyalgia [;]
activity precipitates pain, pain can be significant.”
Id. Dr. Satterly identified the clinical and
objective finds he used in making plaintiff's diagnosis:
confirmation of Dr. Neupane's diagnosis, “physical
findings, ” and blood work. Id. at 314. Dr.
Satterly indicated that certain of plaintiff's
prescriptions “can cause” fatigue and nausea.
Id. Dr. Satterly provided that plaintiff was not a
malingerer and that “emotional factors” did not
contribute to plaintiff's symptoms and limitations.
Id. at 315. He further provided that her impairments
were reasonably consistent with her symptoms and functional
limitations. Id. Dr. Satterly indicated that her
pain and other symptoms were “frequently” severe
enough to interfere with “attention and concentration
needed to perform even simple work tasks.” Id.
In answering a question that asked “[t]o what degree
can your patient tolerate work stress, ” Dr. Satterly
indicated that plaintiff was “[c]apable of low stress
Satterly concluded that plaintiff could walk one block
without rest or severe pain, sit for up to fifteen minutes at
one time, stand for up to fifteen minutes at one time, and
must alternate between “sitting/standing/lying down all
day: cannot maintain position for [greater than] 15
min.” T at 315-16. Dr. Satterly provided that plaintiff
needed to include periods of walking around during a work
day, and would need to walk every fifteen to twenty minutes,
for two to three minutes. Id. at 316. Further,
plaintiff needed a job that permitted shifting positions at
will from sitting, standing, or walking, and would need
unscheduled breaks during an eight-hour work day.
Id. He provided that plaintiff could not perform any
prolonged period of sitting. Id. Dr. Satterly
indicated that plaintiff did not need to use a cane or
assistive device. Id. He opined that plaintiff could
occasionally lift less than ten pounds, but never lift ten
pounds or more. Id. He provided that plaintiff could
never twist, stoop, crouch/squat, or climb ladders or stairs.
Id. at 317. Dr. Satterly also provided that
plaintiff's “hands are significantly affected due
to Lupus, ” and caused her limitations with
“fastening buttons[;] tying shoes[;] computer, phone,
etc. are now difficult[;] used to play guitar but no longer
can (sold all her elec. guitar gear) [; and] even grooming
(hair) is difficult.” Id. Dr. Satterly
indicated that plaintiff's impairments were not likely to
produce good days and bad days. Id. Finally, he
provided that plaintiff should avoid temperature extremes and
humidity, as well as sunlight. Id.
accorded Dr. Satterly's opinion “limited
weight.” T at 16. The ALJ explained that he assigned
this lesser level of weight because plaintiff “sought
only general treatment with him, throughout which time he
hardly made any mention of the alleged lupus and
fibromyalgia.” Id. Further, the ALJ found
notable that Dr. Satterly, in addressing the RFC admitted
“sees Dr. Nu epene] for these conditions [(lupus and
fibromyalgia)] but he would not fill out her form even though
he is the best one to answer these questions. I will try my
best to answer these questions as this patient has [nowhere]
else to go to get this done.”
Id. The ALJ pointed out that, on the same day Dr.
Satterly completed the RFC, “he noted that [plaintiff]
looked well and had no abnormalities, upon
examination.” Id. Observing that plaintiff
testified that she could lift and carry a gallon of milk, and
has difficulty dialing a telephone and using a keyboard or
mouse, the ALJ concluded that “this is somewhat
inconsistent with the functional assessment in which the
claimant reported that she can walk maybe five minutes and
has to stop, sit, or lean on something to rest and she can
stand in one spot [for] ten minutes.” Id. The
ALJ noted that plaintiff “also reported that she could
still write [for] five to ten minutes with the right hand and
even drove for fifty ...