United States District Court, N.D. New York
of Mark A. Schneider Attorneys for Plaintiff.
Security Administration Office of Regional General Counsel,
Region II Attorneys for Defendant.
COUNSEL: MARK A. SCHNEIDER, ESQ. DAVID B. MEYERS, ESQ.
MEMORANDUM-DECISION AND ORDER
CHRISTIAN F. HUMMEL, U.S. MAGISTRATE JUDGE
Randy Hance 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. 12, 14. For the following
reasons, the determination of the Commissioner is remanded.
was born on March 26, 1969. T at 121. Plaintiff graduated
from high school where he attended regular education courses.
Id. at 124. Plaintiff is unmarried and lives with
his mother and teenaged son. Id. at 121, 123.
Plaintiff last worked as a truck driver. Id. at 122.
Plaintiff left his job driving a tractor trailer in January
2012, after he had an aneurysm. Id. at 125.
Plaintiff served in the Air Force from 1988 until 2008, when
he obtained an honorable discharge. Id. at 124.
Plaintiff worked as a pneudraulic system specialist.
Id. Plaintiff has not looked for work since
suffering from his aneurysm because he believes he will not
find work he can do due to his physical limitations.
Id. at 125. Plaintiff does not have a current
driver's license because he “can't pass the eye
exam to get it renewed.” Id. at 123. Plaintiff
protectively filed a Title II application for disability and
disability insurance benefits, and a Title XVI application
for supplemental security income on March 2, 2012. T at
269-84. Plaintiff alleged disability beginning on January 25,
2012. Those applications were denied on August 24, 2012.
Id. at 175-82. Plaintiff requested a hearing, and a
hearing was held before Administrative Law Judge
(“ALJ”) Dale Black-Pennington, who concluded that
plaintiff was not disabled. Id. at 116-49;155-65.
The Appeals Council, following plaintiff's request for
review, remanded for a new hearing, and a second hearing was
held on April 29, 2015. Id. at 170-73; 31-114; 223.
In a decision dated June 1, 2015, the ALJ again 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 152-54.
Plaintiff commenced this action on November 17, 2015. Dkt.
No. 1 (“Compl.”).
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 on his
or her 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 since January 25, 2012, the alleged onset
date. T at 16. The ALJ found at step two that plaintiff had
the severe impairments of status post basilar tip aneurysm
with subarachnoid and interventricular hemmorhage, requiring
coil embolization. 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 19. The ALJ then
concluded that plaintiff retained the residual functional
capacity ("RFC") to:
perform light work, as defined in 20 CFR 404.1567(b) and
416.967(b), except that the claimant must avoid vibrations,
unprotected heights, and heavy moving mechanical parts. He
must avoid repetitive twisting and bending; cannot balance,
climb ladders, ropes or scaffolds; requires handrails to
climb ramps or stairs; can frequently, but not repetitively
or continuously, handle; and can occasionally feel with the
left hand. The claimant is unable to read from a computer
screen, but can read written material occasionally. The
claimant is able to walk for 30 minute intervals for six
hours during the course of an eight hour workday; is able to
stand for 45 minute intervals for six hours during the course
of an eight hour workday; and is able to sit for six hours
during the course of an eight hour workday.
Id. at 19-20.
four, the ALJ determined that plaintiff is unable to perform
any past relevant work. T at 23. 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. 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 hsopital television rental clerk and
parking lot cashier. Id. at 24. Therefore, the ALJ
determined that plaintiff "has not been under a
disability, as defined under the Social Security Act, from
January 25, 2012, through the date of the decision.
contends that the Commissioner's determination is not
based on substantial evidence because: (1) the ALJ failed to
comply with the Appeals Council remand order by declining to
obtain a consultative examination on remand; (2) the ALJ gave
“too much weight to her consulting expert and not
enough weight to the treating sources”; (3) the Appeals
Council failed to consider new and relevant medical evidence
submitted post-hearing decision; (4) the ALJ erred by failing
to consider plaintiff's excellent work history in
determining plaintiff's testimony regarding his
limitations to be not credible; (5) the ALJ erroneously
concluded that plaintiff failed to comply with medical
treatment; and (6) the ALJ provided an inaccurate RFC to the
VE. See generally Dkt. No. 12. Defendant argues
(1) substantial evidence supports the ALJ's
determination; (2) the post-decision evidence submitted to
the Appeals Council did not provide a basis to change the
ALJ's determination; (3) the ALJ properly determined
plaintiff's claims regarding his limitations were less
than fully credible; and (4) the ALJ properly relied on the
VE's testimony in providing hypotheticals representative
of plaintiff's abilities and limitations. See
generally Dkt. No. 14.
Christine O'Neill, MMSC, PA-C
contends that the ALJ did not give proper weight to the
opinion of Christine O'Neill, MMSC, PA-C. Dkt. No. 12 at
26-34. Plaintiff also argues that the ALJ failed to comply
with the Appeals Council's remand order insofar as he
failed to “give further consideration” to Ms.
O'Neill's opinion or address specific findings in Ms.
O'Neill's proposed RFC that the Appeals Council
concluded were not addressed in his earlier determination.
Id. at 26-27.
Weight given to Ms. O'Neill's Opinion
the ALJ did not explicitly state the weight he accorded to
Ms. O'Neill's opinion, he provided that he
“does not find that the opinion of Ms. O'Neill is
entitled to any probative value[, ]” suggesting that he
accorded her opinion no weight. T at 21. Ms. O'Neill
completed an MSS on September 3, 2013. Id. at
909-13. Ms. O'Neill reported plaintiff's diagnoses as
ruptured cerebral aneurysm and ischemic stroke due to
vasospasm. Id. at 909. She opined that
plaintiff's prognosis was “fair.”
Id. Plaintiff's symptoms were “left arm
coordination dysfunction, ” “gait imbalance,
” and “diplopia.” Id. Plaintiff's
“clinical findings and objective signs findings”
were “disconjugate gaze, left arm [illegible], wide
based gait with mild ataxia.” Id. For treatment,
Ms. O'Neill provided that plaintiff “must remain on
aspirin to prevent in-stent thrombosis” and that the
aspirin resulted in “no significant side
effects.” Id. Ms. O'Neill believed
plaintiff's impairments were expected to last at least
twelve months, and that plaintiff was not a malingerer.
Id. at 909-10. Ms. O'Neill provided that
plaintiff had depression which affected his physical
condition. Id. at 910. Further, she provided that
plaintiff's symptoms were “frequently” severe
enough to interfere with concentration and attention needed
to perform even simple work tasks. Id. As for work
stress, Ms. O'Neill answered that plaintiff was
“capable of low stress jobs, ” and as her
reasoning for this conclusion, she provided that plaintiff
“has good insight into his condition, but will become
frustrated by his physical limitations.” Id.
She further provided that plaintiff could sit for more than
two hours at a time, and stand for thirty minutes at a time.
Id. at 910-11.
O'Neill opined that plaintiff could sit for at least six
hours in an eight-hour work day, and stand or walk for about
two hours in an eight-hour work day. T at 911. Plaintiff will
need to include periods of walking around during an
eight-hour work day, and will need to walk every thirty
minutes for ten minutes at a time. Id. Ms. O'Neill
believed plaintiff would need unscheduled breaks throughout
the work day, but the frequency of such breaks is
“unknown” to her because plaintiff “has not
worked since his stroke.” Id. Ms. O'Neill
answered that plaintiff did not need a cane or assistive
device to stand or walk. Id. Plaintiff could
occasionally lift ten pounds or less, but could never lift
over ten pounds. Id. Plaintiff could rarely look
down, turn his head left or right, or look up. Id.
at 912. However, plaintiff could frequently hold his head in
a static position. Id. Plaintiff could never climb
ladders, but could occasionally twist, stoop/bend, or climb
stairs. Id. Plaintiff had unlimited
(“100%”) use of his right hand, fingers, and arm,
but no use (“0%”) of his left hand, fingers, and
arm. Id. Ms. O'Neill predicted that plaintiff
would miss more than four days of work per month.
Id. Finally, Ms. O'Neill explained that
plaintiff's “visual, balance and coordination
deficits make it impossible for him to return to his previous
careers in truck driving and aircraft maintenance. It will be
difficult for him to find full time work that he can
tolerate.” Id. at 913.
plaintiff starts out his argument by properly recognizing
that a physician's assistant may not determine the
existence of an impairment, but may be relied on to support
the severity of an impairment, plaintiff then cites 20 C.F.R.
§ 404.1527, contending that the regulation
“unequivocally means that the findings of a medical
source are medical opinions under the treating physician
rule.” Dkt. No. 12 at 26-27. The quoted portion of the
regulation explicitly provides that it applies to statements
from acceptable medical sources. See 20
C.F.R. § 404.1527(a)(1). The statute itself, including
the portion partially quoted by plaintiff in his brief,
defines “medical opinions” as “statements
from physicians.” Id. (effective until Mar.
27, 2017) (“Medical opinions are statements from
physicians and psychologists or other acceptable medical
sources”). The statute defines treating source as
“your own acceptable medical source who provides you,
or has provided you, with medical treatment or evaluation and
who has, or had, an ongoing treatment relationship with
you.” Id. § 404.1527(a)(2).
extent plaintiff seeks to apply 20 C.F.R. § 404.1527 to
Ms. O'Neill's opinion, such argument must fail, as a
physican's assistant is not an acceptable medical source,
and, thus, is not a “treating source.” Rather, a
PA is an “other source.” 20 C.F.R. §
404.1513(d) (“In addition to evidence from the
acceptable medical sources listed in paragraph (a) of this
section, we may also use evidence from other sources to show
the severity of your impairment(s) and how it affects your
ability to work. Other sources include, but are not limited
to  Medical sources not listed in paragraph (a) of this
section (for example . . . physician's assistants . . .
.”). Although, sandwiched between his discussion of the
treating physician rule/20 C.F.R. 404.1528, plaintiff cites
Social Security Ruling 06-03p, which discusses consideration
of the opinion of a medical source that is not an acceptable
medical source, as well as one case, Kohler v.
Astrue, 546 F.3d 260, 268-69 (2d Cir. 2008), he provides
no analysis for why Ms. O'Neill's opinion should be
given greater weight than the opinions of acceptable medical
sources. Dkt. No. 12 at 27-28. Plaintiff cites a substantial
amount of case law - five pages worth - addressing treating
sources and the treating physician's rule, but does not
refer to single acceptable medical source to whom the ALJ was
required to accord controlling weight, but failed to do so.
Instead, plaintiff argues that the ALJ erred in according
substantial weight to Dr. Cloninger and no weight to Ms.
O'Neill. Dkt. No. 12 at 26-30. However, as discussed,
these regulations and case law regarding the treating
physician's rule does not apply to Ms. O'Neill's
only other acceptable medical source that plaintiff discusses
in this section is that of consultative examiner Dr. David
Welch. Dkt. No. 12 at 33. Plaintiff argues that
the ALJ “erred by not giving enough credit to the
report of his own examining consultant Dr. David
Welch.” Id. Plaintiff notes that Dr. Welch
concluded that plaintiff experienced difficulty with
right-sided gaze, had “a bit of difficulty with fine
motor skills in the left hand more than the right” and
concluded that it was “premature to make a final
decision” on plaintiff's abilities and that
“[a] follow up assessment would be appropriate in about
3 more months.” Id. Plaintiff argues that Dr.
Welch's report “regarding Mr. Hance's vision
and left arm and hand impairments support[s]
O'Neill's later findings and conclusions.”
Id. Although Dr. Welch's findings do support
that plaintiff had some difficulty “with right-sided
gaze, ” and, thus, may have some trouble with his eyes,
his findings do not support the significant limitations found
by Ms. O'Neill, as Ms. O'Neill concluded that
plaintiff had no functional use of his left hand, whereas Dr.
Welch noted only “a bit of difficulty” with fine
motor skills. Id. at 628. Dr. Welch noted that
plaintiff otherwise had “good strength through all for
extremities, ” “no evidence of significant
sensory defects, ” and “good gross motor
coordination skills.” Id. Thus, although Dr.
Welch's report supports the existence of some
issues with his vision (on the right) and fine motor skills,
Dr. Welch did not report significant deficits in these
a PA's opinion cannot be used to establish the existence
of an impairment and it is not entitled to any “special
weight, ” it can be relied on assessing the severity of
a claimant's impairment, and may be entitled to
“some weight” when there is a treatment
relationship between the PA and the claimant. See
generally Zenzel v. Astrue, 993 F.Supp.2d 146, 154
(N.D.N.Y. 2012) (citing 20 C.F.R. § 416.913(d)(1)).
However, although an ALJ must consider the opinion
of a treating PA pursuant to SSR 06-03p, where the opinion of
an unacceptable medical source or “other source,
” such as a PA, conflicts ...