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Hance v. Colvin

United States District Court, N.D. New York

March 15, 2017

RANDY HANCE, Plaintiff,

          Office of Mark A. Schneider Attorneys for Plaintiff.

          Social Security Administration Office of Regional General Counsel, Region II Attorneys for Defendant.




         Plaintiff 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.”).[1] 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.

         I. Background

         Plaintiff 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.”).

         II. Discussion

         A. Standard of Review

         In 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).

         B. Determination of Disability

         "Every 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)).

         The 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).

         "In 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).

         C. ALJ Decision

         Applying 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.

         At step 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. Id.

         D. Arguments

         Plaintiff 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.[2] 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.

         1. Christine O'Neill, MMSC, PA-C

         Plaintiff 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.

         a. Weight given to Ms. O'Neill's Opinion

         Although 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.[3] Id. at 909. She opined that plaintiff's prognosis was “fair.” Id. Plaintiff's symptoms were “left arm coordination dysfunction, ” “gait imbalance, ” and “diplopia.”[4] Id. Plaintiff's “clinical findings and objective signs findings” were “disconjugate gaze, left arm [illegible], wide based gait with mild ataxia.”[5] Id. For treatment, Ms. O'Neill provided that plaintiff “must remain on aspirin to prevent in-stent[6] 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.

         Ms. 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.[7] 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.

         Although 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).

         To the 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 opinion.

         The only other acceptable medical source that plaintiff discusses in this section is that of consultative examiner Dr. David Welch.[8] 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 fields. Id.

         Although 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 ...

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