United States District Court, W.D. New York
DECISION AND ORDER
G. LARIMER UNITED STATES DISTRICT JUDGE.
appeals from a denial of disability benefits by the
Commissioner of Social Security (“the
Commissioner”). The action is one brought pursuant to
42 U.S.C. §405(g) to review the Commissioner's final
3, 2012, plaintiff, then forty-five years old, filed
applications for a period of disability and disability
insurance benefits, and for supplemental security income,
alleging an inability to work since February 1, 2011. (Dkt.
#8-2 at 13). Those applications were initially denied.
Plaintiff requested a hearing, which was held November 2013
before Administrative Law Judge (“ALJ”) Jennifer
Gale Smith. On January 21, 2013, the ALJ issued a decision
finding plaintiff not disabled. (Dkt. #8-2 at 13-29). The
Appeals Council denied review, and plaintiff commenced an
action in this Court. Pursuant to a stipulation between
plaintiff and the Commissioner, this Court entered judgment
in favor of the plaintiff, remanding the matter for further
administrative proceedings. (Dkt. #8-9 at 779-82).
supplemental hearing was held on October 4, 2016 via
videoconference. On December 23, 2016, the ALJ issued a
second decision, again finding plaintiff not disabled.
Plaintiff now appeals.
plaintiff has moved, and the Commissioner has cross moved,
for judgment on the pleadings pursuant to Fed. R. Civ. Proc.
12(c). For the reasons set forth below, plaintiff's
motion (Dkt. #11) is granted, the Commissioner's cross
motion (Dkt. #13) is denied, and the matter is remanded for
the calculation and payment of benefits.
applies a well-established five-step evaluation process to
determine whether a claimant is disabled within the meaning
of the Social Security Act, familiarity with which is
presumed. See Bowen v. City of New York, 476 U.S.
467, 470-71 (1986). The Commissioner's decision that
plaintiff is not disabled must be affirmed if it is supported
by substantial evidence, and if the ALJ has applied the
correct legal standards. See 42 U.S.C. §
405(g); Machadio v. Apfel, 276 F.3d 103, 108 (2d
the ALJ determined that plaintiff suffers from the following
severe impairments: degenerative disc disease of the
cervical, thoracic and lumbar spine; osteoarthritis; chronic
obstructive pulmonary disease; dysthymia versus major
depression; post-traumatic stress disorder
(“PTSD”); and alcohol abuse. (Dkt. #8-6 at 662).
reviewing of the evidence of record, the ALJ found that the
plaintiff has retained the residual functional capacity
(“RFC”) to perform a range of work at the medium,
light or sedentary exertional levels, with a number of
limitations. Plaintiff can lift and carry up to 10 pounds
frequently, 11-20 pounds frequently, and 21-50 pounds
occasionally. He can sit for 6 total hours in an 8-hour
workday, for up to 3 hours at a time; can stand for a total
of 4 hours up to 2 hours at a time; and can walk for 2 hours
total, for up to 1 hour at a time. Plaintiff can occasionally
reach overhead, and frequently reach in all other directions.
He can occasionally push and pull up to the weight limits
[specified for lifting and carrying]. He can frequently
handle, finger and feel, and occasionally operate foot
controls. Plaintiff cannot climb ladders, ropes or scaffolds,
and can occasionally stoop, balance, kneel, crouch, crawl,
work at unprotected heights and around moving mechanical
parts. He should not work in extreme temperatures or around
vibrations, and should have no more than occasional exposure
to respiratory irritants, such as dusts, odors, fumes, gases
and extreme temperatures. He can work only in a low-stress
job defined as involving occasional decision-making,
occasional use of judgment and occasional changes in the work
setting. He should work at goal-oriented work rather than
production pace rate work, and should have no more than
occasional contact with coworkers, supervisors, and the
public. (Dkt. #8-8 at 670).
presented with this RFC, vocational expert Josiah L. Pearson
testified that plaintiff could perform the positions of
address clerk and document preparer. (Dkt. #8-8 at 688-89).
appeal, plaintiff chiefly claims that the ALJ failed to
properly consider the medical opinion evidence of record -
particularly, that of plaintiff's treating psychiatrist,
Dr. Martha E. Tymeson, to whom the ALJ gave
“little” weight. (Dkt. #8-8 at 681). The Court
treating physician's opinion is entitled to controlling
weight if it is well-supported by medical findings and not
inconsistent with other substantial evidence. See Rosa v.
Callahan, 168 F.3d 72, 78 (2d Cir. 1999). If an ALJ opts
not to afford controlling weight to the opinion of a treating
physician, the ALJ must consider: (1) the examining
relationship; (2) the extent of the treatment relationship;
(3) medical support for the opinion: (4) consistency; and (5)
the physician's specialization, along with any other
relevant factors. 29 C.F.R. §404.1527(d)(2). An
ALJ's failure to apply these factors and provide reasons
for the weight given to the treating physician's report
is reversible error. See Snell v. Apfel, 177 F.3d
128, 1 34 (2d Cir. 1999); Schall v. Apfel, 134 F.3d
496 (2d Cir. 1998).
is a United States Army veteran who served from 1980 to 1992,
with combat experience in Desert Storm and Desert Shield.
(Dkt. #8-7 at 466). Dr. Tymeson, plaintiff's treating
psychiatrist at the Veterans Administration, rendered a
mental RFC opinion dated July 1, 2013. (Dkt. #8-7 at 470-72).
Dr. Tymeson noted plaintiff's diagnoses of major
depressive disorder with insomnia, PTSD with irritability and
nocturnal hyperarousal, and chronic pain as a complication of
both conditions. Dr. Tymeson opined, among other things, that
plaintiff had “marked” limitations (defined as a
loss of function greater than 33%) in maintaining attention
and concentration, performing activities within a schedule,
and responding appropriately to stressors or workplace
changes. Dr. Tymeson also found “extreme”
limitations (defined as “no or very little useful
ability to function”) with respect to completing a
workday without interruptions from symptoms, and opined that
plaintiff's impairments would be expected to result in
more than three absences per month. (Dkt. #8-7 at 470-72). In
a subsequent form completed September 9, 2016, Dr. Tymeson
reviewed her July 1, 2013 mental RFC assessment, and
indicated that her opinion as to plaintiff's limitations
had not changed. (Dkt. #8-13 at 1221).
rejected Dr. Tymeson's opinion, deferring instead to that
of consulting psychologist Dr. Robert J. Maiden, who examined
plaintiff one time, on January 6, 2012. Dr. Maiden found
plaintiff's eye contact to be “a bit bizarre . . .
kind of a vacant stare, ” and observed that plaintiff
appeared “apathetic, ” “long winded”
and “unrealistic, ” telling “rather strange
or bizarre” stories and seeming to have
“stress-related problems.” (Dkt. #8-7 at 465-69).
Notwithstanding these observations, Dr. Maiden opined that