Sullivan v. Berryhill

          RULING ON THE PLAINTIFF'S MOTION TO REVERSE AND THE DEFENDANT'S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER

          Michael P. Shea, U.S.D.J.

         In this appeal from the Social Security Commissioner's denial of benefits, Cheryl Sullivan argues that the Administrative Law Judge (“ALJ”) (1) violated the treating physician rule; (2) made unsupported findings at steps two and three of the analysis of disability claims; (3) insufficiently developed the record and misconstrued the evidence; (4) made unsupported vocational findings; and (5) did not adequately address Ms. Sullivan's claims of pain.

         I find that the ALJ erred in several respects. First, the ALJ improperly applied the treating physician rule to Dr. Caminear's July 23, 2014 Physical Residual Function Capacity Statement. Second, the ALJ did not adequately develop the record as to the statement by the unknown doctor. Third, the ALJ did not adequately address whether Ms. Sullivan's neuropathy was a severe impairment at step two and failed to consider whether that condition satisfied the requirements of listing 11.14 at step three. Each identified error is related to the ALJ's assessment of diabetic neuropathy. I do not reach Ms. Sullivan's remaining claims.

         I. Procedural History, Facts, and Legal Standards

         I assume the parties' familiarity with Ms. Sullivan's medical history (summarized in a stipulation of facts filed by the parties, ECF No. 24-1, which I adopt and incorporate herein by reference), the ALJ's opinion, the record, and the five sequential steps used in the analysis of disability claims. I cite only those portions of the record and the legal standards necessary to explain this ruling.

         II. Standard of Review

         “A district court reviewing a final . . . decision pursuant to . . . 42 U.S.C. § 405(g), is performing an appellate function.” Zambrana v. Califano, 651 F.2d 842, 844 (2d Cir. 1981). As such, the Commissioner's decision “may be set aside only due to legal error or if it is not supported by substantial evidence.” Crossman v. Astrue, 783 F.Supp.2d 300, 302-03 (D. Conn. 2010). The Second Circuit has defined substantial evidence as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citation and quotation marks omitted). Substantial evidence must be “more than a mere scintilla or a touch of proof here and there in the record.” Id.

         III. Discussion

         A. Treating Physician Rule^[1]

         Ms. Sullivan argues that the ALJ failed to assign controlling weight to the opinions of Dr. Caminear in violation of the treating physician rule. ECF No. 24-2 at 1-7. This rule generally requires “deference to the medical views of a physician who is engaged in the primary treatment of a claimant.” Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015). More specifically, an ALJ must ascribe controlling weight to a treating physician's opinion “so long as it ‘is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.'” Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (quoting 20 C.F.R. § 404.1527(c)(2)). If, however, “the treating physician issued opinions that are not consistent with other substantial evidence in the record, ” then the ALJ may give them less than controlling weight. Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curium). “To override the opinion of the treating physician, we have held that the ALJ must explicitly consider, inter alia, (1) the frequency, length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and, (4) whether the physician is a specialist.” Greek, 802 F.3d at 375 (internal quotation marks, citations, and alterations omitted). “After considering the above factors, the ALJ must comprehensively set forth his reasons for the weight assigned to a treating physician's opinion. The failure to provide good reasons for not crediting the opinion of a claimant's treating physician is a ground for remand.” Ibid. (internal quotation marks, citations, and alterations omitted).

         Dr. Caminear had been treating Ms. Sullivan for nearly a decade before she filed her claim. ECF No. 24-1 at 2-16. Ms. Sullivan argues that the ALJ erred by giving “great weight” to his October 30, 2013 letter and “partial weight” to his July 23, 2014 statement instead of assigning controlling weight to both opinions. ECF No. 24-2 at 1-7. Because I find that the ALJ erred in his application of the rule to the July 23, 2014 statement, I remand on that basis and do not address the October 30, 2013 letter.

         i. July 23, 2014 Physical Residual Function Capacity Statement

         Ms. Sullivan argues that the ALJ erred in ascribing “partial weight” to Dr. Caminear's Physical Residual Function Capacity Statement of July 23, 2014, in which Dr. Caminear opined, inter alia, that Ms. Sullivan has “diabetic neuropathy [in] both feet daily, ” “loss of protective senses, ” a “history of ulcers and amputation, ” and trouble with balance; requires a scooter while ambulating; can occasionally lift less than five pounds; can stand and walk for less than one hour in an eight hour work day; and has “standing and walking limitations” that would prevent her from obtaining and retaining work in a competitive work environment for eight hours per day, five days a week. R. 1213-1216.

         In deciding how much weight to accord this statement, the ALJ was required to consider the four Greek factors. The first Greek factor requires an ALJ to consider the “frequency, length, nature, and extent of treatment” while the fourth requires an inquiry into “whether the physician is a specialist.” Greek, 802 F.3d at 375. The ALJ properly considered both factors, noting that Dr. Caminear “specializes in podiatric surgery and foot and ankle surgery and has a long treatment history with the claimant.” ECF No. 16-5 at 107. These factors, though, counsel in favor of ascribing greater weight to Dr. Caminear's opinion. 20 C.F.R. § 404.1527(c)(2)(i) (“Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will ...