Gustafson 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 supplemental security income and disability insurance benefits, Gabriel Gustafson argues that the Administrative Law Judge (ALJ) erred because (1) he failed to evaluate the opinion of agency personnel; (2) he failed to properly apply the treating physician rule; (3) he failed to evaluate the opinions of non-acceptable medical sources; (4) he failed to properly assess the opinions of consultative examiners; (5) he failed to ask the vocational expert about the same residual functional capacity (RFC) assessment he had found applied to Mr. Gustafson; (6) he failed to properly evaluate Mr. Gustafson’s connective tissue disorder, headaches, and obesity; (7) he failed to properly assess Mr. Gustafson’s statements concerning the intensity, persistence, and limiting effects of his symptoms; (8) his determination that Mr. Gustafson did not need a cane was not supported by substantial evidence; and (9) his determination of Mr. Gustafson’s RFC was not supported by substantial evidence. He also argues that the ALJ who presided over Mr. Gustafson’s administrative hearing was not appointed in conformity with the Appointments Clause. Finally, he argues that the Appeals Council erred when it failed to consider new evidence. I agree with Mr. Gustafson’s argument that the ALJ did not properly evaluate the opinions of two treating physicians and two other sources. I remand on those bases and do not reach Mr. Gustafson’s remaining arguments.

         I assume the parties’ familiarity with Mr. Gustafson’s medical history (summarized in a stipulation of facts filed by the parties, ECF No. 21-2, which I adopt and incorporate herein by reference), the ALJ 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.

         I. 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). “The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). Accordingly, a district court may not make a de novo determination of whether a plaintiff is disabled in reviewing a denial of disability benefits. Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the court’s function is to ascertain whether the correct legal principles were applied in reaching the decision, and whether the decision is supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). 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) (internal quotation marks and citation omitted). Substantial evidence is “more than a mere scintilla or a touch of proof here and there in the record.” Id.

         II. DISCUSSION

         Mr. Gustafson filed a Title II application for disability insurance benefits (“DIB”) as well as a Title XVI application for supplemental security income (“SSI”). R. 19. Benefits were denied under both applications. R. 37. I address the ALJ’s decision with respect to each application separately as the time period relevant to the two applications differs.

         A. SSI

         1. Relevant Time Period

         To be entitled to an award of supplemental security income, a claimant must demonstrate that he or she became disabled at any time before the ALJ’s decision. Frye ex rel. A.O. v. Astrue, 485 Fed.Appx. 484, 485 n.1 (2d Cir. 2012) (noting that, for SSI benefits, the relevant time period is from “the date the SSI application was filed” to “the date of the ALJ’s decision”); see also DeMico v. Berryhill, 2018 WL 2254544, at *6 n.8 (D. Conn. 2018) (“[T]o be entitled to an award of Supplemental Security Income, a claimant must demonstrate that he or she became disabled at any time before the ALJ’s decision.”). The ALJ’s decision in this case was issued on January 31, 2018. R. 37. Thus, with respect to his application for supplemental security income, Mr. Gustafson must prove that he became disabled within the meaning of the Social Security Act before January 31, 2018.

         2. Treating Physician Rule^[1]

         Mr. Gustafson argues that the ALJ failed to comply with the treating physician rule in evaluating the opinions of Dr. Micha Abeles and Dr. John Menoutis. ECF No. 21-1 at 4-7. Under this rule, “the opinion of a claimant’s treating physician as to the nature and severity of the impairment is given controlling weight 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) (internal citation and quotation marks omitted). “The regulations further provide that even if controlling weight is not given to the opinions of the treating physician, the ALJ may still assign some weight to those views, and must specifically explain the weight that is actually given to the opinion.” Schrack v. Astrue, 608 F.Supp.2d 297, 301 (D. Conn. 2009). The Second Circuit has made clear that:

To override the opinion of the treating physician . . . 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. After considering the above factors, the ALJ must comprehensively set forth his reasons for the weight assigned to a treating physician’s opinion.

Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (internal citations, quotation marks, and alterations omitted). “The failure to provide good reasons for not crediting the opinion of a claimant’s treating physician is a ground for remand.” Id.

         a) Dr. John Menoutis

         Dr. Menoutis completed an RFC questionnaire on January 10, 2018. R. 822-825. He lists Mr. Gustafson’s diagnoses as “PTSD, depression, fibromyalgia, cervical spinal stenosis;” explains that there was an “MRI showing cervical stenosis;” and notes that the “severity of pain [is] mostly in [the] neck from cervical stenosis [and] other pain [illegible] fibromyalgia.” R. 822. He determined that Mr. Gustafson’s pain or other symptoms would “frequently” or “constantly” interfere with the attention and concentration needed to perform even simple work tasks; that he could sit and stand/walk less than 2 hours in an 8-hour workday; that he would have to take “5 to 20” unscheduled breaks during an 8-hour workday with each break lasting “5 to 10” minutes; that he must use a cane or other assistive device; that he could never carry 10 pounds or more; that he could rarely look down, turn his head right or left, look up, or hold his head in a static position; that he could use his hands and fingers for fine manipulations, grasping, and reaching only 60% of the time during an 8-hour work day; and that he would likely be absent from work more than 5 days a month. R. 823-25. The ALJ assigned “little weight” to this opinion, explaining that “it is inconsistent with the medical evidence of record.” R. 33. I find that the ALJ erred in his evaluation of Dr. Menoutis’s opinion.

         The first Greek factor requires an ALJ to consider the “frequency, length, nature, and extent of treatment.” Greek, 802 F.3d at 375. Although a “slavish recitation of each and every factor” is unnecessary “where the ALJ’s reasoning and adherence to the regulation are clear, ” Atwater v. Astrue, 512 Fed.Appx. 67, 70 (2d Cir. 2013), no such clarity exists here because the ALJ failed to even mention Mr. Gustafson’s treating history with Dr. Menoutis, which was substantial. From the record, it appears that Dr. Menoutis began treating Mr. Gustafson at least as early as September 2016, ECF No. 21-2 at 12, and that he saw Mr. Gustafson “2 to 3 times per year” for twenty minutes to one hour each time. R. 822. Without an explanation of how the ALJ considered this treating history, or any indication that he considered it at all, I cannot determine whether he properly applied the law in determining that the opinion is entitled to “little weight.”

         The second and third Greek factors require explicit consideration of “the amount of medical evidence supporting the opinion” and “the consistency of the opinion with the remaining medical evidence.” Greek, 802 F.3d at 375. The ALJ points to various treatment notes and records to support his finding that Dr. Menoutis’s opinion was inconsistent with the medical evidence of record. R. 33. But the evidence he identifies does not constitute “good reason[]” to assign “little weight” to the opinion in its entirety. The ALJ begins by explaining that the opinion was inconsistent with the record because the record showed that Mr. Gustafson “was consistently alert, fully oriented, well nourished, well developed, calm, cooperative, well groomed, and in no acute distress.” R. 33. The ALJ uses this phrase repeatedly in his ruling to reject opinion evidence. R. 30, 31, 32, 33. But this refrain is not particularly responsive to the opinions of Dr. Menoutis or (as discussed below) Dr. Abeles. With the exception of “no acute distress, ” the phrase describes Mr. Gustafson’s mental state and does not contradict Dr. Menoutis’s findings, which are largely about Mr. Gustafson’s physical limitations, i.e., that he could rarely turn his head, could use his hands for fine manipulations only 60% of the time, could not stand or walk for more than 2 hours in an 8-hour workday, must use a cane, and so on. Moreover, “no acute distress” is consistent with Dr. Menoutis’s opinion as many of the limitations he identifies are chronic as opposed to acute.

         In addition, the ALJ does not provide specific citations to support his determination that Mr. Gustafson was “consistently” alert, fully oriented, well groomed, in no acute distress and so on; instead, he cites Exhibits 7F, 11F, 20F, 22F, 23F, and 26F in full. It is therefore difficult to determine which specific records in these lengthy exhibits he relied on. Worse, these exhibits include several treatment notes that are inconsistent with the ALJ’s refrain that Mr. Gustafson “was consistently alert, fully oriented, well nourished, calm, cooperative, well groomed, and in no acute distress.” R. 33; see, e.g., R. 574 (treatment note in 7F stating that Mr. Gustafson was “disheveled, ” had “poor” insight, and “limited” judgement); R. 578 (treatment note in 7F noting that he was “disheveled” and has “chronic pain”); R. 580 (treatment note in 7F noting “mood irritable” and “angry/hostile affect”); R. 616 (treatment note in 11F stating that he complained “most specifically” about a “worsening headache associated with nausea and vomiting from a unclear etiology”); R. 621 (treatment note in 11F noting that “[p]atient appears to be in significant pain, grimacing throughout interview”); R. 626-27 (treatment note in Exhibit 11F noting “in distress as a result of pain” and “severe neck pain and shoulder pain”); R. 843 (treatment note in Exhibit 26F noting “diffuse pain with movement of all joints in his extremities”). Thus, to the extent the ALJ’s blanket citation of these records is intended to describe them in their entirety, his description is not supported by substantial evidence, because the exhibits as a whole do not show that Mr. Gustafson was “consistently alert, fully oriented, well nourished, well developed, calm, cooperative, well groomed, and in no acute distress.” R. 33 (emphasis added).

         To be sure, there are also entries in the cited exhibits that support the characterization in the ALJ’s refrain, see, e.g., R. 777 (treatment note in 20F reporting that therapy was going “very well, ” physical therapy was helping his hips, he had a calm and cooperative affect, and presented with appropriate grooming); R. 792 (treatment note in 22F reporting “[n]o acute distress” and largely normal findings), and it is within the ALJ’s sole province to weigh and resolve conflicts in the medical evidence, Jeffrey A. on behalf of J.M.A. v. Saul, 2019 WL 3081092, at *7 (N.D.N.Y. July 15, 2019) (citing cases). But it does not satisfy the ALJ’s obligation to give “good reasons” for rejecting a treating physician’s opinion to point vaguely to a pile of lengthy exhibits containing mixed evidence about a claimant, some of which supports the treating physician’s opinion and little of which directly contradicts it.

         Next, the ALJ determined that Dr. Menoutis’s opinion was inconsistent with the medical evidence of record because the record showed that Mr. Gustafson “had significant improvement in his neck and upper back, ” and “improvement in the tingling and numbness in his upper activities” in May 2017. R. 33. But a finding of “significant improvement” or “improvement” does not identify a baseline and is not necessarily inconsistent with the functional limitations identified by Dr. Menoutis; that is, Mr. ...