Merkel v. Comm'r of Soc. Sec.
Merkel v. Comm'r of Soc. Sec.
Opinion of the Court
INTRODUCTION
Represented by counsel, Plaintiff Jennifer Marie Merkel ("Plaintiff") brings this action pursuant to Titles II and XVI of the Social Security Act (the "Act"), seeking review of the final decision of the Commissioner of Social Security (the "Commissioner," or "Defendant") denying her applications for disability insurance benefits ("DIB") and supplemental security income ("SSI"). (Dkt. 1). This Court has jurisdiction over the matter pursuant to
BACKGROUND
Plaintiff protectively filed her applications for DIB and SSI on December 18, 2008. (Dkt. 6-14 at 5).
A third hearing was held on October 13, 2016, in Rochester, New York, before ALJ Michael W. Devlin. (Id. at 6, 34-74). Plaintiff appeared with her attorney and testified. (Id. ). Also appearing and testifying were John Kwock, M.D., an impartial medical expert, and Peter A. Manzi, an impartial vocational expert. (Id. ). On April 17, 2017, the ALJ issued an unfavorable decision. (Id. at 2-24). The ALJ's written determination became the Commissioner's final decision. This action followed.
LEGAL STANDARD
I. District Court Review
"In reviewing a final decision of the [Social Security Administration ("SSA") ], this Court is limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard." Talavera v. Astrue ,
II. Disability Determination
An ALJ follows a five-step sequential evaluation to determine whether a claimant is disabled within the meaning of the Act. See Parker v. City of New York ,
At step three, the ALJ examines whether a claimant's impairment meets or medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the "Listings").
The ALJ then proceeds to step four and determines whether the claimant's RFC permits the claimant to perform the requirements of his or her past relevant work.
DISCUSSION
I. The ALJ's Decision
In determining whether Plaintiff was disabled, the ALJ applied the five-step sequential evaluation set forth in
At step two, the ALJ found that Plaintiff suffered from the severe impairments of: "history of herniated lumbar disc; right knee meniscus tears (status-post surgeries); right carpal tunnel syndrome ; migraine headaches; major depressive disorder ; generalized anxiety disorder ; and posttraumatic stress disorder (PTSD)." (Id. ). The ALJ further found that Plaintiff's medically determinable impairment of injury to her left hand was non-severe. (Id. at 8-9). With respect to Plaintiff's representation that she suffered from fibromyalgia, the ALJ concluded that this was not a medically determinable impairment. (Id. at 9).
At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of any Listing. (Id. ). The ALJ particularly considered the criteria of Listings 1.02, 1.04, 12.04, 12.06, and 12.15 in reaching his conclusion. (Id. at 9-12).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC to perform a range of sedentary work as defined in
can lift/carry 10 pounds occasionally and less than 10 pounds frequently; stand/walk up to 2 hours in an 8-hour workday; sit about 6 hours in an 8-hour workday; push/pull 10 pounds occasionally; be allowed to stand for 1-2 minutes after sitting for approximately 30 minutes and be allowed to sit for 1-2 minutes after standing for approximately 15 minutes; occasionally climb ramps/stairs, balance and stoop; never kneel, crouch, crawl or climb ladders/ropes/scaffolds; frequently handle/finger with the non-dominant right hand; understand, remember and carry out simple instructions and tasks; occasionally interact with coworkers and supervisors, with little to no contact with the general public; is able to work in a low stress work environment (i.e. no supervisory duties, no independent decision-making required, no strict production quotas, minimal changes in the work routine processes, etc.); and is able *246to consistently maintain concentration and focus for up to two hours at a time.
(Id. at 12). At step four, the ALJ found that Plaintiff was unable to perform any past relevant work. (Id. at 22).
At step five, the ALJ relied on the testimony of a vocational expert ("VE") to conclude that, considering Plaintiff's age, education, work experience, and RFC, there were jobs that exist in significant numbers in the national economy that Plaintiff could perform, including the representative occupations of table worker and addresser. (Id. at 23). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id. at 24).
II. Reversal and Remand of This Matter for Calculation and Payment of Benefits is Appropriate
Plaintiff asks the Court to reverse or, in the alternative, remand this matter to the Commissioner, arguing that (1) the ALJ failed to follow the Appeals Council's directive to properly evaluate the opinion of Plaintiff's treating physician, Dr. Capecci; (2) the ALJ erred by relying on the testimony of Dr. Kwock, the medical expert, because he did not provide any functional limitations; and (3) the RFC is not based on any medical source opinion. (Dkt. 8-1 at 20-28). As noted by Defendant, Plaintiff's several arguments all principally challenge the ALJ's assessment of Dr. Capecci's and Dr. Kwock's opinions. (See Dkt. 11-1 at 27 ("Plaintiff's several arguments overlap into her principle argument that the ALJ's RFC assessment was erroneously based on the ALJ's faulty evaluation of medical opinion evidence, including Dr. Capecci's functional assessment and testimony from the medical expert Dr. Kwock") ). For the reasons set forth below, the Court agrees with Plaintiff, and finds that the ALJ erred in evaluating the opinion evidence of Dr. Capecci and Dr. Kwock. The Court further finds that, under the applicable regulations, the ALJ should have given controlling weight to the opinion of treating Dr. Capecci and that had he done so, a finding that Plaintiff was disabled necessarily would have followed. Accordingly, the Court remands this matter solely for the calculation and payment of benefits.
A. Evaluation of Opinion Evidence
Because Plaintiff's claim was filed before March 27, 2017, the ALJ was required to apply the treating physician rule, under which a treating physician's opinion is entitled to "controlling weight" when 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[.]"
(i) the frequency of examination and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the treating physician's opinion; (iii) the consistency of the opinion with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other factors brought to the Social Security Administration's attention that tend to support or contradict the opinion.
*247Whatever weight the ALJ assigns to the treating physician's opinion, he must "give good reasons in [his] notice of determination or decision for the weight [he gives to the] treating source's medical opinion."
Plaintiff began treating with Dr. Capecci, an orthopedist, in May 2010. (Dkt. 6-13 at 127). Dr. Capecci performed surgical procedures on Plaintiff's knees (see, e.g.,
In the written determination, the ALJ noted that he was "cognizant of the issues raised by the Appeals Council in its most recent order," and stated that he had "considered and weighed Dr. Capecci's ... entire [opinion]...." (Dkt. 6-14 at 22). In assessing Plaintiff's RFC, the ALJ assigned "some weight" to Dr. Capecci's opinion. (Id. at 20). Specifically, the ALJ found that Plaintiff "had some difficulty with prolonged standing/walking (requiring the ability to sit for 1-2 minutes after 15 minutes of standing/walking....)" (Id. ). This finding regarding Plaintiff's ability to stand and walk significantly diverges from Dr. Capecci's opinion regarding Plaintiff's ability to do these activities-while Dr. Capecci found that Plaintiff could walk only 0-1 city blocks and stand for 10 minutes at one time, the RFC finding requires Plaintiff to stand for 15 minutes at one *248time, and to stand/walk for up to two hours in an 8 hour workday.
The ALJ did not explain why he assessed lesser limitations than those identified by Dr. Capecci regarding Plaintiff's ability to stand, walk, and climb stairs and ramps; rather, he characterized his assessment of Plaintiff's ability to stand and walk as in agreement with Dr. Capecci's opinions. (See Dkt. 6-14 at 20 ("The undersigned assigns some weight to this opinion, agreeing that the claimant has some difficulty with prolonged standing/walking") ). However, as discussed above, a closer comparison of Dr. Capecci's opinion and the assessed RFC reveals significant differences which the ALJ failed to explain. The ALJ also failed entirely to explain why he did not credit Dr. Capecci's opinion that Plaintiff's impairments would cause her to be absent from work four days per month.
The Court finds that the ALJ's consideration of Dr. Capecci's opinion did not comport with the applicable regulations. While the RFC need not "perfectly correspond with any of the opinions of medical sources cited in his decision," see Matta v. Astrue ,
Here, the ALJ offered no such rationale for not adopting Dr. Capecci's opinions relating to Plaintiff's ability to walk, stand, and climb stairs and ramps. While the written determination includes a thorough recitation of Plaintiff's treatment history for her knee pain (Dkt. 6-14 at 17-18), the majority of this history supports the opinion that Plaintiff is severely limited in walking and standing, in that Plaintiff continually complained of knee pain, and her impairments were serious enough to require multiple surgeries. In other words, it is not obvious to the Court what medical evidence in the written determination conflicts *249with the opinion offered by Dr. Capecci regarding Plaintiff's ability to stand and walk.
Moreover, and particularly troublingly, the ALJ completely failed to discuss his assessment of Dr. Capecci's opinion that Plaintiff's impairments would cause her to be absent from work approximately four days per month. Dr. Capecci's assessment of Plaintiff's need to be absent from work is uncontradicted by any other medical evidence of record. In particular, the Court notes that the medical record amply demonstrates that Plaintiff suffers from multiple serious medical impairments, including migraine headaches, that could reasonably be expected to wax and wane in severity. Indeed, Dr. Capecci noted in his medical source statement that Plaintiff's impairments were "likely to produce 'good days' and 'bad days.' " (Dkt. 6-7 at 361). In addition, no other medical source contradicted Dr. Capecci's opinion that Plaintiff would need to be absent from work. To the contrary, consultative examiner Dr. Harbinder Toor's opinion is consistent with Dr. Capecci's opinion, inasmuch as he opined that Plaintiff's migraines were likely to interfere with her ability to maintain a routine. (See
Defendant contends that the ALJ did not ignore Dr. Capecci's opinion relating to Plaintiff's absences, but "simply chose not to adopt it." (Dkt. 11-1 at 31-32). Defendant argues that Dr. Capecci's opinion relating to Plaintiff's absences was an "equivocal guess" and the ALJ's decision not to adopt the opinion was proper, because the opinion conflicted with Dr. Capecci's own treatment notes, including that Plaintiff improved following surgery. (Id. at 32). There are several problems with this argument. First, the written determination does not contain any explanation as to why Dr. Capecci's opinion relating to Plaintiff's absences was not given controlling weight. While Defendant identifies some perceived inconsistencies in Dr. Capecci's opinion, these articulations are absent from the ALJ's opinion. Defendant's after-the-fact explanation as to why the ALJ rejected Dr. Capecci's opinion cannot serve as a substitute for the ALJ's findings. See Hall v. Colvin ,
Second, the written determination does not discuss, nor does Defendant identify, any evidence in the record contradicting Dr. Capecci's opinion relating to Plaintiff's need for absences. Rather, Defendant attempts to contradict Dr. Capecci's recommendation relating to Plaintiff's absences by pointing to treatment notes that Plaintiff improved following her surgeries. Like the ALJ, defense counsel is not a medical doctor, and cannot contradict the opinion of a treating physician without giving good reasons for doing so, such as reliance on another, conflicting acceptable medical opinion. See Greek v. Colvin ,
The ALJ's reliance on Dr. Kwock's testimony also does not justify his rejection of Dr. Capecci's opinion. In his decision, the ALJ assigned "significant weight" to the opinion of Dr. Kwock (an impartial medical expert enlisted by the ALJ to testify at the October 2016 hearing) that there was no evidence in the record to support that Plaintiff was not able to ambulate effectively or required the use of a cane. (Id. at 21-22). The ALJ acknowledged that generally the opinion of a non-examining source is entitled to less weight than a treating source; nevertheless, the ALJ assigned significant weight to Dr. Kwock's opinion of Plaintiff's functional limitations based on his specialization, his review of evidence in the record, his understanding of the social security disability programs; and because "it is well supported by the objective medical evidence already discussed in this decision." (Id. at 21-22).
There are several issues with the ALJ's assessment of Dr. Kwock's testimony. First, while Dr. Kwock's opinion regarding Plaintiff's ability to ambulate is at odds with Dr. Capecci's opinion that Plaintiff cannot walk more than one city block, Dr. Kwock did not address Dr. Capecci's opinion relating to Plaintiff's absences which, according to Dr. Capecci, would be about four days per month. Further, as discussed above, the Court is unable to identify what objective medical evidence contradicts the opinion of Dr. Capecci, as the medical history included in the written determination appears to support his opinion relating to Plaintiff's ability to ambulate and expected absences per month. Finally, the Court notes that Dr. Kwock did not offer any opinion relating to Plaintiff's functional limitations, such as for how long Plaintiff could stand, walk, or climb ramps and stairs. (Id. at 39-55). Accordingly, Dr. Kwock's opinion does not support the ALJ's decision to discount significant portions of Dr. Capecci's opinion, and particularly offers no basis for the ALJ's failure to credit Dr. Capecci's assessment of Plaintiff's need to be absent from work four days per month.
Dr. Capecci's opinion relating to Plaintiff's absences is well-supported by the record. Specifically, Dr. Capecci's opinion is consistent with the fact that Plaintiff's impairments are likely to produce "good days" and "bad days" (see Dkt. 6-7 at 361), as well as the host of other severe medical impairments Plaintiff suffers, including a herniated lumbar disc; right knee meniscus tears ; right carpal tunnel syndrome ; migraine headaches; major depressive disorder ; generalized anxiety disorder ; and *251posttraumatic stress disorder (see Dkt. 6-14 at 8). Dr. Capecci's opinion regarding Plaintiff's need for absences from work is also consistent with and supported by the opinion of consultative examiner Dr. Toor, who stated that Plaintiff's migraines would interfere with her ability to maintain a routine. (See Dkt. 6-7 at 92). Under these circumstances, Dr. Capecci's opinion that Plaintiff would need to be absent from work four days per month was entitled to controlling weight pursuant to the treating physician rule. See Morris v. Berryhill , No. 1:16-CV-00973(MAT),
B. Remedy
Pursuant to
In this case, the record persuasively demonstrates Plaintiff's disability, and remand for calculation and payment of benefits is warranted. As discussed at length above, the opinion of treating orthopedist Dr. Capecci-including his assessment that Plaintiff would require four unscheduled absences per month-was well-supported and entitled to controlling weight by the ALJ. Moreover, at the October 2016 administrative hearing, the vocational expert opined that if a person with Plaintiff's impairments would be absent on an unscheduled basis for four days per month, there would be no work available for that person to perform. (Dkt. 6-14 at 72). Accordingly, had the ALJ appropriately credited Dr. Capecci's opinion, he would have been compelled to conclude that Plaintiff was disabled.
There is also no reason to think that further evidence would support the conclusion that Plaintiff is not disabled. Plaintiff has already had three administrative hearings, and the record contains multiple functional assessments and medical records spanning more than a decade. Accordingly, the Court concludes that the *252proper remedy is to reverse the Commissioner's decision, and remand Plaintiff's case for the calculation and payment of benefits.
CONCLUSION
For the foregoing reasons, Plaintiff's motion for judgment on the pleadings (Dkt. 8) is granted, the Commissioner's decision is reversed, and the matter is remanded solely for the calculation and payment of benefits. Defendant's motion for judgment on the pleadings (Dkt. 11) is denied. The Clerk of Court is directed to enter judgment and close this case.
SO ORDERED.
When referencing the page number(s) of docket citations in this Decision and Order, the Court will cite to the CM/ECF-generated page numbers that appear in the upper righthand corner of each document.
The Physical Residual Functional Capacity Questionnaire completed by Dr. Capecci provided an option for 15 minutes of standing (see Dkt. 6-7 at 360); however, Dr. Capecci did not select that option. Rather, he opined that Plaintiff could stand for only 10 minutes.
Reference
- Full Case Name
- Jennifer Marie MERKEL v. COMMISSIONER OF SOCIAL SECURITY
- Cited By
- 12 cases
- Status
- Published