Insalaco v. Comm'r of Soc. Sec.
Insalaco v. Comm'r of Soc. Sec.
Opinion of the Court
INTRODUCTION
Represented by counsel, Plaintiff Michelene Insalaco ("Plaintiff") brings this action pursuant to Title II 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 application for disability insurance benefits ("DIB"). (Dkt. 1). This Court has jurisdiction over the matter pursuant to
BACKGROUND
Plaintiff protectively filed her application for DIB on November 18, 2015. (Dkt. 7 at 149, 163).
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 Bowen 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: "stage III breast cancer with chemotherapy induced neuropathy ; Wolf Parkinson White syndrome ('WPW'); lumbago; obesity ; borderline personality disorder ; and adjustment disorder." (Id. ). The ALJ further found that Plaintiff's medically determinable impairment of right lateral femoral cutaneous nerve paresthesia was non-severe. (Id. ).
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 1.04, 4.05, 13.10, 12.04, and 12.08 in reaching his conclusion, as well as considering the effect of Plaintiff's obesity as required by Social Security Ruling ("SSR") 02-1p. (Id. at 25-26).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC to perform a range of light work as defined in
could lift and carry 20 pounds occasionally, 10 pounds frequently, sit for six hours in an eight-hour workday and stand or walk for four hours in an eight-hour workday. [Plaintiff] is limited to no use of foot controls with the right foot; no climbing of ladders, ropes or scaffolds; no crawling; occasional climbing of ramps or stairs, balancing, kneeling crouching; and frequent stooping. She is limited to frequent handling of objects bilaterally and frequent fingering of objects bilaterally. [Plaintiff] could tolerate no direct exposure to chemicals, no concentrated exposure to irritants such as odors, fumes, dusts, gases and poor ventilation and no exposure to hazards such as unprotected heights or moving machinery. She could perform work limited to simple, routine tasks that could be learned after a short demonstration or within 30 days with no production rate or pace work and with no driving of a vehicle or no travel to unfamiliar places.
(Id. at 27). At step four, the ALJ found that Plaintiff was unable to perform any past relevant work. (Id. at 33).
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 office helper, mailroom clerk, *407and ticket taker. (Id. at 33-34). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id. at 34-35).
II. Remand of this Matter for Further Proceedings is Necessary
Plaintiff asks the Court to reverse or, in the alternative, remand this matter to the Commissioner, arguing: (1) the ALJ failed to consider Plaintiff's excessive absenteeism; (2) in rejecting the opinions of physicians in the record, the ALJ improperly substituted his judgment for that of the physicians; (3) the ALJ failed to give good reasons for rejecting the opinions of Plaintiff's treating physicians, Ronald J. Bauer, M.D. and Jennifer Hydeman, Ph.D.; and (4) the ALJ failed to properly assess Plaintiff's "symptom intensity." (Dkt. 17-1 at 1). In her reply brief, Plaintiff raises another argument; that is, the ALJ failed to identify and resolve a conflict between the VE testimony and the Dictionary of Occupational Titles. (Dkt. 23 at 8). For the reasons set forth below, the Court finds that the ALJ erred in evaluating the opinion evidence of Dr. Bauer, and that this error necessitates remand for further administrative proceedings.
A. Assessment of Treating Physician Opinions
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.
Whatever 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. Bauer, a surgeon, in November 2015. (Dkt. 7 at 359). Dr. Bauer completed a functional assessment on April 25, 2016. (Id. at 358-59). Dr. Bauer had last examined Plaintiff in March 2016, only one month prior to completing the assessment. (Id. at 359). Dr. Bauer found that Plaintiff had no limitations for sitting, seeing, hearing, or speaking. (Id. ). Plaintiff was "moderately" limited in her ability to walk, stand, and use her hands. (Id. ). Plaintiff was "very limited" in her ability to perform lifting, carrying, pushing, pulling, bending, and in doing stairs or other climbing. (Id. ). Dr. Bauer explained that Plaintiff had severe impairments that were expected to last for at least twelve months due to the fact that she was "undergoing chemotherapy with severe side effects and now is undergoing surgery that will have post op limitations." (Id. ).
The ALJ gave "limited weight" to Dr. Bauer's opinion that Plaintiff is "very limited" in "lifting, carrying, pushing, pulling, bending and in stairs or other climbing." (Dkt. 7 at 32). The ALJ explained that Dr. Bauer's report does not define the meaning of "very limited," which rendered his assessment "not particularly helpful." (Id. ). Further, the ALJ noted that Dr. Bauer completed the assessment while Plaintiff was undergoing chemotherapy, "during which her condition was presumably its worst but had improved significantly several months later." (Id. ). The ALJ elaborated that "[e]ven while undergoing chemotherapy, claimant reported to Dr. Zali, that she was independent with dressing and bathing, grooming, cooking, cleaning, doing laundry, shopping, managing money and driving." (Id. ). The RFC, which requires Plaintiff to lift and carry twenty pounds occasionally and ten pounds frequently, occasionally climb ramps or stairs, and frequently stoop, appears to conflict with Dr. Bauer's opinion that Plaintiff is "very limited" in her ability to lift, carry, bend, and do stairs or other climbing.
Because the ALJ did not afford controlling weight to Dr. Bauer's opinion, he was required to consider certain factors - including the frequency of examination and the length, nature, and extent of the treatment relationship; the evidence in support of Dr. Bauer's opinion; the consistency of Dr. Bauer's opinion with the record as a whole; whether Dr. Bauer is a specialist; and any other factors brought to the Social Security Administration's attention that tend to support or contradict the opinion - in determining what weight to afford Dr. Bauer's opinion. Halloran,
*409considered these factors when evaluating Dr. Bauer's opinion.
For example, the written determination does not discuss that Plaintiff began seeing Dr. Bauer in November 2015, soon after her cancer diagnoses in September 2015, and six months before Dr. Bauer assessed her functional limitations. Therefore, Dr. Bauer would have been familiar with the scope of Plaintiff's medical conditions and the extent of her limitations. See Schisler v. Heckler,
The Court is cognizant that an ALJ is not required to engage in a "slavish recitation" of each of the above-mentioned factors. See Atwater v. Astrue,
Further, the ALJ failed to give "good reasons" for discounting the opinion of Dr. Bauer. One of the reasons identified by the ALJ for affording less than controlling weight to Dr. Bauer's opinion - that Plaintiff was undergoing chemotherapy at the time Dr. Bauer completed the April 2016 assessment and she improved thereafter - is not a "good reason," when examined in light of the entire record. The other opinion evidence in the record relevant to Plaintiff's physical limitations was offered by Donna Miller, D.O. (See Dkt. 7 at 668-71). Dr. Miller opined that Plaintiff had mild to moderate limitations for heavy lifting, bending, carrying, reaching, pushing, and pulling. (Id. at 671). The ALJ gave Dr. Miller's opinion "some weight," as his opinion was "generally consistent with the claimant's treatment history," and because Dr. Miller's "objective findings on physical examination ... generally support his conclusion." (Id. at 32). Like Dr. Bauer's opinion, Dr. Miller's assessment appears to have been completed at the time Plaintiff was undergoing chemotherapy. (See id. at 668 ("She states presently she is in chemotherapy.") ). However, the ALJ did not find that Plaintiff's chemotherapy treatment somehow exacerbated the results of Dr. Miller's assessment. In other words, the ALJ's presumption regarding the effect of Plaintiff's chemotherapy on her physical functional limitations is inconsistently applied across the opinion *410evidence in the record, and it therefore cannot constitute a good reason for discounting the opinion of Dr. Bauer.
The other reason given by the ALJ for discounting the opinion of Dr. Bauer is that his assessment does not define the meaning of the term "very limited," rendering the assessment "not particularly helpful." (Id. at 32). Dr. Bauer found that Plaintiff was "very limited" in several areas of functioning - including lifting, carrying, pushing, pulling, bending, and in doing stairs or other climbing. Given that Dr. Bauer found Plaintiff to be "very limited" in three of eight areas of physical functioning, and the only other opinion evidence relevant to Plaintiff's physical functional limitations was from a consultative examiner, who did not have the benefit of Plaintiff's treatment history, the ALJ should have re-contacted Dr. Bauer to gain clarification on the meaning of the term "very limited." In other words, the ALJ's finding that almost half of the functional limitations identified by Dr. Bauer were vague, or "not particularly helpful," creates a gap in the record that the ALJ was required to develop. See Fontanez v. Colvin , No. 16-CV-01300 (PKC),
In sum, the ALJ's analysis of Dr. Bauer's opinion did not comport with the treating physician rule, and he failed to give good reasons for not affording Dr. Bauer's opinion controlling weight. On remand, the ALJ should consider Dr. Bauer's opinion in light of the treating physician rule and, if necessary, take steps to re-contact Dr. Bauer to gain clarification of his opinion.
B. Plaintiff's Remaining Arguments
As set forth above, Plaintiff has identified additional reasons why she contends the ALJ's decision was not supported by substantial evidence. However, because the Court has already determined, for the reasons previously discussed, that remand of this matter for further administrative proceedings is necessary, the Court declines to reach these issues. See, e.g., Bell v. Colvin, No. 5:15-CV-01160 (LEK),
*411CONCLUSION
For the foregoing reasons, Plaintiff's motion for judgment on the pleadings (Dkt. 17) is granted to the extent that the matter is remanded for further administrative proceedings. Defendant's motion (Dkt. 22) 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.
Dr. Bauer's opinion that Plaintiff is moderately limited in her ability to stand and walk arguably is consistent with the ability to perform a range of light work. See Ayala v. Berryhill, No. 18CV124 (VB)(LMS),
Reference
- Full Case Name
- Michelene INSALACO v. COMMISSIONER OF SOCIAL SECURITY
- Cited By
- 13 cases
- Status
- Published