DARREN PATRICK SICKLER v. CAROLYN W. COLVIN, Acting Commissioner of Social Security
14 Civ. 1411 (JCF)
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
April 9, 2015
JAMES C. FRANCIS IV, UNITED STATES MAGISTRATE JUDGE
Case 1:14-cv-01411-JCF Document 28 Filed 04/09/15
The plaintiff, Darren Patrick Sickler, brings this action pursuant to
A. Personal History
Mr. Sickler was born on April 8, 1960. (R. at 34).2 The record indicates that he has some college education. (R. at 36). The plaintiff‘s last job was as a gas line surveyor. (R. at 37-40, 195); prior to working as a surveyor, he was a glass installer (R. at 41, 195). He lost his most recent job in December 2008 when his employer‘s contract in South Carolina was not renewed. (R. at 40). As of August 8, 2012, Mr. Sickler lived in an apartment in New Rochelle, New York with his girlfriend and daughter. (R. at 33).
B. Medical History
The plaintiff alleges a disability beginning July 1, 2010 (R. at 14), consisting of back and neck pain and numbness in his left leg. (R. at 66, 90). A June 2005 visit to the South Shore Medical Center emergency department and a June 24, 2010, walk-in visit to Conway Medical Center are the only medical reports on record preceding the plaintiff‘s alleged onset date. (R. at 277, 472-74). The 2005 visit appears to have been precipitated by an attack of gout (R. at 472-73), while the reason for the 2010 walk-in was an abscess on Mr. Sickler‘s elbow. (R. at 277). Upon examination in
On August 25, 2010, the plaintiff met with Dr. Elliott Bettman at the Conway Medical Center complaining of neck and back pain. (R. at 293). Mr. Sickler tested “moderately positive” for straight leg raising. (R. at 293). Dr. Bettman scheduled the plaintiff for MRIs of the cervical and lumbar spine and prescribed Ultram. (R. at 293). The plaintiff underwent the prescribed MRI examinations on September 3, 2010. (R. at 283, 285, 295-96). The cervical spine MRI showed “[m]ultilevel multicolumn degenerative changes” and “left uncovertebral osteophyte and disk complex creating high-grade left and mild to moderate right exiting foraminal stenosis.” (R. at 284, 298). The most pronounced abnormality appeared at C5-C6 which showed “[h]igh-grade left exiting foraminal stenosis with moderate right.” (R. at 283, 284, 298). The lumbar spine MRI revealed a “L4-L5 broad-based bulge with central and left disk protrusion. This contacts both forming L5 nerve rootlets, displacing the one on the left. Facet hypertrophy contributes to right greater than left exiting foraminal stenosis.” (R. at 296).
On October 8, 2010, the plaintiff returned to Conway Medical
Three days later, the plaintiff underwent an orthopedic examination with Dr. Regina Roman, D.O. (R. at 303). Mr. Sickler reported “chronic low back pain, which radiates to his left leg,” numbness and tingling, and “shooting pain to his left foot.” (R. at 306). He also complained of left shoulder pain that sometimes radiates to his arm and “involuntary movements of the fingers of the left hand.” (R. at 307). The plaintiff stated that he was unable to walk more than half a block before having to rest because of his low back and foot pain. (R. at 307). He further admitted needing assistance in getting his socks and shoes on and stated that his “wife”3 did the cooking, cleaning, and shopping. (R. at 308). During the physical examination, the plaintiff was observed to have a “slow and antalgic” gait during which he favored his left leg, though he did not utilize an assistive device. (R. at 308). Mr. Sickler was able to get on and off the examination table,
On November 2, 2010, Dr. Jim Liao, a Medical Consultant for the Social Security Administration, reviewed the plaintiff‘s medical files, but did not examine Mr. Sickler personally. (R. at 314). Dr. Liao recorded his findings in a Physical Residual Functional Capacity Assessment. (R. at 314). He concluded that the Mr. Sickler could “[o]ccasionally lift/or carry” 20 pounds, “[f]requently lift and/or carry” ten pounds, and was “unlimited” in his ability to “[p]ush and/or pull“. (R. at 315). Dr. Liao also
Dr. Liao also found the plaintiff‘s “[a]lleged chronic back pain and lt pain” to be credible. (R. at 316). The report noted Mr. Sickler‘s foraminal stenosis and “lt radiculopathy” in the comments section. (R. at 316).
From early February 2011 to April 2011, the plaintiff frequently visited the Family Practice of Kingston, often with the same complaints. On February 11, 2011, the plaintiff sought care for lower back pain and poor circulation in his legs. (R. at 388). Mr. Sickler reported left-side weakness, numbness, tingling, and involuntary movements in both upper and lower extremities. (R. at 390). The supervising physician, Dr. Raymond Harvey, noted Mr. Sickler‘s antalgic gait, pain while in motion, and lumbar stenosis. (R. at 391). A week later the plaintiff was seen by Dr. Geniene Wilson. (R. at 383). Dr. Wilson scheduled Mr. Sickler for an MRI. (R. at 386). On February 25, 2011, the plaintiff again sought relief for his chronic back pain. (R. at 376). Mr. Sickler‘s pain medication prescription was renewed and a consultation with a neurosurgeon was scheduled. (R. at 379).
On March 15, 2011, the plaintiff saw Dr. Wilson, again reporting back pain and stating that his medication was losing effectiveness. (R. at 371). Mr. Sickler also reported that sometimes his “leg gives out on him“. (R. at 373). He was scheduled for a neurology appointment and prescribed Fentanyl patches to help his back pain. (R. at 374). The plaintiff returned two weeks later on March 29, 2011, for his back pain. (R. at 366). During the physical examination, Mr. Sickler tested positive on a bilateral straight leg test. (R. at 369). On April 21, 2011, the plaintiff returned to Dr. Wilson, stating that his back pain “[h]urts [w]orse“. (R. at 361). Dr. Wilson diagnosed
On June 3, 2011, the plaintiff attended a consultation with Dr. Farag Aboelsaad for a possible transforaminal epidural injection.6 (R. at 342). Mr. Sickler described his pain as being “located in the lower back, more in the left than the right. It is also going down more in the left lower extremity than in the right lower extremity . . . [with] numbness in the left lower extremity“. (R. at 342). Mr. Sickler also stated that his pain increases with activity. (R. at 342). Dr. Aboelsaad noted that the plaintiff displayed a very slow gait, inability to walk on heels or toes, and “sensation diminished in the left lower extremity more than the right to light touch.” (R. at 343). A transforaminal epidural steroid injection was scheduled thereafter to help with Mr. Sickler‘s back pain. (R. at 343).
On June 10, 2011, the plaintiff underwent an MRI of his
On June 23, 2011, the plaintiff received his epidural injection. (R. at 338-41, 345-46). Later that day, Mr. Sickler had a follow-up with Dr. Darryl DiRisio to review his recent cervical spine MRI. (R. at 336-37). In a letter addressed to Dr. Wilson, Dr. DiRisio reported that Mr. Sickler was having difficulties with his hands as he was frequently dropping things and was unable button his shirt. (R. at 336). He was also experiencing a fair amount of neck pain. (R. at 336). Dr. DiRisio found Mr. Sickler‘s intrinsic hand strength to be “okay.” (R. at 336). The plaintiff did experience pain while performing a Phalen‘s type maneuver but had a negative Tinel‘s sign, coupled with excellent strength in all four extremities and a “perfectly fine” gait. (R. at 336). Dr. DiRisio believed Mr. Sickler‘s symptoms pointed to Lyme disease as the cause of his pain. (R. at 336-37). Dr. DiRisio‘s report did not mention Mr. Sickler‘s recent
On June 30, 2011, the plaintiff saw Dr. Wilson for a follow-up concerning the results of recent bloodwork. (R. at 349). Mr. Sickler again reported significant back pain and stated that the epidural injection was “not helping much.” (R. at 352). Dr. Wilson diagnosed both cervical and lumbrosacral spinal stenosis and recommended that Mr. Sickler see a neurologist to consider neck surgery. (R. at 352).
On February 22, 2012, the plaintiff sought assistance for his back pain at Sound Shore Medical Center in Westchester, New York. (R. at 423). Mr. Sickler was prescribed Fentanyl patches and instructed to follow up regarding his back pain. (R. at 430). On February 27, 2012 the plaintiff saw Dr. Cristian Brotea at the Westchester Spine Institute. (R. at 475). The plaintiff completed a questionnaire in which he indicated constant back pain that was getting worse and noted “legs give out[;] have fallen“. (R. at 475). Dr. Brotea‘s accompanying handwritten notes are illegible. (R. at 477-78).
On March 29, 2012, the plaintiff underwent an MRI on his
On July 12, 2012, the plaintiff was seen by Dr. Eric Mariuma, a neurologist. (R. at 481). Dr. Mariuma found that Mr. Sickler‘s symptoms suggested radiculopathy and noted signs of femoral neuropathy in the left leg with “associated sensory loss and quadriceps weakness“. (R. at 483). On August 24, 2012, Dr. Mariuma completed a Residual Functional Capacity Questionnaire on behalf of the plaintiff. (R. at 491). He opined that Mr. Sickler was incapable of walking a full city block without pain and could not sit or stand for more than ten minutes without having to stand up or move. (R. at 491). Dr. Mariuma further indicated that, in an eight-hour workday, Mr. Sickler could sit or stand less than two hours a day, could only walk approximately five to ten minutes at a time, and could only rarely lift less than ten pounds in a work environment. (R. at 491-92). Dr. Mariuma noted that Mr. Sickler was constantly in pain and would miss more than four days of work
C. Procedural History
On July 29, 2010, Mr. Sickler applied for disability insurance benefits and supplemental security income, and on June 17, 2011, he filed a second application for a period of disability, disability insurance benefits, and supplemental security income. (R. at 14). He alleged that his disability began on December 19, 2008. (R. at 14). The claims were initially denied on September 21, 2011. (R. at 14). The plaintiff submitted a written request for hearing on October 17, 2011. (R. at 14).
The hearing was held by Administrative Law Judge (“ALJ“) Katherine Edgell on August 8, 2012. (R. at 29). At the hearing, the plaintiff, who was represented by counsel, amended the disability onset date to July 1, 2010. (R. at 14). Mr. Sickler testified that he drops things, that his legs give out on him, and that he is unable to tie his own shoes because his pain prevents him from bending down long enough. (R. at 45). Mr. Sickler went on to explain that he had moved to New York from South Carolina for financial reasons. (R. at 47). Mr. Sickler stated that he and his family had “pretty much ended up homeless“, that he could not
When describing a normal day, the plaintiff stated that his wife helps him shower and get dressed, that he spends his days watching TV and sleeping, and when he does leave the house, it takes him about 45 minutes to get down the stairs. (R. at 52-53). During the hearing, Mr. Sickler had a cane with him, which he reportedly uses “all the time“; prior to receiving the cane from his physical therapist, he had been using a walking stick for the previous one and one-half to two years. (R. at 53, 56).
The plaintiff went on to state that he could lift “[m]aybe four pounds,” that he could stand for ten minutes, and that he could sit for ten to fifteen minutes.9 (R. at 54). Mr. Sickler stated that his leg is weak and constantly numb, enough so that his doctor was able to “put a needle in about six, eight inches long,” without his feeling pain. (R. at 57). As a result of his pain and weakness, Mr. Sickler is unable to do any household chores or go grocery shopping and only gets three to four hours of sleep nightly. (R. at 58, 62). When Mr. Sickler does reach down to get
ALJ Edgell issued a decision on October 23, 2012, finding that the plaintiff was not disabled. (R. at 11-22). The Appeals Council denied Mr. Sickler‘s request for review of the ALJ‘s decision (R. at 1-6), rendering the ALJ‘s determination the final decision of the Commissioner.
Analytical Framework
A. Determination of Disability
A claimant is disabled under the Social Security Act and therefore entitled to disability benefits if he can demonstrate, through medical evidence, that he is unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than [twelve] months.”
The disability must be of “such severity that [the claimant] is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind
To determine whether a claimant is entitled to disability benefits, the Commissioner employs a five-step sequential analysis.
B. Judicial Review
Under
The Social Security Act provides that the Commissioner‘s findings “as to any fact, if supported by substantial evidence, shall be conclusive.”
Judicial review, therefore, involves two levels of inquiry. First, the court must decide whether the Commissioner applied the correct legal standard. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Calvello v. Barnhart, No. 05 Civ. 4254, 2008 WL 4452359, at *8 (S.D.N.Y. April 29, 2008). Second, the court must decide whether the ALJ‘s decision was supported by substantial evidence.
“In determining whether substantial evidence exists, a reviewing court must consider the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight.” Longbardi, 2009 WL 50140, at *21 (citing Brown, 174 F.3d at 62). Substantial evidence in this context is “‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.‘” Hahn, 2009 WL 1490775, at *6 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); accord Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004).
Discussion
A. ALJ‘s Decision
ALJ Edgell evaluated Mr. Sickler‘s claim pursuant to the five-step sequential evaluation process and concluded that Mr. Sickler was not disabled at any time since the alleged onset date.
As an initial matter, the plaintiff met the insured status requirements of the Act.10 At step one, the ALJ found that Mr. Sickler had not engaged in substantial gainful activity since July 1, 2010. (R. at 17). At step two, she determined that Mr. Sickler had the following severe impairments: degenerative disc disease, disc bulges, and stenosis of the lumbrosacral and cervical spine;
At step four, the ALJ determined that Mr. Sickler had the residual functional capacity to perform “a broad range of light work” as defined in
In reaching this conclusion, the ALJ considered the plaintiff‘s reported symptoms and found that his “medically determinable impairments could reasonably be expected to cause some of the alleged symptoms” (R. at 20), but determined that the medical evidence in this case “fail[s] to provide strong support for the claimant‘s allegations of disabling symptoms and limitations as of the alleged onset date” (R. at 18). The ALJ
The ALJ accorded the opinion of Dr. Liao “great weight” as “consistent with and supported by medical evidence of record“. (R. at 21). Dr. Wilson‘s opinion was considered but “not given great weight” because she opined that Mr. Sickler is “unable to work“, a determination that is reserved to the Social Security Administration. (R. at 21). ALJ Edgell accorded Dr. Mariuma‘s opinion no weight because his residual functional capacity assessment was “contradicted by examiners who saw the claimant during the period on which Dr. Mariuma opined“. (R. at 21).
At step five, the ALJ determined that Mr. Sickler was “capable of performing past relevant work as a gas line surveyor.” (R. at 21).
The plaintiff challenges the ALJ‘s decision on the grounds that the ALJ (1) failed to properly consider the plaintiff‘s impairments against the listing of impairments for the spine, and (2) failed to give controlling weight to the treating physicians in assessing his residual functional capacity.
1. The Listings
The plaintiff alleges that the ALJ erred in evaluating his impairments under the Listings by failing to sufficiently analyze the medical record and explain the basis for her findings. (Memorandum of Law in Support of Plaintiff‘s Motion for Judgement on the Pleadings (“Pl. Memo.“), at 12);
When a disability claim is “premised upon one or more listed impairments of Appendix 1, the Secretary should set forth a sufficient rationale in support of his decision to find or not to find a listed impairment.” Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir. 1982). Accordingly, where the ALJ‘s reasoning is opaque, it is appropriate to “remand the case for further findings or a clearer explanation of the decision.” Id.
The ALJ is not required to mention every item of testimony presented to her or to explain why she considered particular evidence unpersuasive or insufficient to lead to a finding of disability. Petrie v. Astrue, 412 F. App‘x 401, 407 (2d Cir. 2011). Nevertheless, “the hearing officer must set forth the ‘crucial factors’ of his or her decision ‘with sufficient specificity to enable [reviewing courts] to decide whether the
Here, the ALJ failed to state with adequate specificity why the plaintiff‘s impairments did not meet the criteria of any of the listings in Appendix 1. Her reasoning was both generic and terse: while the decision did enumerate the impairments the ALJ considered when evaluating Mr. Sickler‘s claim, it did not explain why the symptoms fell short of the listings in Appendix 1 or support her assertion that Mr. Sickler could “ambulate effectively.” (R. at 17). Mere assertions that a claimant‘s impairments do not meet the severity of specific listings, without more, do not constitute the “specific factual findings” necessary for denying a disability claim. Wood, 987 F. Supp. 2d at 192-93 (quoting McCallum v. Commissioner of Social Security, 104 F.3d 353, *1 (2d Cir. 1996) (table)).
The plaintiff also alleges that the ALJ erred in finding that he does not meet the requirements of the relevant listings under Appendix 1. (Pl. Memo. at 14);
The “Social Security Act is a remedial statute, to be broadly
The Listing for the spine requires the claimant to make a showing of the following:
Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine); or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours; or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b.
Spinal stenosis, an impairment under Listing 1.04, is defined
Mr. Sickler‘s medical record is replete with diagnoses of spinal stenosis, either specifically as spinal stenosis or as one of the variations listed above. (R. at 283-84, 342-44, 347-48, 393-94, 483, 486-87). The majority of these diagnoses were derived from medically accepted imaging, such as an MRI.
Listing 1.04C requires a showing of “[l]umbar spinal stenosis” resulting in an “inability to ambulate effectively, as defined in 1.00B2b.”
Effective ambulation means being capable of “sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living [and having] the ability to travel without companion assistance to and from a place of employment or school.”
Here, the ALJ‘s determination that the plaintiff fails to meet the criteria of Listing 1.04C is supported by substantial evidence. While Mr. Sickler did testify at his hearing that he had been using a cane and walking stick (R. at 56), the medical record reveals several instances of Mr. Sickler walking without an assistive device. (R. at 307-08, 342-44, 482).
Listing 1.04A requires “[e]vidence of nerve root compression“.
Even construing the evidence conservatively, Mr. Sickler has made an adequate showing to meet the requirements of Listings 1.04 and 1.04A. The ALJ‘s decision, in contrast, did not cite a single medical record to support her determination that Mr. Sickler‘s impairments did not qualify under Listing 1.04 and thus is not supported by substantial evidence.
2. Treating Physician Rule
The plaintiff alleges that the ALJ erred by failing to grant controlling weight to his treating physicians, Drs. Wilson and Mariuma. (Pl. Memo. at 21-24). The Social Security Act regulations establish that “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)
If the ALJ determines that a treating physician‘s opinion is not controlling, she is nevertheless required to consider the following factors in determining the weight to be given to that opinion: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the evidence provided to support the treating physician‘s opinion; (4) the consistency of the opinion with the record as a whole; (5) whether the opinion is from a specialist; and (6) other factors brought to the Commissioner‘s attention that tend to support or contradict the opinion.
Determination of “dispositive” issues, such as whether a claimant “meet[s] the statutory definition of disability” and cannot work, are reserved for the Commissioner.
i. Dr. Wilson
Here, in concluding that Mr. Sickler could perform light work, the ALJ declined to give controlling weight to Dr. Wilson‘s opinion conclusion concerning the plaintiff‘s disabling limitations. (R. at 17-21). The ALJ only considered Dr. Wilson‘s opinion, but did not accord it “great weight.” (R. at 21).
Although ALJ Edgell was not required to give Dr. Wilson‘s opinion controlling weight, she was obligated to detail her reasons for failing to do so.
The requirement of reason-giving exists, in part, to let claimants understand the disposition of their cases, even -- and perhaps especially -- when those dispositions are unfavorable. A claimant like [Mr. Sickler], who knows that [his] physician has deemed [him] disabled, might be especially bewildered when told by an administrative bureaucracy that [he] is not, unless some reason for the agency‘s decision is supplied. [Mr. Sickler] is not entitled to have [his physician]‘s opinion on the ultimate question of disability be treated as controlling, but [he] is entitled to be told why the Commissioner has decided -- as under appropriate circumstances is his right -- to disagree with [the treating physician].
Id. (internal citation omitted)(remanding case to Appeals Council for statement of reasons on basis of which treating physician‘s finding of disability was rejected).
Here, the ALJ justified assigning little or no weight to Dr. Wilson‘s opinion because the ALJ believed it was inconsistent with the medical records on file. (R. at 21). This conclusory statement does not “‘comprehensively set forth [the ALJ‘s] reasons for the weight assigned to [the] treating physician‘s opinion.‘” Burgess, 539 F.3d at 129 (quoting Halloran, 362 F.3d at 33); see also Duncan v. Astrue, No. 09 CV 4462, 2011 WL 1748549, at *18 (E.D.N.Y. May 6, 2011) (explaining that conclusory statements, such as opinion being “not supported by the preponderance of the objective evidence of record” and “not consistent with the evidence on record,” are not sufficient reasons for assigning reduced weight to treating physician‘s opinion).
Although a thorough review of the record might indicate reasons for ALJ Edgell‘s decision not to assign Dr. Wilson‘s opinion controlling weight, the requisite “good reasons” must be articulated and “post hoc rationalizations for agency action” are not acceptable. Newbury v. Astrue, 321 F. App‘x 16, 18 (2d Cir. 2009) (internal quotation marks omitted) (holding that court review of decision and record cannot substitute for ALJ‘s specific delineation of reasons for weight given to treating physician‘s opinion).
In her decision, ALJ Edgell made generic references to the record as a whole and to a finding by “the neurosurgeon” that the plaintiff‘s symptoms were likely caused by Lyme disease. (R. at. 21, 336). The neurosurgeon referred to is likely Dr. DiRisio, as he is the only doctor to diagnose the plaintiff with Lyme disease. Dr. DiRisio‘s report, however, is of questionable utility. It reflects his findings after an examination that took place mere hours after Mr. Sickler had received an epidural injection. (R. at
The ALJ‘s other objection to Dr. Wilson‘s opinion is that Dr. Wilson made a determination reserved for the Commissioner. (R. at 21). Although the ALJ must make the ultimate decision regarding whether a claimant is disabled under the Act,
Moreover, the ALJ failed to adequately discuss the length, frequency, nature, and extent of Dr. Wilson‘s relationship with the plaintiff. See Serrano v. Colvin, No. 12 Civ. 7485, 2014 WL 197677, at *16 (S.D.N.Y. Jan. 17, 2014). The doctor-patient relationship in this case is clearly sufficient, given the plaintiff‘s multiple visits, for Dr. Wilson to provide a meaningful diagnosis and “unique perspective” with respect to Mr. Sickler‘s impairments. Correale-Engelhart, 687 F. Supp. 2d at 426.
Nor did the ALJ take into account the evidence consistent with
ii. Dr. Mariuma
The ALJ disregarded Dr. Mariuma‘s opinion completely on the ground that his opinion provided “no rational [sic] for the limits assessed and gives a retrospective opinion that is contradicted by examiners who saw the claimant during the period on which Dr. Mariuma opined“. (R. at 21). Dr. Mariuma concluded that Mr. Sickler could not walk a full city block without pain and could not sit or stand more than ten minutes without having to stand up or move, could only sit or stand less than two hours a day, could only walk approximately five to ten minutes at a time, and could rarely lift less than ten pounds in a work environment. (R. at 491-92). He found that Mr. Sickler was constantly in pain and would miss more than four days of work a month. (R. at 492). Dr. Mariuma ultimately concluded that the plaintiff was unable to work. (R. at 494).
It is unclear why the ALJ disregarded Dr. Mariuma‘s opinion
The regulations permit the “opinions of nonexamining sources to override treating sources’ opinion provided they are supported by evidence in the record.” Diaz v. Shalala, 59 F.3d 307, 313 n. 5 (2d Cir 1995); Bell v. Colvin, No. 7:12 CV 1813, 2015 WL 224662, at *9 (N.D.N.Y. Jan. 15, 2015). However, “opinions of nonexamining medical personnel cannot in themselves constitute substantial evidence overriding the opinions of examining physicians.” Simmons v. U.S. Railroad Retirement Board, 982 F.2d 49, 56 (2d Cir. 1992) (quoting Havas v. Bowen, 804 F.2d 783, 786 (2d Cir. 1986)).
Here, the opinion of a non-examining source is not supported by the evidence. Dr. Liao‘s opinion that Mr. Sickler could engage in light work finds no support in the record. Conversely, Dr. Mariuma‘s opinion that Mr. Sickler is “unable to work and is effectively disabled” (R. at 494), is contradicted solely by the opinion of a non-examining physician.
The weight assigned by the ALJ to the opinions of Drs. Wilson, Mariuma, and Liao was not in accordance with the treating physician rule. Had the ALJ correctly followed the rule, she would have better articulated her reasoning and assigned the opinions of Mr. Sickler‘s doctors different weight.
The plaintiff alleges that the ALJ improperly analyzed his credibility and used his activities of daily living against him. (Pl. Memo. at 16, 18).
The ALJ found “the credibility of [Mr. Sickler‘s] allegations” to be unsupported by the record. (R. at 20). “It is well within the discretion of the Commissioner to evaluate the credibility of a claimant‘s complaints and render an independent judgment in light of the medical findings and other evidence regarding the true extent” of the claimant‘s symptoms. Nunez v. Astrue, No. 11 Civ. 8711, 2013 WL 3753421, at *11 (S.D.N.Y. July 17, 2013).
Here, ALJ Edgell cites Mr. Sickler‘s self-reported daily activities to rebut the subjective evidence of pain and mobility. (R. at 18). However, the record is replete with evidence demonstrating Mr. Sickler‘s severe and ongoing pain. (R. at 285, 290, 293, 306, 340, 342, 357, 363, 371, 386, 423, 431, 475). Even the Disability Determination Services report, on which the ALJ based her conclusion that the plaintiff was not disabled, found that Mr. Sickler‘s complaints of pain were credible. (R. at 316).
In any event, Mr. Sickler‘s “description of [his] activities and life style does not provide sufficient reason for discrediting [his] subjective statements concerning pain or the extent of [his]
The record does provide grounds to question whether the plaintiff was exaggerating the severity of his pain, particularly his claim that it takes him forty-five minutes to climb two flights of stairs (R. at 53) and ten minutes to get up after bending down (R. at 60). Nevertheless, such claims do not authorize the ALJ to ignore objective medical evidence supporting the plaintiff‘s complaints of pain.
Additionally, the ALJ mischaracterized Mr. Sickler‘s ability to work and deal with pain by citing his daily activities. The record is rife with evidence demonstrating Mr. Sickler‘s inability to lift items (R. at 51, 54, 235, 237, 239), to get around (R. at 52-54, 237), and his need for substantial assistance in going
The ALJ also cited Mr. Sickler‘s alcohol and tobacco use as detrimental to his credibility. (R. at 20). While it is true that Mr. Sickler was urged to immediately cease smoking and drinking multiple times, there is nothing in the record suggesting that smoking or drinking caused or had any specific adverse effect on his claimed disabilities. To be sure, the record demonstrates that Mr. Sickler‘s tobacco use adversely effected his “overall health” (R. at 293, 337), and his alcohol consumption contributed to his episodes of gout (R. at 290). But apart from one cryptic note that the plaintiff‘s level of smoking was “very bad for the back” (R. at 293), there was no further explanation or evidence of causality between either smoking or drinking and Mr. Sickler‘s chronic back and leg pain.
Nor did the ALJ make her credibility determination pursuant to the factors prescribed by the regulations to determine claimant credibility. Kane v. Astrue, 942 F. Supp. 2d 301, 313 (E.D.N.Y. 2013) (citing
D. Remedy
Under
For the foregoing reasons, the Commissioner‘s decision denying the plaintiff‘s application for benefits is reversed and the case is remanded for further proceedings consistent with this decision. The Clerk of the Court shall enter judgment accordingly.
SO ORDERED.
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
Dated: New York, New York
April 9, 2015
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