Marrese v. Colvin, No. 6:2015cv06369 - Document 17 (W.D.N.Y. 2016)
Court Description: -CLERK TO FOLLOW UP-ORDER granting 9 Motion for Judgment on the Pleadings; denying 15 Motion for Judgment on the Pleadings. Signed by Hon. Jonathan W. Feldman on 09/16/2016. (JKT)
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Marrese v. Colvin Doc. 17 SEP 16 2016 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK JENNY REBECCA MARRESE, Plaintiff, DECISION& ORDER 15-CV-6369 v. CAROLYN W. COLVIN, Defendant. Preliminary Statement Plaintiff Jenny Marrese brings this action pursuant to Title I I of the Social Security Act seeking review of the final decision of the Commissioner") benefits. Court are Commissioner Social Security ("the denying her application for disability insurance See Complaint the parties' (Docket # 1) . competing motions pleadings pursuant to Rule 12 (c) See Docket ## 9, Procedure. of 15. Presently before for judgment on the of the Federal Rules of Civil On June 23, 2016, a hearing was held and argument was heard from counsel on the motions. the conclusion of the hearing, the At the Court made ah oral ruling on the record, finding that the ALJ failed to adequately follow and apply the "treating physician rule" application. to plaintiff's disability For the reasons stated on the record and below, it is hereby ORDERED that the Commissioner's motion for judgment on 1 Dockets.Justia.com the pleadings (Docket # 15) is denied and plaintiff's motion for judgment on the pleadings (Docket # 9) is granted in part. Discussion Plaintiff's primary challenge to the ALJ's decision is that the ALJ did not give the proper weight to the medical findings and opinions of plaintiff's treating medical professionals. Plaintiff's Memorandum of Law (Docket # 9-1). ALJ than improperly applied the affording weight, the three ALJ I agree that the "treating physician rule." treating discounted physician them for See opinions the Rather controlling opinions of · a consultative examiner and a non-treating, non-consulting doctor. Because the ALJ failed to adequately explain why she discounted the opinions professionals, of treating the ALJ' s doctors in favor of non-treating decision was not based on substantial evidence and remand for further proceedings is required. The Treating Physician Rule: The treating physician rule, set forth in the Commissioner's own regulations, "mandates that the medical opinion of a claimant's treating physician is given controlling weight if it is well supported by medical findings and not inconsistent with other substantial record Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000). § evidence." See 20 C.F.R. 416.927(d) (2) ("Generally, we give more weight to opinions from 2 your treating sources."). treating physician weight," she must Where, opinion provide as here, less something good an than reasons for ALJ gives a "controlling doing so. Our circuit has consistently instructed that the failure to provide good reasons for not crediting the opinion treating physician is a ground for remand. 134 F.3d 496, Barnhart, 503-05 335 F.3d 99, "treating physician" physician who claimant."); 2 O04) (per remanding not v. do of we in the Barnhart, not See Schaal v. Apfel, to primary 362 'good the views of the treatment of the F.3d hesitate provided encounter plaintiff's 2003) ("The SSA recognizes a deference treating physician [ 's] when a 1998); see also Green-Younger v. (2d Cir. engaged Halloran has 106 rule curiam) ("We Commissioner given to a has (2d Cir. of 28, to 33 remand reasons' for (2d Cir. when the the weight opinion and we will continue opinions from ALJs that do not comprehensively set forth reasons for the weight assigned to a treating physician's opinion."). Our circuit has also been blunt on what an ALJ must do when deciding not to give controlling weight to a treating physician: 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. After 3 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. The ALJ is not permitted to. substitute his own expertise or view of the medical proof for the treating physician's opinion or for any competent medical opinion. Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (emphasis added) (internal citations, quotations and alterations omitted). Plaintiff had three treating source opinions on the record stating that she would not be able to participate in full time, competitive employment, and all three opinions concluded that she would be absent from work more than four days per month due to symptoms. Newman, The plaintiff's her long-time plaintiff over forty report. Dr. capacity questionnaire Newman first times opinion from treating physician, between completed on came a May 2008 and physical 25, the Dr. Valerie who had seen date of her residual · functional 2012, indicating that plaintiff "can't function a normal life due to mental illness," was time "incapable of competitive bipolar, low stress employment and anxiety, jobs," on a June at 680-85. 12, 2012, engage sustained basis due in fullto PTSD, and would be likely absent from work more than four days per month due AR. could not Filling out to her impairments or treatments. the same form one month later on mental-health plaintiff's 4 treating Nurse Practitioner (NP) 1 Lyn Sullivan opined that plaintiff would be absent from work at least four days per month and would not be able to engage in full-time competitive employment. One year later, NP Sullivan's opinion remained the opinion co-signed by Dr. Michael Simson. 2 AR. AR. at 692. same at 937. in an The ALJ 1 Ms. Sullivan is a nurse practitioner, not a medical doctor, and she is thus not an' "acceptable medical source" as defined in 2 O C. F. R. § 404.1513(a). However, as SSR-06-03P notes, "[w]ith the growth of managed health care in recent years and the emphasis on containing medical costs, medical sources who are not 'acceptable medical sources, ' " such as nurse practi ti one rs, "have increasingly assumed a greater percentage of the treatment and evaluation functions previously handled primarily by physicians and psychologists." SSR 06-03P, 2006 WL 2329939, at *2 (SSA Aug. 9, 2006). Opinions from these medical sources, although "not technically deemed 'acceptable medical sources' under, [the] rules, are important and should be evaluated on key issues such as impairment severity and functional effects, along with the other relevant evidence in the file." Id. (emphasis added) . Indeed, SSR 06-03p provides that an opinion from, a "non-medical source" who, like NP Sullivan, has seen the claimant in a "professional capacity may, under certain circumstances, properly be determined to outweigh the opinion from a medical source, including a treating source," such as when "the 'non-medical source' has seen the individual more often and has greater knowledge of the individual's functioning over time and if the 'non-medical source's' opinion has better supporting evidence and is more consistent with the evidence as a whole." Id. at *6. Here, NP Sullivan has seen plaintiff for mental health treatment at least dating back to 2010, and thus has unique knowledge of plaintiff's functioning regardless of her credentialing. 2 Dr. Simson never examined plaintiff. I read his co-signature of NP Sullivan's opinion as providing it additional weight. Cf. Beckers v. Colvin, 38 F. Supp. 3d 362 (W.D.N.Y. 2014) (" [R] eports co-signed by a treating physician may be evaluated as having been the treating physician's opinion.") (citations omitted); Keith v. Astrue, 553 F. Supp. 2d 291, 301 (W.D.N.Y. 5 assigned the relevant portions of each of these three opinions "little," "limited," and "less" weight, did not support such limitations. In afforded place more of these weight three to and Dr. the opinions review and the of Dr. Based only on a apparently Reddy, V. a a consultative examiner who AR .. at 21. mental Dr. Reddy performed a residual functional record review, capacity 2012. Dr. AR. at 645- Reddy assessment of plaintiff's record on March 9, 62. ALJ examined or personally assessed Yu-Ying Lin, met the plaintiff only once. psychiatric AR. at 19, 22, 23. opinions, reviewing doctor who never met, the plaintiff, stating that the record opined that plaintiff would be able to fulfill the requirements of unskilled work in a low-contact, low-stress environment. Psychological consultative examiner Dr. on March 6, "regular weight" 2012, schedule." at to Dr. Lin's report, 642. at 661. Lin met with plaintiff and opined that plaintiff AR. AR. While could maintain a the ALJ gave "some it must be noted that in the same report, Dr. Lin also opined that the results of her examination "appear to be consistent with psychiatric problems and this may significantly interfere with the claimant's ability to function on a daily basis." AR. at 643. (emphasis added) . 2008) (directing that the ALJ evaluate treatment notes drafted by a nurse practitioner and co-signed by a physician in accordance with the treating physician rule on remand) . 6 Counsel for the Commissioner argued in her brief and at oral argument that it is the ALJ's duty to weigh the evidence in making her decision, medical and that the ALJ is not bound by any single or non-medical (Docket # 15-1) v. Barnhart, is correct evidence opinion. at 17; and a general resolve 588 (2d Cir. rule. It conflicts. conflicting evidence, Commissioner's Memorandum see also 20 C.F.R. 312 F.3d 578, as See is The § 2002). the ALJ reject portions of The ALJ is not free, findings and opinions of however, Of course, ALJ's may, a in to weigh reconciling See Veino, 312 F.3d to denigrate the medical treating doctors and professionals favor of one doctor who never met the plaintiff, who met her only once, job this medical opinion and accept other portions of the same opinion. at 588. 404.1520b(c); Veino in and one doctor without a more comprehensive explanation than the one given here. Contrary to record is serious the replete ALJ and the with psychological evidence Commissioner's assertion, suggesting limitations that plaintiff that would preclude her full time employment in a competitive environment. Newman, notes plaintiff's plaintiff's long-term anxious and treating fearful 7 physician, thoughts, Dr. the has from Valerie routinely depressed mood and difficulty functioning. 609, 779, 785. Dr. 3 See, e.g., AR. at 592, Newman notes that plaintiff was panic attacks daily." AR. at 599, 601, "down to 2 Plaintiff reported to Dr. 779. Newman and at the hearing before the ALJ that she stays in bed most of Dr. the time due Newman's socially or to depression. assessment function limited in high AR. at plaintiff's stress 50, 52, 58, ability settings. to AR. 835. engage at 870. Elsewhere on the record plaintiff discusses suicide attempts and suicidal ideation, AR. at 47, at 419, 714, personal testimony getting hygiene, out of sure AR. [she] to the ALJ has bed, get[s] reveals caring and performing minor She said that she sees her make[s] and difficulty sleeping. 757, 886. Plaintiff's difficulty 420, a for tasks woman who her of "psychiatrist once a daily week, out of bed on Wednesdays." 3 family and living. so [she] AR. at 50. Counsel for the Commissioner seemed to set forth a brief argument that Dr. Newman's opinion regarding plaintiff's mental health determinations should be afforded less weight because she was not a mental health specialist. See Commissioner's Memorandum (Docket # 15-1) at 23-24. At oral argument, counsel acknowledged that under the regulations and the law a general physician may opine on a claimant's physical as well as mental health.. See Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) ("While the medical profession has standards which purport to restrict the practice of psychiatry to. physicians who have completed residency training programs in psychiatry, it is well established that primary care physicians (those in family or general practice) identify and treat the majority of Americans' psychiatric disorders."). 8 Otherwise, she stays in bed three or four days a week. Id. She goes for three days without a shower because she cannot get up to get in the shower. AR. at 52. She opens her bedroom door so that her daughter can come in and talk to her. Id. small panic attacks three or four times a week, She has and during the relevant period she was hospitalized for a week due to a panic attack. AR. at 58. In sum, the record here pays tribute to a woman with significant mental health issues that would severely impact her ability to sustain full time, provided three separate competitive employment. opinions from treating She has professionals documenting her psychiatric limitations and confirming that due to her mental health diagnosis she would be absent from work at least four days a reasons why than the doctors. The ALJ findings these weight month. and opinions opinions of failed to articulate good are non-treating entitled to and less non-examining Accordingly, remand is required. Conclusion For the reasons stated on the record and discussed above, this Court finds that the ALJ did not appropriately apply the treating physician opinions of record. rule when assigning weight to the medical Therefore, plaintiff's motion for judgment 9 on the pleadings motion for (Docket # 9) judgment on the is granted, and the Commissioner's pleadings (Docket # 15) is denied only insofar as this matter is remanded back to the Commissioner for further proceedings in accordance with this Decision and Order and the Court's Oral decision on the record. SO ORDERED. W. FELDMAN Magistrate Judge Dated: September 16, 2016 Rochester, New York 10
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