Genier v. Astrue
Full Opinion (html_with_citations)
SUMMARY ORDER
Jean Genier appeals from an order entered March 27, 2007 by the District Court for the Northern District of New York (Homer, J.) affirming the Commissioner of Social Securityâs denial of her application for benefits. In August 2008, this court granted Genierâs pre-argument motion to submit evidence of her January 2007 Multiple Sclerosis (âMSâ) diagnosis. We assume the partiesâ familiarity with the un
Genier contends that the Commissioner failed to meet his burden of proof that Genier could perform other work available in the national economy, because the administrative law judge (âALJâ) erred by: (1) concluding that Genier had the residual functional capacity to perform light and sedentary work; (2) rejecting Genierâs credibility; and (3) violating the treating physician rule. We review the ALJâs decision to determine if it is supported by substantial evidence.
When a district court reviews a determination of the Commissioner, we âreview the administrative record de novo to determine whether there is substantial evidence supporting the Commissionerâs decision and whether the Commissioner applied the correct legal standard.â Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.2002). Substantial evidence means âmore than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.â Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938).
We vacate and remand with instructions to remand to the Commissioner of Social Security for reconsideration of Genierâs residual functional capacity in light of her exertional and non-exertional limitations, and for consideration of Genierâs MS diagnosis.
Genier first argues that the ALJ erred by: (1) finding that she was able to perform light and sedentary work during the period in question (July 31, 2001 through October 31, 2003), and (2) by providing the vocational expert with inaccurate assessments of her limitations.
In assessing Genierâs residual functional capacity, the ALJ noted that a functional assessment revealed that she was only âmoderately limitedâ with respect to âstanding, lifting, carrying, climbing stairs, understanding and remembering instructions, carrying out instructions, maintaining attention and concentration, interacting appropriately with others, maintaining socially appropriate[ ] behavior and functioning in a work setting....â He also acknowledged that she was âvery limitedâ with respect to pushing, pulling, and bending. In light of these limitations, and in the absence of other definitive medical evidence that she had any specific disabling condition, the ALJ relied on the vocational expertâs testimony that housekeeper, office helper, surveillance system monitor and preparer positions remained viable job options for Genier.
It is apparent that the ALJâs assessment of Genierâs abilities do not reflect the full range of Genierâs medical problems and was not, therefore, supported by substantial evidence. A number of the positions suggested by the vocational expert clearly seem beyond Genierâs abilities during the period in question. For example, with regard to âlightâ work, the vocational expert suggested that Genier could be a âhousekeeper/cleanerâ, even though the ALJ posited that Genier had only infrequent use of her dominant right hand. The expert also suggested that Genier could take âan office helper position,â although it is unclear exactly what responsibilities this position would entail (and therefore, whether Genier could actually perform the job in light of her limitations). It seems, however, that âhouseworkâ might be difficult without the regular use of a dominant hand, and that an âoffice helperâ job might involve dealing frequently with others, a fact which could exacerbate Genierâs various social phobias and/or her anxiety level. Ultimately, both of these positions were eliminated when it was suggested that Genier had a sit/stand limitation. When faced with that limitation, the vocational expert suggested two sedentary positions:
Given Genierâs mental and emotional difficulties, the surveillance system monitor position seems an odd choice. To suggest that Genier could âmonitorâ a surveillance system raises the question: what would Genier do if she âmonitoredâ something which required a response? Even absent her physical problems, her short term memory problems and cognitive impairments (?'. e., her full-scale IQ of 81 and her 1998 diagnosis of âborderline intellectual functioningâ, both of which clearly impacted Genierâs abilities during the period at issue), suggest that Genier might not have the wherewithal to select and execute the appropriate response if the surveillance system she was monitoring presented a stimulus. In fact, the vocational expert herself suggested there might be a problem if Genier was unable to maintain concentration, make quick judgments, or understand emergency situations. The expert stated that an individual with such difficulties may be âable to get hired in the position but would not be able to maintain [it] for [any period of] longevity,â and might not be able to perform the surveillance system monitor position at all. These assessments are probative of the ALJâs residual functional capacity assessment given that â[t]o be capable of performing sedentary work under the guidelines, an individual must have some reasonable chance in the real world of being hired and, once hired, of keeping the job.â Wingo v. Bowen, 852 F.2d 827, 831 (5th Cir.1988).
The alternative âpreparerâ position suggested by the vocational expert is equally problematic. The vocational expert described a âpreparerâ as someone who â[c]uts, saws, or breaks off gates using shears or foot press to the cutting tool and remove[s] spurs and smoothes [sic] rough edges for casting.â Not only does this position sound particularly arduous, but given Genierâs inability to concentrate, her problems with her dominant hand, and her episodes of numbness and tingling in her arms and legs (reported at least as early as 1998), it seems downright unsafe to expect such an individual to perform a job which regularly involves saws, cutting tools, foot presses, and 45 other sharp, heavy objects.
Granted, Genierâs file contains inconsistencies, and the ALJ discounted somewhat the extent of Genierâs limitations on the basis that some of her reported symptoms are not supported by a medical diagnosis. As to that, Genier raises a second ground of objection. The second objection further supports our decision to vacate and remand for reconsideration of the vocational expertâs testimony and Genierâs actual ex-ertional and non-exertional limitations.
Genier argues that the ALJ erred by discounting her credibility and therefore underestimating her non-exertional limitations with respect to her residual functional capacity. In his decision, the ALJ acknowledged that âSocial Security Regulations require that consideration be given to the claimantâs subjective complaints of pain and other symptomsâ, and in Snell v. Apfel, 177 F.3d 128 (2d Cir. 1999), the Second Circuit recognized that â[u]nder appropriate circumstances, the subjective experience of pain can support a finding of disability.â Snell, 177 F.3d at 135. Nonetheless, after considering Genierâs complaints here, the ALJ found that in light of the âunremarkable [medical] findingsâ in this case, Genierâs âsubjective complaints were grossly overstated.â He did not, therefore, include âpainâ as a nonexertional limitation which negatively impacted her residual functional capacity.
To the extent that the ALJ discounted Genierâs credibility because she could not present objective medical findings to sup
Genier also argues that the ALJ erred by rejecting the findings of several treating physicians and crediting instead the conclusions of a consultative doctor. Pursuant to the regulations governing the Social Security scheme, an opinion from a treating physician is given more weight âsince these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of ... medical impairmentâ. 20 C.F.R. § 416.927(d)(2). If the treating physicianâs opinion is well-supported by other medical evidence, then it is given controlling weight. Id.
Genierâs primary treating âphysicianâ during much of the period in question was Physicianâs Assistant James Gabler of Hudson Headwaters Health Network. Genier was also treated by Nurse Practitioner Brown from the same clinic. The Commissioner argues that a physicianâs assistant and a nurse practitioner do not constitute âacceptable medical sourcesâ under the treating physician rule pursuant to Social Security Ruling 06-3p (âSSR 06-3pâ),(effective date August 9, 2006), and therefore, their assessments do not warrant the same deference as a physicianâs opinion. The Commissionerâs argument is compelling.
â âSocial Security rulings are entitled to deference except when they are plainly erroneous or inconsistent with the Social Security Act.â â Gordon v. Shalala, 55 F.3d 101, 105 (2d Cir.1995) (quoting Walker v. Secây of Health and Human Servs., 943 F.2d 1257, 1259-60 (10th Cir.1991)). According to Social Security Ruling 06-3p, âonly âacceptable medical sourcesâ can be considered treating sources ... whose medical opinions may be entitled to controlling weight.â SSR 06-3p. âAcceptable medical sourcesâ are further defined (by regulation) as licensed physicians, psychologists, optometrists, podiatrists, and qualified speech-language pathologists. 20 C.F.R. § 416.913(a). In contrast, nurse practitioners and physiciansâ assistants are defined as âother sourcesâ whose opinions may be considered with respect to the severity of the claimantâs impairment and ability to work, but need not be assigned controlling weight. 20 C.F.R. § 416.913(d)(1). Therefore, while the ALJ is certainly free to consider the opinions of these âother sourcesâ in making his overall assessment of a claimantâs impairments and residual abilities, those opinions do not demand the same deference as those of a treating physician. See Mongeur v. Heckler, 722 F.2d 1033, 1039 n. 2 (2d Cir.1983) (âthe diagnosis of a nurse practitioner should not be given the extra weight accorded a treating physician.â).
In Genierâs case, many of the key medical opinions cited during the benefits period at issue were those of a physicianâs assistant and a nurse practitioner â and not a physician. As such, the ALJ was free to discount the assessments accordingly in favor of the objective findings of
We hereby VACATE the judgment and REMAND to the district court with instructions to remand the matter to the Commissioner for reconsideration in light of this order.