Williams v. Colvin

Filing 20

MEMORANDUM & ORDER: Williams motion 16 is granted insofar as the case is remanded for further proceedings, and the Commissioners motion 14 is denied.Ordered by Judge Frederic Block on 9/30/2015. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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LARRY WILLIAMS,
Plaintiff,
-against-

MEMORANDUM AND ORDER
14-CV-05876 (FB)

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
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Appearances:
For the Plaintiff:
WENDY BRILL, ESQ.
150 E. 69th Street
New York, NY 10021

For the Defendant:
KELLY T. CURIE, ESQ.
Acting United States Attorney
JASON P. PECK, ESQ.
Assistant United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, NY 11201

BLOCK, Senior District Judge:
Larry Williams (“Williams”) seeks review of the final decision of the
Commissioner of Social Security (“Commissioner”) denying his application for
disability benefits under the Social Security Act. Both parties move for judgment on
the pleadings. For the following reasons, the Court grants Williams’ motion insofar as
the case is remanded for further proceedings. The Commissioner’s motion is denied.

I.
On December 2, 2010, Williams filed an application for Disability Insurance
Benefits. Williams alleged disability as of August 28, 2009, from lumbosacral pain and
sarcoidosis. After the Social Security Administration denied his application, Williams
had a hearing before an Administrative Law Judge (“ALJ”) on May 30, 2012.
In a written decision issued on February 21, 2013, the ALJ concluded that
Williams was not disabled. Applying the familiar five-step evaluation process,1 the
ALJ first determined that Williams had not engaged in substantial gainful activity since
he was laid off on December 2, 2010.2 Second, the ALJ found that he suffered from
degenerative disc disease of his lumbar spine and sarcoidosis, which the ALJ also found
to be severe impairments. Third, the ALJ determined that his impairments did not meet

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Social Security Administration regulations establish a five-step process for
evaluating disability claims. The Commissioner must find that a claimant is
disabled if she determines “(1) that the claimant is not working, (2) that he has a
‘severe impairment,’ (3) that the impairment is not one that conclusively requires a
determination of disability, [] (4) that the claimant is not capable of continuing in
his prior type of work, [and] (5) there is not another type of work the claimant can
do.” Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002) (citing 20 C.F.R. §
404.1520(b)-(f)). The burden of proof is on the claimant in the first four steps, but
shifts to the Commissioner at the fifth step. See 20 C.F .R. § 404.1560(c)(2); Shaw
v. Chater, 221 F.3d 126, 132 (2d Cir. 2000).
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The ALJ in her decision asserts that Williams has not engaged in substantial
gainful activity since December 2010; however, as the record demonstrates, Mr.
Williams’ last day of substantial gainful activity was in December 2009. See e.g.
AR 40, 42, 57, 139
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or medically equal the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart
P, Appendix 1 (the “Listing”). Next, the ALJ found that Williams had the residual
functional capacity (“RFC”) to perform light work with the following restrictions:
(i) lifting no more than 20 pounds at a time, with frequent lifting
or carrying objects weighing up to 10 pounds permitted;
(ii) standing or walking, off and on, for a total of approximately
6 hours of an 8-hour workday, engaging occasionally in postural
activities;
(iii) sitting occurring intermittently during the remaining time of
the 8-hour workday; and
(iv) avoiding exposure to extreme temperatures.
AR 24.3 Applying that RFC to the remaining steps, the ALJ ruled that Williams was
unable to perform his past relevant work as a tire technician but was able to perform
other work that exists in significant numbers in the national economy.
The Appeals Council subsequently denied Williams’ request for review,
rendering final the Commissioner’s decision to deny benefits. He timely sought
judicial review.
II.
“In reviewing a final decision of the Commissioner, a district court must
determine whether the correct legal standards were applied and whether substantial
evidence supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004).
3

All citations to “AR” are to the Administrative Record.
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“Substantial evidence” is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir.
2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
First, Williams argues that the ALJ should have found his impairments met or
medically equaled § 1.04A of the Listings. Second, he contends that the ALJ’s RFC
finding is flawed because it failed to accord proper weight to the opinion of his treating
physician and is not based on substantial evidence. Third, he insists that the ALJ
improperly evaluated his credibility. Finally, Williams insists that the ALJ improperly
relied on flawed VE testimony. The Court will address each argument in turn.
A. Listing § 1.04A
In her decision, the ALJ noted summarily that Williams does not meet a Listing
because he does not have motor loss. However, the ALJ failed to specifically address
his medical conditions and symptoms.

A claimant is entitled to a conclusive

presumption that he is disabled if he can show that his disorder results in “compromise
of a nerve root or the spinal cord, and evidence of [1] nerve root compression
characterized by neuro-anatomic distribution of pain, [2] limitation of motion of the
spine, [3] motor loss accompanied by sensory or reflex loss and, if there is involvement
of the lower back, [4] positive straight-leg raising test.” 20 C.F.R. Part 404, Subpart
P, Appendix 1, § 1.04A. Additionally, for loss of function, such as motor loss, the

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claimant must show an inability to ambulate effectively on a sustained basis4 and pain
related to the underlying impairment. Id. at § 1.00B2.
The record demonstrates Williams suffered “lumbosacral radiculopathy,” noting
“evidence of nerve root compression characterized by neuro-anatomic distribution of
pain and limited motion of the spine.” He suffers from disc degeneration in the L3-L4
disc, as well as annular bulges, congenital fusion in the C5-C6 vertebrae, multi-level
degenerative changes in the spinal canal and neurofaminal stenosis. Williams’ severe
pain is well-documented in the record. Examining physicians have also noted his
walking difficulty; his need for a cane; as well as numbness. And there is evidence of
positive straight-leg raise tests.
Williams spends every day in bed with pillows propped behind his back to avoid
pain. He does not cook–his girlfriend leaves his day’s food on the bed for him—and
cannot walk to the bathroom. He uses a cane for balance and cannot walk more than
half a block.
Ostensibly, the ALJ relied solely upon one examining doctor’s report. It was
improper for the ALJ to discredit half of the record in making her Listing
determination. See Lopez v. Sec’y of Dept. Of Health and Human Services, 728 F.2d

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An inability to ambulate effectively includes an extreme limitation in the
ability to walk, such as an inability to walk a block at a reasonable pace on rough
or uneven surfaces, or the inability to carry out routine activities such as shopping
or banking. § 1.00B2b(2).
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148, 150-51 (2d. Cir. 1984) (“We have remanded cases where it appears that the ALJ
has failed to consider relevant and probative evidence which is available to him.”); see
also 20 C.F.R. §404.1520. Williams has degrading spinal conditions, difficulty
walking, and sarcoidosis, which impacts his breathing. In the face of this evidence, the
ALJ was obligated to explain, in detail, her rationale for finding that Williams’
impairments did not meet or medically equal Listing §1.04A. See Johnson v. Bowen,
817 F.2d 983, 985 (2d Cir. 1987).
Remand is required. See Radford v. Colvin, 734 F.3d 288, 293-94 (4th Cir.2013)
(remanding back to ALJ with instructions to clarify why Radford did not meet a
Listing). The ALJ should consider all of the evidence and provide a detailed
explanation for her findings at this stage of the sequential evaluation.
B. Other Issues
Even though the Court remands on the§ 1.04A Listing issue, it also addresses
other concerns with the ALJ’s decision in order to mitigate the prospect of an additional
appeal.
1. Residual Functional Capacity
The ALJ has a duty to make a detailed assessment of a claimant’s abilities when
determining his RFC. Social Security Regulation 96-8p. Williams argues that the ALJ
did not accord proper weight to Dr. Byun’s opinions. Although the ALJ did not violate

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t he treating physician rule,5 the ALJ’s RFC determination is not supported by
substantial evidence.
The ALJ essentially adopted the form recommendation of Dr. Lefebevre, a nonmedical professional known in Social Security terminology as a single-decision maker
(“SDM”). An SDM is not a medical professional; therefore, an RFC assessment from
such an individual cannot, standing alone, constitute substantial evidence. See Charles
v. Colvin, No 13-cv-03432, 2014 WL 4425796, at *3 (E.D.N.Y. Sept. 10. 2014) (Block,
J.) (“an RFC assessment from [an SDM] is entitled to no weight as a medical opinion.”
(internal quotations omitted)).
Moreover, the ALJ must make an individual assessment of a claimant to identify
“functional limitations or restrictions and assess his...work-related abilities on a
function-by-function basis.” Social Security Regulation 96-8p. Here, the ALJ based
her RFC almost exclusively upon the standardized form prepared by Dr. Lefebevre.
The ALJ should be mindful on remand that her RFC determination should accord
proper weight to the various medical records relating to Williams’ capabilities.

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A treating source’s opinion regarding a claimant’s RFC–as opposed to the
nature and severity of a claimant’s impairment–is not entitled to controlling
weight. See 20 C.F.R. § 416.927(d)(2) (“Although we consider opinions from
medical sources on issues such as...your [RFC]...the final responsibility for
deciding these issues is reserved for the Commissioner.”) As such, the ALJ did not
violate the treating physician rule because she retained final authority over the RFC
determination.
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2. Credibility
To evaluate credibility, an ALJ must determine whether the claimant has a
medically determinable impairment that could reasonably be expected to produce his
symptoms and second, evaluate the intensity, persistence and limiting effects of those
symptoms. See 20 C.F.R. §404.1529(b)-(c). The ALJ must provide specific reasons
for the credibility determination, supported by evidence in the case record. See Social
Security Regulation 96-7p.
Notably, an ALJ must consider seven factors when a claimant’s subjective
complaint suggests greater severity than can be shown by objective medical evidence.6
The ALJ improperly applied these factors. The ALJ found that although “claimant’s
medically determinable impairments could reasonably be expected to cause the alleged
symptoms[]...the claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely credible.” AR 23.
The ALJ noted Williams’ lapse in treatment from November 2011 through
September 2012, and emphasized that he had not attended physical therapy or pain

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The seven factors set forth in the SSA regulations include: (i) claimant’s
daily activities; (ii) the location, duration, frequency, and intensity of the
claimant’s pain or other symptoms; (iii) precipitating or aggravating factors; (iv)
the type, dosage, effectiveness, and side effects of any medication the claimant
takes or has taken to alleviate pain or other symptoms; (v) treatment, other than
medication, the claimant receives or has received for relief of pain or other
symptoms; (vi) any measures the claimant uses or has used to relieve pain or other
symptoms; and (vii) other factors concerning the claimant’s functional limitations
and restrictions due to pain or other symptoms. See 20 C.F.R. § 404.1529(c)(3).
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management as requested by his physician. The medical records show that he did not
have insurance during that period. See AR 369. Further, the ALJ attributes significance
to Williams’ ability to maintain stable back pain without the use of medication, but this
discounts the full record. Williams is a recovering drug addict.

He refuses pain

medication because of his former addiction. See Craft v. Astrue, 539 F.3d 668, 679 (7th
Cir. 2008) (“the ALJ “must not draw any inferences” about a claimant's condition from
this failure [to seek treatment] unless the ALJ has explored the claimant's explanations
as to the lack of medical care.” (Citing 20 C.F.R. §1529(c)(1)).
Moreover, it is improper to fault a plaintiff’s credibility because he fails to
pursue prescribed health treatment. See Myles v. Astrue, 582 F.3d 672, 677 (7th Cir.
Sept. 9, 2009) (“The ALJ was required by Social Security Rulings to consider
explanations for instances where Myles did not keep up with her treatment.”); cf. Social
Security Regulation 96-7 at *8 (Inability to pay for medication or negative side effects
from medication may excuse failure to pursue treatment.).
3. Vocational Expert
Williams argues that the ALJ improperly relied on vocational expert testimony
in determining that he is capable of light work with occasional postural activities and
thus can perform other work that exists in significant numbers in the national economy.
As discussed above, the RFC determination is not supported by substantial evidence.
On remand the ALJ should review the weight it gave the testimony of vocational expert
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Andrew Vaughn. See Sanders v. Comm’r of Soc. Sec., 506 Fed.App’x 74, 78 n.5 (2d
Cir. 2012) (“[S]ince the vocational expert’s testimony relied on a RFC that is not
supported by substantial evidence, on remand the Commissioner is directed to re-assess
the weight it gave to the testimony of the vocational expert....”).
III.
For the foregoing reasons, Williams’ motion is granted insofar as the case is
remanded for further proceedings, and the Commissioner’s motion is denied.
SO ORDERED.
/S/ Frederic Block_________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
September 30, 2015

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