Newson v. Berryhill

Filing 31

MEMORANDUM and ORDER: Newsons motion 23 is GRANTED, Commissioners motion 25 is DENIED. The case is remanded for further development of the record. Ordered by Judge Frederic Block on 11/20/2019. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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OCTAVIA NEWSON,
MEMORANDUM AND ORDER

Plaintiff,

Case No. 1: 17-cv-2918-FB 

-againstCOMMISSIONER OF SOCIAL
SECURITY,

Defendant.
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For the Defendant:
Appearances:
RICHARD P. DONOGHUE, ESQ.
For the Plaintiff:
United States Attorney
HOWARD OLINSKY, ESQ.
Eastern District of New York
300 South State Street
271 Cadman Plaza East, 7th Floor
Syracuse, New York 13202
Brooklyn, New York 11201
BLOCK, Senior District Judge:
Octavia Newson seeks review of the final decision of the Acting
Commissioner of Social Security (“Commissioner”) denying her application for
disability insurance benefits and supplemental security income. Both parties move
for judgment on the pleadings. Newson requests a remand for further proceedings
and the Commissioner seeks a dismissal of this action. For the reasons stated below,
Newson’s motion is granted, the Commissioner’s motion is denied.
I
Newson filed her applications for benefits on November 20, 2013 and
November 28, 2013. She alleged that she became disabled on June 27, 2012. Her
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applications were denied, and she requested a hearing before an ALJ. After the
hearing, the ALJ ruled that Newson was not disabled. The ALJ assigned an RFC of:
sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
except that the claimant is limited to: frequent pushing and pulling
bilaterally; never climbing ladders, ropes, and scaffolds; frequent
stooping, reaching overhead and in all other directions, handling,
fingering, and feeling bilaterally; and occasional climbing ramps and
stairs, crouching, kneeling, crawling, and exposure to vibration.
AR 64. The Appeals Council declined review on March 20, 2017.
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); see also 42 U.S.C. § 405(g). “Substantial evidence . . . means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (internal quotation marks and
alterations omitted) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). If
contradictions appear in the record and an ALJ fails to reasonably explain why he or
she opted for one interpretation over another, the Commissioner’s findings cannot
stand. See, e.g., Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998).
A. The RFC Determination
Newson challenges the ALJ’s findings as to her ability to reach. As relevant
to those functional limitations, the ALJ assigned partial weight to the opinion of
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consultative examiner Dr. John Fkiaras, great weight to the opinion of treating
physician Dr. Gus Katsigioris, some weight to the opinion of physical therapist
Malgorzata Lis-Cruz, and partial weight to the opinion of consultative orthopedic
examiner Dr. Chaim Shtock. Remand is necessary here because the RFC
determination as to reaching was not supported by substantial evidence.
A claimant’s RFC is the most a claimant can do on a regular and continuing
basis despite her limitations. 20 C.F.R. § 416.945(a)(1). “[T]he RFC can only be
established when there is substantial evidence of each physical requirement listed in
the regulations.” Whittaker v. Comm'r of Soc. Sec., 307 F.Supp.2d 430, 440
(N.D.N.Y. 2004). While the ALJ need not resolve every conflict in the record, “the
crucial factors in any determination must be set forth with sufficient
specificity.” Calzada v. Asture, 753 F.Supp.2d 250, 268–269 (S.D.N.Y. 2010).
Here, the finding that Newson can frequently reach with both arms is not
supported by substantial evidence. Significantly, the vocational expert (VE) testified
that all available jobs with transferrable skills “require more than occasional
reaching.” AR. 450. Thus, a finding regarding Newson’s ability to reach is essential
in determining whether she can perform work in the national economy.
Dr. Katisigiorgis’ opinion was vague, which the ALJ admits. It can hardly be
deemed an opinion as it simply recommends “Restricted Activities.” AR. 370. While

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treating physician opinions are afforded more weight than consultative opinions, Dr.
Katisigiorgis’ note is not an opinion, as it fails to address any physical limitations.
“While in some circumstances, an ALJ may make an RFC finding without
treating source opinion evidence, the RFC assessment will be sufficient only when
the record is clear and contains some useful assessment of the claimant's limitations
from a medical source.” Muhammad v. Colvin, No. 6:16-cv-06369(MAT), 2017 WL
4837583, at *4 (W.D.N.Y. Oct. 26, 2017) (quotations omitted). Because the ALJ
could not have relied on a treating source opinion, the issue is whether the record is
clear, and contains useful assessments of Newson’s limitations to support the RFC.1
Dr. Shtock and Dr. Fkiaris are the only examiners that discussed Newson’s
physical limitations. Dr. Shtock opined that Newson could frequently reach with her
left arm and occasionally reach with her right arm. The ALJ afforded Dr. Shtock’s
opinion partial weight because his sitting/standing restrictions were unsupported.
The ALJ found the rest of Dr. Shtock’s opinion to be supported by the record.
Without explanation, the ALJ failed to adopt Dr. Shtock’s opinion as to reaching.

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The ALJ mentions that Newson’s activities of daily living support the RFC. Normal
daily activities done at Newson’s own pace do not create substantial evidence alone,
in light of the medical evidence. See George v. Colvin, No. 7:12-cv-1610, 2014 WL
652930, at *6 (N.D.N.Y. Feb. 19, 2014) (“The critical differences between activities
of daily living and activities in a full-time job are that a person has more flexibility
in scheduling the former than the latter, can get help from other persons, and is not
held to a minimum standard of performance, as she would be by an
employer.”)(quoting Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012))
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Dr. Fkiaras did not specifically opine as to Newson’s ability to reach. Instead,
Dr. Fkiaras stated that Newson had full strength and range of motion in her upper
extremities. These medical findings, made two years prior to Dr. Shtock’s opinion,
clearly contradict Dr. Shtock’s finding that Newson had reaching limitations.
It is the ALJ’s job to grapple with inconsistencies and develop an incomplete
record further. See Rolon v. Comm'r of Soc. Sec., 994 F.Supp.2d 496, 504 (S.D.N.Y.
2014) (“A perceived internal inconsistency about a critical finding is a conflict or
ambiguity which requires the ALJ to further develop the record”). Despite not
having a treating physician opinion and having contradictory consultative opinions,
the ALJ did not further develop the record. Therefore, the ALJ likely relied on the
medical records, even though “[m]edical records do not necessarily assess functional
abilities; rather, they record, diagnose, and address symptoms.” Perez Garcia v.
Berryhill, No. 3:18-cv-986 (WIG), 2019 WL 2022191, at *4 (D.Conn. May 8, 2019).
Nonetheless, the medical records here are as unclear as the opinions.2 Newson,
on many occasions, had pain, numbness, and restricted range of motion in her upper
extremities.3 On other occasions, Newson had full strength and range of motion in
her upper extremities.4 Three or four treatment notes supporting each side cannot be

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It is necessary to note that the record contains less than 100 pages of medical
records for a period spanning over four years.
3
AR. 290, 323, 325, 369, 373.
4
AR. 306-07, 349, 369, 375.
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deemed “substantial evidence,” considering a more than four-year time period. The
Court finds that a “reasonable mind” would not “accept as adequate” such sparse
medical evidence as to Newson’s ability to reach. Perales, 402 U.S. at 401.
Given the contradictory opinions of Dr. Shtock and Dr. Fkairas, and the
unclear medical evidence, remand is appropriate to allow the ALJ to
fully develop the record and make a proper RFC determination. See Wilson v.
Colvin, 107 F.Supp.3d 387, 407 (S.D.N.Y. 2015) (“Legal errors regarding the duty
to develop the record warrant remand.”) (collecting cases); Hillsdorf v. Comm'r of
Soc. Sec., 724 F.Supp.2d 330, 347 (E.D.N.Y. 2010) (“Because an RFC
determination is a medical determination, an ALJ who makes an RFC determination
in the absence of supporting expert medical opinion has improperly substituted his
own opinion for that of a physician, and has committed legal error.”).
III
Newson’s motion is GRANTED, Commissioner’s motion is DENIED. The
case is remanded for further development of the record.
SO ORDERED.
/S/ Frederic Block___________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
November 20, 2019

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