Caballero v. Berryhill

Filing 15

MEMORANDUM and ORDER: Caballeros motion 9 is granted, the Commissioners motion 11 is denied, and the case is remanded for further proceedings consistent with this opinion. Ordered by Judge Frederic Block on 4/23/2019. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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GISELLA CABALLERO,
MEMORANDUM AND ORDER

Plaintiff,

Case No. 1: 18-cv-0937-FB 

-againstNANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
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Appearances:
For the Plaintiff:
BARRY SIMON, ESQ.
Simon & Gilman, LLP
91-31 Queens Blvd, Suite 411
Elmhurst, New York 11373

For the Defendant:
RICHARD P. DONOGHUE, ESQ.
United States Attorney
Eastern District of New York
By: CANDACE SCOTT APPLETON,
ESQ.
Assistant United States Attorney
271 Cadman Plaza East, 7th Floor
Brooklyn, New York 11201

BLOCK, Senior District Judge:
Gisella Caballero seeks review of the final decision of the Acting
Commissioner of Social Security (“Commissioner”) denying her application for
disability insurance benefits (“DIB”). Both parties move for judgment on the
pleadings, with Caballero requesting that the Court vacate the administrative law

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judge’s (“ALJ”) decision and remand the case for additional administrative
proceedings. For the reasons stated below, Caballero’s motion is granted, the
Commissioner’s motion is denied, and the case is remanded.
I
A.

Procedural Background
Caballero, a former legal assistant and telephone order clerk, filed for DIB on

August 21, 2014. She alleged that she became disabled on August 26, 2011, due to
Gaucher disease, knee and back pain, high blood pressure, anemia, and bowel crisis.
Her application was denied, and she requested a hearing before an ALJ. After a
hearing, where Caballero appeared pro se, ALJ Scott Johnson ruled on May 9, 2017,
that she was not disabled. Applying the familiar five-step evaluation process,1 the
ALJ determined that (1) Caballero had not engaged in any substantial gainful activity

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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 [s]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 [her] prior type of work, [and] (5) there is not
another type of work the claimant can do.
See 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 for the first four steps,
but it 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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since August 26, 2011; (2) she had several severe impairments: Gaucher disease with
underlying osteoarthritis of the left hip; degenerative disc disease of the lumbar,
thoracic, and cervical spinal regions; and obesity; but (3) her impairments did not
meet the severity of any presumptively disabling impairments. The ALJ determined
that Caballero had the residual functional capacity (“RFC”) to perform sedentary
work, noting:
She can occasionally climb ramps and stairs, but never climb ladders,
ropes, or scaffolds. She can occasionally balance, stoop, kneel, crouch,
and crawl. She can frequently reach in all directions, including
overhead, bilaterally. She can tolerate occasional exposure to extreme
cold, extreme heat, and pulmonary irritants—such as fumes, odors,
dusts, and gases. However, she should avoid all exposure to hazards,
including the use of moving machinery and exposure to unprotected
heights.
AR 15. Applying that RFC, the ALJ determined that (4) Caballero was able to
perform past relevant work as a telephone order clerk, which is a sedentary job. The
ALJ, therefore, concluded that she was not disabled during the relevant period,
without reaching the fifth step. The Appeals Council declined review on December
19, 2017. Caballero timely sought judicial review.
B.

Medical Source Evidence
Because Caballero appeared pro se, the ALJ sent requests for medical records

and opinions to her treating physicians. Drs. Heather Lau, Simon J. Hall, and Edwin

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Weiss responded with letters detailing their treatment. Though some of those letters
opined that Caballero was disabled or had limitations, none of them specified what
her limitations were or how they affected her ability to perform sedentary work.
Though the ALJ received medical records from Drs. Carlos Arevalo and Eric Stern,
they did not respond with any medical opinions. Dr. Steven Stuchin returned the
ALJ’s request for records and questionnaire with a note stating “no records found.”
AR 534.
On January 6, 2015, Dr. John Fkiaras consultatively examined Caballero at
the Commissioner’s request. Dr. Fkiaras opined that she had a mild to moderate
limitation in sitting for extended periods and a moderate limitation in walking,
standing, and climbing stairs. He also stated that she was restricted from activities
requiring great exertion and from any lifting, carrying, pushing, pulling, squatting,
kneeling, and crouching. The ALJ accorded his opinions limited weight because
“such extreme limitations exceed[ed] even [Caballero’s] allegations,” Dr. Fkiaras
examined her only once, he was not a treating source, and he had not viewed her
longitudinal medical records. AR 19. The ALJ also stated that Dr. Fkiaras’s
conclusion that Caballero could not lift, carry, push, pull, squat, kneel, or crouch,
was not supported by his examination of Caballero nor by any other substantial
evidence of record.
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Lastly, though not cited by the ALJ, Dr. W. Wells, a State agency medical
consultant, reviewed the record on January 15, 2015, and opined that Caballero
could lift ten pounds frequently and twenty pounds occasionally; sit for six hours;
stand or walk for four hours; occasionally climb ramps, stairs, ladders, ropes,
scaffolds; and occasionally balance, stoop, kneel, crouch, and crawl. No medical
sources testified at Caballero’s hearing.
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).

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A. RFC Unsupported by Substantial Evidence
When crafting a claimant’s RFC, an ALJ must rely on specific evidence
demonstrating that the claimant can complete the requirements of his or her work,
such as sedentary work. See Henningsen v. Comm’r of Soc. Sec. Admin., 111 F.
Supp. 3d 250, 270 (E.D.N.Y. 2015) (concluding no substantial evidence when ALJ
relied on a medical opinion that did not comment on claimant’s ability to perform
key sedentary work requirements). A claimant can do sedentary work if he or she
can “lift[] up to ten pounds at a time and occasionally lift[] and carry[] light objects.”
Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996) (citing 20 C.F.R. § 404.1567(a)). The
claimant must also be able to engage in “up to two hours of standing or walking and
six hours of sitting in an eight-hour work day.” Perez, 77 F.3d at 46 (citing Social
Security Ruling 83–10).
Generally, when determining whether a claimant is disabled, “an ALJ ‘is not
required to discuss all the evidence submitted, and his failure to cite specific
evidence does not indicate it was not considered.’” Fiedler v. Colvin, 54 F. Supp.
3d 205, 218 (E.D.N.Y. 2014) (quoting Barringer v. Commissioner of Soc. Sec., 358
F.Supp.2d 67, 79 (N.D.N.Y. 2005). Nevertheless, “the Court must still be able to
‘glean the rationale of an ALJ’s decision.’” McMahon v. Colvin, No. 13-CV-4181,

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2014 WL 3735910, at *10 (E.D.N.Y. July 29, 2014) (quoting Mongeur v. Heckler,
722 F.2d 1033, 1040 (2d Cir. 1983)).
Here, substantial evidence did not support the ALJ’s determination that
Caballero could perform sedentary work with several limitations, such as limitations
in climbing, balancing, and crawling. The RFC included no limitations in lifting,
sitting, standing, and walking. But the ALJ did not cite any medical evidence
demonstrating that Caballero could complete those requirements of sedentary work.
As the Commissioner points out, the record contains an assessment by Dr. W.
Wells, a State agency medical consultant, which states that Caballero could lift ten
pounds frequently and twenty pounds occasionally and that she could sit for six
hours and stand or walk for four hours per day.2 But the ALJ never referenced that
assessment nor cited it as a reason why he concluded that Caballero could perform
sedentary work. Though the ALJ need not cite every piece of evidence considered,
that the ALJ failed to reference the only piece of evidence supporting his
determination that Caballero could perform sedentary work is troubling. Under
those circumstances, the Court is not able to glean the ALJ’s rationale and does not

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The Court also notes that Dr. Wells did not have the opportunity to examine
Caballero, which usually means that his opinion is presumed to have less weight
than doctors who examined her, such as Dr. Fkiaras. 20 C.F.R. § 404.1527.
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view his determination as supported by substantial evidence. Accordingly, the Court
remands this case to the ALJ for reconsideration of Caballero’s RFC.
B. ALJ Misevaluated Dr. Fkiaras’ Opinion Evidence
“The ALJ is not permitted to substitute his [or her] 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). Further, “where there
are deficiencies in the record, an ALJ is under an affirmative obligation to develop
a claimant’s medical history ‘even when the claimant is represented by counsel.’”
Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (quoting Perez, 77 F.3d at 47).
Here, the ALJ impermissibly substituted his own view of the medical
evidence in affording Dr. Fkiaras’s medical opinion only limited weight. Though
Dr. Fkiaras opined that Caballero was unable to lift, carry, push, pull, squat, kneel,
or crouch, the ALJ concluded that “such a[] profound limitation is not supported by
the findings of his direct examination of the claimant.” AR 19. In so finding, the
ALJ relied on several notes from Dr. Fkiaras’s examination, including those stating
that Caballero did not appear to be in acute distress and that her sensation and
reflexes were unaffected. While such extreme limitations may be incompatible with
those examination notes, the ALJ cannot substitute his own view of the medical
evidence for Dr. Fkiaras’s view. Because no medical source stated that they are
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incompatible, the ALJ cannot use that reasoning in rejecting Dr. Fkiaras’s medical
opinion.
The ALJ also noted that Dr. Fkiaras’s opinion was vague and that the doctor
did not quantify Caballero’s ability to sit, walk, stand, or climb stairs in a work
setting. The record does not demonstrate that the ALJ sought to clarify Caballero’s
specific limitations. Instead, the ALJ dismissed Caballero’s opinions as vague and
gave them limited weight. The ALJ had the obligation to develop the record further
before discounting Dr. Fkiaras’s medical opinion and crafting an RFC involving no
limitations in sitting, standing, walking, or lifting.3 Accordingly, the Court remands
so that the ALJ can solicit further information from Dr. Fkiaras and revise the RFC
accordingly.
C. Remand
Considering the above deficiencies, the Court remands this case for further
development of the record and reconsideration of the RFC in light of that evidence.
The ALJ should: (1) seek from Dr. Fkiaras specifics regarding the limitations the

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The Court concludes that the ALJ did not err by not otherwise developing the
record. Though none of Caballero’s treating physicians submitted assessments of
her RFC, they were all asked to do so and chose not to opine on her limitations in
their responses. Accordingly, the ALJ had already made an affirmative effort to
develop the record with respect to the treating physicians.
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doctor believes Caballero had; (2) obtain medical opinions regarding whether
Caballero’s examination results during her consultation with Dr. Fkiaras are
inconsistent with the limitations the doctor believed her to have; (3) reconsider
Caballero’s RFC and cite the evidence relied upon in determining the RFC; and
(4) conduct an additional hearing receiving and considering this new evidence. In
so doing, the ALJ should be mindful that any testimony and medical opinions must
be retrospective and address the period between August 26, 2011, and June 30, 2017,
when Caballero was last insured.
III
Caballero’s motion is GRANTED, and the case is remanded for further
proceedings consistent with this opinion.
SO ORDERED.

/S/ Frederic Block________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
April 23, 2019

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