Guilfoil v. Colvin
MEMORANDUM & ORDER denying 13 Motion for Judgment on the Pleadings; granting 17 Motion to Remand; For the foregoing reasons, Defendant's cross-motion to remand for further proceedings (Docket Entry 17) is GRANTED and Plaintiff's motio n for judgment on the pleadings (Docket Entry 13) is DENIED. This case is remanded to the ALJ. The ALJ is directed to hold a new hearing and to address and remedy the issues identified in this Memorandum & Order. The Clerk of the Court is directed to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 3/29/2016. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
-againstCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Michael Brangan, Esq.
Sullivan & Kehoe
44 Main Street
Kings Park, NY 11754
Christopher J. Bowes, Esq.
54 Cobblestone Drive
Shoreham, New York 11786
Candace Scott Appleton, Esq.
Kelly T. Currie, Esq.
United States Attorney’s Office
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201
SEYBERT, District Judge:
Plaintiff Michael P. Guilfoil (“Plaintiff”) brought this
action pursuant to Section 405(g) of the Social Securities Act, 42
U.S.C. § 405(g), challenging the Commissioner of Social Security’s
(the “Commissioner”) denial of his application for disability
insurance benefits. Pending before the Court is Plaintiff’s motion
proceedings pursuant to 42. U.S.C. § 405(g).
(Docket Entry 17.)
For the reasons that follow, the Commissioner’s motion is GRANTED
and Plaintiff’s motion is DENIED.
On April 12, 2012, Plaintiff filed for social security
disability benefits, claiming that he has been disabled since April
(R. at 128, 145.)
to a back injury.
Plaintiff attributes his disability
(R. at 65.)
After Plaintiff’s application for
social security benefits was denied on July 16, 2013, (R. at 8),
Plaintiff requested a hearing before an administrative law judge,
Administrative Law Judge April Wexler (the “ALJ”), and on July 16,
2013, the ALJ issued her decision finding Plaintiff not to be
disabled. (R. at 11-25, 30.) Plaintiff sought review of the ALJ’s
decision by the Appeals Council on July 31, 2013.
(R. at 52.)
But on October 16, 2014, the Appeals Council denied Plaintiff’s
request for review, making the ALJ’s decision the final decision
of the Commissioner.
November 18, 2014.
(R. at 1.)
Plaintiff filed her motion for judgment on the
The facts of this case are taken from the administrative record
filed by the Commissioner on February 17, 2015. (Docket Entry
6.) “R.” denotes the administrative record.
pleadings on June 12, 2015 (Docket Entry 13) and the Commissioner
filed its cross-motion to remand on July 16, 2015.
These motions are fully briefed and are currently
pending before the Court.
Evidence Presented to the ALJ
Plaintiff was born in 1970.
(R. at 34.)
eleventh-grade education and holds a GED.
He has an
(R. at 35.)
currently resides with his girlfriend, father, and brother.
From 1995 to 2000, Plaintiff worked for the Town of
Smithtown as a laborer in a recycling facility; from 2003 to 2005,
supermarket; and from 2006 to 2007, Plaintiff worked for Hess
Express as a gas station attendant.
(R. at 35-36.)
Plaintiff quit his job as a gas station attendant after his hours
(R. at 35-36.)
He also briefly worked as a laborer for
the Town of Babylon in April 2010.
(R. at 146.)
Plaintiff is 5’ll and weighs 375 pounds.
(R. at 15.)
He claims that he is unable to work because of “back problems.”
(R. at 37.)
Specifically, Plaintiff testified before the ALJ that
he “shattered” his “lower disk” and had to have surgery in 2011 or
(R. at 38.)
Plaintiff also has cellulitis, but testified
that it should clear up in a year.
(R. at 45.)
that he used to drink twenty beers and smoke a pack and a half of
cigarettes every day, however, he testified that he stopped smoking
and has been sober since May 12, 2013.
(R. at 39.)
stopped drinking and smoking because his doctors told him that, if
he continued, he would lose his legs from the knees down.
Plaintiff also testified that he lost weight because he
started eating better.
date of his hearing.
He had lost twenty-five pounds as of the
(R. at 40.)
Plaintiff’s girlfriend prepared his meals, did the shopping and
laundry, and helped Plaintiff shower.
(R. at 41.)
rarely left his home, except to go to doctors’ appointments-visiting Dr. Dowling every six weeks for his back pain.
For exercise, Plaintiff walked up and down his driveway
twice a day.
(R. at 43.)
He typically walked “for about 10
minutes” then would “sit down for 15 minutes” and then “walk a
little bit more.”
(R. at 43.)
However, Plaintiff testified that
he “can’t walk a far distance” and if he walked more than thirtyfive feet, he got a sharp pain in his back.
(R. at 43.)
addition, Plaintiff testified that he could only “sit comfortably”
for fifteen to twenty minutes and stand comfortably for five to
(R. at 44.)
Plaintiff brought a cane to the hearing
before the ALJ and explained that he used it for “balance” and to
(R. at 44.)
expert before the ALJ.
(R. at 46.)
He classified Plaintiff’s
past job working as a laborer as “medium” work, and his job at the
supermarket as “heavy” work.
(R. at 47.)
Meola was asked whether
a hypothetical individual of Plaintiff’s age and with his education
level could perform his past jobs, assuming he was limited to
performing sedentary work and could stand for six hours.
Meola testified that such a hypothetical person would not
be able to perform Plaintiff’s past jobs, but listed several
sedentary jobs that the hypothetical person could perform in the
(R. at 48.)
Medical records confirm that Plaintiff injured his back
on April 7, 2010 while moving a picnic table at work.
(R. at 219,
1. Thomas Dowling, M.D.
On April 30, 2010, Plaintiff sought medical treatment
(R. at 219-21.)
An MRI performed on April 17, 2010
by Dr. Dowling showed a small central herniated disc.
(R. at 220-
After an examination, Dr. Dowling diagnosed Plaintiff with
disc displacement without myelopathy and discogenic syndrome.
Dr. Dowling opined that Plaintiff could not return to
work, recommended physical therapy, prescribed medication, and
requested authorization to administer lumbar epidural steroid
(R. at 221.)
On September 2, 2010, Plaintiff reported to Dr. Dowling
that the injections and physical therapy he proscribed had not
improved his condition.
(R. at 309-310.)
Dr. Dowling therefore
contemplated performing a discogram test to determine if Plaintiff
was a candidate for surgery.
(R. at 310.)
Following a discogram
performed on February 7, 2011, Dr. Dowling recommended Plaintiff
undergo anterior lumbar interbody fusion surgery.
(R. at 297,
Dr. Dowling performed the surgery on June 2, 2011.
(R. at 213-14.)
From mid-June 2011 to September 2011, Plaintiff
continued to report back pain, and at times rated his pain level
a nine out of ten.
(R. at 269-87.)
From June to September 2011,
Dr. Dowling found that Plaintiff had a “total temporary” impairment
and prescribed him Flexeril as needed and Nerontin.
(R. at 269-
From September 2011 to November 2011, Plaintiff visited Dr.
Dowling three times complaining of constant back pain.
During the visits Plaintiff did not exhibit
muscle spasms, weakness, or sensory deficits.
(R. at 264, 342,
Dr. Dowling recommended Plaintiff continue with physical
(R. at 265, 343.)
In January 2012, Plaintiff reported to Dr. Dowling that
he had constant lower back pain.
(R. at 260-62.)
X-rays taken in
January 2012 showed a maturing fusion with intact hardware and no
evidence of loosening.
(R. at 261.)
Plaintiff’s Motor strength,
sensations, and reflexes were all within normal ranges.
Plaintiff admitted that physical therapy had improved his
strength and relieved some of his pain.
(R. at 260.)
diagnosed Plaintiff with myofascial-lumbar, discogenic syndrome
L5-S1, and lumbar disc displacement without myelopathy.
Dr. Dowling stated that Plaintiff’s condition was “total
temporary,” and reported that Plaintiff was unable to return to
(R. at 262.)
Plaintiff continued physical therapy from January 6,
2012 to May 29, 2012.
(See R. at 253, 256, 259, 262.)
demonstrate objective improvement from physical therapy, and that
Plaintiff was “reasonably expected to improve with additional
physical therapy treatment.”
(R. at 251.)
Dr. Dowling’s lumbar spine examination findings from
November 2, 2012 through May 6, 2013 were similar to those in July,
August and September 2012.
(Compare R. at 538, 541, 544, 547, 550
with R. at 553, 556, 559.) Dr. Dowling recommended “conservative”
(R. at 395, 539, 545, 548.)
Dr. Dowling consistently
myelopathy, discogenic syndrome L5-S1, and myofascial-lumbar.
at 395, 539, 542, 545, 548.)
In February of 2013, Dr. Dowling
reported that Plaintiff could not return to work for an unknown
period of time.
(R. at 545.)
On April 8 to 13, 2013, Plaintiff was hospitalized at
St. Catherine of Siena Medical Center (“St. Catherine’s”) for
cellulitis and abscesses on his bilateral and lower extremities.
(R. at 396-423.)
At that time, Plaintiff reported drinking twenty
beers per day and smoking one and one-half packs of cigarettes
every days for twenty-five years.
(R. at 410.)
hospitalized again at St. Catherine’s several days in May 2013 for
recurrent cellulitis of the lower leg.
(R. at 424-46.)
On June 19, 2013, Dr. Dowling completed a medical source
statement about Plaintiff.
(R. at 573-74.)
He opined that
Plaintiff could only sit for a total of three hours in an eighthour workday, and that he could stand or walk for a total of three
(R. at 573-74.)
In addition, he opined that Plaintiff
could sit for a maximum of thirty minutes at a time before needing
to walk or stand.
(R. at 573.)
Further, according to Dr. Dowling,
Plaintiff needed to lie down or recline for one hour in an eighthour work day to relieve back pain.
(R. at 574.)
(R. at 573-74.)
2. Chaim Shtock, D.O.
Dr. Chaim Shtock examined Plaintiff on June 14, 2012.
(R. at 331-34.)
Plaintiff reported experiencing sharp, constant,
pain, aggravated by prolonged sitting, standing, and walking.
Plaintiff rated the pain a seven out of ten.
Dr. Shtock diagnosed Plaintiff with lower back pain and
opined that Plaintiff had severe limitations lifting, squatting,
and crouching; marked limitations in stair climbing; moderate to
marked limitations in long distance walking; moderate limitations
in standing and sitting for long periods; and no limitations in
performing overhead activities using both arms, or in using his
hands for fine and gross motor activities. (R. at 333-34.)
Jay Nathan, M.D.
On January 14, 2013, Jay Nathan, M.D., an orthopedic
speciality, examined Plaintiff in connection with his claim for
Workers Compensation benefits.
(R. at 528-30.)
reported that Plaintiff had bilateral leg cellulitis, a mild limp,
and noted that Plaintiff asked for assistance getting on and off
the examination table.
(R. at 529.)
Dr. Nathan opined that
Plaintiff had only a moderate disability and that he could work in
a sedentary capacity, lifting no more than ten pounds.
The ALJ’s Decision
A claimant must be disabled within the meaning of the
Social Security Act (the “Act”) to receive disability benefits.
See Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); 42 U.S.C.
§ 423(a), (d).
A claimant is disabled under the Act when he can
show an inability “to engage in any substantial gainful activity
impairment . . . which has lasted or can be expected to last for
a continuous period of not less than 12 months.”
severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage
in any other kind of substantial gainful work which exists in the
42 U.S.C. § 423(d)(2)(A).
The Commissioner must apply a five-step analysis when
determining whether a claimant is disabled as defined by the Act.
See 20 C.F.R. §§ 404.1520, 416.920.
First, the Commissioner
considers whether the claimant is currently engaged in “substantial
20 C.F.R. § 404.1520(a)(4)(i).
Second, if the
claimant is not, the Commissioner considers whether the claimant
suffers from a “severe impairment that significantly limits his or
her mental or physical ability to do basic work activities.”
C.F.R. § 404.1520(a)(4)(ii). Third, if the impairment is “severe,”
the Commissioner must consider whether the impairment meets or
equals any of the impairments listed in Appendix 1 of the Social
20 C.F.R. § 404.1520(a)(4)(iii).
are impairments acknowledged by the Secretary to be of sufficient
severity to preclude gainful employment. If a claimant’s condition
meets or equals the ‘listed’ impairments, he or she is conclusively
presumed to be disabled and entitled to benefits.”
Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995) (citation omitted).
Fourth, if the impairment or its equivalent is not listed in the
Appendix, the claimant must show that he does not have the residual
functional capacity (“RFC”) to perform tasks required in his
20 C.F.R. § 404.1520(a)(4)(iv).
the claimant does not have the RFC to perform tasks in his or her
previous employment, the Commissioner must determine if there is
any other work within the national economy that the claimant is
able to perform.
20 C.F.R. § 404.1520(a)(4)(v).
If not, the
claimant is disabled and entitled to benefits.
The claimant has the burden of proving the first four
steps of the analysis, while the Commissioner carries the burden
of proof for the last step.
See Shaw, 221 F.3d at 132; Poupore v.
Astrue, 566 F.3d 303, 306 (2d Cir. 2009).
“In making the required
determinations, the Commissioner must consider: (1) the objective
treating physicians; (3) the subjective evidence of the claimant’s
symptoms submitted by the claimant, his family, and others; and
Boryk ex rel. Boryk v. Barnhart, No. 02–CV–2465,
2003 WL 22170596, at *8 (E.D.N.Y. Sept. 17, 2003) (citing Carroll
v. Sec’y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir.
Here, the ALJ applied the five-step analysis described
above and determined that Plaintiff was not disabled.
(R. at 11-
At step one, the ALJ found Plaintiff had not engaged in
substantial gainful activity since January 12, 2012.
(R. at 13.)
At step two, the ALJ found Plaintiff’s impairments included a back
disorder, cellulitis, and obesity.
(R. at 13.)
At step three,
the ALJ found that Plaintiff’s impairments did not meet or equal
the criteria of an impairment listed in Appendix 1 of the Social
Security regulations, and that Plaintiff retained the residual
function capacity (“RFC”) to perform sedentary work as defined in
20 C.F.R § 404.1567(a).
(R. at 13-14.)
Specifically, the ALJ
found that in an eight-hour workday with normal breaks, Plaintiff
approximately two hours, and occasionally lift 10 pounds.
13-14.) At step four, the ALJ found that Plaintiff’s RFC precluded
Plaintiff from performing his past jobs.
(R. at 23.)
five, the ALJ considered Plaintiff’s RFC, the vocational factors
of age, education, and work experience, and found that Plaintiff
could perform sedentary work
the national economy.
existing in significant numbers in
(R. at 23-24.)
Accordingly, the ALJ
concluded that Plaintiff was not disabled.
(R. at 24.)
Standard of Review
In reviewing the ruling of an ALJ, the Court does not
determine de novo whether Plaintiff is entitled to disability
Thus, even if the Court may have reached a different
decision, it must not substitute its own judgment for that of the
See Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991).
Instead, this Court must determine whether the ALJ’s findings are
supported by “substantial evidence in the record as a whole or are
based on an erroneous legal standard.”
Curry v. Apfel, 209 F.3d
117, 122 (2d Cir. 2000) (internal quotations marks and citation
If the Court finds that substantial evidence exists
to support the Commissioner’s decision, the decision will be
upheld, even if evidence to the contrary exists.
See Johnson v.
Barnhart, 269 F. Supp. 2d 82, 84 (E.D.N.Y. 2003).
“Substantial evidence is such evidence that a reasonable
mind might accept as adequate to support a conclusion.”
(citing Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420,
1427, 28 L. Ed. 2d 842 (1971)).
The substantial evidence test
applies not only to the ALJ’s findings of fact, but also to any
inferences and conclusions of law drawn from such facts.
To determine if substantial evidence exists to support
the ALJ’s findings, the Court must “examine the entire record,
conflicting inferences may be drawn.”
See Brown v. Apfel, 174
F.3d 59, 62 (2d Cir. 1999) (internal quotation marks and citation
“The findings of the Commissioner of Social Security as
conclusive . . . .”
42 U.S.C. § 405(g).
Analysis of the ALJ’s Decision
The ALJ has the responsibility to determine a claimant’s
RFC based on all the relevant medical and other evidence in the
20 C.F.R. §§ 404.1527(d)(2), 404.1545(a), 404.1546(c).
The RFC is a determination as to how a claimant’s impairments and
related symptoms affect what he can do in a work setting.
C.F.R. §§ 404.1545(a)(1), 404.1569a.
In determining a claimant’s
RFC, the ALJ must weigh the record evidence and resolve any
conflicts that exist.
See Matta v. Astrue, 508 F. App’x 53, 56
(2d Cir. 2013); Veino v. Barnhart, 312 F. 3d 578, 588 (2d Cir.
2002) (“Genuine conflicts in the medical evidence are for the
Commissioner to resolve.”).
In this case, the ALJ concluded that Plaintiff had the
residual function capacity to perform sedentary work.
(R. at 14.)
Specifically, The ALJ concluded that Plaintiff could sit for six
hours in an eight-hour workday and occasionally lift 10 pounds.
(R. at 14.)
However, the ALJ’s decision does not reconcile the
conflicting evidence in the record concerning Plaintiff’s physical
(R. at 14-23.)
The three doctors who examined Plaintiff did not agree
about his physical limitations.
In particular, they disagreed
about Plaintiff’s ability to sit for long periods of time--a
Plaintiff’s treating physician, opined that Plaintiff could sit
for only three hours in an eight hour workday and that he needed
to get up every thirty minutes.
(R. at 573-74.)
Shtock opined that Plaintiff was only moderately limited in his
ability to sit for long periods of time.
(R. at 333.)
Nathan concluded that Plaintiff could work in a “mostly sedentary”
capacity and was able to lift ten pounds or less.
(R. at 530.)
Plaintiff’s statements concerning his ability to sit for long
periods are conflicting as well.
(See R. at 41, 45, 254, 331,
Although the ALJ acknowledged Dr. Dowling’s April 2013
opinion regarding Plaintiff’s limited ability to sit for long
periods, the ALJ chose to impose her own assessment of Plaintiff’s
limitations, reasoning that Dr. Dowling’s notes only revealed
“mild back issues.”
(R. at 22-23.)
This was improper.
v. Astrue, 537 F.3d 117, 131 (2d Cir. 2008) (“Neither a reviewing
judge nor the Commissioner is permitted to substitute his own
expertise or view of the medical proof for the treating physician’s
opinion” (internal quotation marks and citations omitted)).
ALJ also stated in conclusory fashion that Dr. Shtock’s “opinion
[was] poorly reasoned and entitled to limited weight” because it
was more restrictive than Dr. Dowling’s opinion.
(R. at 22.)
However, the ALJ failed to provide a cogent reason to disregard
Dr. Shtock’s findings.
(R. at 22-24.)
And critically, the ALJ
failed to explain how he resolved the three conflicting medical
Though both parties agree that the ALJ’s analysis was
flawed, the Commissioner and Plaintiff disagree about what the
Court should do about it.
(See Comm’r.’s Br., Docket Entry 18, at
22-25; Pl.’s Br., Docket Entry 14, at 1.)
advocates remanding the case to allow the ALJ to resolve the
evidentiary conflicts in the record, while Plaintiff argues that
disabled” and seeks to have the case remanded “solely for [a]
Comm’r.’s Br. at 25; Pl.’s Br. at 1.)
The ALJ also failed to consider Plaintiff’s use of a cane.
The record indicates that Plaintiff used a cane to maintain his
balance. (See R. 44, 169, 172, 332, 541, 559.)
appropriate . . . where
capacity to perform relevant functions, despite contradictory
evidence in the record, or where other inadequacies in the ALJ’s
analysis frustrate meaningful review.”
See Cichocki v. Astrue,
729 F.3d 172, 177 (2d Cir. 2013); Williams v. Apfel, 204 F.3d 48,
50 (2d Cir. 1999) (holding that “the district court was required
to remand the case so that step five of the sequential analysis
could be completed and a full record developed before any award of
benefits was made”); Aponte v. Sec’y, Dep’t of Health & Human
Servs. of U.S., 728 F.2d 588, 591 (2d Cir. 1984) (explaining that
“genuine conflicts in the medical evidence are for the Secretary
Although Plaintiff argues that the Court should
find as a matter of law that he is disabled, he acknowledges the
(See Pl.’s Br. at 23.)
This case must therefore be
remanded to the ALJ so that factual inconsistencies in the record
regarding Plaintiff’s ability to perform sedentary work can be
For the foregoing reasons, Defendant’s cross-motion to
remand for further proceedings (Docket Entry 17) is GRANTED and
Plaintiff’s motion for judgment on the pleadings (Docket Entry 13)
This case is remanded to the ALJ.
The ALJ is directed
to hold a new hearing and to address and remedy the issues
identified in this Memorandum & Order.
The Clerk of the Court is
directed to mark this matter CLOSED.
/s/ JOANNA SEYBERT___
Joanna Seybert, U.S.D.J.
March 29, 2016
Central Islip, New York
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