Roginsky v. Berryhill

Filing 19

ORDER: For the reasons set forth in the attached Memorandum and Order, 13 Defendant's motion for judgment on the pleadings is DENIED, 11 Plaintiff's motion for judgment on the pleadings is GRANTED, and this action is REMANDED for further proceedings consistent with this Memorandum and Order. Ordered by Judge Kiyo A. Matsumoto on 1/28/2020. (Ammari, Kamil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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DAVID ROGINSKY,
Plaintiff,

MEMORANDUM & ORDER

v.

17-cv-5559 (KAM)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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MATSUMOTO, United States District Judge:
David Roginsky (“Roginsky” or “Plaintiff”) appeals the
final decision of the Commissioner of Social Security
(“Commissioner” or “Defendant”) finding him ineligible for
disability insurance benefits under Title II of the Social
Security Act (the “Act”) on the grounds that he could perform
work which existed in the national economy.

Before the Court

are the parties’ cross-motions for judgment on the pleadings, in
which Plaintiff seeks a remand and Defendant seeks an order
affirming the Commissioner’s decision.

For the reasons set

forth below, the Court DENIES Defendant’s motion, GRANTS
Plaintiff’s motion, and REMANDS this action for further
proceedings consistent with this Memorandum and Order.
Background
I.

Procedural History
On December 30, 2013, Roginsky filed an application

for disability insurance benefits.
1

(ECF No. 16, Administrative

Transcript (“Tr.”), at 67.)

Roginsky alleged disability

beginning October 3, 2013, due to, inter alia, a learning
disability and right knee condition.

(Id. at 140-141, 164.)

On May 9, 2014, the Social Security Administration
(“SSA”) denied Roginsky’s application for disability insurance
benefits and supplemental security income on the basis that
Roginsky did not qualify as “disabled” within the meaning of the
Act.

(Id. at 70-73.)

ALJ.

Roginsky requested a hearing before an

(Id. at 82-83.)
On March 3, 2016, Roginsky appeared for a hearing

before ALJ Patrick Kilgannon.

(Id. at 30-56.)

Following the

hearing, ALJ Kilgannon issued a decision finding Roginsky not
disabled within the meaning of the Act and, as a result, not
entitled to social security benefits.

(Id. at 12-29.)

On July 19, 2016, Roginsky requested review of ALJ
Kilgannon’s decision.

(Id. at 130.)

The Appeals Council denied

Roginsky’s request for review, making ALJ Kilgannon’s decision
the final decision of the Commissioner.
action followed.
II.

(Id. at 1-6.)

This

(See generally ECF No. 1, Compl.)

Relevant Evidence
Roginsky’s principal argument on appeal is that in

assessing his residual functional capacity (“RFC”), ALJ
Kilgannon accorded great weight to the opinion of Dr. Louis A.
Fuchs (“Dr. Fuchs”), but disregarded, without explanation, the
2

portion of Dr. Fuchs’ opinion noting that Roginsky could not
sit, stand, or walk for more than one hour at a time.

The

Court’s Memorandum and Order thus summarizes only those facts
relevant to whether ALJ Kilgannon erred in disregarding that
portion of Dr. Fuchs’ opinion.
On April 4, 2016, ALJ Kilgannon served a set of
medical interrogatories on Dr. Fuchs and requested his
professional opinion in connection with Roginsky’s claim.
452-64.)

(Tr.

Dr. Fuchs did not examine Roginsky, but instead

answered ALJ Kilgannon’s interrogatories based on his review of
Roginsky’s medical record.

(See id. at 475.)

Dr. Fuchs’

response, dated April 15, 2016, notes the following findings:
•

Lifting/Carrying: Roginsky could lift up to ten pounds
continuously; lift eleven to twenty pounds occasionally;
carry up to ten pounds continuously; and carry eleven to
twenty pounds occasionally. (Id. at 467.)

•

Sitting/Standing/Walking: Roginsky could sit, stand, and
walk for up to one hour at a time without interruption; sit
for a total of eight hours in a day; stand for a total of
two hours in a day; and walk for a total of two hours in a
day. (Id. at 469.)

•

Use of Hands: Roginsky could continuously reach, handle,
finger, feel, push, and pull. (Id. at 470.)

•

Use of Feet: Roginsky could use foot controls occasionally
with his right foot and continuously with his left foot.
(Id.)

•

Postural Activities: Roginsky could occasionally climb
stairs and ramps, climb ladders or scaffolds, balance,
stoop, kneel, crouch, and crawl. (Id. at 471.)

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•

Environmental Limitations: Roginsky could be continuously
exposed to unprotected heights and moving mechanical parts;
could continuously operate a motor vehicle; could
occasionally be exposed to humidity and wetness, or extreme
heat or cold; and could never be exposed to vibrations.
(Id. at 472.)
ALJ Kilgannon afforded “great weight” to Dr. Fuchs’

opinion, noting that Dr. Fuchs “examined the record in its
entirety, has a specialty in the field of orthopedics and
arrived at conclusions constituent with the record as a whole.”
(Id. at 22.)

ALJ Kilgannon cited Dr. Fuchs’ as opining that

“during the course of an eight-hour workday, [Roginsky] retained
the ability to sit for 8 hours, stand for 2 hours[,] and walk
for 2 hours, and occasionally lift/carry up to 20 pounds.

In

addition, he found [that Roginsky] could occasionally engage in
postural activities and continuously use his hands.”

(Id.)

ALJ

Kilgannon did not, however, cite the portion of Dr. Fuchs’
opinion indicating that Roginsky could not sit, stand, or walk
for more than one hour at a time.

(See id.)

Standard of Review
Unsuccessful claimants for disability benefits may
bring an action in federal court seeking judicial review of the
Commissioner’s denial of their benefits.
1383(c)(3).

42 U.S.C. §§ 405(g),

The reviewing court does not have the authority to

conduct a de novo review, and may not substitute its own
judgment for that of the ALJ, even when it might have

4

justifiably reached a different result.
F.3d 118, 122 (2d Cir. 2012).

Cage v. Comm’r, 692

Rather, “‘[a] district court may

set aside the Commissioner’s determination that a claimant is
not disabled only if the factual findings are not supported by
‘substantial evidence’ or if the decision is based on legal
error.’”

Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008)

(quoting Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)).
“Substantial evidence means ‘more than a mere
scintilla.

It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.’”

Id.

(quoting Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004)).
If there is substantial evidence in the record to support the
Commissioner’s factual findings, those findings must be upheld.
42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence,
shall be conclusive . . . .”).

Inquiry into legal error

requires the court to ask whether “‘the claimant has had a full
hearing under the [Commissioner’s] regulations and in accordance
with the beneficent purposes of the [Social Security] Act.’”
Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting Cruz
v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)).

5

Discussion
I.

The Commissioner’s Five-Step Analysis of Disability Claims
A claimant must be “disabled” within the meaning of

the Act to receive disability benefits.
423(a), (d).

See 42 U.S.C. §§

A claimant qualifies as disabled when she is

unable to “engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than
12 months.”

Id. § 423(d)(1)(A); Shaw, 221 F.3d at 131–32.

The

impairment must be of “such severity” that the claimant is
unable to do her previous work or engage in any other kind of
substantial gainful work.

42 U.S.C. § 423(d)(2)(A).

The regulations promulgated by the Commissioner
prescribe a five-step sequential evaluation process for
determining whether a claimant meets the Act’s definition of
disability.

See 20 C.F.R. § 404.1520.

The Commissioner’s

process is essentially as follows:
[I]f the Commissioner determines (1) that the claimant is
not working, (2) that [s]he has a ‘severe impairment,’ (3)
that the impairment is not one [listed in Appendix 1 of the
regulations] that conclusively requires a determination of
disability, and (4) that the claimant is not capable of
continuing in [her] prior type of work, the Commissioner
must find [her] disabled if (5) there is not another type
of work the claimant can do.

6

Burgess, 537 F.3d at 120 (quoting Green-Younger v. Barnhart, 335
F.3d 99, 106 (2d Cir. 2003)); accord 20 C.F.R. § 404.1520(a)(4).
If the answer at any of the previously mentioned steps is “no,”
the analysis stops and the ALJ must find that the claimant does
not qualify as disabled under the Act.
“The claimant has the general burden of proving . . .
his or her case at steps one through four of the sequential
five-step framework established in the SSA regulations.”
Burgess, 537 F.3d at 128 (internal quotation marks and citations
omitted).

“However, [b]ecause a hearing on disability benefits

is a nonadversarial proceeding, the ALJ generally has an
affirmative obligation to develop the administrative record.”
Id. (internal quotation marks omitted).

“The burden falls upon

the Commissioner at the fifth step of the disability evaluation
process to prove that the claimant, if unable to perform her
past relevant work [and considering her residual functional
capacity, age, education, and work experience], is able to
engage in gainful employment within the national economy.”
Sobolewski v. Apfel, 985 F. Supp. 300, 310 (E.D.N.Y. 1997).
“The Commissioner must consider the following in
determining a claimant’s entitlement to benefits: ‘(1) the
objective medical facts [and clinical findings]; (2) diagnoses
or medical opinions based on such facts; (3) subjective evidence
of pain or disability . . . ; and (4) the claimant’s educational
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background, age, and work experience.’”

Balodis v. Leavitt, 704

F. Supp. 2d 255, 262 (E.D.N.Y. 2001) (quoting Brown v. Apfel,
174 F.3d 59, 62 (2d Cir. 1999) (alterations in original)).

If

the Commissioner finds a combination of impairments, the
Commissioner must also consider whether “the combined effect of
all of [a claimant’s] impairment[s]” establish the claimant’s
eligibility for Social Security benefits.

20 C.F.R. §

404.1523(c); see also id. § 416.945(a)(2).
II.

ALJ Kilgannon’s Application of the Five-Step Analysis
Using the five-step sequential process to determine

whether a claimant is disabled as mandated by 20 C.F.R. §
416.971, ALJ Kilgannon made the following determinations:
At step one, ALJ Kilgannon found that Roginsky had not
engaged in substantial gainful activity since October 3, 2013,
the alleged onset date of Roginsky’s disability.

(Tr. 17.)

At step two, ALJ Kilgannon found that Roginsky
suffered from the following “severe” impairments:

right knee

impairment, hand tremors, obesity, and learning disability.
(Id.)

ALJ Kilgannon also found that Roginsky suffered from

several “non-severe” impairments:
and depression/adjustment disorder.

hypertension, sleep apnea,
(Id. at 17-18.)

ALJ

Kilgannon noted that a consultative examiner, Rachel Felsenfeld,
Ph.D., examined Roginsky and diagnosed him with an adjustment
disorder with depressed mood and learning disability.
8

(Id. at

18.)

ALJ Kilgannon did not, however, perform the psychiatric

review technique as mandated by 20 C.F.R. § 404.1520a. 1
At step three, ALJ Kilgannon considered Listings 1.02
(major disfunction of a joint) and 12.05 (intellectual disorder)
but determined that Roginsky did not have an impairment, or
combination of impairments, that meets or medically equals one
of the impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App’x
1.

(Id. at 18-19.)
At step four, ALJ Kilgannon concluded that Roginsky

could not perform his past relevant work as a Patient
Transporter.

(Id. at 23.)

ALJ Kilgannon did, however, find

that Roginsky could perform “sedentary” work with the following
limitations:

no climbing ladders, ropes or scaffolds;

occasional climbing ramps and stairs; occasional crouching,
crawling, balancing, stooping, and kneeling; frequent handling,
fingering, and feeling with bilateral extremities; no hazards
such as moving machinery and unprotected heights; and only
unskilled tasks.

(Id. at 19.)

At step five, ALJ Kilgannon concluded that Roginsky
could perform jobs available in substantial numbers in the
national economy, including Addresser, Document Preparer, and
Surveillance System Monitor.

(Id. at 24.)

Thus, ALJ Kilgannon

Although the Court remands on other grounds, the Commissioner should be
mindful on remand that he must assess Roginsky’s mental impairments pursuant
to the Special Technique, as required by 20 C.F.R. § 404.1520a.
1

9

found that Roginsky did not qualify as disabled within the
meaning of the Act.
III.

(Id.)

ALJ Kilgannon’s Error in Applying the Five-Step Analysis
a. ALJ Kilgannon Provided an Incomplete RFC Assessment
Roginsky argues that ALJ Kilgannon erred by concluding

that Roginsky could perform sedentary work, despite the fact
that Dr. Fuchs found Roginsky unable to sit, stand, or walk for
more than one hour at a time.

The Court cannot meaningfully

review ALJ Kilgannon’s decision in this regard because, contrary
to applicable regulations, ALJ Kilgannon did not set forth the
restrictions applicable to Roginsky’s work-related abilities on
a function-by-function basis.
An ALJ assessing a claimant’s RFC “must first identify
the individual’s functional limitations or restrictions and
assess his or her work-related abilities on a function-byfunction basis.”

Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir.

2013) (quoting Titles II & Xvi: Assessing Residual Functional
Capacity in Initial Claims, SSR 96-8P (S.S.A. July 2, 1996)).
“[T]he ALJ [must] include in his RFC assessment a ‘function-byfunction analysis of the claimant’s functional limitations or
restrictions and an assessment of the claimant’s work-related
abilities on a function-by-function basis.’”

Palascak v.

Colvin, No. 11-CV-0592(MAT), 2014 WL 1920510, at *10 (W.D.N.Y.
May 14, 2014) (quoting Zurenda v. Astrue, No. 11–CV–1114
10

(MAD/VEB), 2013 WL 1183035, at *4 (N.D.N.Y. Mar. 1, 2013),
report and recommendation adopted, 2013 WL 1182998 (N.D.N.Y.
Mar. 21, 2013)).

“[T]he ALJ must make a function by function

assessment of the claimant’s ability to sit, stand, walk, lift,
carry, push, pull, reach, handle, stoop, or crouch, based on
medical reports from acceptable medical sources that include the
sources’ opinions as to the claimant’s ability to perform each
activity.”

Knighton v. Astrue, 861 F. Supp. 2d 59, 66 (N.D.N.Y.

2012) (citing 20 C.F.R. §§ 404.1513(c)(1), 404.1569a(a),
416.969a(a); Martone v. Apfel, 70 F. Supp. 2d 145, 150 (N.D.N.Y.
1999)).

“Only after that may RFC be expressed in terms of the

exertional levels of work, sedentary, light, medium, heavy, and
very heavy.”

SSR 96-8P; see also, e.g., Hilsdorf v. Comm’r of

Soc. Sec., 724 F. Supp. 2d 330, 348–49 (E.D.N.Y. 2010).
ALJ Kilgannon’s decision relied on Dr. Fuchs’ opinion
that Roginsky could sit for up to 8 hours a day.

But ALJ

Kilgannon did not address the accompanying limitation that
Roginsky could not sit, stand, or walk for more than one hour at
a time.

Without ALJ Kilgannon’s reasoning on this point, the

Court cannot conclude whether ALJ Kilgannon assessed no such
limitations in Roginsky’s ability to sit, stand, or walk for
more than one hour at time or, alternatively, failed to properly
consider Dr. Fuchs’ opinion.

As ALJ Kilgannon failed to

properly explain his reasoning, the Court cannot adequately
11

review his findings and remand is appropriate. 2

See, e.g., Welch

v. Comm’r of Soc. Sec., No. 17-CV-6764 (JS), 2019 WL 4279269, at
*3 (E.D.N.Y. Sept. 10, 2019); see also SSR 96-8P (“[A] failure
to first make a function-by-function assessment of the
individual’s limitations or restrictions could result in the
adjudicator overlooking some of an individual’s limitations or
restrictions.”); Cichocki, 729 F.3d at 177 (“Remand may be
appropriate . . . where an ALJ fails to assess a claimant’s
capacity to perform relevant functions, despite contradictory
evidence in the record, or where other inadequacies in the ALJ's
analysis frustrate meaningful review.”).
b. ALJ Kilgannon’s Finding that Roginsky Could Perform
Frequent Handling & Fingering
Roginsky also argues that ALJ Kilgannon erred in
failing to consider the evidence in the record relating to
Roginsky’s severe hand tremors.

ALJ Kilgannon found that

Roginsky’s hand tremors qualified as a “severe” impairment.
(Tr. 17.)

But Roginsky incorrectly states that ALJ Kilgannon

The Commissioner cites to other evidence in the record which he argues
supports ALJ Kilgannon’s decision, and specifically, to the testimony of Dr.
Caiati, Dr. Famulare, and Dr. Goodwillie. (ECF No. 14, Commissioner’s Mot.
for J. on the Pleadings, at 17.) ALJ Kilgannon accorded limited weight to
the opinions of each of the cited physicians. (Tr. 21-22.) Although the
Commissioner attempts to rationalize how ALJ Kilgannon could have accepted
some portions of these physicians’ opinions – i.e., those related to
Roginsky’s limitations in sitting, standing, and walking – the Court cannot
accept such post hoc rationalizations given the lack of any corresponding
discussion in ALJ Kilgannon’s decision. See Newbury v. Astrue, 321 F. App’x
16, 18 (2d Cir. 2009) (“A reviewing court “‘may not accept appellate
counsel’s post hoc rationalizations for agency action.’” (quoting Snell v.
Apfel, 177 F.3d 128, 134 (2d Cir. 1999))).
2

12

identified no evidence in support of his finding that, despite
this severe impairment, Roginsky could frequently handle,
finger, and feel bilaterally despite the hand tremors.

ALJ

Kilgannon cited Dr. Fuchs’ opinion that Plaintiff could
continuously use his hands to support his finding regarding
Plaintiff’s ability to use his hands.

(Id. at 22.)

The only

other opinion in the administrative record addressing Roginsky’s
use of his hands was the opinion of psychologist Stephen Kaplan
(“Dr. Kaplan”), which ALJ Kilgannon rejected as outside the area
of Dr. Kaplan’s specialty.

(Id. at 22.)

As Dr. Kaplan is not a

physician, physiatrist, physical therapist, or qualified in any
manner to issue opinions as to physical impairments, the Court
cannot say that ALJ Kilgannon erred in giving little weight to
Dr. Kaplan’s findings regarding Roginsky’s physical status.

In

any event, as Dr. Fuchs is a non-examining source and there is
no proper opinion in the record from an examining source
discussing Roginsky’s hand tremors, the Court directs that, on
remand, ALJ Kilgannon seek an opinion from an examining source
as to the effects Roginsky’s hand tremors may have on his
manipulative limitations.
Conclusion
Federal regulations explicitly authorize a court, when
reviewing decisions of the SSA, to order further proceedings
where appropriate.

42 U.S.C. § 405(g) (“The court shall have
13

power to enter, upon the pleadings and transcript of the record,
a judgment affirming, modifying, or reversing the decision of
the Commissioner of Social Security, with or without remanding
the cause for a rehearing.”).

Remand is warranted where “there

are gaps in the administrative record or the ALJ has applied an
improper legal standard.”

Rosa v. Callahan, 168 F.3d 72, 82-83

(2d Cir. 1999) (quoting Pratts v. Chater, 94 F.3d 34, 39 (2d
Cir. 1996) (internal quotation marks omitted)).

Remand is

particularly appropriate where, as here, further findings or
explanation will clarify the rationale for the ALJ’s decision.
Pratts, 94 F.3d at 39.

The Court finds that ALJ Kilgannon

failed to explain his findings and REMANDS this action for
further proceedings consistent with this Memorandum and Order.
SO ORDERED.
Dated:

Brooklyn, New York
January 28, 2020

/s/
Hon. Kiyo A. Matsumoto
United States District Judge

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