Wall v. Commissioner of Social Security

Filing 18

MEMORANDUM and ORDER: Walls motion 13 is granted, the Commissioners motion 14 is denied, and the case is remanded for further proceedings consistent with this Memorandum and Order. Ordered by Judge Frederic Block on 11/21/2022. (MI)

Case 2:21-cv-02354-FB Document 18 Filed 11/21/22 Page 1 of 6 PageID #: 1258

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------x
JOANN WALL,
Plaintiff,

MEMORANDUM AND ORDER
Case No.: 2:21-cv-02354-FB

-againstCOMMISSIONER OF SOCIAL SECURITY,
Defendant.
------------------------------------------------x
Appearances:
For the Plaintiff:
HOWARD D. OLINSKY, ESQ.
Olinsky Law Group
250 S. Clinton St., Ste 210
Syracuse, New York 13202

For the Defendant:
BREON PEACE
United States Attorney
271 Cadman Plaza East, 7th Floor
Brooklyn, New York 11201
By: JOSHUA R. SUMNER
Special Assistant U.S. Attorney
Eastern District of New York

BLOCK, Senior District Judge:
Joann Wall (“Wall”) appeals the Commissioner of Social Security’s
(“Commissioner”) final decision denying his application for Social Security
Disability (“SSD”) benefits. For the following reasons, Wall’s motion is granted, the
Commissioner’s motion is denied, and the case is remanded for further proceedings
consistent with this Memorandum and Order.

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I.
On July 26, 2018, Wall applied for disability insurance benefits. She alleged
disability as of February 15, 2017 due to panic disorder, osteoarthritis, thyroid issues,
anxiety, and depression. On March 25, 2020, an administrative law judge (“ALJ”)
held a hearing and found Wall not disabled. The Appeals Council denied Wall’s
request for review on February 24, 2021, and the ALJ’s decision became the final
decision of the Commissioner. This action followed.
II.
In reviewing a final decision of the Commissioner, a district court must
“conduct a plenary review of the administrative record to determine if there is
substantial evidence, considering the record as a whole, to support the
Commissioner's decision and if the correct legal standards have been applied.”
Rucker v. Kijakazi, 48 F.4th 86, 90–91 (2d Cir. 2022) (quoting Estrella v. Berryhill,
925 F.3d 90, 95 (2d Cir. 2019)). District courts will overturn an ALJ’s decision only
if the ALJ applied an incorrect legal standard, or if the ALJ’s ruling was not
supported by substantial evidence. Id. (citing Talavera v. Astrue, 697 F.3d 145, 151
(2d Cir. 2012)). “[S]ubstantial 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) (quoting Richardson v. Perales, 402 U.S. 389, 401
(1971)).

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III.
Remand is warranted here because the ALJ substituted her own judgment of
Wall’s condition for that of a medical professional. In doing so, the ALJ reached a
conclusion that was not supported by substantial evidence.
Wall’s treating psychologist, Matthew Pollack, Ph.D. (“Dr. Pollack”) opined
that Wall had marked limitations in her ability to concentrate, persist or maintain
pace, moderate limitations in her ability to understand, remember, apply
information, adapt, and self-manage, and mild limitations in her ability to interact
with others. The ALJ determined Dr. Pollack’s opinion was “unpersuasive” based
on a purported inconsistency with the record, since Wall was able to complete basic
tasks such as bathing, doing laundry, shopping, and driving.
However, evidence of Wall participating in daily activities does not support a
conclusion that she is not disabled. See Murdaugh v. Sec. of Dep’t of HHS of U.S.,
837 F.2d 99, 102 (2d Cir 1988) (merely because the plaintiff “waters his landlady’s
garden, occasionally visits friends and is able to get on and off an examination table
can scarcely be said to controvert the medical evidence” in proving a disability).
There are no elements inherent to these activities that would show that Wall could
maintain employment. See also Polidoro v. Apfel, 1999 WL 203350, at *8 (S.D.N.Y.
April 12, 1999) (“A claimant's participation in the activities of daily living will not
rebut his or her subjective statements of pain or impairment unless there is proof that

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the claimant engaged in those activities for sustained periods of time comparable to
those required to hold a ... job.”).
Moreover, an ALJ is not permitted to substitute their own judgment of a
claimant’s condition for that of a medical professional. See Balsamo v. Chater, 142
F.3d 75, 91 (2d Cir. 1998) (“[I]t is well-settled that ‘the ALJ cannot arbitrarily
substitute his own judgment for a competent medical opinion... [H]e is not free to
set his own expertise against that of a physician...”) (citing McBrayer v. Sec’y of
HHS, 712 F.2d 795, 799 (2d Cir. 1983)). In evaluating Wall, Dr. Pollack also opined
that she likely would be off task for twenty percent of the workday and absent more
than four days per month. Nevertheless, because of Wall’s ability to dress, bathe,
shop, drive, and manage her finances, the ALJ determined that Dr. Pollack
overstated the extent of Wall’s limitations, and that his findings should not be
credited. In doing so, the ALJ replaced a treating source’s opinion with her own
evaluation of Wall’s condition, thereby committing legal error.
Also, an ALJ is not permitted to independently assess whether objective data
about the claimant reflect a medical source’s opinion. See Cira v. Comm'r of Soc.
Sec., 2017 WL 4339480, *9, 2017 U.S. Dist. LEXIS 160991, *25 (E.D.N.Y. Sept.
29, 2017) (quoting Peed v. Sullivan, 778 F. Supp. 1241, 1246 (E.D.N.Y. 1991) (“An
ALJ cannot simply “secure raw data from the treating physician” to make his or her
own disability decision.”)). The ALJ committed this error by using raw data

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extracted from the record to discredit Dr. Pollack’s opinion. In finding Dr. Pollack’s
findings to be “unpersuasive,” the ALJ references aspects of the record where “the
claimant was alert and oriented [. . .], has adequate relationships with her family,
goes out to dinner, cook[s], clean[s], shop[s], and was able to attend AA meetings.”
A.R. 18. In using her own analysis of objective findings to undermine Dr. Pollack’s
opinion, the ALJ further committed legal error.
In sum, the ALJ reached a decision that is not supported by substantial
evidence. Her determinations are based on her own opinion about the extent of
Wall’s disabilities. She reached these determinations by interpreting raw data from
the record, then substituting her own layperson’s assessment for that of a treating
source. This is error and requires remand. Because it is possible that the ALJ would
have found Wall disabled had she properly considered Dr. Pollack’s opinion, remand
is appropriate. See Rosa v. Callahan, 168 F.3d 72, 83 (2d Cir. 1999) (deeming
remand for rehearing appropriate unless “there is no apparent basis to conclude that
a more complete record might support the Commissioner’s decision”); see also
Kirkland v. Astrue, No. 06 CV 4861, 2008 WL 267429, at *8 (E.D.N.Y. Jan. 29,
2008) (quoting Butts v. Barnhart, 388 F. 3d 377, 386 (2d Cir. 2004)) (“[r]emand for
additional proceedings is particularly appropriate where, due to inconsistencies in
the medical evidence and/or significant gaps in the record, ‘further findings
would…plainly help to assure the proper disposition of [a] claim.’”).

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III.
For

the

aforementioned

reasons,

Wall’s

motion

is

granted, the

Commissioner’s motion is denied, and the case is remanded for further proceedings
consistent with this Memorandum and Order.

SO ORDERED.
_/S/ Frederic Block____________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
November 21, 2022

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