Wood v. Astrue
Filing
21
DECISION and ORDER. IT IS HEREBY ORDERED that the Commissioner's motion for judgment on the pleadings is DENIED. The Commissioner's decision denying SSDI benefits is REVERSED. The hearing officer's findings with respect to steps one , two, four and five of the disability-evaluation procedure are AFFIRMED and the case is REMANDED for further findings with respect to step three, i.e., whether Wood's physical impairments match or medically equal the criteria of an impairment listed in Appendix 1. Signed by Judge William G. Young on 12/17/2013. (dpk)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________
KEITH W. WOOD,
Plaintiff,
v.
10-cv-00477
(WGY)
CAROLYN W. COLVIN,
Acting Commissioner, Social
Security Administration,
Defendant.
WILLIAM G. YOUNG, United States District Judge1
DECISION AND ORDER
I.
INTRODUCTION
Keith Wood (“Wood”) brings this action pursuant to section
205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking
judicial review of the final decision of the Commissioner of the
Social Security Administration (“Commissioner”) denying him
Social Security Disability Insurance (“SSDI”) benefits.2
Wood
1
Of the District of Massachusetts, sitting by designation.
Reassignment Order, ECF No. 19.
2
The named defendant in this suit was originally Michael J.
Astrue, who was the Commissioner of Social Security at the time
the suit was filed. On February 14, 2013, Carolyn W. Colvin was
named Acting Social Security Commissioner and has therefore been
substituted as the named defendant in this suit pursuant to
Federal Rule of Civil Procedure 25(d). Elec. Clerk’s Notes, Mar.
4, 2013.
1
challenges the determination of an Administrative Law Judge (the
“hearing officer”) that Wood is not disabled under sections
216(i) and 223(d) of the Social Security Act.
Wood requests that
the Court reverse the Commissioner’s decision and order a
calculation of benefits in accordance with the requirements of
the Social Security Act, or, alternatively, vacate the decision
of the hearing officer and remand the matter for further
proceedings.
Compl. 6, ECF No. 1; Pl.’s Br. 18, ECF No. 13.
The
Commissioner requests that the Court grant her motion for
judgment on the pleadings and affirm her decision that Wood is
not entitled to disability insurance benefits.3
Def.’s Br.
Pursuant Gen. Order No. 18 (“Def.’s Br.”) 17, ECF No. 16.
A.
Procedural Posture
Wood applied for SSDI benefits on February 8, 2007, Admin.
R. at 14,4 with a protective filing date of the same day,5 id. at
120; see also Pl.’s Br. 4.
On May 29, 2007, the Regional
3
The Commissioner did not file with the Court a separate
motion for judgment on the pleadings. For the purposes of this
decision and order, however, the Court will regard the
Commissioner’s brief as having incorporated the referenced
motion.
4
The Administrative Record appears in ECF documents 8-1
through 8-7. The page numbers refer to the Administrative Record
as a whole.
5
Although it appears Wood’s application for SSDI benefits
was actually completed and received on February 20, 2007, Admin.
R. at 103-05, the parties are not in dispute over the date of
filing and whether Wood’s application was received within his
date of last insured. Compare Pl.’s Br. 4, with Def.’s Br. 3.
2
Commissioner denied Wood’s claim.
Admin. R. at 52-55.
Wood
timely filed a request on June 14, 2007 for a hearing before an
Administrative Law Judge to challenge the Regional Commissioner’s
denial.
Id. at 57.
A hearing was held on April 8, 2009, at
which Wood appeared accompanied by legal aid counsel.
286-312.
Id. at 14,
A vocational expert, Julie Andrews (“Andrews”), was
scheduled to appear at the hearing telephonically, however she
was unable to do so.
Id. at 311.
A supplemental hearing was
therefore held on June 5, 2009, at which Andrews appeared
telephonically.
Id. at 14, 27-50.
On July 6, 2009, the hearing
officer issued a decision finding Wood not disabled and upholding
the denial of benefits.
Id. at 14-22.
Wood timely filed a
request on July 14, 2009 for the Social Security Appeals Council
to review the hearing officer’s decision.
Id. at 9-10.
On March
5, 2010, the Appeals Council denied Wood’s request for review.
Id. at 1-3.
On April 23, 2010, Wood filed the present action pursuant to
42 U.S.C. §§ 405(g) and 1383(c)(3).
Compl. 1-2.
The
Commissioner filed an answer on August 9, 2010, Def.’s Answer,
ECF No. 7, and both sides subsequently filed briefs with the
Court, Pl.’s Br; Def.’s Br.
reassigned to this Court.
B.
On February 3, 2012, the case was
Reassignment Order.
Facts of Record
Wood was born in 1960 and was forty-six years old when he
3
applied for SSDI benefits.
Admin. R. at 103.
After dropping out
of school after complesixth grade, Wood began working a variety
of jobs involving manual labor outdoors.
Id. at 292-310.
Wood
never received any further education or formal job training.
at 292.
Id.
In the summer of 2005, Wood’s physical ailments began
interfering with his ability to perform his duties as a cemetery
custodian and snow-plow operator for the Town of Horicon, New
York.
Id. at 124, 210.
On October 25, 2006, after approximately
eighteen years of employment with Horicon, Wood resigned due to
severe pain in his feet and legs.
1.
Id. at 292-93, 303.
Physical Impairments
a.
Diabetes Mellitus with Sensory Neuropathy
The primary physical ailment for which Wood has sought
medical treatment is sensory neuropathy in his feet, resulting
from type 2 diabetes, which has caused pain in his feet and legs.
In the month following Wood’s resignation from his job with
Horicon, Wood went to the Chester-Horicon Health Center three
times seeking treatment from the Hudson Headwaters Health Network
(“HHHN”) for the pain in his feet.
See id. at 178-79, 181.
Wood
complained that his feet were “[e]ven painful when he [was] off
them,” and that the pain was worse “when walking on concrete
floors.”
Id. at 179.
HHHN medical records indicate that Wood
was diagnosed as being morbidly obese and as having diabetes
mellitus, which caused Wood to develop sensory neuropathy in his
4
feet and legs.
Id. at 176-81, 242-58.
Over the next three years, Wood consistently complained of
the pain in his feet and legs to his primary care physician at
HHHN, John Rugge, M.D., (“Dr. Rugge”).
See id. at 237, 241-58
(HHHN Primary Care Progress Notes documenting Wood’s appointments
from September 2007 to February 2009).
A May 7, 2008 diabetic
foot exam at HHHN revealed that Wood could only feel one of ten
points tested on each of his feet, and that he only had feeling
on the dorsum of his feet.
Id. at 253.
During the exam, Wood
reported numbness in all of the toes on his left foot and in the
hallux of his right foot.
Id.
Wood described “sharp anterior
pain through [his] lower [left] leg up to [his] knee” and similar
pain in his right leg.
Id.
Dr. Rugge noted that both of Wood’s
feet had “deformed shape” and that the pain was due, in part, to
“mechanics,” including “weight burden” and “footshape.”
Id.
It
appears that Wood initially was prescribed Amitriptyline for the
pain in his feet, and HHHN staff noted in November 2007 that Wood
was taking “prescribed meds for pain in feet.”6
256.
Id. at 128, 175,
HHHN records indicate that by 2008, however, Wood was no
6
The record is not entirely clear what medication Wood
received for his feet. Wood reported to consulting physician
Kenneth D. Stein, M.D., that he had been given Elavil to try to
alleviate some of the discomfort in his feet at night, but there
is no indication in HHHN records of Wood receiving this
medication. Id. at 210.
5
longer taking any prescribed medication for the pain in his feet.7
Id. at 250, 252, 255.
Throughout the entire period in question,
Wood took Tylenol for the pain but it provided him with little to
no relief.
See id. at 242-43, 249, 254, 257, 282.
HHHN
Physician’s Assistant Bill Orlott prescribed Wood a cane to
assist Wood with walking.
Id. at 297.
To treat Wood’s diabetes, Dr. Rugge prescribed Wood
Glipizide and Metformin, as well as Lantus, a daily injection of
insulin.
Id. at 128, 296.
Nonetheless, from 2007 to 2009, HHHN
staff noted that Wood’s diabetes was not well controlled.
250, 274.
Id. at
Wood admitted to HHHN staff that he had failed to
exercise or abide by the diabetic diet Dr. Rugge had recommended.
Id. at 175, 246, 253, 255.
On April 24, 2007, Dr. Rugge conducted a physical
examination of Wood in which he recorded Wood as 6'3", 400 pounds
and listed Wood’s treating diagnoses as diabetes with sensory
neuropathy, morbid obesity, and “broken down feet.”
Id. at 188.
Dr. Rugge noted that Wood had been unable to work due to those
ailments since October 2006 and stated that Wood’s prognosis for
recovery was “poor.”
Id. at 189.
Dr. Rugge noted that Wood was
“mostly sedentary” during the day, averaging about an hour and a
half on his feet per day, and that Wood’s ability to function in
7
Wood apparently reported that the pain medication made him
feel drowsy and sluggish. See id. at 128, 175.
6
a work setting was “OK [except] for his leg [and] foot pain.”8
Id. at 194.
After assessing Wood’s ability to perform work-
related physical activities, Dr. Rugge stated that Wood could
occasionally lift fifteen pounds, sit without limitation, and
push or pull, including hand and foot controls, without
limitation, but that Wood’s ability to stand or walk was limited
to less than two hours per day.
Id. at 195.
On April 27, 2007, Kenneth D. Stein, M.D., (“Dr. Stein”)
conducted a consultative physical examination of Wood.
210-12.
Id. at
Wood made the same complaints to Dr. Stein regarding the
pain in his feet, telling Dr. Stein that being on his feet felt
like “walking barefoot on gravel.”
Id. at 210.
Wood reported
having pain in his feet even when sitting, but “described more of
an achy burning pain” in those instances.
Id.
Dr. Stein noted
that Wood’s weight was greater than 350 pounds and characterized
Wood’s posture as “normal,” and his gait as “slow.”
Id. at 211.
During the neurological portion of the exam, Dr. Stein found that
Wood “had decreased sensation on the plantar surface of the left
foot including vibratory sense,” but that the “[r]est of
sensation [was] bilaterally symmetrical to light touch.”
Id.
Dr. Stein concluded that Wood had “developed bilateral foot
neuropathy causing moderate-to-severe foot pain especially when
8
Dr. Rugge used an “x” with a dash over it, a medical
abbreviation, to indicate “except,”. Id. at 194.
7
he is on his feet for more than an hour and a half.”
Id.
On May 24, 2007, a Social Security Administration disability
examiner examined Wood and reviewed the medical evidence of
Wood’s alleged disability.
Id. at 231-36.
The examiner
concluded that Wood’s claim that he could walk and stand only for
an hour before needing to rest was “consistent with the
assessment,” and that Wood’s claim of having difficulty climbing
stairs was also supported by medical evidence.
Id. at 234-35.
The disability examiner, however, rejected Dr. Rugge’s conclusion
that Wood’s ability to stand and walk was limited to less than
two hours per day.
Id. at 232, 235.
Instead, the disability
examiner concluded that Wood could stand or walk with normal
breaks for a total of at least two hours during an eight-hour
workday, reasoning that Wood had “an effective gait as well as
full motor strength.”
b.
Id. at 232, 235.
Other Impairments
Wood suffered from a variety of other ailments, albeit with
less persistent and debilitating symptoms than the sensory
neuropathy.
Dr. Rugge diagnosed Wood with hypertension,
hyperlipidemia, and hypercholestermia, id. at 178-79, 198, 21011, 237, 241-43, 246, 248, 253, 255, 257-58, 272, and prescribed
Lisinopril, Lovastatin, and Hydrochlorothiazide for those
conditions.
Id. at 128, 210, 296.
Wood has a history of
gastroesophageal reflux and Barrett’s esophagitis, id. at 268-71,
8
and was prescribed Prevacid and Omeprazole to control his acid
reflux.
Id. at 128, 210, 296.
On April 3, 2009, Wood was
diagnosed by HHHN staff with “lateral epicondylitis” in his left
elbow and received a cortisone injection for the pain.
Id. at
279-80.
In late November 2008, Wood was injured in an All-Terrain
Vehicle (“ATV”) accident.
Id. at 266-67.
A CT scan of Wood’s
chest, abdomen, and pelvis revealed bruising of Wood’s right
lateral chest wall, but there was no evidence of a fracture or
any other internal injury or pathology.
Id. at 266-67.
Since
then, Wood has intermittently experienced pain in his chest and
ribs.
Id. at 245-46, 272.
2.
Mental Impairments
In 2007, Dr. Rugge diagnosed Wood with depression.
at 175-77, 179, 198.
See id.
Wood has taken Citalopram and Cymbalta for
his depression, id. at 128, 175-77, 210, but has never sought
psychiatric counseling.
Id. at 208.
During Dr. Rugge’s
examination of Wood on April 24, 2007, Dr. Rugge wrote “not
applicable” in the portions of the exam requesting information on
Wood’s mental status and intellectual functions.
Id. at 193-94.
Dr. Rugge also indicated that Wood was not suicidal and that he
believed Wood was capable of handling any benefits awarded to
him.
Id. at 195.
Dr. Rugge stated that Wood had no limitations
with respect to his memory, capacity for understanding and
9
concentration, or his ability to interact socially.
Id. at 196.
On April 20, 2007, Thomas Osika, Ph.D, (“Dr. Osika”)
conducted a consultative psychiatric examination of Wood.
207-09.
Id. at
Wood told Dr. Osika that he had begun taking medication
for his depression fifteen years earlier, but that he had never
been to counseling.
Id. at 208.
Wood denied having any suicidal
thoughts, problems with concentration, or alcohol or substance
abuse problems.
Id. at 208-09.
Dr. Osika described Wood as
being friendly, cooperative, and alert, stated that Wood’s speech
was “coherent and logical,” and noted that Wood appeared to have
good insight and judgment.
Id. at 208-09.
Dr. Osika also stated
that Wood did not demonstrate having any delusions,
hallucinations, obsessions, compulsions, or phobias.
Id. at 209.
Wood recalled three out of three objects after immediate delay
and two out of three after extended delay, and also remembered a
string of six digits.
Id.
Wood did well on a simple math test,
and Dr. Osika noted that Wood’s general knowledge and vocabulary
were intact.
Id.
Dr. Osika diagnosed Wood with “adjustment
disorder, depressed mood,” characterizing the severity of Wood’s
psychological stressors as “mild.”
Id.
Dr. Osika concluded that
Wood appeared capable of understanding and completing simple and
complex directions, that Wood’s ability to interact with
coworkers and employers was unimpaired, and that from an
emotional standpoint, Wood appeared able to work.
10
Id.
On May 11, 2007, the Social Security Administration
conducted a Psychiatric Review, synthesizing all of the medical
evidence of Wood’s mental impairment.
Id. at 213-26.
The
examiner listed Wood as having an adjustment disorder with
depressed mood, a medically determinable impairment.
Id. at 216.
The examiner concluded, however, that this mental impairment did
not restrict Wood’s activities of daily living or ability to
function socially.
Id. at 223.
The examiner also concluded that
Wood’s mental impairment posed a mild limitation to his ability
to maintain concentration, persistence, or pace, and that Wood
had never experienced episodes of “deterioration” for an extended
duration.
Id.
3.
Testimony
a.
Wood’s Testimony
Wood testified at the two administrative hearings regarding
his professional experiences, physical and mental health
problems, and his daily activities of living.
312.
Id. at 27-50, 286-
Wood explained that as a seasonal worker for the Town of
Horicon, he spent the summers digging graves and maintaining the
landscaping at a cemetery, and during winters he operated a
hydraulic wing on the side of a snow plow.
Id. at 34-40, 293-94.
Wood testified that the pain in his feet, which began around
2005, forced him to dig the graves with a “backhoe machine”
rather than by hand with a shovel as he had always previously
11
done.
See id. at 35-36, 304.
Operating the snow plow required
Wood to climb on and off the side of the truck to shovel snow,
sand, and salt.
Id. at 38-39.
Neither of Wood’s jobs required
him to complete any paperwork or employ reading or writing
skills.
See id. at 305.
Wood testified that “throbbing” pain surrounded the sides,
tops, and bottoms of his feet, and that, on some days, “sharp
stabbing pains” shot up towards his knees.
Id. at 294-95.
Wood
stated that it was hard to stand on his feet, and doing so for
“any length of time” put him in “a lot of pain.”
Id. at 294.
Wood also testified that he had pain in his feet even when
sitting.
Id. at 307.
When asked by the hearing officer what he
had done to treat the pain, Wood explained that he had tried
different prescribed medications, that he took Tylenol without
relief, and that he believed he now had no choice but to “live
with it.”
Id. at 294-95.
Wood told the hearing officer what
prescribed medications that he was taking at that time, spelling
the names of each medication aloud.
Id. at 296.
Wood also
explained that, unless he is walking only a short distance, he
uses his cane to walk because “once in a while,” one of his legs
will “give out on [him].”
Id. at 297-98.
Wood stated that he
could stand or walk for about five to ten minutes before needing
to sit and rest.
Id.
Wood also stated that the pain in his feet
and legs are the reason he is unable to work.
12
See id. at 295.
Wood testified that he tries to help out with household
chores, but that his participation is limited to making simple
meals for himself, putting a prepared dinner in the oven, and
sometimes doing laundry or cleaning dishes.
Id. at 298-99.
Wood
stated that he does not dust, sweep, mop, vacuum, take out the
trash, make the beds, clean the bathroom, do yard work, or shovel
snow.
Id. at 299-300.
Wood testified that he used to enjoy
gardening, fishing, and hunting, but had been forced to give up
those activities since the condition with his feet worsened.
at 309.
Id.
Wood testified that he avoids driving unless it is
necessary, and that when he does drive, he uses cruise control to
minimize the pain in his feet.
Id. at 300, 305.
Wood also
testified that he attends church regularly and goes to his
daughter’s field hockey games when he can.
Id. at 301-02.
Wood
stated that although he enjoys reading magazines, newspapers, and
“westerns,” he does not read often because of his poor reading
skills and instead will just look at the pictures in magazines.
See id. at 308.
Prompted by his attorney to explain his history of mental
illness, Wood stated that he was diagnosed with depression twenty
years earlier.
Id. at 306.
Wood testified that although he
sometimes has “bad days,” his depression is largely controlled by
his medication.
Id.
Wood explained that he has “flare-ups” with
his depression three or four times a year, after which it takes
13
him “a couple of days to start feeling right” again.
Id. 306-07.
The hearing officer asked Wood whether he had considered
seeking employment that did not require him to be on his feet and
Wood responded that he had, but he did not know what other work
he could do considering his limited education and training.
at 304.
Id.
Wood stated that, due to the pain in his feet, “I can’t
do nothing anymore, not like I used to.”
b.
Id. at 309.
Vocational Expert’s Testimony
After reviewing the vocational evidence relating to Wood,
Andrews testified at the supplemental hearing on June 5, 2009.
Id. at 33.
Andrews began by classifying Wood’s prior positions
for the Town of Horicon according to the Dictionary of
Occupational Titles (“DOT”).9
Id.
First, Andrews testified that
Wood’s work maintaining the cemetery was a combination between
the position of “cemetery worker,” DOT code 406.684-010, which is
a skilled position with a heavy exertion level, and the position
of “commercial groundskeeper,” DOT code 406.684-014, a semiskilled position with medium exertion.
Id. at 37.
Andrews
classified the work Wood did during winters as being that of a
“truck driver helper,” DOT code 905.687-010, which is an
unskilled position with heavy exertion.
Id. at 40.
Andrews
noted, however, that it appeared Wood had performed the work of a
9
Andrews expressly agreed to notify the hearing officer of
any discrepancy between her expert opinion and information
provided in the DOT. Id. at 36.
14
truck-driver helper at a medium level of exertion.
Id. at 40-41.
The hearing officer then asked Andrews whether a person
could perform Wood’s prior work, or that of any other occupation,
if the person could: occasionally lift, carry, push and pull ten
pounds; frequently lift, carry, push and pull less than ten
pounds; sit without limitations; occasionally stoop but never
balance, climb, crawl, crouch, or kneel; stand and walk for about
one hour in a work day with normal breaks, standing limited to
five to ten minutes at a time, and walking limited to short
distances lasting a few minutes at a time.
Id. at 41.
Andrews
responded that such a person could not perform any of Wood’s
prior work.
Id. at 41-42.
Andrews also responded, however, that
such a person could perform the work of three positions that
require only unskilled, sedentary work: “order clerk,” DOT code
209.567-014, of which there were 174,000 positions nationally and
478 regionally; “preparer,” DOT code 700.687-062, of which there
were 105,000 positions nationally and 660 regionally; and “brake
linings coater,” DOT code 574.685-010, of which there were
990,000 positions nationally and 375 regionally.
Id. at 42-43.
The hearing officer followed up by asking whether the
hypothetical employee could still perform these jobs if he needed
a cane for walking and a break every thirty to forty-five minutes
to stand and walk around, to which Andrews responded
affirmatively.
Id. at 42-43.
Finally, Andrews elaborated on the
15
responsibilities of an order clerk, explaining that such a worker
typically uses a “computer device” to take food and beverage
orders over a telephone or intercom system.
II.
Id. at 44.
LEGAL STANDARD
A.
Standard of Review
The Court reviews the Commissioner’s decision to determine
whether it is based on the correct legal standards and is
supported by substantial evidence.
42 U.S.C. § 405(g); Rosa v.
Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
The Supreme Court has
defined “substantial evidence” as “more than a mere scintilla”
and “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”
Richardson v. Perales, 402
U.S. 389, 401 (1971) (quoting Consolidated Edison Co. of N.Y. v.
NLRB, 305 U.S. 197, 229 (1938)).
A reviewing court must
“consider the whole record, examining the evidence from both
sides, because an analysis of the substantiality of the evidence
must also include that which detracts from its weight.”
Williams
ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988)
(citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488
(1951)).
Legal decisions are reviewed de novo and the Court may not
affirm a denial of benefits “where there is a reasonable basis
for doubting whether the Commissioner applied the appropriate
legal standards, even if the ultimate decision may be arguably
16
supported by substantial evidence.”
Martone v. Apfel, 70 F.
Supp. 2d 145, 148 (N.D.N.Y. 1999) (Hurd, J.) (citing Johnson v.
Bowen, 817 F.2d 983, 986 (2d Cir. 1987)).
In light of the non-
adversarial nature of a disability benefits hearing, the hearing
officer has an affirmative duty to develop the record, regardless
of whether the claimant is represented by counsel.
Pratts v.
Chater, 94 F.3d 34, 37 (2d Cir. 1996); see also Hilsdorf v.
Commissioner Soc. Sec., 724 F. Supp. 2d 330, 344 (E.D.N.Y. 2010)
(citing Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998))
(“[T]he ALJ has an affirmative obligation to seek out . . .
missing information.”).
Remand is appropriate where the
administrative record contains gaps and further findings would
“plainly help to assure the proper disposition of the
[disability] claim.”
Butts v. Barnhart, 388 F.3d 377, 385 (2d
Cir. 2004) (quoting Rosa, 168 F.3d at 83).
The Court should only
reverse the Commissioner’s decision and remand for a calculation
of benefits when the record is “sufficiently complete” to provide
“persuasive evidence of total disability” such that further
proceedings would be pointless.
Manago v. Barnhart, 321 F. Supp.
2d 559, 568 (E.D.N.Y. 2004) (quoting Williams v. Apfel, 204 F.3d
48, 50 (2d Cir. 1999)) (internal quotation marks omitted).
B.
Social Security Disability Standard
The Social Security Administration has promulgated a fivestep procedure for determining whether a social security claimant
17
is disabled within the meaning of the Social Security Act.
C.F.R. § 404.1520.
20
The hearing officer must determine: 1)
whether the claimant is engaged in substantial gainful activity;
2) whether the claimant has a severe impairment; 3) whether the
impairment meets or medically equals an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1 (“Appendix 1") and meets
the duration requirement such that the claimant is per se
disabled; 4) whether the claimant has the residual functional
capacity to perform his past work; and 5) whether the claimant
has the residual functional capacity to do any other work, in
light of the claimant’s age, education, and work experience.
Id.
The claimant bears the burden of proving the disability
requirements of the first four steps, and the Commissioner bears
the burden at the fifth step of proving that the claimant is
capable of performing “substantial gainful work,” alternative to
the claimant’s prior work, that exists in the national economy.
Rosa, 168 F.3d at 77.
III. HEARING OFFICER’S DECISION
Conducting the five-step, disability-evaluation procedure,
the hearing officer first determined that Wood had not engaged in
substantial gainful activity since October 25, 2006, the onset
date of Wood’s alleged disability.
Admin. R. at 16.
The hearing
officer then concluded that Wood had severe physical impairments
including diabetes, obesity, hypertension, hyperlipidemia, “a
18
history of a chest wall bruise,” and “a history of left upper
extremity epicondylitis.”
Id.
The hearing officer also
concluded, however, that Wood did not have a severe mental
impairment.
Id.
At the third step, the hearing officer found
that none of Wood’s impairments matched an impairment listed in
Appendix 1, and that Wood was therefore not per se disabled.
Id.
at 17.
The hearing officer then determined that, although Wood may
need a cane to walk, Wood had a residual functional capacity to:
occasionally lift ten pounds; frequently lift less than 10
pounds; stand and walk for about one hour in a work day with
normal breaks, standing limited to about five to ten minutes at a
time, and walking limited to short distances lasting a few
minutes at a time; sit without limitation; occasionally stoop;
and never balance, climb, crawl, crouch or kneel.
Id. at 17-18.
Based on Wood’s residual functional capacity, the hearing officer
decided that Wood was unable to perform any of his past relevant
work.
Id. at 21.
At the fifth and final step, the hearing
officer determined that, in light of Wood’s age, education, work
experience, and residual functional capacity, there were a
significant number of jobs in the national economy that Wood
could perform.
Id.
Accordingly, the hearing officer concluded
that Wood was not disabled from October 25, 2006 to July 6, 2009,
the date of the decision.
Id. at 22.
19
IV.
ANALYSIS
Wood asserts generally that the hearing officer’s decision
is not supported by substantial evidence and is “incorrect as a
matter of law.”
Pl.’s Br. 17.
The hearing officer found in
Wood’s favor at steps one, two, and four, concluding that Wood
was not engaged in substantial gainful activity, suffered from
severe physical impairments, and was not capable of performing
his past work, respectively.
Admin. R. at 16, 21.
The Court
therefore focuses its review on the findings adverse to Wood at
steps two, three, and five, respectively: that Wood did not
suffer from a severe mental impairment; that none of Wood’s
impairments, individually or in combination, met or medically
equaled one of the listed impairments in Appendix 1; and that
Wood was capable of performing jobs that exist in the national
economy.
A.
Substantial Evidence Supports the Hearing Officer’s
Determination that Wood’s Mental Impairment Was Not
Severe
In addition to the five-step disability-evaluation
procedure, Social Security regulations require hearing officers
to engage in an additional, two-step “special technique” to
evaluate the severity of a claimant’s mental impairments.
C.F.R. § 404.1520a.
20
First, the hearing officer must determine
whether the claimant has a medically determinable mental
impairment.
Id. at § 404.1520a(b)(1).
20
If the hearing officer
identifies such a mental impairment, the hearing officer must
then “rate the degree of functional limitation resulting from the
impairment(s)” according to four broad functional areas: (1)
activities of daily living; (2) social functioning; (3)
concentration, persistence, or pace; and (4) episodes of
decompensation.
Id. at § 404.1520a(c)(3); see also Kohler v.
Astrue, 546 F.3d 260, 265-66 (2d Cir. 2008).
If the hearing
officer rates the degree of limitation in each of the first three
areas as “mild” or better, and the hearing officer is unable to
identify any episodes of decompensation, then the hearing officer
generally should conclude that the claimant’s mental impairment
is not severe.
20 C.F.R. § 404.1520a(d)(1).
The hearing officer in this case assessed Wood’s mental
impairment according to the “special technique” promulgated in 20
C.F.R. § 404.1520a.
Admin. R. at 16-17.
First, the hearing
officer identified Wood’s only alleged mental impairment,
adjustment disorder with depressed mood, as a medically
determinable impairment.
Id. at 16.
The hearing officer then
found that Wood’s depression caused a mild limitation to Wood’s
activities of daily living, and did not limit Wood’s social
functioning or concentration, persistence, or pace.
17.
Id. at 16-
Finally, the hearing officer found that Wood had
“experienced no episodes of decompensation which have been of
extended duration.”
Id. at 17
Having found the degree of
21
limitation in the first three functional areas all mild or
better, and no episodes of decompensation, the hearing officer
concluded that Wood’s impairment was not severe pursuant to 20
C.F.R. § 404.1520a(d)(1).
Id.
The hearing officer correctly applied the “special
technique” required by the regulations, and substantial evidence
supports the determination that Wood’s adjustment disorder with
depressed mood was not severe.
The hearing officer’s assessment
of Wood’s mental impairment was consistent with those of treating
physician Dr. Rugge and consulting physician Dr. Osika, as well
as Wood’s testimony.
See id. at 16-17.
As for the first broad functional area, activities of daily
living, Dr. Rugge did not document any way in which Wood’s
depression interfered with his ability to perform activities of
daily living.
Id. at 193-94.
Dr. Osika stated that Wood
“help[ed] out with all the household chores.”
Id. at 209.
Wood
testified that his depression was exacerbated only three or four
times per year, for two to three days at a time.
Id. at 306-07.
The record demonstrates that Wood’s activities of daily living
were significantly limited by his physical impairments, but Wood
never alleged that his depression interfered with specific daily
activities.
The record therefore provides substantial support
for the hearing officer’s determination that Wood’s limitation in
activities of daily living due to his depression was mild.
22
See
Petrie v. Astrue, 412 F. App'x 401, 409 (2d Cir. 2011) (affirming
hearing officer’s finding of mild limitation of activities of
daily living where claimant was able to dress, bathe, cook, do
laundry, and prepare food).
The record also supports the hearing officer’s conclusion
that Wood’s depression did not limit his social functioning or
concentration, persistence, or pace.
See Admin. R. at 16-17.
Wood’s allegations of having trouble following spoken and written
instructions and forgetting “things all the time,” id. at 139-40,
are contradicted by the evidence in the record.
Dr. Rugge stated
that Wood had no limitation with respect to understanding,
memory, concentration and persistence, and social interaction.
Id. at 19-20.
Additionally, Dr. Rugge did not list Wood as
having any limitations with respect to his “sensorium and
intellectual functions,” including attention, concentration,
orientation, memory, information, ability to perform
calculations, insight, and judgment.
Id. at 194.
Dr. Osika
echoed Dr. Rugge’s findings, stating he believed Wood was capable
of understanding and completing simple and complex directions and
interacting fully with coworkers and employers.
Id. at 209.
Moreover, Wood performed well on the memory tests administered by
Dr. Osika.
See id.
Wood argues that the hearing officer failed
to properly account for Wood’s limited reading abilities.
Pl.’s Br. 5, 11-12.
Having limited reading ability is not
23
See
itself, however, a medically determinable impairment, and there
is no evidence in the record that Wood’s limited reading ability
was caused by his depression.
The hearing officer therefore
properly determined that Wood’s depression did not limit his
social functioning or concentration, persistence, or pace.
See
id. at 17.
The Social Security regulations define an episode of
“decompensation” as an “exacerbation[] or temporary increase[] in
symptoms or signs accompanied by a loss of adaptive functioning.”
20 C.F.R. Pt. § 404.1520a app. at § 12.00C(4).
“The term
repeated episodes of decompensation, each of extended duration,”
as evaluated for the fourth functional area of the “special
technique,” means three episodes of decompensation within one
year, “each lasting for at least [two] weeks.”
Id.
The hearing
officer correctly determined Wood’s alleged “flare-ups” in his
depression did not constitute “repeated episodes of
decompensation, each of extended duration” within the meaning of
the regulations, as Wood testified that his exacerbated symptoms
during those periods lasted only a few days.
Id. at 17, 306-07.
The Court therefore affirms the hearing officer’s finding that
Wood’s mental impairment was not severe.
B.
The Hearing Officer Failed to Support Adequately His
Finding that Wood’s Impairments Did Not Meet, or
Medically Equal, an Impairment Listed in Appendix 1
If a hearing officer finds that a claimant has a severe
24
mental or physical impairment at step two of the disabilityevaluation procedure, the hearing officer must then determine
whether the impairment meets the criteria of any impairment
listed in Appendix 1.
20 C.F.R. § 404.1520(a)(4)(iii), (d).
The
impairments listed in Appendix 1 are considered severe enough to
prevent an individual from doing any gainful activity.
§ 404.1525(a).
Id. at
If a claimant’s impairment, or combination of
impairments, matches one listed in Appendix 1, and satisfies the
duration requirement in 20 C.F.R. 404.1509, then the hearing
officer should generally find the claimant disabled without
considering the claimant’s age, education, and work experience.
Id. at § 404.1520(d).
To match an impairment listed in Appendix 1, a claimant’s
impairment “must meet all of the specified medical criteria” of a
listing.
Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (citing 20
C.F.R. § 404 Subpt. P, App. 1).
“An impairment that manifests
only some of those criteria, no matter how severely, does not
qualify.”
Id.
An impairment may also be “medically equivalent”
to a listed impairment if it is “at least equal in severity and
duration to the criteria of any listed impairment.”
§ 404.1526(a).
20 C.F.R.
Although a hearing officer may award benefits at
step three, a claimant who fails to prove their impairment
matches or equals one listed in Appendix 1 is not denied
benefits, but rather, the hearing officer must proceed to step
25
four.
See id. at § 404.1520(e).
In the instant case, the hearing officer determined at step
three that Wood did “not have an impairment or combination of
impairments that [met] or medically equal[ed] one of the listed
impairments.”
Admin. R. at 17.
In support of his finding, the
hearing officer provided two sentences:
The medical evidence does not document listing-level
severity, and no acceptable medical source has mentioned
findings equivalent in severity to the criteria of any
listed impairment, individually or in combination. The
medical evidence does not document that the claimant has
not [sic] lost gait and station, or his gross or fine
motor functioning.
Id.
Based on this scant explanation, the Court cannot determine
whether the hearing officer applied the correct legal standards
and whether the hearing officer’s conclusion is supported by
substantial evidence.
Therefore, the Court remands the matter
for further development of the record.
When assessing a disability claim, a hearing officer is not
required to “reconcile every conflicting shred of medical
testimony.”
Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981)
(holding hearing officer’s explanation that he “considered” the
exhibits presented in evidence was sufficient); accord Mongeur v.
Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983) (stating a hearing
officer need not specifically reference “every item of testimony
presented to him or . . . explain[] why he considered particular
evidence unpersuasive or insufficient to lead him to a conclusion
26
of disability”).
Where there is either no evidence or
substantial conflicting evidence in the record, however, the
hearing officer must set forth “the crucial factors” of his or
her decision “with sufficient specificity to enable [reviewing
courts] to decide whether the determination is supported by
substantial evidence.”
Ferraris v. Heckler, 728 F.2d 582, 587
(2d Cir. 1984) (citing Treadwell v. Schweiker, 698 F.2d 137, 142
(2d Cir. 1983) (“[T]he propriety of agency action must be
evaluated on the basis of stated reasons.”)) (remanding where
hearing officer concluded SSDI claimant could do sedentary work
without explicitly determining claimant’s physical capacity for
sitting); see McCallum v. Commissioner of Soc. Sec., 104 F.3d
353, *1 (2d Cir. 1996) (stating hearing officer “must make
specific factual findings in order to facilitate meaningful
judicial review”); cf. Berry v. Schweiker, 675 F.2d 464, 468 (2d
Cir. 1982) (affirming denial in spite of hearing officer’s
failure to specify rationale because decision was supported by
substantial evidence).
It is particularly critical for a hearing officer to
articulate the specific basis for his or her rejection of a
disability claim when a claimant has arguably demonstrated that
his symptoms match an impairment listed in Appendix 1.
See
Aponte v. Secretary, Dep’t of Health and Human Servs., 728 F.2d
588, 592-93 (2d Cir. 1984) (remanding where evidence suggested
27
SSDI claimant’s impairment matched a listed impairment and the
court “[could] not determine the ALJ’s basis for his rejection”);
Berry, 675 F.2d at 469 (“[I]n future cases in which the
disability claim is premised upon one or more listed impairments
of Appendix 1, the [hearing officer] should set forth a
sufficient rationale in support of his decision to find or not to
find a listed impairment.”); Lazo-Espinoza v. Astrue, No. 10-CV2089 (DLI), 2012 WL 1031417, at *9 (E.D.N.Y. Mar. 27, 2012)
(remanding based on hearing officer’s failure to provide
rationale for finding SSDI and SSI claimant’s impairments did not
match a listed impairment); cf. Ramos v. Barnhart, No.
02Civ.3127(LAP)(GWG), 2003 WL 21032012, at *9-*11 (S.D.N.Y. May
6, 2003) (remanding due to hearing officer’s failure to explain
the applicability of a listed impairment crucial to the child
claimant’s SSI claim).
Remand is appropriate where a hearing
officer fails sufficiently to articulate the basis for his denial
of disability benefits such that the reviewing court “cannot
determine whether the [hearing officer’s] conclusion was based on
a correct application of the law and whether there is substantial
evidence in the record to support it.”
Aponte, 728 F.2d at 593;
accord Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)
(“Because of the lack of specificity of [the hearing officer’s]
decision and the inconclusiveness of the record, it is
appropriate to remand the case . . . to ensure that the correct
28
legal principles are applied . . . .”); see Polidoro v. Apfel,
No. 98 CIV.2071(RPP), 1999 WL 203350, at *7 (S.D.N.Y. Apr. 12,
1999) (“The ALJ's failure to . . . set forth the reasons for his
conclusions with sufficient specificity hinders the ability of a
reviewing court to decide whether his determination is supported
by substantial evidence.”).
In this case, the hearing officer’s otherwise thorough
decision failed to set forth sufficient factual or legal support
for his finding that none of Wood’s impairments matched or
medically equaled an impairment listed in Appendix 1.
R. at 17.
See Admin.
The hearing officer did not identify which, if any, of
the listed impairments he considered when evaluating Wood’s
impairments or explain why Wood’s impairments fell short of the
criteria for a specific listed impairment.
See id.
The hearing
officer only mentioned Wood’s symptoms once, and his assertion
that Wood “ha[d] not lost gait and station, or his gross or fine
motor functioning,” was not supported by any reference to or
discussion of the record.
Id.
If substantial evidence supported the hearing officer’s
conclusory finding, the Court could nevertheless overlook the
decision’s shortcomings and affirm the finding.
See Berry, 675
F.2d at 468 (affirming hearing officer’s step three determination
despite “absence of an express rationale” because finding was
supported by substantial evidence).
29
But that is not the case.
Rather, evidence in the record suggests that Wood’s physical
impairments may match or medically equal at least one listed
impairment, “Diabetes Mellitus,” which is found in section 9.08
of Appendix 1.10
Disability under section 9.08 requires:
A. Neuropathy demonstrated by significant and persistent
disorganization of motor function in two extremities
resulting in sustained disturbance of gross and dexterous
movements, or gait and station (see 11.00C); or
B. Acidosis occurring at least on the average of once
every [two] months documented by appropriate blood
chemical tests (pH or PCO2 or bicarbonate levels); or
C. Retinitis proliferans.
20 C.F.R. pt. 404, subpt. P, app. 1, § 9.08; see also Farnham v.
10
The Court notes that since Wood applied for disability
benefits, the Social Security Administration adopted regulations
revising Appendix 1 and eliminating diabetes mellitus as a listed
impairment. See Revised Medical Criteria for Evaluating
Endocrine Disorders, 76 Fed. Reg. 19692-01, at 8 (Apr. 8, 2011)
(removing sections 9.01-9.08 of Part A) [herinafter App’x 1
Revisions]; see also Lane v. Astrue, No. 1:10-CV-28 JD, 2011 WL
3348095, at *8 n.7 (N.D. Ind. Aug. 3, 2011) (noting amendment to
Appendix 1). The new regulations became effective on June 7,
2011. App’x 1 Revisions, supra, at 1. The only remaining listed
impairment that is based on diabetes alone applies only to
children under the age of six. See 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 109.08. Under the new regulations, diabetes mellitus
is still considered a medically determinable impairment, but its
effects are considered under other listings in Appendix 1. App’x
1 Revisions, supra, at 2. When an adult with diabetes mellitus
does not satisfy any other listing, the effects of the diabetes
mellitus are accounted for in the claimant’s residual functional
capacity calculation. Id.
For the purposes of the Court’s review, however, the Court
applies the regulations that were in effect at the time Wood
applied for disability benefits. Id. at 2 n.3 (“We expect that
Federal courts will review our final decisions using the rules
that were in effect at the time we issued the decisions. If a
court reverses our final decision and remands a case for further
administrative proceedings after the effective date of these
final rules, we will apply these final rules to the entire period
at issue in the decision we make after the court's remand.”).
30
Astrue, 832 F. Supp. 2d 243, 263 (W.D.N.Y. 2011) (setting forth
criteria for “Diabetes Mellitus” in Appendix 1).
Section 11.00C
lists as criteria for “Neurological” impairments:
Persistent disorganization of motor function in the form
of paresis or paralysis, tremor or other involuntary
movements, ataxia and sensory disturbances (any or all of
which may be due to cerebral cerebellar, brain stem,
spinal cord, or peripheral nerve dysfunction) which occur
singly or in various combinations, frequently provides
the sole or partial basis for decision in cases of
neurological impairment. The assessment of impairment
depends on the degree of interference with locomotion
and/or interference with the use of fingers, hands, and
arms.
20 C.F.R. pt. 404, subpt. P, app. 1, § 11.00C; see also, LazoEspinoza, 2012 WL 1031417, at *9 (providing requirements under
§ 11.00C).
Evidence in the record suggests that Wood may have been per
se disabled under the standards of section 9.08.
The hearing
officer’s own findings — that Wood’s impairment of diabetes was
severe and that his allegations of being unable to stand and walk
for prolonged periods were credible — that suggest as much.
Admin. R. at 16, 19.
See
There is ample evidence in the record
documenting Wood’s history of diabetes mellitus with sensory
neuropathy in his legs and feet.
See supra § I.B.1.a., 3.a.
(surveying medical evidence and testimony regarding Wood’s
diabetes).
On May 7, 2008, Dr. Rugge conducted a diabetic foot
exam that showed Wood could only feel one of the ten points
tested on his feet.
Admin. R. at 253.
31
Dr. Rugge noted that
Wood’s feet had a “deformed shape,” id., and stated that the pain
caused by the sensory neuropathy interfered with his ability to
function in a work setting, id. at 194, and limited his ability
to stand and walk.
Id. at 195.
The hearing officer fully
credited Dr. Rugge’s assessment, but noted that it “may overstate
the claimant’s current abilities to the extent that it would
permit standing or walking for more than brief periods of time.”
Id. at 20 (emphasis added).
Moreover, Dr. Stein, a consulting
physician, conducted a neurological assessment of Wood and found
that Wood’s sensory neuropathy had caused him to have “decreased
sensation on the plantar surface of the left foot including
vibratory sense.”
Id. at 211.
Evidence of such “sensory disturbances” caused by diabetes
mellitus arguably indicates “disorganization of motor function”
consistent with the criteria of section 9.08 and section 11.00C.
See Lazo-Espinoza, 2012 WL 1031417, at *9 (remanding for
evaluation of impairment under section 9.08 where “decreased
pinprick sensation on bilateral feet,” and “numbness, weakness
and bilateral leg pain,” limited claimant’s ability to walk); cf.
Farnham, 832 F. Supp. 2d at 262-63 (affirming finding that
claimant’s diabetes did not meet section 9.08 where claimant had
“nearly normal neurologic examination”); Brayton v. Astrue, 1:08CV-236 (GLS/VEB), 2009 WL 2971514, at *4-5 (N.D.N.Y. Sept. 11,
2009) (Sharpe, J.) (affirming finding that claimant’s diabetes
32
was not medically equivalent to section 9.08 where claimant’s
diabetes affected her “ability to walk for periods of time, long
periods of time,” and she “sometimes experience[d] numbness” in
feet).
Wood’s sensory neuropathy unquestionably interfered with
his locomotion to some degree, as Wood was prescribed a cane for
walking, Admin R. at 297, and the hearing officer concluded that
Wood’s ability to walk was limited to “short distances lasting a
few minutes at a time.”
Id. at 18; see also Lazo-Espinoza, 2012
WL 1031417, at *10 (concluding claimant had “at least arguably
demonstrated that his symptoms met the criteria for Diabetes
Mellitus” where evidence indicated claimant could not walk more
than one to ten city blocks).
The present record, however, does not conclusively establish
that Wood’s impairment met or medically equaled the criteria of
section 9.08 such that “further evidentiary proceedings would
serve no purpose.”
1980).
Parker v. Harris, 626 F.2d 225, 235 (2d Cir.
Wood testified that his activities of daily living
included making simple meals for himself and sometimes doing
basic household chores.
Admin. R. at 298-99.
In his
consultative examination, Dr. Stein found that Wood’s “[m]otor
strength [was] bilaterally symmetrical” and that his “[d]eep
tendon reflexes [were] 2+ bilaterally symetrical.”
Id. at 211.
Critically, there is a dearth of medical evidence that assesses
Wood’s physical impairments in terms of section 9.08's criteria.
33
In a consultative examination, the Social Security
Administration’s disability examiner stated that Wood had an
“effective gait as well as full motor strength,” but did so while
expressly rejecting Dr. Rugge’s assessment of Wood’s physical
abilities.
“slow.”
Id. at 235.
Id. at 211.
Dr. Stein characterized Wood’s gait as
Dr. Rugge, Wood’s treating physician, never
expressly assessed Wood’s “gait and station” or “motor function,”
although he did reference Wood’s “mechanics” as a factor
contributing to the pain in his feet and legs.
The Court cannot discern whether the hearing officer’s
decision was based on the correct application of legal principles
or is supported by substantial evidence and therefore remands the
matter for further development of the record.
See Parker, 626
F.2d at 235 (holding reviewing courts ought not affirm a hearing
officer’s decision where there are “gaps in the administrative
record” or a reasonable basis for doubting that the correct legal
principles were applied).
On remand, the hearing officer should
evaluate whether Wood’s physical impairments, as evidenced in the
record, match or medically equal the criteria shown for Diabetes
Mellitus in section 9.08 of Appendix 1, as well as the criteria
of any other applicable listed impairment that the record
reasonably suggests Wood’s impairment may match, and should
sufficiently explain his findings.
C.
Substantial Evidence Supports the Hearing Officer’s
Determination of Wood’s Residual Functional Capacity
34
Prior to steps four and five of the disability-evaluation
procedure, the hearing officer must determine the claimant’s
residual functional capacity based on all of the relevant medical
and other evidence in the record.
(e), 404.1545.
20 C.F.R. §§ 404.1520(a)(4),
The hearing officer must set forth his
determination of a claimant’s residual functional capacity with
sufficient specificity for the Court to determine whether it is
supported by substantial evidence, no differently from at step
three or any other.
Ferraris, 728 F.2d at 587 (remanding where
hearing officer’s conclusory residual functional capacity finding
left court unable to determine whether finding was supported by
substantial evidence); see supra Section IV.B.
In assessing a claimant’s residual functional capacity, the
hearing officer must consider the claimant’s reports of pain and
other limitations, 20 C.F.R. § 404.1529, but is “not required to
accept the claimant’s subjective complaints without question.”
Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citing Marcus
v. Califano, 615 F.2d 23, 27 (2d Cir. 1979)).
Rather, the
hearing officer “may exercise discretion in weighing the
credibility of the claimant’s testimony in light of the other
evidence in the record.”
Id.
The regulations provide a two-step
procedure for assessing subjective claims of pain.
§ 404.1529.
20 C.F.R.
First, the hearing officer must “decide whether the
claimant suffers from a medically determinable impairment that
35
could reasonably be expected to produce the symptoms alleged.
Genier, 606 F.3d at 49 (citing Section 404.1529(b)).
If the
claimant suffers from such an impairment, the hearing officer is
then required to determine “the extent to which [the claimant’s]
symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence of record.”
Id.
(alteration in original) (quoting § 404.1529(a)) (internal
quotation marks omitted); see also Williams ex rel. Williams, 859
F.2d at 261 (stating credibility determination must be
“consistent with the medical and other evidence”).
In this case, the hearing officer found that Wood had the
residual functional capacity to: occasionally lift ten pounds;
frequently lift less than 10 pounds; stand and walk for about one
hour in a work day with normal breaks, standing limited to about
five to ten minutes at a time, and walking limited to short
distances lasting a few minutes at a time; sit without
limitation; occasionally stoop; and never balance, climb, crawl,
crouch or kneel.
Admin. R. at 17-18.
In making that
determination, the hearing officer accounted for the fact that
Wood sometimes needed a cane to walk.
Id.
Additionally, the
hearing officer gave “great” weight to the opinion of Dr. Rugge,
some weight to that of Dr. Stein, and did not mention the
findings of the Social Security Administration examiner, whose
opinion was the least favorable toward Wood.
36
See id. at 18-21.
The hearing officer found credible Wood’s “allegations of his
inability to stand or walk for prolonged periods,” and factored
them into the calculation of Wood’s residual functional capacity.
Id. at 19.
With respect to Wood’s allegation that he was unable
to sit for prolonged periods, however, the hearing officer found
that although Wood’s physical impairments could reasonably be
expected to cause the alleged symptoms, Wood’s testimony was
“unpersuasive” and unsupported by the record.
Id. at 20.
Therefore, the hearing officer did not credit the allegation in
calculating Wood’s residual functional capacity.
Id.
Substantial evidence in the record supports the hearing
officer’s determination of Wood’s residual functional capacity,
as the hearing officer correctly noted that it was consistent
with the opinions of Dr. Rugge and Dr. Stein.
See id. at 20-21.
In fact, the hearing officer determined that Wood had slightly
less functional capacity than did any treating or examining
doctor.
Compare id. at 17-18, with id. at 195, and id. at 211.
The hearing officer’s finding regarding Wood’s inability to stand
and walk for prolonged periods was consistent with Wood’s
testimony and all medical evidence in the record save for the
Social Security examiner’s opinion, which contradicted that of
Dr. Rugge.
Compare id. at 18-19, with id. at 195, id. at 232,
id. at 235, and id. at 297.
Substantial evidence also supported the hearing officer’s
37
finding that Wood’s allegations of his inability to sit for
prolonged periods were not credible.
See id. at 20-21.
Most
notably, Wood’s allegations contradict Dr. Rugge’s assessment, in
which he affirmatively stated that Wood was not limited in his
ability to sit.
Id. at 195.
Additionally, Dr. Stein did not
mention that Wood was limited in his ability to sit in anyway.
See id. at 210-12.
Although Wood once mentioned to HHHN staff
that he felt pain in his feet even when sitting, id. at 179, the
record is devoid of any other medical evidence supporting Wood’s
allegation.
Therefore, the Court affirms the hearing officer’s
credibility determination and finding of Wood’s residual
functional capacity.
D.
Substantial Evidence Supports the Hearing Officer’s
Determination that Jobs Exist in the National Economy
that Wood Can Perform
At the fifth step of the disability-evaluation procedure,
the Commissioner bears the burden of proving that the claimant is
capable of performing substantial gainful work as an alternative
to his past work.
§ 404.1520(g).
Berry, 675 F.2d at 467; see also 20 C.F.R.
Ordinarily, the hearing officer may resort to the
applicable Medical Vocational Guidelines (“the Grids”), 20
C.F.R., Part 404, Subpart P, Appendix 2, to determine the
claimant’s capacity for other work.
604 (2d Cir. 1986).
Bapp v. Bowen, 802 F.2d 601,
Where a claimant cannot perform a full range
of sedentary work, however, the claimant must be evaluated on an
38
individual basis, which requires “calling a vocational expert to
testify as to the [claimant’s] ability to perform some particular
job.”
Ball v. Astrue, 755 F. Supp. 2d 452, 465 (W.D.N.Y. 2010)
(quoting Nelson v. Bowen, 882 F.2d 45, 49 (2d Cir. 1989))
(internal quotation marks omitted); see, e.g., Bapp, 802 F.2d at
605-06 (“[I]n a case where both exertional and nonexertional
limitations are present, the guidelines cannot provide the
exclusive framework for making a disability determination.”);
Aregano v. Astrue, 882 F. Supp. 2d 306, 320-22 (N.D.N.Y. 2012)
(remanding for hearing officer’s failure to consult vocational
expert).
The hearing officer is required to “use the same residual
functional capacity assessment used to determine if a claimant
can perform past relevant work when assessing a claimant’s
ability to perform other work.”
Ball, 755 F. Supp. 2d at 466
(citing 20 C.F.R. § 404.1550(c)(2)).
Additionally, the
hypothetical questions posed by the hearing officer to a
vocational expert must “set out all of the claimant’s
impairments.”
Id. (citing Lewis v. Apfel, 236 F.3d 503, 517 (9th
Cir. 2001)) (internal quotation marks omitted).
Substantial evidence supports the hearing officer’s finding
that jobs exist in significant numbers in the national economy
that Wood can perform.
See Admin. R. at 21-22; Lee v. Astrue,
No. 10-CV-6063 CJS, 2011 WL 1675101, at *8 (W.D.N.Y. May 4, 2011)
39
(reversing due to hearing officer ignoring vocational expert’s
testimony); Ball, 755 F. Supp. 2d at 466 (same).
Wood asserts
that he is incapable of performing sedentary work or the jobs
identified by Andrews, but fails to identify what aspect of the
hearing officer’s residual functional capacity determination was
incorrect or how the hearing officer’s inquiry of Andrews was
deficient.
See Pl.’s Br. 14-17.
The hearing officer posed
hypothetical questions to Andrews that accurately reflected the
hearing officer’s determination of Wood’s residual functional
capacity and impairments.
See Admin. R. at 41-42.
Moreover, the
hearing officer ensured that Wood would be able to perform the
jobs cited by Andrews even if Wood required regular breaks to
stand and move around.
See id. at 42-43.
The hearing officer
also properly accounted for Wood’s need for a cane.
Id. at 43.
The Court therefore affirms the hearing officer’s finding that
Wood was capable of performing jobs that exist in the national
economy other than his past work.
E.
The Hearing Officer Considered the Combined Effect of
Wood’s Impairments
Wood argues that the hearing officer failed to account for
all of Wood’s impairments and their combined effect in making the
disability determination.
Pl.’s Br. 10-14, 18 (citing Dixon v.
Shalala, 54 F.3d 1019, 1031 (2d Cir. 1995)).
The regulations
require the hearing officer to “‘consider the combined effect of
all of [the claimant’s] impairments without regard to whether any
40
such impairment, if considered separately, would be of sufficient
severity’ to establish eligibility for Social Security benefits.”
Burgin v. Astrue, 348 Fed. App’x 646, 647 (2d Cir. 2009)
(alterations in original) (quoting 20 C.F.R. § 404.1523).
The
Second Circuit has emphasized that “the combined effect of a
claimant’s impairments must be considered in determining
disability; the [Commissioner] must evaluate their combined
impact on a claimant’s ability to work, regardless of whether
every impairment is severe.”
Dixon, 54 F.3d at 1031; see, e.g.,
Thompson v. Astrue, 416 Fed. App’x 96, 97 (2d Cir. 2011)
(remanding due to hearing officer considering impairments
separately); De Leon v. Secretary of Health and Human Servs., 734
F.2d 930, 937 (2d Cir. 1984) (reversing denial based on hearing
officer’s failure to analyze combined effect of claimant’s four
impairments).
The hearing officer properly considered the combined effect
of all of Wood’s impairments, including his non-severe
impairments, at every step of the disability-evaluation
procedure, notwithstanding the previously identified deficiencies
with the hearing officer’s decision at step three.
16-22; see also supra Section IV.B.
See Admin. R.
After determining that
Wood’s depression was not severe, Admin. R. at 16-17, the hearing
officer addressed each of Wood’s severe and non-severe physical
and mental impairments in his explanation of his determination of
41
Wood’s residual functional capacity.
See id. at 18-19.
The
hearing officer also accounted for the combined effect of Wood’s
obesity.
Id. at 19.
As noted above, the hearing officer
included all of Wood’s impairments in the hypothetical question
he posed to Andrews.
See id. at 41-43; supra Section IV.D.
Contrary to Wood’s assertion, there is no evidence in the record
demonstrating an impairment that the hearing officer failed to
consider, or the contributory effects for which the hearing
officer failed to account.
V.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that:
1.
The Commissioner’s motion for judgment on the
pleadings, ECF No. 16, is DENIED;
2.
The Commissioner’s decision denying SSDI benefits is
REVERSED;
3.
The hearing officer’s findings with respect to steps
one, two, four, and five of the disability-evaluation
procedure are AFFIRMED; and
4.
The case is REMANDED
to step three, i.e.,
impairments match or
impairment listed in
for further findings with respect
whether Wood’s physical
medically equal the criteria of an
Appendix 1.
SO ORDERED.
Dated: December 17, 2013
/s/ William G. Young
WILLIAM G. YOUNG
DISTRICT JUDGE
42
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