Beylo v. Astrue

Filing 13

DECISION AND ORDER denying the Commissioner's motion for judgment on the pleadings; reversing the Commissioner's determination and remanding the action for further proceedings. Signed by Judge William G. Young on 9/27/2012. (amt)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________
SUSAN BEYLO,
Plaintiff,
10-cv-00354
(WGY)

v.
MICHAEL J. ASTRUE,
Commissioner, Social Security
Administration,
Defendant.
__________________________________

WILLIAM G. YOUNG, United States District Judge1
DECISION and ORDER
I.

INTRODUCTION
Susan Beylo (“Beylo”) 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
Social Security (the “Commissioner”).

Beylo challenges the

decision of the Administrative Law Judge (the “hearing officer”)
denying her application for Social Security Disability Insurance
(“SSDI”) benefits.

Beylo requests this Court grant her

application for SSDI benefits or remand this case to the

1

Of the District of Massachusetts, sitting by designation.
Reassignment Order, ECF No. 12.
1

Commissioner for further proceedings.

Compl. 2, ECF No. 1; Mem.

Facts Law Behalf Susan M. Beylo Pl. (“Beylo’s Mem.”) 13, ECF No.
8.

The Commissioner requests this Court affirm the hearing

officer’s decision and grant his motion for judgment on the
pleadings.

Def.’s Br. Opp’n Pl.’s Br. Under General Order No. 18

(“Commissioner’s Mem.”) 1, 25, ECF No. 10.
A.

Procedural Posture

On April 3, 2007, Beylo filed a Title II application for
SSDI benefits, Beylo’s Mem. 3, alleging disability for a period
beginning on March 30, 2007, Admin. R. 92, 105, ECF No. 6.
Beylo’s application was initially denied on October 19, 2007, id.
at 10, and she filed a timely written request for a hearing on
November 13, 2007, Beylo’s Mem. 3.

Beylo testified at the

hearing held on June 11, 2009, via videoconference and was
represented by an attorney.

Admin. R. 61-79.

The hearing

officer issued an unfavorable decision on July 10, 2009, finding
that Beylo was not disabled.

Id. at 7-21.

Beylo subsequently

filed a timely request for review, id. at 6, 80-81, which was
denied by the Appeals Council on February 3, 2010, id. at 1-5.
On March 26, 2010, Beylo filed the present action with this Court
to review the decision of the Commissioner pursuant to 42 U.S.C.
§ 405(g).

See Compl.

The Commissioner filed an answer, Def.’s

Answer, ECF No. 5, and both parties filed briefs, Beylo’s Mem.;
Commissioner’s Mem.

2

B.

Factual Background

Beylo was born in 1960 and was forty-six years old when she
applied for benefits.

Admin. R. 20, 65.

She has an eleventh

grade education and no general equivalency diploma, id. at 65,
although she has also reported completing the twelfth grade, id.
at 98.

Beylo’s prior employments were as a food-service worker

for approximately fifteen years, and then, as a psychiatric
hospital aide, a light to medium exertion occupation which she
had for seven years.

See id. at 65-68, 120-21.

As a therapy

aide, she had to stand and walk for four to six hours in an
eight-hour work day, and regularly lifted thirty-five to forty
pounds.

Id. at 121.

Id. at 12, 92.

Beylo stopped working on March 30, 2007.

She has a history of numerous physical

impairments.
1.

Physical Impairments

Beylo exhibits degenerative disc disease, internal
derangement and osteoarthritis of the knees, residuals from a
left ankle injury, heel spurs, plantar fasciitis, varicose veins,
obesity, an umbilical hernia, and other ailments.

Id. at 199-

200, 209-10.
a.

Degenerative Disc Disease

Dr. Kamlesh S. Desai, M.D. (“Dr. Desai”), a podiatrist, is
Beylo’s treating physician since March 30, 2007.
276-79.

Id. at 75-76,

Dr. Desai diagnosed her with lumbar syndrome secondary
3

to a work-related injury which occurred in 1989.

Id. at 277.

Beylo reported having difficulties working due to lower-back pain
which radiated into both legs and was aggravated by prolonged
standing, walking, bending, lifting, and twisting activities.
Id.

On physical examination, Beylo had lumbar spine tenderness

at the L4-L5 and L5-S1 segments, and the pain “markedly limited”
the range of her motion.

Id.

Dr. Desai recommended Beylo cease

work, use local modalities and medications at home, and obtain
authorization for additional investigation regarding her lumbarspine.

Id.

On April 13, 2007, Beylo reported to Dr. Desai that her back
pain persisted despite her decrease in activity.

Id. at 274.

On

June 7, 2007, Beylo reported that rest, medications, and local
modalities had improved her back symptoms.

Id. at 270.

She also

reported that exercise helped relieve her lumbar pain up to a
point.

Id.

Her back pain, however, persisted limiting her

ability to engage in activity requiring prolonged sitting,
bending, driving, lifting, and twisting.

Id.

At this point, Dr.

Desai described Beylo as “temporarily totally disabled.”

Id.

Beylo’s symptoms remained the same throughout 2007 and she
reported to Dr. Desai that the “[b]ack pain is significantly
worse than the leg pain.”

Id. at 262.

The followup

consultations during the following year showed no improvement in
Beylo’s condition and on May 20, 2008, Dr. Desai opined that

4

Beylo’s conditions seemed to be permanent.

Id. at 245.

On April

7, 2009, Dr. Desai’s final diagnosis was “[c]hronic lumbar
syndrome with intermittent radiculopathy secondary to disc
degeneration and disc herniation, L4/5 and L5-S1.”
b.

Id. at 376.

Internal Derangement and Osteoarthritis of
the Knees

On September 6, 2005, Beylo underwent an MRI of her left and
right knees.

Id. at 227-30.

The MRI reports showed medial

meniscus degeneration with small tears in both knees.

Id.

On

March 30, 2007, Dr. Desai diagnosed Beylo with internal
derangement of both knees with progressive traumatic
osteoarthritis resulting from a work-related injury which
occurred in 2002.

Id. at 279.

Beylo reported having pain in

both knees and that it was aggravated by prolonged standing,
walking, stair climbing, and other physical activities.

Id.

On

physical examination, Beylo’s ability to flex and rotate her
knees was limited by pain, and her flexion was limited to 120
degrees.

Id.

An x-ray revealed evidence of medial compartment

and patellofemoral osteoarthritis.

Id.

Dr. Desai recommended

leg exercising, over-the-counter medications, and weight loss.
Id. at 278.

Dr. Dersai also noted that surgical treatment would

be necessary in the future.

Id.

On June 7, 2007, Beylo reported continued pain, but rest,
heating pads, and medication helped relieve it to a point.
at 271.

Id.

On that occasion, Beylo could extend her knees fully and
5

flex to approximately 130 degrees.

Id.

In August 2007, Dr.

Desai observed that although some days the pain “somewhat”
improved, Beylo continued showing significant symptoms, thus he
noted that Beylo “remain[ed] temporarily totally disabled.”

Id.

at 266, 268-69.
On November 19, 2007, Beylo saw Daria Lisick, RPA-C
(“Lisick”), a physician’s assistant in Dr. Desai’s office, for
pain and swelling in both her left knee and ankle.

Id. at 260.

Her left knee motion was limited to seventy-five degrees.

Id.

Lisick’s impression was traumatic arthritis of the left knee.
Id.
The followup consultations during the years 2007 and 2008
showed no improvement of Beylo’s knee condition and on October
23, 2008, Dr. Desai opined that Beylo had reached her maximum
medical improvement.

Id. at 318.

Beylo’s final diagnosis was

“[m]eniscal derangement with patellofemoral osteoarthritis and
chondromalacia of the patella of both knees.”

Id.

On February

24, 2009, Dr. Desai authorized surgery of her left knee.
314.

Id. at

During the hearing in June 2009, Beylo reported that her

physicians were looking to schedule total knee replacements, one
at a time.

Id. at 69.

The record and the hearing officer’s decision also contains
Beylo’s visit on October 12, 2007, to Dr. Justine Magurno (“Dr.
Magurno”), a consultative examiner.

6

Admin. R. 199-205.

During

the consultative examination Beylo claimed she could not flex her
knee beyond 20 degrees, pain in right leg during straight-legraising test, and muscle weakness in upper and lower extremities.
Id. at 199-204.

These limitations somewhat contradict Dr.

Desai’s observations.

Compare id. at 246, 264, 271, 314, 316

(noting that Beylo could flex her knee 120 to 130 degrees), and
id. at 263 (examining Beylo a day before Dr. Magurno, the
straight-leg-raising test was negative), and id. at 258, 262, 266
(observing that legs had full weightbearing capacity) with id. at
266 (noting that “[r]ange of motion of the knee as well as the
lumbar spine is limited and painful”).
c.

Left Ankle

Beylo stated that she has ankle problems related to a knee
injury sustained in 2002.

Id. at 260.

An x-ray taken in 2004

showed only some spurs on her left ankle, which were not a result
of the injury.

Id. at 167.

On November 19, 2007, Lisick saw

Beylo for pain and swelling in both her left knee and ankle.
at 260.
Id.

Id.

An x-ray showed some mild spurring in her left ankle.

On December 14, 2007, Beylo reported continued pain in her

ankle and Dr. Desai recommended an MRI.

Id. at 258.

She

underwent an MRI on February 4, 2008, which showed ligament
injuries, tears, fractures, and distended veins in her left
ankle.

Id. at 248-49, 225-26.

On February 21, 2008, Beylo

continued to complain of pain in her left ankle.

7

Id. at 255.

d.

Other Impairments

Beylo has obesity problems.

Id. at 334-37.

She weighed 281

pounds in April 2007, id. at 303, and over the next years her
weight fluctuated around 265 pounds, id. at 299, 316, 334.

Beylo

was diagnosed with diabetes in 2004, id. at 163-64, and she has
been “fairly non-complaint with her diabetes treatment plan,” id.
at 299, 301.

Additionally, on May 2007, a CT scan revealed a

small umbilical hernia.

Id. at 301.

Beylo is also being treated

for sleep apnea, id. at 233, 334, 336.
Beylo also exhibits plantar fasciitis for which she has been
treated for several years, id. at 342.

On March 12, 2009, Dr.

Diane Bray, D.P.M., noted that Beylo continued experiencing
tenderness at the plantar fascia.

Id. at 345.

Since at least 2003, Beylo has been exhibiting varicose
veins in her lower extremities.

Id. at 187.

The varicose veins

were small and did not need to be stripped, thus the use of
elastic support stockings was recommended.

Id.

The elastic

support stocking treatment worked and Beylo did not report any
particular pain in the following years.
2.

See id. at 183-84.

Testimony

Beylo testified at a hearing held on June 11, 2009, via
videoconference.

Id. at 61-79.

During the hearing, she

described her education, vocational training, and prior work
history as a mental health therapy aid.
8

Id. at 65-68.

She also

described her physical pain, explaining its location and
intensity.

Id. at 68-69.

She explained her impairments,

including the lower back pain that radiates to her legs, her knee
problems, the medications she was taking, and some episodes of
depression.

Id. at 68-72.

Beylo reported that her medications

caused her side effects like drowsiness, stomach pain, nausea,
and diarrhea.

Id. at 70-72.

On a regular day, Beylo does the dishes and small tasks
around the house; the rest of the household work is done
primarily by her daughter.

Id. at 72-73.

Beylo testified that

her pain prohibits her from walking or standing for more than
seven minutes before needing to stop and rest.

Id. at 73.

She

explained that she needed to change positions while sitting every
five to ten minutes.

Id.

Beylo stated that she is able to lift

a half-gallon milk container, but no more.

Id. at 74.

At night

she sleeps six to seven hours and wakes two to three times
because of her back pain and apnea.

Id.

Finally, she testified

that she had been terminated from her job for not “com[ing] back
in time” from her injury.
II.

Id. at 77.

LEGAL STANDARD
A.

Standard of Review

Federal district courts have the power to affirm, modify, or
reverse a decision of the Commissioner.

42 U.S.C. § 405(g);

Laven v. Astrue, No. 1:10-CV-01360(NPM), 2011 WL 6318360, at *3
9

(N.D.N.Y. Dec. 15, 2011) (McCurn, J.).

In general, the factual

findings of the administrative officer “are conclusive unless
they are not supported by substantial evidence.”

Diaz v.

Shalala, 59 F.3d 307, 312 (2d Cir. 1995) (citing 42 U.S.C.
§ 405(g)).

Substantial evidence is “more than a mere scintilla.

It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.”

Pratts v. Chater, 94 F.3d

34, 37 (2d Cir. 1996) (quoting Richardson v. Perales, 402 U.S.
389, 401 (1971)) (internal quotation marks omitted).
Legal decisions are reviewed de novo, and “[w]here there is
a reasonable doubt as to whether the Commissioner applied the
proper legal standards,” even if the ultimate decision may be
“arguably supported by substantial evidence,” the Commissioners
decision may not be affirmed.

Crysler v. Astrue, 563 F. Supp. 2d

418, 428 (N.D.N.Y. 2008) (Kahn, J.) (citing Martone v. Apfel, 70
F. Supp. 2d 145, 148 (N.D.N.Y. 1999) (Hurd, J.)).

The court may

not “affirm an administrative action on grounds different from
those considered by the agency.”

Burgess v. Astrue, 537 F.3d

117, 128 (2d Cir. 2008) (quoting Melville v. Apfel, 198 F.3d 45,
52 (2d Cir. 1999)).
B.

Social Security Disability Standard

A claimant is disabled for the purposes of SSDI benefits
eligibility if the claimant is “[unable] to engage in any
substantial gainful activity by reason of any medically

10

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.”

42 U.S.C.

§§ 423(d)(1)(A), 1382c(a)(3)(A); accord Petrie v. Astrue, 412 F.
App’x 401, 404 (2d Cir. 2011).
The Social Security Administration has promulgated a
five-step sequential evaluation process to determine whether a
claimant is disabled.

See 20 C.F.R. § 404.1520.

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 under 20 C.F.R. Part 404, Subpart P,
Appendix 1, and meets the duration requirement; (4) whether the
claimant has the residual functional capacity to perform his past
relevant work; and (5) whether the impairment prevents the
claimant from doing any other work considering the claimant’s
age, education, and work experience.

Id.; see Green–Younger v.

Barnhart, 335 F.3d 99, 106 (2d Cir. 2003).
The claimant bears the burden of proof on the first four
steps, while the Commissioner bears the burden on the last step.
Burgess, 537 F.3d at 128.

The steps ought be followed in order.

20 C.F.R. § 404.1520(a).
III.

THE HEARING OFFICER’S DECISION
The hearing officer first determined that Beylo had not

11

engaged in substantial gainful activity since March 30, 2007.
Admin. R. 12.

The hearing officer then found that Beylo’s

degenerative disc disease, internal derangement and
osteoarthritis of the knees, residuals from a left ankle injury,
heel spurs, plantar fasciitis, varicose veins, obesity, and
umbilical hernia were severe impairments that in combination
interfered with Beylo’s capacities for lifting, carrying,
standing, and walking.

Id. at 12-13.

Moreover, Beylo’s

impairments of sleep apnea, diabetes, and depression caused only
minimal limitations to her ability to perform work activities.
Id. at 13.

As to the third step, the hearing officer found that

Beylo’s impairments do not meet or medically equal one of the
impairments listed in the regulations.

Id. at 13-14.

As to the

fourth step, the hearing officer assessed Beylo’s residual
functional capacity finding that she could not engage in
“repetitive/heavier bending, lifting and twisting, and was unable
to perform the duties of her usual work.”

Id. at 19.

This

conclusion was based on the controlling weight given to Dr.
Desai’s diagnosis and the uncontradicted evidence in the
laboratories and clinical records.

Id.

Nonetheless, the hearing

officer found that Beylo’s “statements considering the intensity,
persistence and limiting effects of [the] symptoms were not
credible to the extent that they are inconsistent” with her
residual functional capacity to perform unskilled sedentary work.

12

Id. at 16, 20.

The hearing officer noted that Beylo’s daily

routine suggested a “greater sitting capacity.”

Id. at 19.

The hearing officer also gave great weight to the opinion of
Holly Sensenig (“Sensenig”), Beylo’s therapist, who opined that
Beylo had the mental capacity to “follow simple directions and
make personal-social adjustments to a fair extent.”
20.

Id. at 19-

Conversely, the hearing officer discredited Dr. Desai and

Sensenig’s opinions as to their legal conclusion that Beylo was
“disabled,” because it is a determination reserved for the
hearing officer.

Id.

The hearing officer also gave limited

weight to the consultative examiner, Dr. Magurno, because “many
of the abnormalities that the claimant demonstrated when the [Dr.
Magurno] examined her were atypical” and inconsistent with Dr.
Desai’s treatment records.

Id. at 19.

Similarly, the hearing

officer did not give great weight to the State-agency’s
disability analyst, H. Janneh (“Janneh”), who reviewed Beylo’s
record and stated that she had the residual functional capacity
to perform sedentary work.

Id.

As to the fifth step, the

hearing officer concluded that Beylo’s residual functional
capacity met the medical-vocational rules to perform the
exertional demands of unskilled sedentary work.

Id. at 21.

Accordingly, the hearing officer found that Beylo was not
disabled from March 30, 2007 through July 10, 2009.

13

Id.

IV.

ANALYSIS
A.

Contentions

Beylo does not dispute the hearing officer’s conclusions in
steps one through three of his five-step sequential evaluation.
Beylo’s Mem. 8.

The issues presented for review are: 1) whether

the hearing officer’s finding of residual functional capacity was
supported by substantial evidence; and 2) whether the hearing
officer failed as matter of law to sustain his burden at step
five of the sequential analysis prescribed by 20 C.F.R.
§ 404.1520.
B.

Id. at 2.

The Residual Functional Capacity Determination

The hearing officer’s residual functional capacity
determination “must be set forth with sufficient specificity to
enable [the Court] to decide whether the determination is
supported by substantial evidence.”
F.2d 582, 587 (2d Cir. 1984).

Ferraris v. Heckler, 728

It is, however, “not require[d]

that [the hearing officer] have mentioned every item of testimony
presented to him or have explained why he considered particular
evidence unpersuasive or insufficient to lead him to a conclusion
of disability.”

Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir.

1983); see also Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981)
(rejecting the proposition that the hearing officer must
explicitly reconcile every shred of conflicting testimony).
In this case, the hearing officer found that Beylo “has the
14

residual functional capacity to perform unskilled sedentary
work.”

Admin. R. 14.

Beylo argues that the residual functional

capacity determination cannot be sustained because it is the
product of numerous errors.
1.

Beylo’s Mem. 8-11.

Disability Is a Legal Conclusion Reserved to the
Commissioner

Beylo contends that the hearing officer erred in discounting
Dr. Desai’s opinion as to the legal conclusion of disability.
Beylo’s Mem. 9-10.

This argument is unavailing.

It is well settled law that “[a] statement by a doctor that
an individual is ‘disabled’ does not constitute a determination
of disability within the meaning of the Social Security Act; the
latter determination is a legal, not a medical, one.”

Michels v.

Astrue, 297 F. App’x 74, 76 (2nd Cir. 2008) (citing Shaw v.
Chater, 221 F.3d 126, 131 (2nd Cir. 2000)).
Here, it was proper for the hearing officer to discount Dr.
Desai’s various statements that Beylo was “disabled” because
disability is a legal conclusion reserved to the Commissioner.
20 C.F.R. § 404.1527(e).
2.

The Hearing Officer Did Not Err by Discounting Dr.
Magurno’s Opinion

Beylo alleges that the hearing officer erred by discounting
Dr. Magurno’s opinion.

Beylo’s Mem. 9-10.

Beylo’s argument is

unavailing.
It is the role of the hearing officer to resolve the
15

conflicts in the medical records.

Burgess, 537 F.3d at 128.

In

resolving the conflicting medical opinions the hearing officer
must give more weight to the opinion of the treating physician
than to the non-treating one.

20 C.F.R. § 404.1527(c)(1).

Here, the hearing officer properly gave limited weight to
Dr. Magurno’s assessment because many of the abnormalities found
on the day of that examination were “atypical” and not present in
prior medical reports.

Admin. R. 19.

Dr. Desai treated Beylo

for two years and the hearing officer determined that his opinion
as a treating physician was entitled to more weight than Dr.
Magurno’s.

Id.

The hearing officer concluded that the

limitations found by Dr. Magurno “were based on exaggerated
symptoms presented by [Beylo] during the examination,”
Commissioner’s Mem. 23, not present on “the numerous examinations
done for treatment purposes,” Admin. R. 19; compare id. at 204,
with id. at 246, 264, 271, 314, 316.

Therefore, the hearing

officer properly gave limited weight to Dr. Magurno’s assessment.
3.

Beylo’s Sitting, Standing, and Walking Residual
Capacity

Beylo alleges that the hearing officer failed to reference
whether Beylo could perform the full range of unskilled sedentary
work, Beylo’s Mem. 9, and that he “tos[sed] aside the opinions of
all examining physicians and then [went] and rel[ied] upon
[Janneh] who has never seen or physically examined [Beylo],” id.
at 10.

This contention is persuasive to the extent that the
16

hearing officer failed to reference what range of unskilled
sedentary work Beylo could perform.

Specifically, the record is

devoid of any medical opinion to support the hearing officer’s
finding that Beylo had the capacity to stand for two hours and
sit for more than six hours.

Other than Janneh’s assessment,

which the hearing officer did not credit, there is no evidence to
support that Beylo could stand for two hours and sit for more
than six hours.
“‘Sedentary work . . . generally involves up to two hours of
standing or walking and six hours of sitting in an eight-hour
work day.’”

Rosa v. Callahan, 168 F.3d 72, 78 n.3 (2nd Cir.

1999) (quoting Perez v. Chater, 77 F.3d 41, 46 (2nd Cir. 1996));
SSR 96-9p, 1996 WL 374185, at *3; SSR 83-10, 1983 WL 31251, at *5
(explaining that sedentary work mainly involves sitting).

When

the full range of sedentary work might be eroded by limitations
on standing and sitting, “[t]he [residual functional capacity]
assessment must be specific as to the frequency of the
individual’s need to alternate sitting and standing.”

Overbaugh

v. Astrue, No. 6:07-CV-0261 (NAM/DEP), 2010 WL 1171203, at *8-9
(N.D.N.Y. Mar. 22, 2010) (Mordue, J.) (quoting SSR 96-9p, 1996 WL
374185, at *7 (“When the record indicates that a plaintiff has
significant limitations with regard to his ability to sit for
extended periods of time, the [hearing officer] should engage in
a detailed discussion concerning plaintiff’s restrictions));

17

Barkley v. Commissioner of Soc. Sec., No. 7:06-CV-730, 2008 WL
2949386, at *12 (N.D.N.Y. July 30, 2008) (Hurd, J.).2
Here, although the hearing officer found that Beylo’s
impairments interfered with her “capacities for lifting,
carrying, standing and walking,” Admin. R. 13, he did not discuss
for how long Beylo could sit, stand, or walk.

The hearing

officer discounted Beylo’s testimony, id. at 16, and thus gave
little weight to her statement that “she only could comfortably
lift/carry items weighing up to the equivalent of a half a gallon
of milk, walk or stand about 5-10 consecutive minutes and sit a
maximum of 15 minutes at a time,” id. at 15.

Yet, based solely

on Beylo’s testimony and her description of her daily routine,
the hearing officer concluded that she had a great sitting

2

As to the necessity to alternate sitting and standing the
Social Security Rulings provide that:
In some disability claims, the medical facts lead to an
assessment of [residual functional capacity] which is
compatible with the performance of either sedentary or
light work except that the person must alternate periods
of sitting and standing. The individual may be able to
sit for a time, but must then get up and stand or walk
for awhile before returning to sitting.
Such an
individual is not functionally capable of doing either
the prolonged sitting contemplated in the definition of
sedentary work (and for the relatively few light jobs
which are performed primarily in a seated position) or
the prolonged standing or walking contemplated for most
light work. (Persons who can adjust to any need to vary
sitting and standing by doing so at breaks, lunch
periods, etc., would still be able to perform a defined
range of work.)
SSR 83-12, 1983 WL 31253, at *4.
18

capacity.

Id. at 19 (concluding that Beylo’s “acknowledged

routine suggests the greater sitting capacity found herein.”).3
With one exception, the record is devoid of any evidence
that explicitly states the time Beylo could sit, stand, or walk
the required time to perform the full range of sedentary work.
That exception is the assessment made by the non-examining Stateagency analyst Janneh.

Id. at 209.

The hearing officer,

however, gave little weight to Janneh’s opinion because “the
source was not identified as a medical expert.”
Commissioner’s Mem. 23.

Id. at 19;

Therefore, the analyst’s assessment is

not sufficient evidence to support the hearing officer’s
determination.

Weiss v. Astrue, No. 1:07–CV–1039, 2009 WL

2843249, at *5 (N.D.N.Y. Aug. 31, 2009) (Kahn, J.) (approving
magistrate judge’s opinion that a non-examining State-agency
analyst opinion “cannot be considered substantial evidence
sufficient to support the [hearing officer]’s determination”
where the analyst’s findings that claimant can sit for six hours
a day “were not supported by any citation to the medical records
and are directly contradicted by the assessment of Plaintiff’s

3

Beylo’s testimony about her daily activities does not
support the “greater sitting capacity” alluded to by the hearing
officer. Beylo testified that she watches television laying
down, Admin. R. 72, and when asked about “how long are you able
to sit before you’re uncomfortable and need to change position?”
she answered from five to ten minutes, id. at 73. Beylo
requested to stand up in her hearing after fifteen minutes. Id.
19

treating physician” (citing Griffith v. Astrue, No. 08–CV–6004,
2009 WL 909630, at *9 (W.D.N.Y. July 27, 2009) (Siragusa, J.)
(“The State Agency Officials’ reports, which are conclusory,
stale, and based on an incomplete medical record, are not
substantial evidence”))); see also McClean v. Astrue, No.
04–CV–1425, 2009 WL 1918397, at *4 n.2 (E.D.N.Y. June 30, 2009)
(Townes, J.).
Instead, the Commissioner argues that the hearing officer’s
finding was supported by Dr. Desai’s opinion.
Mem. 19.

Commissioner’s

The record shows that the hearing officer gave great

weight to the “well supported” and “not contradicted” opinion of
Dr. Desai, who concluded that Beylo “should avoid
repetitive/heavier bending, lifting and twisting, and was unable
to perform the duties of her usual work.”

Admin. R. 19.

These

restrictions, the Commissioner argues, do not put any restriction
on sitting, a limitation that had appeared in an earlier opinion
of Dr. Desai.

Compare id. at 264, with id. at 322.

This argument cannot prevail because the hearing officer
failed to make a “specific” assessment of Beylo’s need to
alternate sitting and standing.

Weiss, 2009 WL 2843249, at *5

(“[T]he [hearing officer]’s failure to explain and support her
finding with respect to Plaintiff’s ability to sit for prolonged
periods cannot be considered harmless error and is cause for
remand.”); SSR 96-9p, 1996 WL 374185, at *7.

20

Furthermore, the hearing officer’s conclusion as to Beylo’s
“greater sitting capacity” is contradicted by Dr. Desai’s
opinion.

The record does not show that Dr. Desai removed the

prolonged sitting, standing, and walking restrictions as the
Commissioner argues.

While on July 18, 2008, Dr. Desai did not

mention the “prolonged sitting” restriction, he did recommend
Beylo “avoid activities that obviously aggravate the symptoms.”
Admin. R. 322.

The record shows that Dr. Desai had observed an

array of aggravating symptoms, which included prolonged sitting,
standing, and walking.

For instance, on October 23, 2008, Dr.

Desai opined that Beylo was reaching her maximum medical
improvement and recommended avoiding bending, lifting, twisting,
prolonged standing, walking, and getting in and out of a car.
Id. at 318; see also id. at 245 (noting on May 20, 2008 that
“[d]ay-to-day activities still affect the area significantly”).
On October 2007, he recommended Beylo avoid prolonged sitting.
Id. at 263-64.

A couple of months before, Dr. Desai included

“prolonged sitting, driving,” getting in and out of the car,
getting up from low chair, and prolonged walking as aggravating
symptoms.

Id. at 271-72; see also id. at 277 (reporting on March

30, 2007, that Beylo’s symptoms aggravate with prolonged standing
and walking).

Yet, Beylo was not totally precluded from walking.

Dr. Desai recommended that she walk as part of a conservative
treatment regime, id. at 246, and on occasion Beylo reported

21

doing some gentle exercise, id. at 266, 272, 279, 376, but also
reported that prolonged walks still caused her pain, id. at 264,
271, 277, 318.

The hearing officer’s finding as to Beylo’s

“greater sitting capacity” was actually contradicted by Dr.
Desai’s opinion and this itself is a ground for remand.

Snell v.

Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (“Failure to provide good
reasons for not crediting the opinion of a claimant’s treating
physician is a ground for remand.”) (citation omitted).
Therefore, the issue regarding Beylo’s sitting, standing,
and walking residual capacity is remanded.

This Court rules that

the great weight given to Dr. Desai’s opinion and the discounted
credit given to Beylo’s testimony and Janneh’s assessment do not
provide substantial evidence for the hearing officer to find that
Beylo retained a residual functional capacity to perform
unskilled sedentary work consistent with up to two hours of
standing or walking and six hours of sitting in an eight-hour
work day.
C.

Step Five of the Sequential Analysis Is Premised on
Beylo’s Residual Functional Capacity

At the final step of the sequential analysis, the hearing
officer determines whether a claimant who cannot do past relevant
work can make an adjustment to other work.
404.1520(a)(4)(v).

20 C.F.R. §

The hearing officer must consider the

claimant’s residual functional capacity (as determined at step
four) in combination with her age, education, and work
22

experience.

Id.; id. § 404.1560(c)(2) (providing that the

hearing officer is “not responsible for providing additional
evidence about [claimant’s] residual functional capacity because
[the hearing officer] will use the same residual functional
capacity assessment . . . used to determine if [claimant] can do
[the] past relevant work”).

If the claimant can make an

adjustment to other work, she is not entitled to disability
benefits.

Id. § 404.1520(a)(4)(v).

If she cannot adjust, the

hearing officer will find that she is disabled.

Id.

The hearing officer bears the burden of proof at this step
of the disability determination.

Burgess, 537 F.3d at 128.

In

order to efficiently issue decisions and avoid expert testimony
in every case, hearing officers frequently rely on the MedicalVocational Guidelines (“the Grid”) to determine whether there are
jobs in which claimants can adjust.
Subpart P, App. 2.

See 20 C.F.R. Part 404,

The Grid reflects “the major functional and

vocational patterns” in cases that cannot be evaluated on medical
considerations alone.”

Id. at 200.00.

“Where the findings of

fact made with respect to a particular individual’s vocational
factors and residual functional capacity coincide with all of the
criteria of a particular rule, the rule directs a conclusion as
to whether the individual is or is not disabled.”

Id.

If the

hearing officer’s findings of fact do not correspond with a
particular rule in the Grid, the Grid does not direct a

23

conclusion of disabled or not disabled.

Id.

Thus the hearing

officer has to analyze whether the “vocational factors (i.e.,
age, education, and work experience) in combination with the
individual’s residual functional capacity” allows the claimant to
perform unskilled sedentary work.

Id.

Generally, the “appropriateness of applying ‘the grid
guidelines and the necessity for expert testimony must be
determined on a case-by-base basis.’”

Webb v. Astrue, No. 3:11-

CV-94 (GLS), 2012 WL 589660, at *5 (N.D.N.Y. Feb. 22, 2012)
(Sharpe, C.J.) (quoting Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir.
1986)).

The Grid, however, does not take into account a

claimant’s nonexertional impairments, and therefore “the [hearing
officer] should consult with a vocational expert before making a
determination as to disability.”

Id.

In short, when a claimant

has a significant nonexertional impairment, the Social Security
Administration may not apply the Grid.

Rosa, 168 F.3d at 82;

Bapp, 802 F.2d at 605; Comins v. Astrue, No. 5:05-CV556(FJS/GHL), 2009 WL 819379, at *8 (N.D.N.Y. Mar. 26, 2009)
(Scullin, J.) (“When ‘a claimant’s nonexertional impairments
significantly diminish (his or) her ability to work, the
Commissioner should be required to present the testimony of a
vocational expert or other evidence concerning the existence of
jobs in the national economy for an individual with claimant’s
limitations.’” (quoting Dwyer v. Apfel, 23 F. Supp. 2d 223, 229-

24

30 (N.D.N.Y. 1998) (Hurd, J.)) aff’d, 374 F. App’x 147 (2d Cir.
2010)).

Still, “the mere existence of a nonexertional impairment

does not automatically require the production of a vocational
expert nor preclude reliance” on the Grid.

Bapp, 802 F.2d at

603.
Here, the hearing officer concluded that the combination of
Beylo’s residual functional capacity with her age, education, and
work experience did not occasion a significant loss in her
ability to work.

Admin. R. 21.

This conclusion is premised on

the unsupported evidence that Beylo retained a residual
functional capacity to perform an unskilled sedentary work
consistent with up to two hours of standing or walking and six
hours of sitting in an eight-hour work day.4
IV(B)(3).

See supra Section

Upon remand of this issue, the hearing officer may

find that her ability to perform sedentary work is significantly
diminished; thus it may be appropriate to produce a vocational
expert.

Pratts, 94 F.3d at 39; Vanhorn v. Astrue, No. 10-CV-1023

(GLS/VEB), 2012 WL 1415415, at *10 (N.D.N.Y. Apr. 24, 2012)
(Bianchini, M.J.); Overbaugh, 2010 WL 1171203, at *9 (“As the
[hearing officer] failed to properly assess the [residual
functional capacity], the findings made at the fifth step of the
sequential analysis are affected.”).

4

Therefore, the vocational

It is otherwise undisputed that Beylo had the mental
capacity to perform an unskilled sedentary work. See Beylo’s
Mem. 11-12.
25

expert consultation ought also be revisited on remand because
this Court is unable to reach a conclusion until the hearing
officer determines whether Beylo’s sitting, walking, and standing
capacity significantly limits her range of sedentary work.
V.

CONCLUSION
Wherefore, for the foregoing reasons, it is hereby
ORDERED that the Commissioner’s motion for judgment on the

pleadings, ECF No. 10, is DENIED; and it is further
ORDERED that the Commissioner’s determination is REVERSED;
and it is further
ORDERED that the hearing officer’s decision denying
disability benefits is REMANDED for further administrative
proceedings consistent with this opinion.

IT IS SO ORDERED.
Dated: September 27, 2012

/s/ William G. Young
WILLIAM G. YOUNG
U.S. DISTRICT JUDGE

26