Isaacs v. Berryhill

Filing 19

MEMORANDUM-DECISION AND ORDER. It is ORDERED that Plaintiff's Motion for Judgment on the Pleadings is GRANTED; it is further ORDERED that Defendant's Motion for Judgment on the Pleadings is DENIED; it is further ORDERED that Defendant's decision denying Plaintiff disability benefits is REMANDED for further proceedings. Signed by Magistrate Judge Daniel J. Stewart on 3/13/2019. (dpk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
THERESA I.,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of
Social Security,

3:17-CV-1317
(DJS)

Defendant.
APPEARANCES:

OF COUNSEL:

LACHMAN & GORTON
Counsel for Plaintiff
1500 East Main Street
P.O. Box 89
Endicott, New York 13761-0089

PETER A. GORTON, ESQ.

SOCIAL SECURITY ADMINISTRATION
Office of Regional General Counsel
Counsel for Defendant
26 Federal Plaza - Room 3904
New York, New York 10278

JOHANNY SANTANA, ESQ.
Special Assistant U.S. Attorney

DANIEL J. STEWART
United States Magistrate Judge
MEMORANDUM-DECISION AND ORDER 1
Currently before the Court, in this Social Security action filed by Theresa I.
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the
Upon Plaintiff’s consent, the United States’ general consent, and in accordance with this District’s General Order
18, this matter has been referred to the undersigned to exercise full jurisdiction pursuant to 28 U.S.C. § 636(c) and
Federal Rule of Civil Procedure 73. See Dkt. No. 8 & General Order 18.

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Commissioner”) pursuant to 42 U.S.C. §§ 405(g), are Plaintiff’s Motion for Judgment
on the Pleadings and Defendant’s Motion for Judgment on the Pleadings. Dkt. Nos. 10,
15 & 18. For the reasons set forth below, Plaintiff’s Motion for Judgment on the
Pleadings is granted, and Defendant’s Motion for Judgment on the Pleadings is denied.
The Commissioner’s decision denying Plaintiff’s disability benefits is reversed and
remanded for further proceedings.
I. RELEVANT BACKGROUND
A. Factual Background
Plaintiff was born in 1963. Dkt. No. 9, Admin. Tr. (“Tr.”), p. 305. Plaintiff
reported completing high school. Tr. at p. 311. Plaintiff has past work experience as a
stock person, cashier, working with a paper company, and as a receptionist. Tr. at p.
311. Plaintiff alleges disability due to a left ankle injury, a broken left knee cap, chronic
joint pain, and chronic fatigue. Tr. at p. 310 & 379.
B. Procedural History
Plaintiff applied for Disability Insurance Benefits and Supplemental Security
Income on September 24, 2014. Tr. at pp. 11 & 305-317. She alleged a disability onset
date of June 1, 2013. Tr. at p. 305. Plaintiff’s applications were initially denied on
November 25, 2014, after which she timely requested a hearing before an
Administrative Law Judge (“ALJ”). Tr. at pp. 161-166 & 172-173. Plaintiff appeared
at a hearing before ALJ Kenneth Theurer on April 26, 2017. Tr. at pp. 32-79. On May
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19, 2017, the ALJ issued a written decision finding Plaintiff was not disabled under the
Social Security Act. Tr. at pp. 11-22. On October 27, 2017, the Appeals Council denied
Plaintiff’s request for review, making the ALJ’s decision the final decision of the
Commissioner. Tr. at pp. 1-6.
C. The ALJ’s Decision
In his decision, the ALJ made the following findings of fact and conclusions of
law. First, the ALJ found that Plaintiff meets the insured status requirements under the
Social Security Act through June 30, 2013 and that she had not engaged in substantial
gainful activity since June 1, 2013, the alleged onset date. Tr. at p. 13. Second, the ALJ
found that Plaintiff had the following severe impairments: status post ankle surgery,
degenerative joint disease in the knee, and status post abdominal and gastrointestinal
surgeries. Tr. at p. 13. Third, the ALJ found that Plaintiff does not have an impairment
or combination of impairments that meets or medically equals one of the listed
impairments in 20 C.F.R. § 404, Subpart P, App. 1 (the “Listings”). Tr. at p. 15. Fourth,
the ALJ found that Plaintiff has the residual functional capacity (“RFC”) to:
lift ten pounds occasionally, sit for approximately
six hours, stand or walk for approximately two
hours in an eight hour day, with normal breaks,
occasionally climb ramps or stairs, and occasionally
balance stoop, and crouch. The claimant should
never climb ladders, ropes or scaffolds and should
never kneel or crawl. The claimant needs to
alternate from a seated to a standing position once
per hour for no more than five minutes, while
remaining on task. She requires the use of a cane
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for prolonged ambulation, but retains the ability to
carry small items in her free hand. This is
consistent with the ability to perform less than the
full range of sedentary work as defined in 20 CFR
404.1567(a) and 516.967(a).
Tr. at p. 15. Fifth, the ALJ found that Plaintiff could perform her past relevant work as
a receptionist. Tr. at p. 21. The ALJ, therefore, concluded that Plaintiff is not disabled.
Tr. at p. 21.
D. The Parties’ Briefing on Their Cross-Motions
Plaintiff raises three issues for consideration by the Court. See generally Dkt.
No. 10, Pl.’s Mem. of Law. First, Plaintiff contends that the ALJ erred in failing to
properly consider or give weight to the opinion of Dr. Lawrence Wiesner, one of her
treating providers. Id. at pp. 6-13. Second, that the ALJ erred in finding that Plaintiff
could perform her past relevant work. Id. at p. 14. Finally, Plaintiff alleges that
Defendant failed to sustain her burden of showing that there are jobs existing in
significant numbers in the national economy that Plaintiff could perform. Id.
In response, Defendant contends that there was no error in the ALJ’s analysis of
the medical opinions in Plaintiff’s case. Dkt. No. 15, Def.’s Mem. of Law at pp. 3-12.
Defendant contends that the ALJ performed an appropriate review of the medical record,
made an RFC determination that was supported by substantial evidence in the record,
and that the finding that Plaintiff was not disabled should be affirmed. Id. In particular,
Defendant contends that there was no error in the ALJ’s assessment of Dr. Weisner’s
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opinion. Id. at pp. 5-8. As to Plaintiff’s two additional arguments, Defendant contends
only that these are intertwined with Plaintiff’s RFC argument and should be rejected for
the same reasons advanced as to that issue. Id. at p. 12.
II. RELEVANT LEGAL STANDARD
A. Standard of Review
A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health &
Human Servs., 906 F.2d 856, 860 (2d Cir. 1990).

Rather, the Commissioner’s

determination will be reversed only if the correct legal standards were not applied, or it
was not supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 986
(2d Cir. 1987) (“Where there is a reasonable basis for doubt whether the ALJ applied
correct legal principles, application of the substantial evidence standard to uphold a
finding of no disability creates an unacceptable risk that a claimant will be deprived of
the right to have her disability determination made according to the correct legal
principles.”); accord Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983), Marcus v.
Califano, 615 F.2d 23, 27 (2d Cir. 1979). “Substantial evidence” is evidence that
amounts to “more than a mere scintilla,” and has been defined as “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). Where evidence is deemed susceptible to more than

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one rational interpretation, the Commissioner’s conclusion must be upheld. Rutherford
v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both
sides, because an analysis of the substantiality of the evidence must also include that
which detracts from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).
If supported by substantial evidence, the Commissioner’s finding must be sustained
“even where substantial evidence may support the plaintiff’s position and despite that
the court’s independent analysis of the evidence may differ from the [Commissioner’s].”
Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court
must afford the Commissioner’s determination considerable deference, and may not
substitute “its own judgment for that of the [Commissioner], even if it might justifiably
have reached a different result upon a de novo review.” Valente v. Sec’y of Health &
Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
B. Standard to Determine Disability
The Commissioner has established a five-step evaluation process to determine
whether an individual is disabled as defined by the Social Security Act. 20 C.F.R. §§
404.1520, 416.920. The Supreme Court has recognized the validity of this sequential
evaluation process. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The five-step
process is as follows:
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First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is not,
the [Commissioner] next considers whether the claimant has
a “severe impairment” which significantly limits his
physical or mental ability to do basic work activities. If the
claimant suffers such an impairment, the third inquiry is
whether, based solely on medical evidence, the claimant has
an impairment which is listed in Appendix 1 of the
regulations. If the claimant has such an impairment, the
[Commissioner] will consider him disabled without
considering vocational factors such as age, education, and
work experience; the [Commissioner] presumes that a
claimant who is afflicted with a “listed” impairment is
unable to perform substantial gainful activity. Assuming the
claimant does not have a listed impairment, the fourth
inquiry is whether, despite the claimant’s severe
impairment, he has the residual functional capacity to
perform his past work. Finally, if the claimant is unable to
perform his past work, the [Commissioner] then determines
whether there is other work which the claimant could
perform. Under the cases previously discussed, the claimant
bears the burden of the proof as to the first four steps, while
the [Commissioner] must prove the final one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord McIntyre v. Colvin, 758
F.3d 146, 150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can
be made, the SSA will not review the claim further.” Barnhart v. Thompson, 540 U.S.
20, 24 (2003).
III. ANALYSIS
Plaintiff’s primary submission to the Court is that the ALJ erred in not properly
considering the opinion of Dr. Lawrence Weisner, one of Plaintiff’s treating physicians.

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Pl.’s Mem. of Law at pp. 6-13. Upon review of the record, the Court agrees with
Plaintiff and remands the matter for further proceedings.
Under the Regulations, a treating physician’s opinion as to the nature and severity
of a claimant’s impairment is entitled to “controlling weight” when it “is well-supported
by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with other substantial evidence in [the] case record.”

20 C.F.R. §

416.927(d)(2); see also Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. 1999). “In order
to override the opinion of a treating physician . . . the ALJ must explicitly consider, inter
alia: (1) the frequency, length, nature, and extent of treatment; (2) the amount of medical
evidence supporting the opinion; (3) the consistency of the opinion with the remaining
medical evidence; and (4) whether the physician is a specialist.” Selian v. Astrue, 708
F.3d 409, 418 (2d Cir. 2013); see also Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015).
“Under the applicable regulations, the Social Security Administration is required
to explain the weight it gives to the opinions of a treating physician.” Snell v. Apfel, 177
F.3d 128, 133 (2d Cir.1999); see also 20 C.F.R. §§ 404.1527(c)(2) & 416.927(c)(2)
(“We will always give good reasons in our notice of determination or decision for the
weight we give your treating source’s medical opinion.”). Here, the ALJ failed to do so
as it relates to Dr. Weisner’s opinion. After noting the limitations Dr. Weisner found
regarding Plaintiff’s functional abilities, the ALJ noted only that Dr. Weisner “did not
identify what diagnoses or conditions cause these limitations.” Tr. at p. 21. Though he
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clearly did not afford controlling weight to this opinion, the ALJ did not specifically
state what, if any, weight he was affording to it. This omission is particularly striking
in this case given that the ALJ made this type of particularized finding regarding each
of the other eleven medical opinions he considered. See Tr. at pp. 18-20; see also Def.’s
Mem. of Law at p. 8 (“the ALJ also explained the basis and weight assigned to all other
opinions in the record.”). 1
The ALJ’s unexplained failure to recite how much weight he was affording Dr.
Wiesner’s opinion warrants remand. “In the absence of a specific allocation of weight
to each opinion and clearly stated reasons for such weight, the court cannot ascertain
whether the ALJ correctly applied the treating physician rule in assessing plaintiff’s
eligibility for disability benefits.” Robinson v. Astrue, 2010 WL 3924680, at *3
(E.D.N.Y. Sept. 29, 2010). Courts have routinely reached similar conclusions and
remanded matters to Defendant when the ALJ fails to indicate the weight given to a
particular medical opinion. See, e.g., Robles v. Astrue, 2013 WL 1180417, at *2
(S.D.N.Y. Mar. 19, 2013); Robinson v. Astrue, 2010 WL 3924680, at *3; Kennedy v.
Astrue, 2010 WL 2771904, at *4 (N.D.N.Y. June 25, 2010), report and recommendation
adopted, 2010 WL 2771895 (N.D.N.Y. July 12, 2010).
Defendant argues that Dr. Weisner’s opinion was given “little weight,” Def.’s Mem. of Law at p. 7, but the ALJ
did not make such an express statement and it is unclear how Defendant arrives at this conclusion since the ALJ
assessed other opinions with varying levels of weight ranging from no weight at all, to light or some weight, to
great weight. Tr. at p. 21. Defendant’s conclusory allegation is insufficient to avoid remand. See Demera v.
Astrue, 2013 WL 391006, at *3 (E.D.N.Y. Jan. 24, 2013) (citing Snell v. Apfel, 177 F.3d at 134) (“post hoc
rationalizations for the ALJ’s decision are not entitled to any weight.”).
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Defendant is correct that an error such as this can sometimes be deemed harmless.
See, e.g., Hazelton v. Comm’r of Soc. Sec., 2017 WL 1437194 at * 6 (N.D.N.Y. Apr. 21,
2017). In Hazelton, while the ALJ did not expressly indicate the weight being afforded
to a medical opinion, it was clear that the ultimate RFC determination was consistent
with that opinion. As such, any error was harmless. Id. This, however, is not an
appropriate case for such a finding. Here, the parties vigorously dispute the significance
of Dr. Weisner’s opinion and the RFC determination reached by the ALJ. The RFC is
inconsistent with Dr. Weisner’s opinion in significant ways. Compare Pl.’s Mem. of
Law at pp. 6-9 & Dkt. No. 18, Pl.’s Reply Mem. of Law with Def.’s Mem. of Law at pp.
5 & 7-8. The parties also actively dispute the propriety of the ALJ’s reliance on other
opinions in the record which are counter to Dr. Weisner’s opinion. Compare Pl.’s Mem.
of Law at pp. 11-13 & Pl.’s Reply Mem. of Law at pp. 2-3 with Def.’s Mem. of Law at
pp. 9-12. As a general matter, the resolution of such factual disputes about the state of
medical evidence in the record is best left to the ALJ in the first instance. Atkinson v.
Comm’r of Soc. Sec., 2017 WL 1288723, at *7 (N.D.N.Y. Apr. 6, 2017).
An ALJ has an obligation to explain his “decision explicitly and with sufficient
specificity that a reviewing court can decide whether there are legitimate reasons for the
ALJ’s [decision] and whether his decision is supported by substantial evidence.” Stokes
v. Comm’r of Soc. Sec., 2014 WL 4346427, at *15 (N.D.N.Y. Sept. 2, 2014). Here, the

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decision under review does not provide sufficient reasons to substantiate its conclusions
and remand is required. 2
IV. CONCLUSION
ACCORDINGLY, it is
ORDERED, that Plaintiff’s Motion for Judgment on the Pleadings is
GRANTED; and it is further
ORDERED, that Defendant’s Motion for Judgment on the Pleadings is
DENIED; and it is further
ORDERED, that Defendant’s decision denying Plaintiff disability benefits is
REMANDED for further proceedings; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum
Decision and Order on the parties.
Dated: March 13, 2019
Albany, New York

Plaintiff’s other contentions necessarily relate to the propriety of the RFC determination and in light of the remand
ordered here may be raised again to the ALJ.

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