Boylan v. Astrue

Filing 17

DECISION AND ORDER denying the Commissioner's Motion for Judgment on the Pleadings; granting the Plaintiff's Motion for Judgment on the Pleadings and remanding the case for calculation of benefits. Signed by Magistrate Judge Victor E. Bianchini on 9/24/2012. (amt)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

STAR A. BOYLAN,
DECISION AND
ORDER
Plaintiff,
11-CV-354
(VEB)
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

I. INTRODUCTION
In October of 2008, Plaintiff Star A. Boylan applied for supplemental security income
(“SSI”) benefits and disability insurance benefits (“DIB”) under the Social Security Act.
Plaintiff alleges that she has been unable to work since July of 2007 due to physical and
mental impairments. The Commissioner of Social Security denied Plaintiff’s applications.
Plaintiff, by and through her attorneys, Olinsky and Shurtliff, Howard D. Olinsky,
Esq., of counsel, commenced this action seeking judicial review of the Commissioner’s
decision pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3). The parties, by and through
their respective counsel, consented to the jurisdiction of a United States Magistrate Judge.
(Docket No. 16).
II. BACKGROUND
The relevant procedural history may be summarized as follows:
On October 27, 2008, Plaintiff applied for SSI benefits and DIB, alleging that she had

been unable to work since July 13, 2007. (T at 117-19, 120-25).1 The Commissioner
initially denied the applications and Plaintiff timely requested a hearing before an
Administrative Law Judge (“ALJ”). A hearing was held in Syracuse, New York, on January
25, 2010, before ALJ Edward L. Pitts, who presided via videoconference from St. Louis,
Missouri. (T at 26, 28). Plaintiff appeared with an attorney and testified. (T at 32-66).
On February 9, 2010, ALJ Pitts issued a written decision finding that Plaintiff was not
disabled within the meaning of the Social Security Act during the relevant time period and
denying Plaintiff’s claims for benefits. (T at 13-20). The ALJ’s decision became the
Commissioner’s final decision on February 1, 2011, when the Appeals Council denied
Plaintiff’s request for review. (T at 1-3).
Plaintiff, by and through her attorney, timely commenced this action by filing a
Complaint on March 30, 2011. (Docket No. 1). The Commissioner interposed an Answer
on September 29, 2011. (Docket No. 9). Plaintiff filed a supporting Brief on November 13,
2011. (Docket No. 12). The Commissioner filed a Brief in opposition on December 27,
2011. (Docket No. 13).
Pursuant to General Order No. 18, issued by the Chief District Judge of the Northern
District of New York on September 12, 2003, this Court will proceed as if both parties had
accompanied their briefs with a motion for judgment on the pleadings.2
For the reasons set forth below, Plaintiff’s motion is granted, the Commissioner’s
motion is denied, and this case is remanded for calculation of benefits.

1

Citations to “T” refer to the Administrative Transcript. (Docket No. 9).

2

General Order No. 18 provides, in pertinent part, that “[t]he Magistrate Judge will treat the
proceeding as if both parties had accompanied their briefs with a motion for judgment on the pleadings.”

2

III. DISCUSSION
A.

Legal Standard
A court reviewing a denial of disability benefits may not determine de novo whether

an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec'y of Health
& Human Servs., 906 F.2d 856, 860 (2d Cir.1990). Rather, the Commissioner's
determination will only be reversed if the correct legal standards were not applied, or it was
not supported by substantial evidence. 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.”); see 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
it 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, 91 S.Ct.
1420, 1427, 28 L.Ed.2d 842 (1971). Where evidence is deemed susceptible to more than
one rational interpretation, the Commissioner's conclusion must be upheld. See Rutherford
v. Schweiker, 685 F.2d 60, 62 (2d Cir.1982).
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

3

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).
The Commissioner has established a five-step sequential evaluation process to
determine whether an individual is disabled as defined under the Social Security Act. See
20 C.F.R. §§ 416.920, 404.1520. The United States Supreme Court recognized the validity
of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S.Ct. 2287, 96 L.Ed.2d
119 (1987), and it remains the proper approach for analyzing whether a claimant is
disabled.3
While the claimant has the burden of proof as to the first four steps, the
3

This five-step process is detailed as follows:

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 has 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.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982) (per curiam); see also Rosa v. Callahan, 168 F.3d
72, 77 (2d Cir.1999); 20 C.F.R. §§ 416.920, 404.1520.

4

Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S. at
146 n. 5; Ferraris v. Heckler, 728 F.2d 582 (2d Cir.1984).
The final step of the inquiry is, in turn, divided into two parts. First, the Commissioner
must assess the claimant's job qualifications by considering his or her physical ability, age,
education, and work experience. Second, the Commissioner must determine whether jobs
exist in the national economy that a person having the claimant's qualifications could
perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §§ 416.920(g); 404.1520(g); Heckler v.
Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983).
B.

Analysis
1.

Commissioner’s Decision

The ALJ determined that Plaintiff met the insured status requirements of the Social
Security Act through December 31, 2012, and had not engaged in substantial gainful
activity since July 13, 2007, the alleged onset date. (T at 15).
The ALJ found that Plaintiff had the following impairments considered “severe” under
the applicable Social Security Regulations (the “Regulations”): psoriasis and osteoporosis.
(T at 15). However, the ALJ determined that Plaintiff’s medically determinable impairments
did not meet or equal one of the impairments listed in Appendix I of the Regulations (the
“Listings”). (T at 16).
After reviewing the medical evidence, the ALJ concluded that Plaintiff retained the
residual functional capacity to perform somewhat less than the full range of light work as
defined in 20 C.F.R. § 404.1567 (b) and 416.967 (b). (T at 16-18). The ALJ found that
Plaintiff was unable to perform any of her past relevant work as a transplanter, cashier, and

5

house cleaner. (T at 22).
Considering Plaintiff’s residual functional capacity, age (49 years old on the alleged
onset date), education (limited), and work experience, the ALJ determined that Plaintiff was
able to perform jobs that exist in significant numbers in the national economy. (T at 19-20).
Accordingly, the ALJ concluded that Plaintiff had not been under a “disability,” as that term
is defined under the Act, from the alleged onset date (July 13, 2007) through the date of
the ALJ’s decision (February 9, 2010), and was therefore not entitled to benefits. (T at 20).
As noted above, the ALJ’s decision became the Commissioner’s final decision on February
1, 2011, when the Appeals Council denied Plaintiff’s request for review. (T at 1-3).
2.

Plaintiff’s Claims

Plaintiff argues that the Commissioner’s decision should be reversed. She offers
four (4) principal arguments in support of her position. First, Plaintiff argues that the ALJ
should have determined that her impairments met or medically equaled the impairment set
forth at § 8.05 of the Listings. Second, Plaintiff contends that the ALJ’s residual functional
capacity determination is not supported by substantial evidence. Third, Plaintiff challenges
the ALJ’s credibility determination. Fourth, Plaintiff argues that the ALJ should have
consulted a vocational expert. Each argument will be addressed in turn.
a.

Section 8.05 of the Listings

Impairments listed in Appendix 1 of the Social Security Regulations are
“acknowledged by the [Commissioner] to be of sufficient severity to preclude” substantial
gainful activity. Accordingly, a claimant who meets or equals a Listing is “conclusively
presumed to be disabled and entitled to benefits.” Dixon v. Shalala, 54 F.3d 1019, 1022 (2d

6

Cir.1995); see 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii) (“If you have an
impairment(s) that meets or equals one of our listings in appendix 1 of this subpart and
meets the duration requirement, we will find that you are disabled.”).
The claimant bears the burden of establishing that his or her impairments match a
Listing or are equal in severity to a Listing. See Naegele v. Barnhart, 433 F. Supp.2d 319,
324 (W.D.N.Y. 2006) (“It must be remembered that plaintiff has the burden of proof at step
3 that she meets the Listing requirements.”).
To show that an impairment matches a Listing, the claimant must show that his or
her impairments meet all of the specified criteria. Sullivan v. Zebley, 493 U.S. 521, 530
(1990); 20 C.F.R. § 416.925(d). If a claimant's impairment “manifests only some of those
criteria, no matter how severely,” the impairment does not qualify. Sullivan, 493 U.S. at
530. To satisfy this burden the claimant must offer medical findings equal in severity to all
requirements, which findings must be supported by medically acceptable clinical and
laboratory diagnostic techniques. 20 C.F.R. § 416.926(b). Abnormal physical findings “must
be shown to persist on repeated examinations despite therapy.” 20 C.F.R. Pt. 404, Subpt.
P, App. 1 § 1.00(B). Further, the medical reports must indicate physical limitations based
upon actual observations and/or clinical tests, rather than the claimant's subjective
complaints. Id.
The impairment set forth at § 8.05 of the Listings (Dermatitis) involves “extensive
skin lesions that persist for at least 3 months despite continuing treatment as prescribed.”
Section 8.00 of the Listings defines “extensive skin lesions” as lesions “that involve multiple
body sites or critical body areas, and result in a very serious limitation.” As an example,
the Listing provides “Skin lesions on the palms of both hands that very seriously limit [the
7

claimant’s] ability to do fine and gross motor movements.”
In the present case, there is no question that Plaintiff suffers from psoriasis, resulting
in skin lesions that persistent for at least three months, notwithstanding Plaintiff’s
compliance with prescribed treatment.4 The ALJ determined that Plaintiff’s psoriasis was
a severe impairment. (T at 15). However, the ALJ concluded, without detailed explanation,
that Plaintiff did not satisfy Listing § 8.05 because she did not have “a psoriasis condition
with extensive skin lesions that persist for at least 3 months despite continuing treatment
as prescribed.” (T at 16). For the following reasons, this Court finds that the ALJ’s
conclusion was not supported by substantial evidence.
The ALJ afforded “significant weight” to a consultative examination performed by Dr.
Kalyani Ganesh. In December of 2008, Dr. Ganesh indicated that Plaintiff was “able to do
all fine motor activities.” (T at 243). He found Plaintiff’s hand and finger “dexterity . . . quite
intact despite the scaly lesion.” (T at 244). Dr. Ganesh observed that Plaintiff was able to
tie a bow, manipulate a button, a zipper, and Velcro. (T at 244).
However, Dr, Ganesh examined Plaintiff on a single occasion and his opinion was
therefore entitled to only limited weight. See Crespo v. Apfel, No. 97 CIV 4777, 1999 WL
144483, at *7 (S.D.N.Y. Mar. 17,1999) (“In making a substantial evidence evaluation, a
consulting physician's opinions or report should be given limited weight” because “they are
often brief, are generally performed without benefit or review of the claimant's medical
history and, at best, only give a glimpse of the claimant on a single day.”); Garzona v.

4

Psoriasis is a skin condition characterized by skin redness, lesions, and
irritation. See http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001470/ (last accessed
August 17, 2012).
8

Apfel, No. 96 CV 6249, 1998 WL 643645, at *1 (E.D.N.Y. Sep. 18, 1998)(“[T]he opinion of
a non-examining consultative physician, without more, [is] insufficient to constitute the
requisite contrary substantial evidence” to override a treating physician’s assessment.”).
In contrast, Dr. Mulholland, one of Plaintiff’s treating physicians, opined that Plaintiff
could not perform simple grasping, pushing/pulling, or fine manipulations due to her skin
condition. (T at 267). Dr. Mulholland described Plaintiff’s psoriasis as “severe” and
indicated that working with her hands would “worsen” Plaintiff’s condition and put her at risk
of infection. (T at 267).
The ALJ discounted Dr. Mulholland’s assessment because the ALJ believed Dr.
Mulholland was “not providing treatment for [Plaintiff’s] psoriasis.” (T at 18). However, this
is simply not accurate. While Plaintiff did treat with a dermatologist (Dr. Ahn) on occasion,
Plaintiff was often unable to see Dr. Ahn due to insurance reimbursement issues and Dr.
Mulholland frequently treated Plaintiff for her skin condition. (T at 218-19, 223-23, 225-26,
256-59, 260, 267). In treatment notes, Dr. Mulholland described Plaintiff’s hands as “very
dry, cracked, [and] red” and noted that her hands were a “continuous problem.” (T at 223,
265, 266). He indicated that Plaintiff’s skin condition was “severe,” described Plaintiff as
“quite disabled” by the condition, and opined that contact with chemicals or getting her
hands wet would cause “significant worsening of her symptoms.” (T at 225).
Moreover, when discounting Dr. Mulholland’s opinion, the ALJ failed to account for
the fact that the physician’s assessment was supported by the findings of Dr. Ahn,
Plaintiff’s dermatologist. Dr. Ahn was provided with a disability form in November of 2008.
Although he failed to make any specific finding regarding Plaintiff’s limitations, Dr. Ahn
described Plaintiff’s psoriasis as “severe,” “uncontrolled,” “resistant,” “very sore,” and
9

characterized by “erosions” and “linear fissuring (cracking [and] bleeding).” (T at 181). Dr.
Ahn’s treatment notes clearly demonstrated that Plaintiff’s condition was severe and
extremely painful. (T at 183-86). Although some relief was periodically obtained from
certain medications, the condition was poorly controlled and largely resistant to treatment.
(T at 181, 183-86).
Under the “treating physician’s rule,” the ALJ must give controlling weight to the
treating physician's opinion when the opinion is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] record.” 20 C.F.R. § 404.1527(d)(2); Halloran v. Barnhart, 362
F.3d 28, 31-32 (2d Cir. 2004); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir.2000).5
Even if a treating physician's opinion is deemed not to be deserving of controlling
weight, an ALJ may nonetheless give it “extra weight” under certain circumstances. In this
regard, the ALJ should consider the following factors when determining the proper weight
to afford the treating physician's opinion if it is not entitled to controlling weight: (1) length
of the treatment relationship and the frequency of examination, (2) nature and extent of the
treatment relationship, (3) supportability of opinion, (4) consistency, (5) specialization of the
treating physician, and (6) other factors that are brought to the attention of the court. C.F.R.
§ 404.1527(d)(1)-(6); see also de Roman, 2003 WL 21511160, at *9; Shaw, 221 F.3d at
134; Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.1998); Schaal v. Apfel, 134
F.3d 496, 503 (2d Cir. 1998) .

5

“The ‘treating physician's rule’ is a series of regulations set forth by the Commissioner in 20
C.F.R. § 404.1527 detailing the weight to be accorded a treating physician's opinion.” de Roman v.
Barnhart, No.03-Civ.0075, 2003 WL 21511160, at *9 (S.D.N.Y. July 2, 2003).

10

In the present case, the record demonstrates that Dr. Mulholland was a treating
physician with respect to Plaintiff’s psoriasis and that his opinion concerning Plaintiff’s gross
and fine motor limitations was supported by his treatment notes and the opinion of Dr. Ahn,
Plaintiff’s treating dermatologist. Thus, the ALJ erred in discounting Dr. Mulholland’s
opinion, which should have been given controlling weight.

When Dr. Mulholland’s

assessment is given its proper weight and considered in light of the other evidence, the
record indicates only one reasonable conclusion, namely, that Plaintiff suffers from
extensive skin lesions that persist for a period of greater than 3 months despite her
compliance with prescribed treatment. Further, these lesions very seriously limit Plaintiff’s
ability to perform gross and fine motor activities with both of her hands. As such, Plaintiff’s
psoriasis meets or medically equals the impairment set forth in § 8.05 of the Listings.
Although this finding means that Plaintiff is entitled to benefits without further analysis, this
Court will consider the remainder of Plaintiff’s arguments, which provide further support for
this Court’s decision to remand this case for calculation of benefits.
b.

RFC Determination

Residual functional capacity (“RFC”) is defined as: “what an individual can still do
despite his or her limitations.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999). “Ordinarily,
RFC is the individual's maximum remaining ability to do sustained work activities in an
ordinary work setting on a regular and continuing basis, and the RFC assessment must
include a discussion of the individual's abilities on that basis. A ‘regular and continuing
basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule.” Id.
When making a residual functional capacity determination, the ALJ considers a
claimant's physical abilities, mental abilities, symptomatology, including pain and other
11

limitations that could interfere with work activities on a regular and continuing basis. 20
C.F.R. § 404.1545(a). An RFC finding will be upheld when there is substantial evidence
in the record to support each requirement listed in the regulations. LaPorta v. Bowen, 737
F.Supp. 180, 183 (N.D.N.Y.1990).
In the present case, the ALJ determined that Plaintiff retained the RFC to lift and
carry up to 20 pounds occasionally and 10 pounds frequently. (T at 16). He concluded that
Plaintiff had “limited use of both hands for repetitive grasping and can only use her hands
up to one third of the day for fine manipulation.” (T at 16). The ALJ assessed that Plaintiff
should “avoid extreme cold and extreme wetness which would aggravate her psoriasis as
well as the use of chemicals and irritants.” (T at 16). As such, the ALJ found that Plaintiff
retained the RFC to perform “somewhat less” than the full range of light work as defined
in 20 C.F.R. § 404.1567 (b) and 416.967 (b).
As a threshold matter, Plaintiff correctly points out that the ALJ did not perform a full
function-by-function analysis, as required under the applicable Regulations. In sum, to
determine RFC, the ALJ must make a function by function assessment of the claimant's
ability to sit, stand, walk, lift, carry, push, pull, reach, handle, stoop, or crouch, based on
medical reports from acceptable medical sources that include the sources' opinions as to
the claimant's ability to perform each activity. 20 C.F.R. § 404.1513(c)(1); §§ 404.1569a(a),
416.969a(a); Martone v. Apfel, 70 F. Supp.2d 145, 150 (N.D.N.Y.1999). RFC be expressed
in terms of the exertional levels of work (i.e. sedentary, light, medium, heavy, and very
heavy) only after the function-by-function analysis is completed. Hogan v. Astrue, 491 F.
Supp.2d 347, 354 (W.D.N.Y.2007).
The courts are divided as to whether the failure to provide a function-by-function
12

analysis is per se grounds for remand or whether it may constitute harmless error. See,
e.g., Wood v. Comm’r of Soc. Sec., No. 06-CV-157, 2009 WL 1362971, at *6 (N.D.N.Y.
May 14, 2009)(collecting cases); Casino-Ortiz v. Astrue, No. 06 Civ. 0155(DAB)(JCF), 2007
WL 2745704, at * 13 (S.D.N.Y. Sept. 21, 2007)(supporting harmless error analysis);
McMullen v. Astrue, No. 5:05-CV-1484 (LEK/GHL), 2008 WL 3884359, at *6 (N.D.N.Y.
Aug. 18, 2008) (“[T]he ALJ erred in determining that Plaintiff could do light work before fully
assessing his work-related abilities on a function-by-function basis. The ALJ failed to
specify the weight that Plaintiff could lift and/or carry or the amount of time that he could
sit, walk, and stand.”); Brown v. Barnhart, No. 01-CV-2962 (JG), 2002 WL 603044, at *5
& n. 5 (E.D.N.Y. Apr.15, 2002) (remanding because ALJ failed to perform
function-by-function analysis).
This Court need not resolve the question in this case. The ALJ’s determination with
regard to Plaintiff’s ability to use her hands (i.e. “limited use of both hands for repetitive
grasping and can only use her hands up to one third of the day for fine manipulation”) (T
at 16) was inconsistent with the opinion rendered by Dr. Mulholland, who indicated that
Plaintiff could not perform even simple grasping, pushing/pulling, or fine manipulations. (T
at 267).

For the reasons outlined above, the ALJ errorneously concluded that Dr.

Mulholland had not treated Plaintiff’s skin condition and improperly discounted the opinion
of this treating physician, which was also supported by the findings of the treating
dermatologist. The RFC determination therefore also cannot be sustained.
c.

Credibility

Courts in the Second Circuit have determined pain is an important element in DIB

13

and SSI claims, and pain evidence must be thoroughly considered. See Ber v. Celebrezze,
333 F.2d 923 (2d Cir.1994). Further, if an ALJ rejects a claimant's testimony of pain and
limitations, he or she must be explicit in the reasons for rejecting the testimony. See
Brandon v. Bowen, 666 F.Supp. 604, 609 (S.D.N.Y.1997).
However, subjective symptomatology by itself cannot be the basis for a finding of
disability. A claimant must present medical evidence or findings that the existence of an
underlying condition could reasonably be expected to produce the symptomatology alleged.
See 42 U.S.C. §§ 423(d)(5)(A), 1382c (a)(3)(A); 20 C.F.R. §§ 404.1529(b), 416.929; SSR
96-7p; Gernavage v. Shalala, 882 F.Supp. 1413, 1419 (S.D.N.Y.1995).
“An administrative law judge may properly reject claims of severe, disabling pain
after weighing the objective medical evidence in the record, the claimant's demeanor, and
other indicia of credibility, but must set forth his or her reasons with sufficient specificity to
enable us to decide whether the determination is supported by substantial evidence.” Lewis
v. Apfel, 62 F.Supp.2d 648, 651 (N.D.N.Y.1999) (internal citations omitted).
To this end, the ALJ must follow a two-step process to evaluate the plaintiff's
contention of pain, set forth in SSR 96-7p:
First, the adjudicator must consider whether there is an
underlying medically determinable physical or medical
impairment (s) ... that could reasonably be expected to produce
the individual's pain or other symptoms ....
Second, ... the adjudicator must evaluate the intensity,
persistence, and limiting effects of the individual's symptoms to
determine the extent to which the symptoms limit the
individual's ability to do basic work activities ....
According to 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii) and 416.929(c)(3)(i)-(vii), if the
plaintiff's pain contentions are not supported by objective medical evidence, the ALJ must
14

consider the following factors in order to make a determination regarding the plaintiff’s
credibility:
1.
2.
3.
4.

5.
6.
7.

[Plaintiff's] daily activities;
The location, duration, frequency and intensity of
[Plaintiff's] pain or other symptoms;
Precipitating and aggravating factors;
The type, dosage, effectiveness, and side effects of any
medication [Plaintiff] take[s] or ha[s] taken to alleviate ...
pain or other symptoms;
Treatment, other than medication [Plaintiff] receive[s] or
ha[s] received for relief of ... pain or other symptoms;
Any measure [Plaintiff] use[s] or ha[s] used to relieve ...
pain or other symptoms;
Other factors concerning [Plaintiff's] functional
limitations and restrictions due to pain or other
symptoms.

If the ALJ finds that the plaintiff’s pain contentions are not credible, he or she must
state his reasons “explicitly and with sufficient specificity to enable the Court to decide
whether there are legitimate reasons for the ALJ's disbelief.” Young v. Astrue, No.
7:05-CV-1027, 2008 WL 4518992, at *11 (N.D.N.Y. Sept. 30, 2008) (quoting Brandon v.
Bowen, 666 F. Supp 604, 608 (S.D.N.Y.1987)).
In the present case, Plaintiff testified that her hands are constantly rough, with her
skin peeling, cracking, and bleeding. (T at 38). The problems persist despite treatment, (T
at 38, 58-59). She can push the buttons on a remote control and operate the microwave;
but cannot use a knife or type on a computer. (T at 47-48). Her children assist with her
activities of daily living. (T at 49-51). Her ability to drive is affected by her skin condition.
(T at 56).
The ALJ found Plaintiff’s testimony “generally credible” and concluded that her
medically determinable impairments could reasonably be expected to cause the alleged

15

symptoms. (T at 17). However, the ALJ concluded that Plaintiff’s statements concerning
the intensity, persistence, and limiting effects of her symptoms were not credible to the
extent they were inconsistent with the ALJ’s RFC assessment. (T at 17). For the reasons
outlined above, the ALJ’s RFC assessment was flawed. Likewise, the ALJ did not
adequately assess the treating physician’s opinion and, thus, did not appropriately consider
the extent to which Dr. Mulholland’s findings bolstered Plaintiff’s credibility. Plaintiff’s
testimony, as supplemented by the opinions and notes of Dr. Mulholland and Dr. Ahn,
established that her skin condition very seriously impairs her ability to perform gross and
fine motor activities with her hands. The ALJ’s decision to discount that testimony and
conclude that Plaintiff was only “somewhat” limited in this regard was not supported by
substantial evidence and, in fact, was contradicted by evidence that should have been
afforded controlling weight.
d.

Consultation with a Vocational Expert

At step 5 in the sequential evaluation, the ALJ was required to perform a two part
process to first assess Plaintiff's job qualifications by considering his physical ability, age,
education, and work experience, and then determine whether jobs exist in the national
economy that Plaintiff could perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §
404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 1954, 76 L.Ed.2d 66
(1983). The second part of this process is generally satisfied by referring to the applicable
rule of the Medical-Vocational Guidelines set forth at 20 C.F.R. Part 404, Subpart P,
Appendix 2 (commonly called “the Grids” or the “Grid”). See Bapp v. Bowen, 802 F.2d 601,
604 (2d Cir.1986).
The function of the Grids was succinctly summarized by the court in Zorilla v.
16

Chater, 915 F. Supp. 662, 667 (S.D.N.Y.1996) as follows:
In meeting [his] burden of proof on the fifth step of the
sequential evaluation process described above, the
Commissioner, under appropriate circumstances, may rely on
the medical-vocational guidelines contained in 20 C.F.R. Part
404, Subpart P, App. 2, commonly referred to as “the Grid.”
The Grid takes into account the claimant's residual functional
capacity in conjunction with the claimant's age, education and
work experience. Based on these factors, the Grid indicates
whether the claimant can engage in any other substantial
gainful work which exists in the national economy. Generally
the result listed in the Grid is dispositive on the issue of
disability.
Id.
“The Grid classifies work into five categories based on the exertional requirements
of the different jobs. Specifically, it divides work into sedentary, light, medium, heavy and
very heavy, based on the extent of requirements in the primary strength activities of sitting,
standing, walking, lifting, carrying, pushing, and pulling.” Id. at 667 n. 2; see 20 C.F.R. §
404.1567(a). Upon consideration of the claimant's residual functional capacity, age,
education, and prior work experience, the Grid yields a decision of “disabled” or “not
disabled.” 20 C.F.R. § 404.1569, § 404 Subpt. P, App. 2, 200.00(a).
If the claimant has nonexertional impairments, the ALJ must determine whether
those impairments “significantly” diminish the claimant’s work capacity beyond that caused
by his or her exertional limitations. Id.

A claimant’s work capacity is “‘significantly

diminished’ if there is an ‘additional loss of work capacity . . . that so narrows a claimant’s
possible range of work as to deprive him of a meaningful employment opportunity.’” Id.
(quoting Bapp, 802 F.2d at 606).
If a claimant's work capacity is significantly diminished by non-exertional

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impairments beyond that caused by his or her exertional impairment(s), then the use of the
Grids may be an inappropriate method of determining a claimant's residual functional
capacity and the ALJ may be required to consult a vocational expert. See Pratts v. Chater,
94 F.3d 34, 39 (2d Cir.1996); Bapp v. Bowen, 802 F.2d 601, 604-605 (2d Cir.1986).
In this case, the ALJ used the Grids in reaching his disability determination.
Specifically, the ALJ concluded that a finding of “not disabled” was warranted under the
framework of Medical-Vocational Rule 202.18 based upon Plaintiff’s age, education, work
experience, and ability to perform somewhat less than the full range of light work. (T at 19).
The ALJ’s finding was based upon his RFC determination, which was flawed for the
reasons stated above. Moreover, the ALJ’s conclusion that Plaintiff’s non-exertional
limitations had “little to no effect on the occupational base of unskilled light work” (T at 19)
is not supported by substantial evidence. As outlined above, the evidence of record
(including, in particular, assessments from Plaintiff’s treating physician and dermatologist,
as well as her testimony) demonstrates that Plaintiff has a severe, extremely painful, and
persistent skin condition that very seriously limits her ability to perform gross and fine motor
manipulations with her hands on anything approaching a sustained basis. Accordingly, the
ALJ’s analysis at step five likewise cannot be sustained.
3.

Remand

“Sentence four of Section 405 (g) provides district courts with the authority to affirm,
reverse, or modify a decision of the Commissioner ‘with or without remanding the case for
a rehearing.’” Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir. 2002) (quoting 42 U.S.C. § 405
(g)). Remand is “appropriate where, due to inconsistencies in the medical evidence and/or
significant gaps in the record, further findings would . . . plainly help to assure the proper
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disposition of [a] claim.” Kirkland v. Astrue, No. 06 CV 4861, 2008 WL 267429, at *8
(E.D.N.Y. Jan. 29, 2008).
Under the Second Circuit’s rulings, a remand solely for calculation of benefits may
be appropriate when the court finds that there is “no apparent basis to conclude that a more
complete record might support the Commissioner's decision....” Butts v. Barnhart, 388 F.3d
377, 385-86 (2d Cir.2004) (quoting Rosa v. Callahan, 168 F.3d 72, 83 (2d Cir.1999)); see
also Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir.1987) (remand for calculation of benefits
appropriate where record “compel[s] but one conclusion under the ... substantial evidence
standard.”); Parker v. Harris, 626 F.2d 225, 235 (2d Cir.1980) (remand solely for calculation
of benefits appropriate where “the record provides persuasive proof of disability and a
remand for further evidentiary proceedings would serve no purpose”).
In the present case, this Court finds persuasive proof of disability for the reasons
outlined in detail above, including the opinions rendered by Dr. Mulholland (the treating
psychiatrist) and Dr. Ahn (the treating dermatologist), as well as Plaintiff’s testimony. In
particular, the record contains persuasive proof that the Plaintiff’s skin condition meets or
medically equals the impairment set forth at Section 8.05 of the Listings. This Court
concludes that a remand for further evidentiary proceedings would serve no purpose. As
such, this Court directs a remand for calculation of benefits.

IV. ORDERS

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The Commissioner’s Motion for Judgment on the Pleadings is DENIED; Plaintiff’s
Motion for Judgment on the Pleadings is GRANTED; this case is remanded for the
calculation of benefits; the Clerk of the Court shall enter Judgment accordingly and close
this case.
SO ORDERED.

Dated: September 24, 2012
Syracuse, New York

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