Mills v. Astrue

Filing 16

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. 405(g) for proceedings consistent with the Court's Memorandum-Decision and ORDER. Signed by Chief Judge Gary L. Sharpe on 12/21/2012. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
BETTY ANN MILLS,
Plaintiff,

5:11-cv-955
(GLS)

v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Olinsky Law Group
300 S. State Street
5th Floor, Suite 520
Syracuse, NY 13202
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261

HOWARD D. OLINSKY, ESQ.

SERGEI ADEN
Special Assistant U.S. Attorney

Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER

I. Introduction
Plaintiff Betty Ann Mills challenges the Commissioner of Social
Security’s denial of her claim for Disability Insurance Benefits (DIB) and
Supplemental Security Income (SSI), seeking judicial review under 42
U.S.C. §§ 405(g) and 1383(c)(3). (See Compl., Dkt. No. 1.) After
reviewing the administrative record and carefully considering Mills’
arguments, the Commissioner’s decision is reversed and remanded.
II. Background
On September 24, 2009, Mills, who suffers from, among other things,
coronary artery disease, filed applications for DIB and SSI under the Social
Security Act (“the Act”), alleging disability since June 11, 2009. (See Tr.1 at
77, 178-90.) After her applications were denied, (see id. at 87-94), Mills
requested a hearing before an Administrative Law Judge (ALJ), which was
held on February 2, 2011. (See id. at 28-68, 98.) On April 5, 2011, the
ALJ issued an unfavorable decision denying the requested benefits, which
became the Commissioner’s final determination upon the Social Security
Administration Appeals Council’s denial of review. (See id. at 1-6, 72-86.)

1

Page references preceded by “Tr.” are to the Administrative
Transcript. (See Dkt. No. 10.)
2

Mills commenced the present action by filing her Complaint on
August 12, 2011 wherein she sought review of the Commissioner’s
determination. (See generally Compl.) The Commissioner filed an answer
and a certified copy of the administrative transcript. (See Dkt. Nos. 9, 10.)
Each party, seeking judgment on the pleadings, filed a brief. (See Dkt.
Nos. 13, 14.)
III. Contentions
Mills contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (See Dkt. No. 13 at 1225.) Specifically, Mills claims that the: (1) ALJ erred by failing to find that
listing 1.04 was met; (2) residual functional capacity (RFC) determination is
unsupported by substantial evidence and is the product of legal error; (3)
ALJ failed to apply the appropriate legal standards in assessing her
credibility; and (4) step five determination is unsupported by substantial
evidence. (See id.) The Commissioner counters that the appropriate legal
standards were used by the ALJ and his decision is also supported by
substantial evidence. (See Dkt. No. 14 at 12-24.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (See
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Dkt. No. 13 at 2-12; Dkt. No. 14 at 2-12.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g)2 is well established and will not be repeated here. For a
full discussion of the standard and the five-step process by which the
Commissioner evaluates whether a claimant is disabled under the Act, the
court refers the parties to its previous decision in Christiana v. Comm’r of
Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y.
Mar. 19, 2008).
VI. Discussion
A.

Listed Impairment
At step three, the ALJ determined that Mills’ central disk herniation,

canal stenosis, and osteophytes, though severe, did not meet or medically
equal a listed impairment. (See Tr. at 77-78.) Mills contends that the ALJ
erred in this determination, contending that her neck impairment met
Listing 1.04(A). (See Dkt. No. 13 at 14-17.) To satisfy Listing 1.04(A), a
claimant must show that she suffers from a spinal disorder resulting in the
2

Specific reference to 42 U.S.C. § 1383(c)(3) is unnecessary
because judicial review under that section is identical to review under
section 405(g).
4

compromise of a nerve root or the spinal cord with evidence of: (1) nerve
root compression characterized by neuro-anatomic distribution of pain; (2)
limitation of motion of the spine; (3) motor loss accompanied by sensory or
reflex loss; and (4) if there is involvement of the lower back, positive
straight-leg raising test. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.04(A).
Contrary to Mills’ contentions, substantial evidence supports the ALJ’s
determination that her neck impairment did not satisfy this listing.
As an initial matter, the record contains no medical evidence
pertaining to Mills neck injury from or relating to the period since her
alleged disability onset date—June 11, 2009. (See Tr. at 178, 185.)
Notably, medical records which predate the claimant’s alleged onset date
can “prove to be relevant to a claimant’s later condition provided that there
is indication that the symptoms experienced extended in duration into the
relevant time period.” Baggett v. Astrue, Civ. Action No. 5:11-CV-0195,
2012 WL 2814369, at *8-9 (N.D.N.Y. June 13, 2012). In any event,
although it is not disputed that Mills was diagnosed with cervical
radiculopathy3 in 2005 and the record contains findings of muscle

3

Radiculopathy is a disease of the nerve roots. See Dorland’s
Illustrated Medical Dictionary 1404 (28th ed. 1994).
5

weakness, sensory or reflex deficits and limited range of motion, (see Tr. at
320, 323, 326, 332, 334, 336, 338, 341, 345, 348, 350, 352, 372), the
record contains substantial evidence to support the conclusion that Mills
did not suffer from each of these deficits continuously through the relevant
period, thereby failing to satisfy Listing 1.04(A). See 20 C.F.R.
§§ 404.1509, 416.909 (“Unless your impairment is expected to result in
death, it must have lasted or must be expected to last for a continuous
period of at least 12 months.”).
Mills began seeing treating physician Heather Finger for neck pain
following a motor vehicle accident in September 2004. (See Tr. at 318,
372.) On October 4, 2004, Dr. Finger examined Mills and noted that she
had “full range of motion about her neck and shoulders bilaterally,”
however, her grip strength was weakened and sensation was decreased.
(Id. at 372.) Thereafter, Dr. Finger found that Mills was improving although
she still experienced some numbness, weakness, and pain. (See id. at
323, 325.) Notably, Mills returned to work after the accident, performing
her janitorial duties other than moving and carrying large bins of trash, until
December 6, 2004, when she reported that her symptoms were getting
worse. (See id. at 325, 328, 331-32.) In April 2005, Dr. Finger diagnosed
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Mills with radiculopathy. (See id. at 336.) Mills continued to seek
treatment with Dr. Finger for neck pain through October 2005. (See id. at
313-52, 372.) In September 2005, Mills reported that she felt “very well”
and wanted to go back to work. (Id. at 348.) Thereafter, Dr. Finger
examined Mills and found she had full range of motion in her neck, motor
tone in her upper extremities was a full 5/5 bilaterally, her deep tendon
reflexes were “two plus and symmetric,” and her sensation was grossly
intact to light touch. (Id. at 350.) Based on that examination, Dr. Finger
determined that Mills’ cervical sprain was improved and she could continue
her work full time.4 (See id.) Subsequently, in March 2006, Mills reported
to a nurse practitioner that her neck pain and hand strength were better,
but complained of numbness in her right hand. (See id. at 352.) The nurse
practitioner examined Mills and found the range of motion of her neck was
good, hand grasps were strong and equal, and deep tendon reflexes were
fully intact to the upper extremities. (See id.) Finally, at the administrative
hearing, Mills testified that she still experienced pain in her neck
“occasionally” and that her hands still go numb. (Id. at 40-41.)

4

Indeed, Mills worked full time, doing janitorial work, until June 10,
2009. (See id. at 33, 37, 210, 214-16.)
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Ultimately, substantial evidence supports the ALJ’s finding that Mills’
impairment did not meet Listing 1.04(A) as it did not produce all of the
required deficits and limitations since the date her alleged disability began.
Accordingly, the court affirms the ALJ’s step-three determination.
B.

Residual Functional Capacity
Next, Mills contends that the ALJ’s residual functional capacity finding

is unsupported by substantial evidence and the product of legal error. (See
Dkt. No. 13, at 17-21.) Specifically, Mills alleges that the ALJ failed to
develop the record by failing to obtain: (1) the opinions of any of her
treating physicians as to her functional limitations; (2) additional medical
records from her treating sources; and (3) any mental or physical
consultative examinations. (See id.) The court agrees that remand is
necessary.
A claimant’s RFC “is the most [she] can still do despite [her]
limitations.” 20 C.F.R. §§ 404.1545(a)(1); 416.945(a)(1). In assessing a
claimant’s RFC, an ALJ must consider “all of the relevant medical and
other evidence,” including a claimant’s subjective complaints of pain. Id.
§§ 404.1545(a)(3), 416.945(a)(3). An ALJ’s RFC determination must be

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supported by substantial evidence5 in the record. See 42 U.S.C. 405(g). If
it is, that determination is conclusive and must be affirmed upon judicial
review. See id.; Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996). It is well
established that the ALJ has an obligation to thoroughly develop the
record, considering “all allegations of physical and mental limitations or
restrictions and make every reasonable effort to ensure that the file
contains sufficient evidence to assess RFC.” SSR 96-8p, 1996 WL
374184, at *5; accord Falcon v. Apfel, 88 F. Supp. 2d 87, 90-91 (W.D.N.Y.
2000); see, e.g., Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999).
However, where there are no obvious gaps, and the record presents “a
‘complete medical history,’” the ALJ is under no duty to seek additional
information before rejecting a claim. Rosa, 168 F.3d at 79, n.5 (quoting
Perez, 77 F.3d at 48).
Here, Mills began treatment with physician Mazen Beshara in April
2009, complaining of chest pain. (See id. at 381-83.) Thereafter, Dr.

5

“Substantial evidence is defined as more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept to
support a conclusion.” Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.
1990) (internal quotation marks and citations omitted).

9

Beshara diagnosed Mills with aortic stenosis and hypertension and
restricted Mills from lifting, pushing, or pulling over thirty pounds. (See id.
at 386.) Subsequently, Mills underwent an aortic valve replacement,
performed by treating physician Randall Green. (See id. at 285-86.)
Following the procedure, Mills was instructed to refrain from driving or
lifting more than five pounds. (See id. at 289.) Thereafter, chest x-rays
revealed that her tubes and lines were satisfactorily positioned and heart
size and pulmonary vasculature were normal. (See id. at 283, 495.) In a
follow up visit with Dr. Beshra, Mills’ aortic prosthetic valve was found to be
“functioning normally with no evidence of stenosis or significant
insufficiency” but she was again instructed to refrain from lifting, pushing, or
pulling more than thirty pounds. (Id. at 398, 402.) Beginning in March
2009, Mills complained to various treating sources—including Dr. Finger
who subsequently diagnosed Mills with chronic sinusitis—of shortness of
breath and fatigue. (See id. at 357, 362, 390, 414, 486-91, 496.) Notably,
the record lacks any medical source statements or opinions as to Mills
functional physical limitations from any of these treating sources or a
consultative examiner.
In addition to the above referenced physical impairments, Mills
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testified that she experienced depression and anxiety every day and
reported that she “can’t be around a lot of people,” was easily stressed,
and stress or changes in schedule caused her to be “homebound a lot.”
(Id. at 226, 228; see id. at 52-55.) Mills testified that she was being treated
for depression by her doctor who had prescribed an anti-depressant,
however, the record lacks any medical evidence, from treating sources or
consultative examiners, with respect to her mental impairments. (See id. at
52.)
Notably, “‘where the medical evidence shows relatively little physical
impairment, an ALJ permissibly can render a common sense judgment
about functional capacity even without a physician’s assessment.’” Walker
v. Astrue, No. 08-CV-0828, 2010 WL 2629832, at *7 (W.D.N.Y. June 11,
2010) (quoting Manso-Pizarro v. Sec’y of Health and Human Servs., 76
F.3d 15, 17 (1st Cir.1996)). Otherwise, although the RFC determination is
an issue reserved for the commissioner, see 20 C.F.R. §§ 404.1527(d)(2),
404.1546(c), 416.927(d)(2), 416.946(c), “‘an ALJ is not qualified to assess
a claimant’s RFC on the basis of bare medical findings, and as a result an
ALJ’s determination of RFC without a medical advisor’s assessment is not
supported by substantial evidence.’” Dailey v. Astrue, No. 09-CV-0099,
11

2010 WL 4703599, at *11 (W.D.N.Y. Oct. 26, 2010) (quoting Deskin v.
Comm’r of Soc. Sec., 605 F. Supp. 2d 908, 912 (N.D.Ohio 2008)).
Here, the ALJ determined that Mills had the RFC to:
perform light work . . . except that [she] must work in
a job where she is allowed to sit or stand alternatively
at will, but would not have to leave the workstation;
she may only occasionally climb ramps or stairs;
never climb ladders, ropes, or scaffolds; only
occasionally balance, stoop, kneel, crouch, bend or
crawl; she must avoid all concentrated exposure to
operational control of moving machinery and
unprotected heights; and avoid all concentrated
exposure to irritants such as fumes, odors, dust,
gases, and poorly ventilated areas. The claimant is
further limited to simple, routine, and repetitive tasks;
in a work environment free of fast paced production
requirements; involving only simple, work-related
decisions; with few, if any, work place changes.
(Tr. at 78.) Notably, the RFC determination accounted for the affects of
Mills’ mental impairments on her ability to function without any medical
evidence to support such assessment. (See id.) As the evidence before
the ALJ was inadequate to properly determine Mills’ RFC with respect to
her mental impairment, the ALJ should have attempted to contact Mills’
treating physician or obtained a consultative psychological examination to
complete the record. See Williams v. Astrue, Civ No. 5:09-CV-1092, 2012
WL 760738, at *5 (N.D.N.Y. Mar. 8, 2012); Hopper v. Comm’r of Soc. Sec.,
12

No. 7:06-CV-0038, 2008 WL 724228, at *11 (N.D.N.Y. Mar. 17, 2008).
Further, although the record contains objective medical evidence and
treatment notes with respect to Mills’ physical impairments, because the
medical evidence reflected more than “relatively little physical impairment,”
the ALJ required a physician’s assessment to determine her RFC. Kizys v.
Comm’r of Soc. Sec., No. 3:10 CV 25, 2011 WL 5024866, at *1-2
(N.D.Ohio Oct. 21, 2011) (internal quotation marks and citation omitted).
Because there is no medical source opinion supporting the ALJ’s finding
that Mills can perform “light work” with additional exertional restrictions, the
court concludes that the ALJ’s RFC determination is without substantial
support in the record. (Id. at 78.) Finally, because Mills’ remaining
contentions may be impacted by the subsequent proceedings directed by
this Order, it would be improper for the court to consider them at this
juncture.
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is REVERSED and
REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for proceedings
consistent with this Memorandum-Decision and Order; and it is further
13

ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
December 21, 2012
Albany, New York

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