Ealy v. Astrue

Filing 17

MEMORANDUM-DECISION & ORDER granting Plaintiff's motion for judgment on the pleadings (Dkt. No. 13 ) and denying Defendant's motion for judgment on the pleadings (Dkt. No. 14 ). This matter is REMANDED to Defendant pursuant to 42 U.S.C. 405(g) for further proceedings consistent with this Decision and Order. Signed by Judge Glenn T. Suddaby on 8/13/13. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
CALVIN EALY,
Plaintiff,
v.

5:12-CV-0640
(GTS)

CAROLYN W. COLVIN, Comm’r of Soc. Sec.,1
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

LEGAL AID SOCIETY OF NORTHEAST NEW YORK MICHAEL J. TELFER, ESQ.
Counsel for Plaintiff
55 Colvin Avenue
Albany, NY 12206
OLINSKY LAW GROUP
Counsel for Plaintiff
300 S. State Street
5th Floor, Suite 520
Syracuse, NY 13202

KAREN S. SOUTHWICK, ESQ.

U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL – REGION II
Counsel for Defendant
26 Federal Plaza – Room 3904
New York, NY 10278

TOMASINA DIGRIGOLI, ESQ.

GLENN T. SUDDABY, United States District Judge

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Plaintiff’s complaint named Michael J. Astrue, as the Commissioner of Social
Security, as the defendant. On February 14, 2013, Carolyn W. Colvin took office as Acting
Social Security Commissioner. She has therefore been substituted as the named defendant in this
matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, and no further action is
required in order to effectuate this change. See 42 U.S.C. § 405(g).

MEMORANDUM-DECISION and ORDER
Currently before the Court, in this Social Security action filed by Calvin Ealy (“Plaintiff”)
against the Commissioner of Social Security (“Defendant” or “the Commissioner”) pursuant to 42
U.S.C. §§ 405(g) and 1383(c) are the parties’ cross-motions for judgment on the pleadings. (Dkt.
Nos. 13,14.) For the reasons set forth below, Plaintiff’s motion is granted and Defendant’s
motion is denied.
I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff was born on May 7, 1970. Plaintiff has completed his education through the
tenth grade, which included some special education classes. He later obtained a General
Equivalency Diploma. Plaintiff’s work history consists of mostly part time employment in
cleaning and some full time employment in construction. All of Plaintiff’s jobs were of a few
months’ duration. Generally, Plaintiff’s alleged disability consists of back pain stemming from a
history of multiple gunshot wounds, broken ribs, pain in his left wrist and ankle, scoliosis,
migraine headaches, bipolar disorder, mood disorder, post traumatic stress disorder, depression,
anxiety attacks and paranoia. His alleged disability onset date is January 1, 2008.
B.

Procedural History

On September 17, 2008, Plaintiff applied for Supplemental Security Income. Plaintiff’s
application was initially denied, after which he timely requested a hearing before an
Administrative Law Judge (“the ALJ”). Plaintiff first appeared before the ALJ, John P. Ramos,
on September 27, 2010. The ALJ postponed the hearing to allow Plaintiff additional time to
obtain representation. (T. 145-152.) On January 18, 2011, Plaintiff appeared before the ALJ with
counsel and a hearing was conducted. (T. 96-144.) The ALJ issued a written decision finding
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Plaintiff not disabled under the Social Security Act on February 25, 2011. (T. 12-30.) On March
1, 2012, the Appeals Council denied Plaintiff’s request for review, rendering the ALJ’s decision
the final decision of the Commissioner. (T. 4-7.) Thereafter, Plaintiff timely sought judicial
review in this Court.
C.

The ALJ’s Decision

Generally, in his decision, the ALJ made the following five findings of fact and
conclusions of law. (T. 17-24.) First, the ALJ found that Plaintiff had not engaged in substantial
gainful activity since his application date. (T. 17.) Second, the ALJ found that Plaintiff’s
episodic low back pain secondary to history of multiple gunshot wounds, degenerative disc
disease of the lumbar spine, poly-substance abuse in remission and bipolar disorder are severe
impairments, but that his migraines, blurred vision, right foot arthritis, status post-1997 gunshot
wounds to the left leg and face, and carpal tunnel syndrome are not severe. (T. 17-18.) Third, the
ALJ found that Plaintiff’s severe impairments did not meet or medically equal one of the listed
impairments located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (T. 18-19.) The ALJ
considered listings 1.04, 12.04 and 12.09. (Id.) Fourth, the ALJ found that Plaintiff has the
residual functional capacity (“RFC”) to perform less than the full range of light work as defined
in 20 C.F.R. § 404.1567(b), in that he is able to lift and/or carry twenty pounds occasionally and
ten pounds frequently, stand and/or walk for six hours in an eight-hour workday, and sit for six
hours in an eight-hour workday. (T. 20-23.) Further, the ALJ found as follows: Plaintiff “can
occasionally engage in postural activities. Additionally, [Plaintiff] retains the ability to
understand and follow simple instructions and directions, perform simple tasks with supervision
and independently, maintain attention and concentration for simple tasks, regularly attend to a
routine and maintain a schedule, relate to and interact appropriately with others, and handle
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reasonable levels[] of simple, repetitive, work-related stress.” (Id.) Fifth, and finally, the ALJ
determined that there are jobs that exist in significant numbers in the national economy that
Plaintiff can perform. (T. 23-24.)
II.

THE PARTIES’ BRIEFINGS ON PLAINTIFF’S MOTION
A.

Plaintiff’s Arguments

Plaintiff makes three separate arguments in support of his motion for judgment on the
pleadings. First, Plaintiff argues that the ALJ’s RFC finding is unsupported by substantial
evidence because he erroneously (1) afforded very little weight to the opinion of treating
physician, Dr. Howard, (2) afforded significant weight to the vague opinion of consultative
examiner, Dr. Tranese, (3) failed to specify the weight afforded to the opinion of Dr. Hochberg,
and (4) credited Dr. Hochberg’s opinion on an issue reserved to the Commissioner. (Dkt. No. 13
at 8-15 [Pl.’s Mem. of Law].) Second, Plaintiff argues that the ALJ’s credibility determination is
unsupported by substantial evidence. (Id. at 15-19.) Third, and finally, Plaintiff argues that the
ALJ’s determination at step five of the sequential analysis is unsupported by substantial evidence
because (1) it relies on an erroneous RFC determination and (2) the ALJ relied on the grids
instead of consulting a vocational expert, which was required due to Plaintiff’s significant nonexertional limitations. (Id. at 19.)
B.

Defendant’s Arguments

In response, Defendant makes three arguments. First, Defendant argues that the ALJ’s
RFC finding was supported by substantial evidence. (Dkt. No. 14 at 10-16 [Def.’s Mem. of
Law].) Second, Defendant argues that the ALJ properly evaluated Plaintiff’s credibility. (Id. at
16-18.) Third, and finally, Defendant argues that the ALJ properly concluded that Plaintiff could
perform a significant number of jobs in the national economy. (Id. at 18-19.)
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III.

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. 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. 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.”); 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, 91 S. Ct. 1420, 1427 (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).
“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).

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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. See 20 C.F.R. §§ 404.1520,
416.920. The Supreme Court has recognized the validity of this sequential evaluation process.
See Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987). The five-step process is 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 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).
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IV.

ANALYSIS
A.

Whether the ALJ Properly Weighed the Opinions of Drs. Howard, Tranese
and Hochberg

After carefully considering the matter, the Court answers this question in the negative, in
part for the reasons stated in Plaintiff’s memorandum of law. (Dkt. No. 13, at 9-15 [Pl.’s Mem.
of Law].) The Court would only add the following analysis.
1.

Dr. Howard

The record contains a “Physician’s Medical Report” that was completed by Myles
Howard, M.D., of the Syracuse Community Health Center on August 25, 2010, at the request of
the Onondaga County Department of Social Services. (T. 511-512.) Included in the report is Dr.
Howard’s diagnosis of Plaintiff with left lumbar radiculopathy of undetermined length or
prognosis that has not required hospitalization or surgery and has been treated with oral
analgesics. (Id.) Dr. Howard further reported that Plaintiff has no limitations in his ability to
see, hear, speak, use his hands or use public transportation. However, Dr. Howard reported that
Plaintiff is moderately limited in the areas of walking, standing, sitting, pushing, pulling,
bending, lifting, carrying and climbing. (Id.) The form defines “[m]oderately limited” as the
ability “to perform from 2 to 4 hours/day.” (Id.)
The ALJ gave “very little weight” to Dr. Howard’s report, citing a lack of treatment notes
or a history of a treating relationship in the record, which, the ALJ noted, would entitle it to
consideration as a treating source opinion. (T. 23.) Plaintiff argues that the ALJ erred by failing
to afford Dr. Howard’s opinion controlling weight, or alternatively, failing to apply the treating
physician rule to determine the appropriate weight. Defendant counters that Dr. Howard’s
opinion is not supported by substantial evidence because the record contains no accompanying
treatment notes from Dr. Howard or any record of treatment.

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To be sure, the record contains at least two treatment notes from Dr. Howard, dated May
20, 2010 and July 27, 2010, respectively, as well as a diagnostic x-ray report that was completed
at the request of Dr. Howard. (T. 493-494, 499-501.) On May 20, 2010, Dr. Howard noted
Plaintiff’s complaint of mid-back pain that is “aggravated by certain movements” as well as the
results of a lumbosacral spine x-ray, which showed “anterior compression of the vertebral body
at T11.” (T. 499-501.) In the x-ray report, the radiologist further noted that “[s]traightening of
the normal lumbar lordosis may represent lumbar muscle spasms. No other abnormality noted.”
(T. 500.) Dr. Howard prescribed Celebrex and Lortab. (T. 501.) On July 27, 2010, Dr. Howard
noted Plaintiff’s complaint of burning pain radiating to the left leg along with back pain as well
as chronic left wrist pain that is “aggravated by certain movements.” (T. 493.) Dr. Howard
prescribed Flexeril and continued to prescribe Celebrex and Lortab. (T. 494.)
Plaintiff underwent a consultative examination in November 2008, which resulted in a
diagnosis of lower left extremity pain and episodic low back pain. (T. 414-417.) However, a
lumbosacral spine x-ray taken at that time was reportedly normal. (Id.)
Under the “treating physician’s rule,” controlling weight is given to a plaintiff’s treating
physician’s opinion when (1) the opinion is well supported by medically acceptable clinical and
laboratory diagnostic techniques and (2) the opinion is consistent with other substantial evidence
in the record, such as opinions of other medical experts. 20 C.F.R. § 404.1527(d)(2); Halloran
v. Barnhart, 362 F.3d 28, 31-32 (2d Cir.2004); Brogan-Dawley v. Astrue, 484 F. App’x 632,
633-34 (2d Cir. 2012). When controlling weight is not given, the ALJ should consider the
following factors to determine the proper weight assigned to a treating physician’s opinion: (1)
frequency of the examination and the length, nature and extent of the treatment relationship; (2)
the evidence in support of the opinion; (3) the opinion’s consistency with the record as a whole;
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and (4) whether the opinion is from a specialist. See 20 C.F.R. § 404.1527(c); Shaw v. Chater,
221 F.3d 126, 134 (2d Cir.2000). Regulations require ALJs to set forth his or her reasons for the
weight assigned to a treating physician’s opinion. See Shaw, 221 F.3d at 134.
Here, while Dr. Howard’s opinion is contradicted in part by the consultative examiner’s
diagnosis, that exam and diagnosis took place two years prior to Dr. Howard’s treatment of
Plaintiff and was accompanied by a normal x-ray. Moreover, the ALJ failed to acknowledge Dr.
Howard’s treating notes or the accompanying x-ray results. Therefore, the ALJ committed legal
error by assigning very little weight to Dr. Howard’s opinion because he first failed to apply the
treating physician rule and then failed to adequately explain his reasons for the weight he
assigned.
2.

Dr. Tranese

The record also includes a report of an orthopedic examination of Plaintiff conducted by
consultative examiner, Louis Tranese, D.O. on November 11, 2008. (T. 414-417.) Dr. Tranese
opined that Plaintiff has mild limitations with sitting or standing long periods and walking long
distances, mild to moderate limitations with frequent bending and squatting, and moderate
limitation with heavy lifting. (T. 417.)
The ALJ assigned “significant weight” to Dr. Tranese’s opinion, citing his
“programmatic expertise” and the fact that the opinion was based on an examination of Plaintiff.
(T. 23.) Plaintiff argues that the ALJ erred in assigning significant weight because Dr. Tranese’s
opinion that Plaintiff has “mild to moderate” limitations with frequent bending and squatting is
vague. Defendant counters that Dr. Tranese’s opinion is supported by his findings and is
“sufficiently clear to assist the ALJ in assessing Plaintiff’s [RFC].” (Dkt. No. 14, at 11 [Def.’s
Mem. of Law].)
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The Court of Appeals for the Second Circuit has noted that a physician’s “use of the
terms ‘moderate’ and ‘mild,’ without additional information, does not permit the ALJ . . . to
make the necessary [RFC determination].” Curry v. Apfel, 209 F.3d 117, 123 (2d Cir. 2000),
superceded by statute on other grounds, 20 C.F.R. § 404.1560(c)(2). Further, Defendant’s
contention here that Dr. Tranese’s opinion is supported by his findings is questionable. For
example, Dr. Tranese’s findings reflect that Plaintiff can complete a full squat but he opines that
Plaintiff has “mild to moderate” limitation with frequent bending and squatting, without any
explanation of the apparent inconsistency. Therefore, it was error for the ALJ to afford
significant weight to Dr. Tranese’s opinion, without first clarifying the ambiguity in Dr.
Tranese’s report. See Rosa v. Callahan, 168 F.3d 72, 80 (2d Cir.1999).
3.

Dr. Hochberg

The State agency’s psychological consultant,2 A. Hochberg, completed a mental RFC
assessment as well as a psychiatric review technique form. Included in Dr. Hochberg’s
assessment is his opinion that, “[b]ased on the totality of the evidence in file it is determined that
the claimant retains the [RFC] to perform entry level work activities on a sustained basis.” (T.
442.) The ALJ explained that he “gives weight to [Dr. Hochberg’s reports] due to his
programmatic expertise and because [the] reports were based on a review of [Plaintiff’s] medical
records.” (T. 23.) Plaintiff argues that the ALJ erred by (1) failing to explain the weight

2

“State agency . . . psychological consultants . . . are highly qualified . . . medical
specialists who are also experts in Social Security disability evaluation. Therefore, [the ALJ]
must consider findings and other opinions of State agency . . . psychological consultants . . . as
opinion evidence, except for the ultimate determination about whether [a claimant] is disabled.”
20 C.F.R. § 404.1527(e)(2)(i). See also § 404.1512(b)(8).

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afforded to Dr. Hochberg’s opinion, (2) giving more than little weight to an opinion from a nonexamining source, and (3) relying on an opinion regarding an issue that was reserved for the
Commissioner. Defendant counters that Dr. Hochberg relied on evidence from the reports of the
consultative psychologist to support his opinions, and therefore, Dr. Hochberg’s opinions
constitute substantial evidence.
According to Social Security regulations,
[w]hen an [ALJ] considers findings of a State agency . . .
psychological consultant, the [ALJ] will evaluate the findings using
the relevant factors in [20 C.F.R. § 404.1527(a)(2) through (d)], such
as the consultant’s medical specialty and expertise in [Social
Security] rules, the supporting evidence in the case record, supporting
explanations the . . . psychological consultant provides, and any other
factors relevant to the weighing of the opinions. Unless a treating
source’s opinion is given controlling weight, the administrative law
judge must explain in the decision the weight given to the opinions
of a State agency . . . psychological consultant, as the administrative
law judge must do for any opinions from treating sources, nontreating
sources, and other nonexamining sources who do not work for [Social
Security].
20 C.F.R. § 404.1527(e)(2)(ii). Here, the ALJ failed to give controlling weight to Plaintiff’s
treating physician. Therefore, the ALJ erred in failing to specify the weight given to the opinion
of State agency consultant, Dr. Hochberg. Moreover, the ALJ must not consider a State agency
consultant’s opinion regarding an issue that is left to the Commissioner, such as whether or not a
claimant is disabled. Accordingly, it was error for the ALJ to rely on Dr. Hochberg’s opinion
that Plaintiff “retains the [RFC] to perform entry level work activities on a sustained basis.” (T.
22, 442.)
For all of these reasons, remand is necessary so that the ALJ may revisit his RFC analysis
after (1) applying the treating physician’s rule to Dr. Howard’s opinion, (2) clarifying the
ambiguity in Dr. Tranese’s report, and (3) specifying the weight applied to Dr. Hochberg’s
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opinion regarding issues that are not reserved to the Commissioner, in accordance with this
Decision and Order.
B.

Whether the ALJ Properly Assessed Plaintiff’s Credibility

After carefully considering the matter, the Court answers this question in the negative, in
part for the reasons stated in Plaintiff’s memorandum of law. (Dkt. No. 13, at 15-19 [Pl .’s Mem.
of Law].) The Court would only add the following analysis.
A Plaintiff’s allegations of pain and functional limitations are “entitled to great weight
where ... supported by objective medical evidence.” Rockwood v. Astrue, 614 F. Supp. 2d 252,
270 (N.D.N.Y. 2009) (quoting Simmons v. U.S. R.R. Ret. Bd., 982 F.2d 49, 56 (2d Cir.1992).
However, the ALJ “is not required to accept [a plaintiff’s] subjective complaints without
question; he may exercise discretion in weighing the credibility of the [plaintiff’s] testimony in
light of the other evidence in the record.” Montaldo v. Astrue, 10-CV-6163, 2012 WL 893186,
at *17 (S.D.N.Y. Mar. 15, 2012). “When rejecting subjective complaints, an ALJ must do so
explicitly and with sufficient specificity to enable the Court to decide whether there are
legitimate reasons for the ALJ’s disbelief.” Rockwood, 614 F. Supp. 2d at 270.
“The ALJ’s credibility assessment must be based on a two step analysis of pertinent
evidence in the record. First, the ALJ must determine whether the claimant has medically
determinable impairments, which could reasonably be expected to produce the pain or other
symptoms alleged.” Id., at 271.
Second, if medically determinable impairments are shown, then the
ALJ must evaluate the intensity, persistence, and limiting effects of
the symptoms to determine the extent to which they limit the
claimant’s capacity to work. Because an individual’s symptoms can
sometimes suggest a greater level of severity of impairment than can
be shown by the objective medical evidence alone, an ALJ will
consider the following factors in assessing a claimant’s credibility:
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(1) claimant’s daily activities; (2) location, duration, frequency, and
intensity of claimant’s symptoms; (3) precipitating and aggravating
factors; (4) type, dosage, effectiveness, and side effects of any
medication taken to relieve symptoms; (5) other treatment received
to relieve symptoms; (6) any measures taken by the claimant to
relieve symptoms; and (7) any other factors concerning claimant’s
functional limitations and restrictions due to symptoms.
Id.
Here, the ALJ considered Plaintiff’s claims of his inability to work due to bipolar
disorder, old gunshot wounds and multiple orthopedic impairments as well as Plaintiff’s hearing
testimony that he experiences numbness and tingling in his back, that he favors his left leg, that
he has difficulty doing the dishes due to pain in his left wrist, and that he experiences frequent
migraine headaches. In addition, the ALJ considered Plaintiff’s testimony that he experiences
auditory hallucinations, isolates himself and can go a week without shaving or bathing, and that
his girlfriend helps him get dressed sometimes. The ALJ noted, however, that Plaintiff’s
treatment for his physical and mental problems has been mostly conservative, and that Plaintiff’s
allegations of significant physical and mental limitations are not supported by the objective
medical evidence in the record. The ALJ further noted that Plaintiff’s poor work history and
criminal record do not enhance his credibility. (T. 20-22.) Ultimately, the ALJ concluded that
Plaintiff’s “statements concerning the intensity, persistence, and limiting effects of [his]
symptoms are credible only to the extent they are consistent with [the ALJ’s finding regarding
Plaintiff’s RFC].” (T. 22.) Plaintiff argues that the ALJ’s credibility determination is not
supported by substantial evidence because he failed to consider all of Plaintiff’s allegations
regarding his limitations and failed to explain how certain of Plaintiff’s alleged abilities
demonstrate his ability to work the equivalent of a full time work week. Plaintiff further argues
that the ALJ committed legal error when he found Plaintiff’s statements credible only to the
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extent they are consistent with the ALJ’s RFC assessment. Defendant counters that the ALJ
properly assessed Plaintiff’s credibility by relying on the inconsistency of Plaintiff’s allegations
with the objective medical evidence of record.
To be sure, “[i]t is erroneous for an ALJ to find a [plaintiff’s] statements not fully
credible because those statements are inconsistent with the ALJ’s own RFC finding.” Ubiles v.
Astrue, No. 11–CV–6340, 2012 WL 2572772, at * 12 (W.D.N.Y. July 2, 2012).3 Instead, the
ALJ must consider “the entire case record, including the objective medical evidence, the
individual’s own statements about symptoms, statements and other information provided by
treating or examining physicians or psychologists and other persons about the symptoms and
how they affect the individual, and any other relevant evidence in the case record.” See SSR 967p. Therefore, the ALJ applied an erroneous legal standard in assessing Plaintiff’s credibility.
The ALJ’s error is further compounded by his erroneous RFC assessment. Accordingly, remand
is necessary so that the ALJ may assess Plaintiff’s credibility after applying the correct legal
standard, including the re-assessment of the objective medical evidence in the record from Drs.
Howard, Tranese and Hochberg, in accordance with this Decision and Order.
C.

Whether the ALJ Erred at Step Five By Failing to Obtain the Opinion of a
Vocational Expert

After carefully considering the matter, the Court answers this question in the affirmative
in part, generally for the reasons stated in Plaintiff’s memorandum of law, (Dkt. No. 13, at 19
[Pl.’s Mem. of Law]), and in the negative in part, generally for the reasons stated in Defendant’s

3

See also Nelson v. Astrue, No. 5:09–CV–00909, 2010 WL 3522304, at *6
(N.D.N.Y. Aug. 12, 2010), report and recommendation adopted, 2010 WL 3522302 (N.D.N.Y.
Sept. 1, 2010); Kennedy v. Astrue, No. 3:09–CV–0670, 2010 WL 2771904, at *5 (N.D.N.Y. June
25, 2010), report and recommendation adopted, 2010 WL 2771895 (N.D.N.Y. July 12, 2010);
Smollins v. Astrue, No. 11–CV–424, 2011 WL 3857123, at *10–11 (E.D.N.Y. Sept. 1, 2011);
Mantovani v. Astrue, No. 09–CV–3957, 2011 WL 1304148, at *5 (E.D.N.Y. Mar. 31, 2011).
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memorandum of law, (Dkt. No. 14, at 19 [Def.’s Mem. of Law]). The Court would only add the
following analysis.
Here, at step five of the sequential analysis, the ALJ did not obtain the opinion of a
vocational expert in determining whether there are jobs in the national economy that Plaintiff can
perform. Instead, the ALJ decided, relying solely on the Medical-Vocational guidelines, that
there are jobs in the national economy that Plaintiff can perform. Plaintiff argues that the ALJ
erred in failing to obtain the opinion of a vocational expert because, due to Plaintiff’s nonexertional limitations, reliance on the Grids was inappropriate. Moreover, Plaintiff argues,
because the ALJ relied on an erroneous RFC analysis and assessment of Plaintiff’s credibility in
deciding that there are jobs in the national economy that Plaintiff can perform, his decision at
step five of the sequential analysis is likewise erroneous. Defendant counters that the ALJ’s
decision at step five was based on substantial evidence, and that reliance on the Grids is proper
even where non-exertional limitations exist.
At step five of the sequential analysis, the Commissioner can usually meet his burden to
establish that, if a plaintiff is unable to perform his past work, there is other work which he could
perform, by reliance on the Medical-Vocational guidelines contained in 20 C.F.R. Part 404,
Subpart P, App. 2, commonly referred to as “the Grids.” See Baldwin v. Astrue, No. 07-CV6958, 2009 WL 4931363, at *20 (S.D.N.Y. Dec. 21, 2009). However, when a plaintiff suffers
from significant non-exertional limitations that significantly limit his employment opportunities,
exclusive reliance on the Grids is inappropriate. See Baldwin, 2009 WL 4931363, at *27 (citing
Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir.1986)). “A plaintiff’s range of potential employment
is significantly limited when he suffers from the ‘additional loss of work capacity beyond a
negligible one or, in other words, one that so narrows a [plaintiff’s] possible range of work as to

15

deprive him of a meaningful employment opportunity.’” Id. (quoting Bapp, 802 F.2d at 606).
However, “the mere existence of a non-exertional impairment does not automatically preclude
reliance on the guidelines.” Zabala v. Astrue, 595 F.3d 402, 410–411 (2d Cir.2010) (citing
Bapp, 802 F.2d at 603). Where, as here, an ALJ determines that a Plaintiff’s mental condition
does not limit his ability to perform unskilled work, reliance on the Grids without benefit of a
vocational expert is permissible. See id., at 411. Accordingly, Plaintiff’s argument that remand
is required on this basis is without merit.
Nonetheless, because the ALJ’s decision that there are jobs that exist in the national
economy that Plaintiff can perform relies on his erroneous RFC determination, remand is
necessary so that the ALJ may, among other things, revisit his RFC analysis in accordance with
this Decision and Order.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 13) is
GRANTED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 14) is
DENIED; and it is further
ORDERED that this matter is REMANDED to Defendant, pursuant to 42 U.S.C. §
405(g), for further proceedings consistent with this Decision and Order.
Dated: August 13, 2013
Syracuse, New York

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