Robinson v. Colvin

Filing 15

DECISION AND ORDER granting # 12 Plaintiff's motion for judgment on the pleadings; and denying # 13 Defendant's motion for judgment on the pleadings. 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 Chief Judge Glenn T. Suddaby on 8/31/16. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
NATHAN E. ROBINSON,
Plaintiff,
v.

5:15-CV-0548
(GTS)

CAROLYN W. COLVIN
Commissioner of Social Security,
Defendant.
____________________________________
APPEARANCES:

OF COUNSEL:

BINDER & BINDER
Counsel for Plaintiff
60 E. 42nd Street, Suite 520
New York, NY 10165

CHARLES E. BINDER, 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

DAVID B. MYERS, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Nathan E. Robinson,
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”)
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties’ cross-motions for judgment on
the pleadings. (Dkt. Nos. 12, 13.) 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.

I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff was born on February 11, 1983. Plaintiff has an associate degree, and has past
work as an electronics installer, a machine operator, a logger, a dishwasher, and a food delivery
person. Generally, Plaintiff’s alleged disability consists of epilepsy/seizures, soft tissue injury of
the arm, lumbar spine impairment, degenerative disc disease, hypertensive cardiovascular
disease/hypertension, back pain, and left shoulder impairment.
B.

Procedural History

On January 19, 2012, Plaintiff applied for Disability Insurance Benefits, alleging
disability beginning July 1, 2010. Plaintiff’s application was initially denied on March 12, 2012,
after which he timely requested a hearing before an Administrative Law Judge (“ALJ”). On
January 10, 2014, Plaintiff appeared in a video hearing before the ALJ, David J. Begley. (T. 3562.) On April 28, 2014, the ALJ issued a written decision finding Plaintiff not disabled under
the Social Security Act. (T. 17-34.) On March 3, 2015, the Appeals Council vacated and
modified the ALJ’s step five finding.1 (T. 1-7.) The ALJ’s decision, as modified by the Appeals
Council, denied Plaintiff’s claim at step five. (Id.)
C.

The ALJ’s Decision

Generally, in his decision, the ALJ made the following six findings of fact and
conclusions of law. (T. 22-30.) First, the ALJ found that Plaintiff met the insured status

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On March 3, 2015, the Appeals Council issued a decision vacating and modifying the ALJ’s step
five finding. (T. 1-7.) The Appeals Council noted that the ALJ incorrectly cited Medical-Vocational Rule 202.20 as
a framework for decision-making, which is a light work rule, and identified other light work that Plaintiff could
perform. (Id., at 6.) The Appeals Council noted that Medical-Vocational Rule 201.27, a sedentary rule, still yielded
a finding of “not disabled” when used as a framework for decision-making for the period through April 28, 2014, the
date of the ALJ’s decision, and identified other sedentary work that the Plaintiff could perform. (Id.)

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requirements through March 31, 2015, and has not engaged in substantial gainful activity since
July 1, 2010. (T. 22.) Second, the ALJ found that Plaintiff had the following severe
impairments: Bankhart lesion left shoulder status post surgery with recurrent dislocations, HillSachs and Bankhart lesion right shoulder, osteopenia, and neuropathic left hip pain status post
multiple surgeries. (T. 22-23.) The ALJ found that the following conditions were not severe
impairments under the regulations: seizure disorder, hypertension, adjustment disorder with
depressed mood and anxiety, and neurological impairment affecting the right hand. (Id.) Third,
the ALJ found that Plaintiff’s severe impairments, alone or in combination, did not meet or
medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1. (T. 23.)
The ALJ considered Listings 1.00 and 11.00. (Id.) Fourth, the ALJ found that Plaintiff has the
residual functional capacity (“RFC”) to perform sedentary work as defined in 20 CFR 404.15672
except: occasional pushing/pulling with the left upper extremity;
prohibited from climbing ladders, ropes, and scaffolds; occasional
climbing of ramps and stairs, balancing, stooping, kneeling,
c[r]ouching, and crawling; occasional reaching and overhead
reaching with the left upper extremity; avoid concentrated exposure
to extreme cold and excessive vibration; and avoid slippery and
uneven surfaces, hazardous machinery, unprotected heights, and open
flames.
(T. 23-28.) Fifth, the ALJ found that Plaintiff has no past relevant work. (T. 28.) Sixth, and
finally, the ALJ found that there are other jobs that Plaintiff could perform at step five of the
sequential analysis. (T. 29-30.) The ALJ’s decision, as modified by the Appeals Council,
denied Plaintiff’s claim at step five. (T. 1-7.)
D.

The Parties’ Briefings on Their Cross-Motions

Generally, Plaintiff asserts two arguments in support of his motion for judgement on the
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Sedentary work requires the abilities to sit for six hours, stand and walk for two hours, and lift or
carry up to ten pounds in an eight-hour workday. 20 C.F.R. § 404.1567(a); SSR 83-10, 1983 WL 31251 (1983).

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pleadings. First, Plaintiff argues that the ALJ failed to properly weigh the medical opinion
evidence and failed to properly determine Plaintiff’s RFC. (Dkt. No. 12, at 12-17 [Pl.’s Mem. of
Law].) More specifically, Plaintiff argues that the ALJ erred in assessing the opinion of treating
physician, William Bock, M.D., and erroneously based the RFC on his own lay interpretation of
the medical evidence rather than a medical opinion. (Id.) Second, Plaintiff argues that the ALJ
failed to properly evaluate Plaintiff’s credibility. (Id., at 17-21.)
Generally, Defendant asserts two arguments in support of her motion for judgment on the
pleadings. First, Defendant argues that the ALJ’s RFC determination is supported by substantial
evidence. (Dkt. No. 13, at 5-14 [Def.’s Mem. of Law].) Second, Defendant argues that the
ALJ’s credibility determination is supported by substantial evidence. (Id., at 14-18.)
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
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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. 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. The
Supreme Court has recognized the validity of this sequential evaluation process. 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
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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
For the ease of analysis, Plaintiff’s arguments will be reorganized and consolidated

below.
A.

Whether the ALJ Erred in Weighing the Medical Opinion Evidence in
Determining Plaintiff’s RFC

After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Plaintiff’s memorandum of law. (Dkt. No. 12, at 12-17 [Pl.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
RFC is defined as
what an individual can still do despite his or her limitations . . . .
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
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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.
Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999); 20 C.F.R. § 404.1545(a). “In assessing a
claimant’s RFC, the ALJ must consider all of the relevant medical and other evidence in the case
record to assess the claimant’s ability to meet the physical, mental, sensory and other
requirements of work.” Domm v. Colvin, 12-CV-6640, 2013 WL 4647643, at *8 (W.D.N.Y.
Aug. 29, 2013) (citing 20 C.F.R. § 404.1545[a][3]-[4]). The ALJ must consider medical
opinions and facts, physical and mental abilities, non-severe impairments, and the plaintiff’s
subjective evidence of symptoms. 20 C.F.R. § 404.1545(b)-(e). The ALJ must consider RFC
assessments made by acceptable medical sources and may consider opinions from other sources
to show how a claimant’s impairments may affect his or her ability to work. 20 C.F.R. §
404.1513(c)(d). Finally, an ALJ’s RFC determination “must be set forth with sufficient
specificity to enable [the Court] to decide whether the determination is supported by substantial
evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
Under the “treating physician’s rule,” controlling weight is afforded 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(c)(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). Regulations require an ALJ to set forth his or
her reasons for the weight afforded to a treating physician’s opinion. Shaw v. Chater, 221 F.3d
126, 134 (2d Cir. 2000).
When controlling weight is not afforded to the opinion of a treating physician, or when
assessing a medical opinion from another source, the ALJ should consider the following factors
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to determine the proper weight to afford the opinion: (1) the source’s treatment relationship with
the plaintiff, including the length, nature, and extent of the treatment relationship, (2) the
opinion’s supportability, (3) the opinion’s consistency with the record as a whole, (4) the
source’s specialization, if any, and (5) other factors, such as the source’s knowledge of disability
programs and familiarity with the case record. 20 C.F.R. § 404.1527(c); Halloran, 362 F.3d at
32 (listing regulatory factors).
Here, the record contains opinions of Plaintiff’s physical work-related limitations from
the following three acceptable medical sources: (1) treating primary care physician, Carmen
Federico, D.O., (2) consultative examiner, Kalyani Ganesh, M.D., and (3) treating physician,
William Bock, M.D. (T. 384-397, 500-503, 685-82, 694-701.)
i.

Treating Physician, Dr. Federico

Dr. Federico diagnosed Plaintiff with chronic left shoulder dislocation, seizure disorder,
and back pain. (T. 384, 386, 390.) On January 12, 2011, Dr. Federico opined that Plaintiff had a
temporary total disability. (T. 397.) On June 30, 2011, Dr. Federico opined that Plaintiff was
disabled from any physical work due to his dislocated left shoulder. (T. 395.)
On July 12, 2011, September 16, 2011, and December 2, 2011, Dr. Federico opined that
Plaintiff had “very limited” functioning in lifting, carrying, pushing, pulling, and bending; and
had “moderately limited” functioning in using his hands and functioning at a consistent pace in a
work setting. (T. 385, 387, 391.) Dr. Federico’s July 2011 opinion also indicated that Plaintiff
could not lift more than ten pounds, and his December 2011 opinion also indicated that Plaintiff
had “moderately limited” functioning in standing. (T. 385, 391.)
The ALJ afforded little weight to Dr. Federico’s opinions of January and June of 2011
(that Plaintiff was temporarily disabled and disabled, respectively), reasoning that whether or not
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a claimant is disabled is an administrative finding that is reserved for the Commissioner. (T. 27.)
The ALJ also afforded little weight to Dr. Federico’s opinions of July, September, and December
of 2011, reasoning that Dr. Federico did not define the terms “moderately limited” and “very
limited”3 or provide an explanation for his conclusions, and the opinions were inconsistent with
the contemporaneous treatment records. (Id.)
ii.

Consultative Examiner, Dr. Ganesh

On February 14, 2012, Dr. Ganesh opined that Plaintiff had “no gross limitation” noted in
sitting, standing, or walking, and had a “moderate degree of limitation” in lifting, carrying,
pushing, pulling, and overhead activity. (T. 503.) Dr. Ganesh diagnosed Plaintiff with lower
back pain, status post left hip surgery, history of seizures, status post left shoulder surgery, and
high blood pressure. (Id.)
The ALJ afforded some weight to Dr. Ganesh’s opinion that Plaintiff had no limitation
in sitting, standing, and walking because it is consistent with the longitudinal history. (T. 27.)
However, the ALJ afforded little weight to Dr. Ganesh’s opinion overall, reasoning that later
evidence shows that Plaintiff’s impairments in combination are more limiting than originally
thought.4 (Id.)
iii.

Treating Physician, Dr. Bock

On November 7, 2013, and January 2, 2014, Dr. Bock provided assessments of Plaintiff’s
work-related physical abilities and limitations. (T. 685-692, 694-701.) Dr. Bock opined, in
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Plaintiff does not dispute the ALJ’s finding that Dr. Federico’s opinion that Plaintiff was
“moderately limited” or “very limited” in certain activities was entitled to little weight because the terms fail to
define specific limitations in the areas identified. (Dkt. No. 12, at 13, n.26 [Pl.’s Mem. of Law].)
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Plaintiff does not dispute the ALJ’s finding that Dr. Ganesh’s overall opinion was entitled to little
weight because later evidence shows that Plaintiff’s impairments in combination are more limiting than described by
one-time examiner, Dr. Ganesh. (Dkt. No. 12, at 13, n.26 [Pl.’s Mem. of Law].)

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pertinent part, that Plaintiff could sit for zero to one hour, stand/walk for one hour, and never lift
or carry zero to five pounds in an eight-hour workday. (T. 687-88, 696-97.) Dr. Bock opined
that Plaintiff had additional physical limitations, including “significant limitations” in
performing repetitive reaching, handling, fingering, and lifting; and could perform no pushing,
pulling, kneeling, bending, high stress work, or work around heights. (T. 685-691, 694-700.)
The ALJ afforded little weight to Dr. Bock’s opinion, reasoning that it (1) was not
supported by any medical signs or laboratory findings in Dr. Bock’s treatment records, (2) was
presented in a “check the box” form generated by Plaintiff’s attorney, which makes it less
persuasive, and (3) contained limitations that were inconsistent with the record and Plaintiff’s
testimony, including Plaintiff’s reported activities and objective findings demonstrating that he is
not precluded from pushing, pulling, kneeling, and bending. (T. 28.) However, the ALJ failed to
cite, and the record does not contain, a medical opinion to dispute Dr. Bock’s opinion that
Plaintiff could not perform the physical requirements of sedentary work. (Id.) Moreover, the
ALJ appears to have relied on his own lay view of the objective findings to discredit Dr. Bock’s
opinion.
“The ALJ is not permitted to substitute his own expertise or view of the medical proof for
the treating physician’s opinion or for any competent medical opinion.” Greek v. Colvin, 802
F.3d 370, 375 (2d Cir. 2015), accord, Rosa, 168 F.3d at 79 (“In analyzing a treating physician’s
report, ‘the ALJ cannot arbitrarily substitute his own judgment for competent medical
opinion.’”) (quoting McBrayer, 712 F.2d at 799); Balsamo, 142 F.3d at 81 (“[W]hile an [ALJ] is
free to resolve issues of credibility as to lay testimony or to choose between properly submitted
medical opinions, he is not free to set his own expertise against that of a physician who
[submitted a medical opinion to] or testified before him . . . . In the absence of supporting expert

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medical opinion, the ALJ should not have engaged in his own evaluations of the medical
findings.”).
Therefore, the Court need not address whether Dr. Bock’s opinion bound the ALJ under
the regulations due to the ALJ’s aforementioned omission. See Balsamo, 142 F.3d at 81 (“We
need not address whether the treating physicians’ opinions bound the ALJ under §
404.1527(d)(2) because in this case the Commissioner failed to offer and the ALJ did not cite
any medical opinion to dispute the treating physicians’ conclusion that . . . [the plaintiff] could
not perform sedentary work. In the absence of a medical opinion to support the ALJ’s finding as
to . . . [a plaintiff’s] ability to perform sedentary work, it is well settled that ‘the ALJ cannot
arbitrarily substitute his own judgment for a competent medical opinion.’”).
Moreover, even if the ALJ’s assessment of Dr. Bock’s opinion was proper, the ALJ’s
RFC determination was not supported by substantial evidence based on the current record. See
id., at 81-82 (finding that the ALJ’s determination that the plaintiff could perform sedentary
work was not supported by substantial evidence in the absence of a medical opinion indicating
that the plaintiff could perform sedentary work); House v. Astrue, 11-CV-0915, 2013 WL
422058, at *4 (N.D.N.Y. Feb. 1, 2013) (holding that remand was necessary where there was no
medical source opinion supporting the ALJ’s RFC determination).
The ALJ noted that Dr. Federico’s opinion did not define the terms “moderately limited”
and “very limited,” yet the ALJ did not recontact Dr. Federico to request additional information
or clarification of Plaintiff’s specific functional abilities and limitations. See 20 C.F.R. §§
404.1520b(c)(1) (providing that an ALJ may recontact a medical source to obtain additional
information or clarification). Similarly, Dr. Ganesh did not define the term “moderate degree of
limitation” in her opinion of Plaintiff’s physical limitations, and the ALJ did not recontact Dr.
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Ganesh to obtain additional information or clarification regarding the opinion. (T. 503.)
The Second Circuit has found that a consultative examiner’s use of the terms “moderate”
and “mild,” without additional information, was so vague as to render the opinion useless in
evaluating whether the plaintiff can perform the exertional requirements of sedentary work.
Curry v. Apfel, 209 F.3d 117, 123 (2d Cir. 2000) (superceded by statute on other grounds). The
Court recognizes that use of terms like “mild” and “moderate” has been found to pass substantial
evidence muster when medical evidence shows relatively little physical impairment. Anderson
v. Colvin, 12-CV-1008, 2010 WL 5939665, at *9 (N.D.N.Y. Nov. 5, 2013) (citing Waldau v.
Astrue, 11-CV-0925, 2010 WL 6681262, at *4 [N.D.N.Y. Dec. 21, 2003]). However, here the
ALJ found that Plaintiff’s Bankhart lesion left shoulder status post surgery with recurrent
dislocations, Hill-Sachs and Bankhart lesion right shoulder, osteopenia, and neuropathic left hip
pain status post multiple surgeries are severe impairments. (T. 22-23.)
Accordingly, the ALJ determined that Plaintiff had the physical RFC to perform
sedentary work with additional limitations without a medical opinion indicating that Plaintiff
could perform all of the physical requirements of the RFC, including sitting for six hours,
standing and walking for two hours, and lifting or carrying up to ten pounds in an eight-hour
workday. 20 C.F.R. § 404.1567(a); SSR 83-10, 1983 WL 31251 (1983). Therefore, the ALJ’s
RFC determination was not supported by substantial evidence because there was no acceptable
medical source opinion indicating that Plaintiff could perform the physical requirements of the
RFC. See Balsamo, 142 F.3d at 81-82 (finding that the ALJ’s determination that the plaintiff
could perform sedentary work was not supported by substantial evidence in the absence of a
medical opinion indicating that the plaintiff could perform sedentary work); Larkin v. Colvin,
13-CV-0567, 2014 WL 4146262, at *9 (N.D.N.Y. Aug. 19, 2014) (holding that remand was
required where the record lacked a broad assessment of Plaintiff’s physical functional limitations
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from an acceptable medical source); House, 2013 WL 422058 at *4 (holding that remand was
required where there was no medical source opinion supporting the ALJ’s RFC determination);
Santiago v. Colvin, 10-CV-1510, 2016 WL 1049011, at *7 (N.D.N.Y. March 14, 2016).
For these reasons, remand is necessary for the ALJ to reassess the opinion of treating
physician Dr. Bock and reevaluate the RFC. The ALJ may also recontact Dr. Federico and/or
Dr. Ganesh to resolve any ambiguity or conflict in their opinions or request more specific
assessments of Plaintiff’s physical work-related abilities and limitations. Remand is also
required for the ALJ to perform a new credibility analysis and make a new step five
determination based on a proper evaluation of the opinion evidence and in light of any new
medical evidence obtained.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 12) is
GRANTED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 13) 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 31, 2016
Syracuse, New York
______________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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