Cubero v. Commissioner of Social Security

Filing 14

DECISION AND ORDER granting # 10 Plaintiff's motion for judgment on the pleadings; and denying # 12 Defendant's motion for judgment on the pleadings. This matter is remanded to Defendant, pursuant to 42 USC 405(g) for further proceedings consistent with this Decision and Order. Signed by Chief Judge Glenn T. Suddaby on 12/7/16. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
JASMIN J. CUBERO,
Plaintiff,
v.

5:15-CV-1124
(GTS)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________
APPEARANCES:

OF COUNSEL:

LAW OFFICES OF STEVEN R. DOLSON
Counsel for Plaintiff
126 North Salina Street, Suite 3B
Syracuse, NY 13202

STEVEN R. DOLSON, 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

FERGUS J. KAISER, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Jasmin J. Cubero,
(“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. 10, 12.) 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 September 29, 1974. Plaintiff completed a masters’s degree, and
has past work as an administrative assistant, a case manager, a leasing specialist, a marketing
consultant, a program assistant, a translator, a resource network fiscal coordinator, and a tenant
relations assistant. Generally, Plaintiff’s alleged disability consists of fibromyalgia,
osteoarthritis of the bilateral hips, neck injury, low back pain, arthritis of the shoulders and feet,
spinal stenosis, sclerosis, tendonitis of the hamstrings, quadriceps pain, and depression.
B.

Procedural History

On January 17, 2012, Plaintiff applied for a Period of Disability and Disability Insurance
Benefits, alleging disability beginning October 1, 2011. (T. 16.)1 On August 22, 2012,
Plaintiff’s application was initially denied, after which she timely requested a hearing before an
Administrative Law Judge (“ALJ”). (Id.) On December 2, 2013, and March 31, 2014, Plaintiff
appeared in hearings before the ALJ, Elizabeth Koennecke. (T. 29-57, 58-67.) On May 5, 2014,
the ALJ issued a written decision finding Plaintiff not disabled under the Social Security Act.
(T. 8-26.) On July 29, 2015, the Appeals Council denied Plaintiff’s request for review. (T. 1-6.)
Thereafter, Plaintiff timely sought judicial review in this Court.
C.

The ALJ’s Decision

Generally, in her decision, the ALJ made the following five findings of fact and
conclusions of law. (T. 18-24.) First, the ALJ found that Plaintiff meets the insured status
requirements through December 31, 2016, and has not engaged in substantial gainful activity
1

Page citations refer to the page numbers used on CM/ECF rather than the page numbers in the
parties’ respective motion papers.

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since October 1, 20011, the alleged onset date. (T. 18.) Second, the ALJ found that Plaintiff’s
bilateral hip impingement and lumbar facet arthropathy were severe impairments, but that
Plaintiff’s alleged right elbow pain, fibromyalgia, and depression were not severe impairments.
(T. 19-20.) Third, the ALJ found that Plaintiff’s severe impairments, alone or in combination, do
not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App.
1 (the “Listings”). (T. 20-21.) The ALJ considered Listing 1.04 (disorders of the spine). (Id.)
Fourth, the ALJ found that Plaintiff has the residual functional capacity (“RFC”) “to perform
sedentary work as defined in 20 CFR 404.1567(a)2 except lifting/carrying is limited to 10 lbs.
occasionally and less than 10 lbs. frequently; she is able to sit for 6 hours but must periodically
stand at will (while remaining on task, with no climbing and/or crawling.” (T. 21-24.) Fifth, and
finally, the ALJ found that Plaintiff is able to perform her past relevant work as a program
manager. (T. 24.)
D.

The Parties’ Briefings on Their Cross-Motions

Generally, Plaintiff asserts three arguments in support of her motion for judgment on the
pleadings. First, Plaintiff argues that the ALJ erred in assessing the opinion of consultative
examiner Look Persaud, M.D., and failed to include functional limitations opined by Dr. Persaud
in the RFC determination. (Dkt. No. 10, at 5-7 [Pl.’s Mem. of Law].) Second, Plaintiff argues
that the ALJ’s credibility determination is unsupported by substantial evidence. (Id. at 7-9.)
Third, and finally, Plaintiff argues that the ALJ failed to weigh the opinions of treating
physicians Sharon Ziegler, M.D., and Robert Breiman, M.D., and failed to provide “good
reasons” for not crediting their opinions. (Id. at 9-11.) Liberally construed, Plaintiff also

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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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appears to argue that the ALJ failed to recontact the treating physicians to clarify any ambiguity
regarding their opinions. (Id.)
Generally, Defendant makes three arguments in support of her motion for judgment on
the pleadings. First, Defendant argues that the ALJ’s RFC determination was supported by
substantial evidence. (Dkt. No. 12, at 8-9 [Def.’s Mem. of Law].) Second, Defendant argues
that the ALJ properly assessed Plaintiff’s credibility. (Id. at 9-11.) Third, Defendant argues that
the ALJ properly evaluated the medical opinion evidence. (Id. at 11-13.)
II.

RELEVANT LEGAL STANDARD
A.

Standard of Review

A court reviewing a denial of disability benefits may not determine de novo whether
an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health & Human Servs., 906
F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s determination will be reversed only if
the correct legal standards were not applied, or it was not supported by substantial evidence. See
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for
doubt whether the ALJ applied correct legal principles, application of the substantial evidence
standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made according to the correct legal
principles.”); accord, Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615
F.2d 23, 27 (2d Cir. 1979).
“Substantial evidence” is evidence that amounts to “more than a mere scintilla,” and has
been defined as “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971).

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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
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
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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 Assessing the Medical Opinions in Determining
the 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. 10, at 5-8, 9-11 [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
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.
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Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96-8p, 1996 WL 374184, at *2).
“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
to determine the proper weight to afford the opinion: (1) the source’s examination relationship
and treatment relationship with the plaintiff, including the length, nature, and extent of the
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treatment relationship, if applicable, (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 medical opinions of Plaintiff’s physical limitations from (1)
treating physician Dr. Breiman, (2) treating physician Dr. Ziegler, and (3) consultative examiner
Dr. Persaud. (T. 736, 738-39, 787-91, 932.)
i.

Treating Physician Dr. Breiman

On January 21, 2011, Dr. Breiman opined that Plaintiff could perform “light desk work
duty” with no inspections, no repetitive lifting more than ten pounds, and no repetitive bending.
(T. 962.) Dr. Breiman further opined that Plaintiff required a five-minute break from sitting per
hour, and indicated that the opined limitations should continue “until further notice.” (Id.)
ii.

Treating Physician Dr. Ziegler

On December 9, 2011, Dr. Ziegler opined that Plaintiff was “cleared for part time work
20 hours weekly.” (T. 738.) Dr. Ziegler further indicated that she filled out a “disability form.”
(T. 739.) However, the referenced disability form is not included with the medical record or
elsewhere in the administrative record. (Id.) On February 2, 2012, Dr. Ziegler again opined that
Plaintiff was “cleared for part time work 20 hours weekly.” (T. 736.)
iii.

Consultative Physical Examiner Dr. Persaud

On August 9, 2012, Dr. Persaud examined Plaintiff and provided an opinion of her workrelated physical abilities and limitations. (T. 787-91.) Dr. Persaud opined that Plaintiff had no
restriction for sitting; mild restriction for prolonged standing; moderate restriction for walking
on even surfaces; moderate to marked restriction for walking on uneven terrain, up inclines,
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ramps, and stairs; moderate restriction for squatting, kneeling, crawling, bending, twisting, and
turning; moderate to marked restriction for lifting, carrying, pushing, and pulling; and mild
restriction for reaching overhead and in all other planes as these maneuvers trigger shoulder
pain. (T. 791.)
In determining Plaintiff’s physical RFC, the ALJ afforded “some evidentiary weight” to
Dr. Persaud’s opinion. (T. 22-24.) While the ALJ noted that Dr. Ziegler cleared Plaintiff for 20
hours of work per week in February 2012 (T. 23.), the ALJ did not explicitly weigh the opinions
of treating physicians Dr. Ziegler and Dr. Breiman. (T. 19-24). “SSA regulations provide a very
specific process for evaluating a treating physician’s opinion and instruct ALJs to give such
opinions ‘controlling weight’ in all but a limited range of circumstances.” Greek v. Colvin, 802
F.3d 370, 376 (2d Cir. 2015). If a treating physician’s opinion is not given controlling weight,
the ALJ must consider the regulatory factors set forth above to determine how much weight to
give it, and should articulate “good reasons” for the weight given. 20 C.F.R. § 404.1527(c)(2);
Halloran, 362 F.3d at 32.
Accordingly, under the treating physician rule, the ALJ was required either to afford Dr.
Breiman and Dr. Ziegler’s opinions controlling weight or to provide good reasons for
discounting the opinions. Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010) (“The ALJ was
required either to give . . . [the treating physician’s] opinions controlling weight or to provide
good reasons for discounting them.) When an ALJ fails to satisfy the treating physician rule,
“such an error ordinarily requires remand to the ALJ for consideration of the improperly
excluded evidence, at least where the unconsidered evidence is significantly more favorable to
the claimant than the evidence considered.” Id.

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Moreover, an ALJ has an affirmative duty to develop a claimant’s complete medical
history. 20 C.F.R. § 404.1512(d); Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir.
2009). By statute, an ALJ is required to develop a claimant’s complete medical history for at
least 12 months before an application for benefits was filed, and for a longer period when there is
reason to believe that additional information is necessary to reach a decision. DeChirico v.
Callahan, 134 F.3d 1177, 1184 (2d Cir. 1998). This duty exists even when a claimant is
represented by counsel, due to the non-adversarial nature of a benefits proceeding. DeChirico,
134 F.3d at 1184; Lamay, 562 F.3d at 509.
An ALJ has an independent duty to make reasonable efforts to obtain a report prepared
by a claimant’s treating physician, including an assessment of the claimant’s functional capacity,
in order to afford the claimant a full and fair hearing. Smith v. Astrue, 896 F. Supp. 2d 163, 176
(N.D.N.Y. 2012) (citing 20 C.F.R. § 404.1512[e]); Beckwith v. Comm’r, 13-CV-1555, 2015 WL
860763, at *6 (N.D.N.Y. Feb. 27, 2015). Additional evidence or clarification is sought when
there is a conflict or ambiguity that must be resolved, when the medical reports lack necessary
information, or when the reports are not based on medically acceptable clinical and laboratory
diagnostic techniques. 20 C.F.R. § 404.1520b(c)(1)-(4); Rosa v. Callahan, 168 F.3d 72, 80 (2d
Cir. 1999); Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998). However, an ALJ is not required
to seek additional information absent “obvious gaps” in the administrative record that preclude
an informed decision. Rosa, 168 F.3d at 79 n.5.
Here, a review of the administrative record indicates that there is a gap in the evidence
from Dr. Ziegler. As noted above, Dr. Ziegler indicated that she filled out a disability form, yet
the referenced form is not included with the medical record or elsewhere in the administrative
record. (T. 739.) Moreover, there is ambiguity regarding the specific physical requirements

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involved in the work activity “inspections” referenced in Dr. Breiman’s opinion. (T. 962.)
Therefore, it is unclear which specific functional limitations (ie., reaching, squatting, kneeling,
stooping, etc.) may be precluded by Dr. Breiman’s opinion that Plaintiff could perform “no
inspections.” (Id.)
Finally, the Court turns to Plaintiff’s argument that the ALJ’s RFC determination failed
to include all of the limitations opined by Dr. Persaud, including reaching, pushing, pulling,
squatting, kneeling, bending, twisting, and turning. (Dkt. No. 10, at 5-7 [Pl.’s Mem. of Law].)
The Court recognizes that, in formulating a plaintiff’s RFC, an ALJ does not have to adhere to
the entirety of one medical source’s opinion. See Matta v. Astrue, 508 F. App'x 53, 56 (2d Cir.
2013). However, in rejecting limitations included in Dr. Persaud’s opinion of Plaintiff’s
functioning, the ALJ failed to cite an alternative medical opinion of Plaintiff’s physical abilities
and limitations. (T. 21-24.)
An ALJ is not permitted to substitute his or her own expertise or view of the medical
proof for any competent medical opinion. Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015);
accord Rosa, 168 F.3d at 79 (stating that “‘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.”)
Therefore, the Court need not address whether Dr. Persaud’s opinion bound the ALJ under the
regulations due to the ALJ’s aforementioned omission. See Balsamo, 142 F.3d at 81 (finding
that the Court need not address whether the physicians’ opinions bound the ALJ under the
regulations because the ALJ did not cite any medical opinion to dispute the physicians’
conclusions as to the plaintiff’s work-related limitations.)
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For these reasons, remand is necessary for the ALJ to reevaluate the physical opinion
evidence and the physical RFC determination based on a fully developed record. Upon remand,
the ALJ should first request clarification and/or additional information regarding Dr. Ziegler and
Dr. Breiman’s opinions, which may include requesting more specific function-by-function
opinions of Plaintiff’s work-related physical abilities and limitations. Next, the ALJ is required
to (1) reevaluate Dr. Ziegler, Dr. Breiman, and Dr. Persaud’s opinions in light of any new
information obtained; (2) reevaluate Plaintiff’s physical RFC; (3) perform a new credibility
analysis; and (4) reassess whether Plaintiff can perform her past relevant work or other existing
work based on a proper assessment of the physical 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. 10) is
GRANTED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 12) 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: December 7, 2016
Syracuse, New York
______________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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