Kociuba v. Commissioner of Social Security

Filing 15

DECISION AND ORDER granting # 10 Plaintiff's motion for judgment on the pleadings; and granting # 12 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 5/19/17. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
MICHAEL KOCIUBA,
Plaintiff,
v.

5:16-CV-0064
(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

JEREMY A. LINDEN, ESQ.
Special Assistant U.S. Attorney

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Michael Kociuba
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”)
pursuant to 42 U.S.C. § 405(g), are Plaintiff’s motion for judgment on the pleadings and
Defendant’s motion for judgment on the pleadings. (Dkt. No. 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 in 1958, making him 53 years old at the alleged onset date and 55
years old at the date of the ALJ’s decision. Plaintiff reported graduating high school and
obtaining an Associate’s Degree in Mechanical Technology in the 1990s or 2000s, and has past
work as a heating and air conditioning installer servicer and material handler. Plaintiff was
insured for disability benefits under Title II until December 31, 2016. Generally, Plaintiff
alleges disability consisting of anxiety, depression, arthritis, diabetes, high cholesterol, high
blood pressure, acid reflux, sleep apnea, and hearing difficulties.
B.

Procedural History

Plaintiff applied for Title II Disability Insurance Benefits on December 19, 2012, alleging
disability beginning April 23, 2012. Plaintiff’s application was initially denied on March 29,
2013, after which he timely requested a hearing before an Administrative Law Judge (“ALJ”).
On June 19, 2014, Plaintiff appeared at a video hearing before ALJ Joseph L. Brinkley. On
October 3, 2014, the ALJ issued a written decision finding Plaintiff not disabled under the Social
Security Act. (T. 12-23.) On December 28, 2015, the Appeals Council denied Plaintiff’s request
for review, making the ALJ’s decision the final decision of the Commissioner. (T. 1-3.)
C.

The ALJ’s Decision

Generally, in his decision, the ALJ made the following six findings of fact and
conclusions of law. (T. 12-23.) First, the ALJ found that Plaintiff has not engaged in substantial
gainful activity since April 23, 2012. (T. 14.) Second, the ALJ found that Plaintiff’s sleep
apnea, arthritis status-post laminectomy, bilateral hearing loss, obesity, type II diabetes mellitus,
hypertension, tobacco abuse, anxiety, depression, and history of panic disorder are severe
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impairments. (Id.) Third, the ALJ found that Plaintiff’s severe impairments do not meet or
medically equal one of the listed impairments in 20 C.F.R. § 404, Subpart P, App. 1 (the
“Listings”). (T. 15-16.) More specifically, the ALJ considered Listings 1.02 (major dysfunction
of a joint), 2.00 (special senses and speech), 3.00 (respiratory disorders), 4.00 (cardiovascular
system), 9.00 (endocrine disorders), 12.04 (mood disorders) and 12.06 (anxiety disorders). (Id.)
Fourth, the ALJ found that Plaintiff has the residual functional capacity (“RFC”) to perform
medium work, as defined in 20 C.F.R. 404.1567(c) except, the
claimant: can occasionally lift/reach overhead with the bilateral
upper extremities. He can occasionally twist, climb ramps and
stairs, balance, kneel, and stoop, but can never crawl, crouch, or
climb ladders, ropes, and scaffolds. He must avoid louder than an
office noise-type environment and avoid even moderate exposure to
environmental irritants and humidity. In addition, he must avoid
concentrated exposure to wetness, vibrations, extreme hot or cold
temperatures, as well as workplace hazards-including unprotected
heights, dangerous machinery, and uneven terrain. Further, he is
limited to simple, routine, and repetitive tasks, and to engaging in
low-stress work that does not require high volume production
quotas.
(T. 16.) Fifth, the ALJ found that Plaintiff is unable to perform any past relevant work. (T. 22.)
Sixth, and finally, the ALJ determined that there are jobs that exist in significant numbers in the
national economy that Plaintiff can perform, including laundry worker, dietary aide, and body
assembler. (T. 22-23.)
D.

The Parties’ Briefings on Their Cross-Motions

Generally, Plaintiff asserts three arguments in support of his motion for judgment on the
pleadings. First, Plaintiff argues that the ALJ erred in failing to properly apply the treating
physician rule. (Dkt. No. 10, at 4-8 [Pl. Mem. of Law].) More specifically, Plaintiff argues that
the ALJ erred in failing to afford controlling weight to the opinions of Dr. Robinson or, in the
alternative, to “explicitly consider the factors outlined in 20 C.F.R. § 404.1527(c).” (Id.)
3

Plaintiff argues that the ALJ’s reasons for rejecting Dr. Robinson’s opinion do not constitute
good reasons as required by the regulations and that the ALJ erred in failing to consider factors
such as whether these opinions were consistent with the evidence in the record as a whole. (Dkt.
No. 10, at 7 [Pl. Mem. of Law].) Second, Plaintiff argues that the ALJ committed reversible
error in accounting for the opinion of a Single Decision Maker 1 when formulating the RFC.
(Dkt. No. 10, at 8-10 [Pl. Mem. of Law].)
Third, and finally, Plaintiff argues that the ALJ erred in failing to resolve conflicts
between the vocational expert’s testimony and the Dictionary of Occupational Titles. (Dkt. No.
10, at 10- [Pl. Mem. of Law].) More specifically, Plaintiff argues that (1) the ALJ failed to
reconcile the hypothetical question containing a limitation to occasional overhead reaching with
the vocational expert’s testimony that Plaintiff would be able to perform three jobs that the
Dictionary of Occupational Titles indicated as requiring the ability to frequently reach, (2) the
ALJ’s limitation for the need to avoid even moderate exposure to humidity and concentrated
exposure to wetness and extreme heat are inconsistent with the characteristics listed in the
Selected Characteristics of Occupations for the jobs identified by the vocational expert, and (3)
there is a conflict between the ALJ’s finding that Plaintiff could never crouch and the ALJ’s
assertion that Plaintiff could perform work as a Motor Vehicle Assembler, which Plaintiff
indicates requires the ability to occasionally crouch per the Selected Characteristics of
Occupations. (Dkt. No. 10, at 10-12 [Pl. Mem. of Law].)

1

“‘Single decision makers . . . are non-physician disability examiners who may make the
initial disability determination in most cases without requiring the signature of a medical
consultant.’” Robels v. Comm’r of Soc. Sec., No. 5:15-CV-1359, 2016 WL 7048709, at *5
(N.D.N.Y. Dec. 5, 2016) (quoting Martin v. Astrue, 10-CV-1113, 2012 WL 4107818, at *15
(N.D.N.Y. Sept. 19, 2012)).
4

Generally, Defendant asserts two arguments in support of her motion for judgment on the
pleadings. First, in response to Plaintiff’s first and second arguments, Defendant argues that the
ALJ properly evaluated the evidence when determining Plaintiff’s RFC. (Dkt. No. 12, at 5-14
[Pl. Mem. of Law].) More specifically, Defendant argues that the ALJ properly evaluated the
opinions from Dr. Robinson, noting that Dr. Robinson’s opinions were in a check-box format
that is “not particularly informative,” that Dr. Robinson had only examined Plaintiff three times
during the relevant period and his treatment notes did not show significant symptoms, that the
two assessments Dr. Robinson completed were inconsistent with each other, that the other
medical evidence the ALJ considered did not support Dr. Robinson’s opinions, and that
Plaintiff’s own statements were contrary to the extent of limitations Dr. Robinson opined. (Dkt.
No. 12, at 6-11 [Def. Mem. of Law].) Defendant argues that “the ALJ reasonably found that Dr.
Robinson’s conclusions were not supported by his treatment evidence and were not consistent
with each other or with other medical and subjective evidence of record.” (Dkt. No. 12, at 12
[Def. Mem. of Law].) Relatedly, Defendant also argues that the ALJ’s “accounting” for the
statement of the Single Decision Maker was not error because the ALJ considered this opinion
relating to the Step Two severity finding rather than when assessing the RFC, and because the
ALJ’s RFC assessment was more restrictive than the assessment made by the Single Decision
Maker. (Dkt. No. 12, at 13-14 [Def. Mem. of Law].)
Second, in response to Plaintiff’s third argument, Defendant argues that the ALJ fulfilled
any legal obligation to resolve conflicts at Step Five because he questioned the vocational expert
as to whether there were any conflicts between that source’s testimony and the Dictionary of
Occupational Titles (and the vocational expert indicated there were not), he allowed Plaintiff the
opportunity to question the vocational expert, and he gave the vocational expert a chance to
5

respond to Plaintiff’s objections regarding the ability to crouch in the performance of medium
work. (Dkt. No. 12, at 14-15 (Def. Mem. of Law].) Defendant argues that there is no “actual
conflict” between a limitation for no overhead reaching and the specification in the Selected
Characteristics of Occupations that the identified jobs required the ability to frequently reach,
noting that there was also little evidence supporting any reaching restriction in the evidence.
(Dkt. No. 12, at 16-17 (Def. Mem. of Law].) Defendant then argues that the terms used in the
RFC for avoiding even moderate exposure to humidity and avoiding concentrated exposure to
temperature extremes and wetness do not conflict with the Selected Characteristics of
Occupations’ specification that some of the identified jobs require occasional exposure to
humidity and extreme heat. (Dkt. No. 12, at 17 [Def. Mem. of Law].) Lastly, Defendant argues
that, even if the ALJ’s restriction for never crouching is inconsistent with the requirement for
occasional crouching for the dietary aide and body assembler occupations, the third identified
occupation of laundry worker did not require crouching and existed in significant numbers to
constitute substantial evidence to support the Step Five determination on its own. (Dkt. No. 12,
at 18 [Def. Mem. of Law].)
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
6

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). 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, 416.920.
7

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
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
A. Whether the ALJ Complied with the Requirements of the Treating Physician Rule
When Affording Limited Weight to the Opinions from Dr. Robinson
After carefully considering the matter, the Court answers this question in the negative for

the reasons stated in Plaintiff’s motion for judgment on the pleadings. (Dkt. No. 10, at 4-8 [Pl.
Mem. of Law].) To those reasons, the Court adds the following analysis.

8

The Second Circuit has long recognized the ‘treating physician rule’ set out in 20 C.F.R.
§ 404.1527(c). “‘[T]he opinion of a claimant’s treating physician as to the nature and severity of
the impairment is given ‘controlling weight’ so long as it is ‘well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in the case record.’” Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015)
(quoting Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)). However, there are situations
where the treating physician’s opinion is not entitled to controlling weight, in which case the
ALJ must “explicitly consider, inter alia: (1) the frequency, length, nature, and extent of
treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the
opinion with the remaining medical evidence; and (4) whether the physician is a specialist.’”
Greek, 802 F.3d at 375 (quoting Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013)). After
considering these factors, “the ALJ must ‘comprehensively set forth [his] reasons for the weight
assigned to a treating physician’s opinion.’” Greek, 802 F.3d at 375 (quoting Burgess, 537 F.3d
at 129). “The failure to provide ‘good reasons for not crediting the opinion of a claimant’s
treating physician is a ground for remand.’” Greek, 802 F.3d at 375 (quoting Burgess, 537 F.3d
at 129-30).
As an important initial matter, Defendant’s brief contains multiple instances of post hoc
arguments attempting to justify the ALJ’s findings by providing supporting rationale that the
ALJ himself never asserted in the decision. “This Court simply cannot, and will not, re-weigh
the medical evidence and/or ‘create post-hoc rationalizations to explain the Commissioner’s
treatment of evidence when that treatment is not apparent from the Commissioner’s decision
itself.’” Bartrum v. Astrue, 32 F.Supp.3d 320, 331 (N.D.N.Y. 2012) (quoting Grogan v.
Barnhart, 399 F.3d 1257, 1263 (10th Cir. 2005); citing Snell v. Apfel, 177 F.3d 128, 134 (2d Cir.
9

1999); Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)); Petersen v. Astrue, 2 F.Supp.3d 223,
234 (N.D.N.Y. 2012) (stating the same proposition). Defendant’s arguments that Dr. Robinson’s
opinions merited rejection due to the check-box form of those opinions and the fact that Dr.
Robinson had seen Plaintiff only three times during the relevant period in particular are examples
of rationale that Defendant now asserts as reasons for upholding the ALJ’s findings that the ALJ
did not actually put forth in his decision. (Dkt. No. 12, at 6-12 [Def. Mem. of Law]; T. 18-19.)
The Court declines to accept these post hoc justifications and instead will address those reasons
that the ALJ actually provided for rejecting Dr. Robinson’s opinions.
In terms of the ALJ’s rejection of Dr. Robinson’s functional opinions related to Plaintiff’s
physical functioning, the ALJ asserted three explicit reasons: (1) that some of Dr. Robinson’s
opined limitations were inconsistent with Plaintiff’s reported functioning; (2) that portions of Dr.
Robinson’s opinion from April 2013 were inconsistent with the limitations he later opined about
in the May 2014 opinion; and (3) that the limitations Dr. Robinson opined were inconsistent with
Plaintiff’s reported daily activities, which the ALJ asserted included making plans to fly to
Ireland for his daughter’s wedding and performing home improvement on his daughter’s house.
(T. 18-19.)
First, the ALJ asserted that Dr. Robinson’s opinions were inconsistent with a number of
reports Plaintiff made as to his ability to perform work-related functions, such as that he could
walk only 20 feet (which the ALJ found inconsistent with Dr. Robinson’s April 2013 notation
that Plaintiff could stand or walk occasionally) and that he could lift only five pounds (which the
ALJ found inconsistent with Dr. Robinson’s May 2014 notation that Plaintiff could lift and carry
ten pounds or less occasionally). (T.18-19.) However, there is a major internal inconsistency in
the ALJ’s rationale: he found that Plaintiff’s reports and allegations about the functional effects
10

of his impairments were not entirely credible. (T. 21.) The ALJ cannot logically reject
Plaintiff’s reports about the functional effects of his impairments and yet use those same rejected
allegations as evidence to support rejecting Dr. Robinson’s opinions. See McFall v. Colvin, No.
15-CV-6176, 2016 WL 1657877, at *10 (W.D.N.Y. Apr. 27, 2016) (finding the ALJ should have
explained an apparent inconsistency between purporting to afford appreciable weight to an
opinion while at the same time failing to accept the significant limitations contained in that
opinion). Given the unreconciled internal inconsistencies in the ALJ’s logic, this first reason
does not qualify as a good reason supported by substantial evidence for rejecting Dr. Robinson’s
opinions.
Second, although there are inconsistencies between the opinions Dr. Robinson completed
in April 2013 and May 2014, this Court does not believe that those inconsistencies, taken alone,
can constitute a basis for rejecting both opinions. As an initial matter, these opinions were
rendered more than a year apart, which is a sufficient amount of time in which an individual’s
functioning could reasonably be found to have changed; this is not a case where a physician
provided multiple inconsistent opinions over the span of a few months without explanation. It is
clear from the record that the last time Dr. Robinson treated Plaintiff was in April 2013, when he
rendered the first opinion, a fact which the ALJ did not explicitly recognize. (T. 18, 541.)
However, even if there was little basis for the different restrictions opined in May 2014 due to
the fact that Dr. Robinson had not re-examined or treated Plaintiff in the interim, the ALJ should
have rejected that later opinion for such reasons rather than using the later opinion as a
justification for rejecting both opinions. After all, the April 2013 opinion was rendered during
the time Dr. Robinson had been treating Plaintiff and after an examination on the same date.
However, the ALJ did not appear to consider (as will be discussed in greater detail below
11

shortly) whether the limitations in the April 2013 opinion were consistent with that examination
or the others that preceded it, instead relying on the inconsistency between the two opinions
themselves to reject Dr. Robinson’s limitations for sitting, standing, walking, lifting, and
carrying in particular. (T. 18-19.) Although “‘[i]t is the role of the Commissioner, not the
reviewing court, to resolve evidentiary conflicts,’” it is not apparent that the ALJ actually
resolved the conflict between these two opinions, but it appears that he simply rejected both
without applying the required factors to each as individual pieces of different opinion evidence.
Dailey v. Comm’r of Soc. Sec., No. 5:14-CV-1518, 2016 WL 922261, at *7 (N.D.N.Y. Feb. 18,
2016), report and recommendation adopted in 2016 WL 917941 (quoting Cichocki v. Astrue, 534
F.App’x 71, 75 (2d Cir. 2013)); see also Hamedallah ex rel. E.B. v. Astrue, 876 F.Supp.2d 133,
148 (N.D.N.Y. 2012) (“[T]he Regulations require an ALJ to ‘evaluate every medical opinion.’”)
(quoting 20 C.F.R. § 416.927). This type of analysis turns a blind eye to the practical facts of the
case and is not consistent with the requirements of treating physician rule. The Court therefore
declines to find that the ALJ’s citation to the inconsistencies between Dr. Robinson’s two
opinions constituted a good reason for rejecting both opinions in the context of the facts of the
case and the ALJ’s apparent failure to meaningfully apply the factors of the treating physician
rule in addition to noting these inconsistencies.
Third, the ALJ’s use of reported activities such as Plaintiff’s apparent plans to travel to
Ireland for his daughter’s wedding and performance of home improvement activities is also
problematic. As an initial matter, the ALJ’s assertions that Plaintiff made “contradicting”
statements about whether he was going to take a seven-hour flight to Ireland do not account for
what the hearing testimony actually shows. Although Plaintiff did initially state, “[Y]es, I hope
to,” in response to the ALJ’s question, “[A]re you going to attend the wedding in Ireland?” he
12

quickly amended that statement, testifying he had actually been indicating he hoped to attend the
second ceremony they were having in the United States, but had not heard the ALJ say “in
Ireland” in the initial question. (T. 43-44.) Even after explaining as much, the ALJ still held
onto his assumption that Plaintiff was trying to mislead the Agency by changing his answer. (T.
19, 44-45.) However, given that the ALJ found Plaintiff had a severe impairment of bilateral
hearing loss and the medical evidence substantiates moderate hearing loss with recommendations
for hearing aids, the ALJ should have given consideration to Plaintiff’s testimony that he had
simply misheard the original question; yet there is no indication that he did.
Regarding Plaintiff’s reports of activities such as home improvement and wood working,
there is not enough evidence in the record regarding these activities from which the ALJ could
conclude that they actually contradicted the limitations in either or both of Dr. Robinson’s
opinions. In one of his function reports submitted to the Agency, Plaintiff indicated that he could
do most household chores and yard work, but noted that he needed to get help with “some
repairs,” needed assistance with weed-trimming and raking, and was unable to do any lifting. (T.
211.) Plaintiff noted he did “some wood working” but did not specify what that entailed. (T.
212.) He also reported he could not lift more than five or ten pounds due to his back pain and
sometimes had to stop and sit for a while when performing activities. (T. 213, 215.) The ALJ
did not point to any evidence in which Plaintiff reported that these activities were as exertionally
demanding as the ALJ assumed them to be. There is also no indication that the ALJ attempted to
elicit any testimony at the hearing regarding what type of home improvement Plaintiff was
engaged in or how exertionally demanding any such activities were that Plaintiff was engaging
in. (T. 41-47.) Based on the evidence that is available, these reported activities do not constitute
a good reason supported by substantial evidence to reject a treating physician’s opinion. See
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Manning v. Astrue, No. 09-CV-0088, 2010 WL 2243350, at *6 (W.D.N.Y. Apr. 30, 2010)
(finding remand warranted where, in part, “the ALJ overstated the extent of certain of Plaintiff’s
activities and made assumptions about other activities that are not supported by the record”).
Although Defendant is correct in stating that Dr. Robinson examined Plaintiff three times
during the relevant period (since the alleged onset date of April 23, 2012), the ALJ’s assessment
ignores that Dr. Robinson had an extensive and frequent treatment relationship with Plaintiff
since at least January 2010, a treatment relationship that is documented in the submitted medical
records from Syracuse Orthopedic Specialists. (Dkt. No. 12, at 7 [Def. Mem. of Law]; T. 25154, 248, 282, 286, 290, 294, 296, 299, 303, 306, 309, 312, 315, 318, 326, 330, 334, 493-95.)
There is nothing in the ALJ’s discussion of the evidence or of the weight afforded to Dr.
Robinson’s opinions which indicates the ALJ properly considered the extensive treatment
relationship Dr. Robinson had with regard to Plaintiff’s spinal impairment. (T. 17-19.)
Additionally, although Defendant asserts that the ALJ’s decision indicates that the ALJ
found Dr. Robinson’s opinion unsupported by the medical evidence in the record, this Court
finds that argument unpersuasive. (Dkt. No. 12, at 7-11 [Def. Mem. of Law].) In particular, the
ALJ did not make any explicit statement that the functional portions of Dr. Robinson’s opinions
were inconsistent with his own treatment observations or with the other medical treatment in the
record. The ALJ did afford limited weight to two specific limitations from Dr. Robinson’s
opinions (that Plaintiff would miss more than four days per month from work and would be
incapable of sustaining full-time work) due to the fact that “his treatment notes as well as the
longitudinal record do not support such severe limitations.” (T. 19.) Given that the ALJ
explicitly noted that this inconsistency related to those two specific limitations, this Court
declines to find that this means the ALJ clearly considered whether the other portions of Dr.
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Robinson’s opinion were also inconsistent with Dr. Robinson’s treatment notes and the other
medical treatment evidence as Defendant seems to assert. Nor did the ALJ provide a detailed
discussion of the treatment evidence from which this Court can determine that the ALJ intended
to hold out such a reason for rejecting Dr. Robinson’s opinions. In fact, the ALJ’s discussion of
Plaintiff’s medical treatment is vague and contains few specifics as to what treating and
examining sources (including Dr. Robinson) observed. For example, the ALJ noted that exams
with Dr. Robinson from January and April 2013 showed “mild spinal tenderness and some
decreased range of motion,” but the “remainder of an examination at the time was virtually
unremarkable.” (T. 17.) However, the ALJ’s characterization ignores other findings. On
December 4, 2012, Dr. Robinson additionally observed that Plaintiff had difficulty moving from
a seated to standing position during the exam due to low back pain and chronic numbness along
the left lateral calf. (T. 249.) On January 29, 2013, Dr. Robinson additionally observed pain to
the posterior thighs with straight leg raising bilaterally and 4/5 strength in the extensor hallucis
longus tendon of the bilateral lower extremities. (T. 494.) Dr. Robinson’s findings from April 8,
2013, were similar to those from January 2013. (T. 251-52.) Given the ALJ’s cursory
discussion of the treatment evidence and his failure to acknowledge greater abnormal
observations within treatment notes he asserted showed little abnormality, this Court cannot
conclude that the ALJ’s discussion of the medical evidence implicitly shows he rejected the
entirety of Dr. Robinson’s opinions based on an inconsistency with either Dr. Robinson’s own
treatment notes or with the medical treatment evidence as a whole. See Coleman v. Comm’r of
Soc. Sec., No. 5:14-CV-1139, 2015 WL 9685548, at *5 (N.D.N.Y. Dec. 11, 2015) (finding
remand appropriate where the ALJ failed to provide an analysis of many of the required factors
outlined in 20 C.F.R. § 404.1527(c) when assessing the treating physician’s opinion and
15

provided little discussion or citation to evidence that supported her conclusion that the opinion
was not supported by objective medical evidence).
For all of the above reasons, the ALJ’s failed to analyze Dr. Robinson’s opinions
according to the treating physician rule or provide the required good reasons supported by
substantial evidence for rejecting both of these opinions. Remand is therefore appropriate.
B. Whether the ALJ Committed Error in Accounting for the Assessment of the Single
Decision Maker
After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Plaintiff’s motion for judgment on the pleadings. (Dkt. No. 10, at 8-10
[Pl. Mem. of Law].) To those reasons, the Court adds the following analysis.
This Court has noted that “ALJs have been instructed by the Social Security
Administration that the opinions of SDMs ‘should not be afforded any evidentiary weight at the
administrative hearing level,’ which has led numerous courts to conclude that assigning any
evidentiary weight to a SDM’s opinion is an error.” Robles, 2016 WL 7048709, at *5 (quoting
Martin, 2012 WL 4107818, at *15); see also Box v. Colvin, 3 F.Supp.3d 27, 46 (E.D.N.Y. 2014)
(“Because ‘a single decision maker [] is not a medical professional[,] [] courts have found that an
RFC assessment from such an individual is entitled to no weight as a medical opinion.’”)
(quoting Sears v. Astrue, No. 2:11-CV-0138, 2012 WL 1758843, at *6 (D. Vt. May 15, 2012)).
In Hart v. Astrue, this Court found that the ALJ’s decision to afford even minimal weight
to a Single Decision Maker’s assessment was harmless error because the ALJ adopted greater
restrictions on the plaintiff’s abilities to lift, carry, push and pull than indicated by that source,
the ALJ’s conclusions were supported by the medical record as a whole (including opinions from
a treating physician and consultative examiner), and it was clear that “the ALJ would have
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reached the same conclusion even if she had assigned no evidentiary weight to the SDM’s
assessment.” Hart v. Astrue, 32 F.Supp.3d 227, 237 (N.D.N.Y. 2012) (citing Yorkus v. Astrue.
No. 10-2197, 2011 WL 7400189, at *5 (E.D.Pa. Feb. 28, 2011)). However, unlike in Hart, in
this case there is no opinion evidence that clearly supports the ALJ’s conclusions in the RFC
assessment and it is not clear whether the ALJ would have found an ability to exertionally
perform a range of medium work without having “accounted” for this opinion.
Rather, this case presents a startlingly similar situation as that in Medick v. Colvin, in
which this Court recently found that, although the ALJ’s RFC contained limitations that differed
from the assessment of the Single Decision Maker, “it was not clear that the ALJ assigned no
medical weight to the SDM’s opinion because the only other medical opinions in the record that
provided an RFC [] suggested far more significant restrictions.” Medick v. Colvin, No. 5:16-CV0341, 2017 WL 886944, at *15 (N.D.N.Y. Mar. 6, 2017). This Court noted that the ALJ’s
rejection of all the medical source opinions and formulation of the RFC without reliance on any
medical opinion raised questions as to whether the ALJ had in fact accorded improper
evidentiary weight to the Single Decision Maker’s assessment. Medick, 2017 WL 886944, at
*15. This Court remanded to the Commissioner based on this lack of clarity and errors in
weighing other opinion evidence. Id.
The ALJ afforded limited weight to the only two medical sources who provided
functional opinions related to Plaintiff’s physical functioning: treating physician Dr. Robinson
and consultative examiner Dr. Ganesh. (T. 18-19.) Dr. Robinson’s opinions (discussed
extensively above) very clearly suggest an exertional level less than medium. (T. 255, 541-43.)
On February 22, 2013, consultative examiner Dr. Ganesh opined that Plaintiff had no gross
limitations in sitting, standing and walking, but that he had moderate limitations for lifting,
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carrying, pushing, and pulling. (T. 238.) The ALJ afforded limited weight to Dr. Ganesh’s
opinion primarily based on what the ALJ saw as a “contradiction with the claimant’s reported
activities of daily living.” (T. 19.) Although Dr. Ganesh’s specification of “moderate” limitation
is somewhat vague, the ALJ’s rejection of this opinion suggests that the ALJ interpreted such
limitations as being more restrictive than the ability to lift and carry up to 50 pounds at one time
and up to 25 pounds frequently. See SSR 83-10 (defining medium work). Courts have also
suggested that a moderate limitation in exertional activities such as lifting, carrying, pushing, and
pulling is more consistent with an ability to perform light (rather than medium) work. See
Gurney v. Colvin, No. 14-CV-688S, 2016 WL 805405, at *3 (W.D.N.Y. Mar. 2, 2016) (finding
no error in an RFC for light work where a source opined moderate limitations in the abilities to
perform repetitive heavy lifting, bending, reaching, pushing, pulling, or carrying) (collecting
cases making similar findings); James v. Astrue, No. 09-CV-0424, 2010 WL 5536338, at *6
(N.D.N.Y. May 7, 2010) (finding the ALJ’s conclusion that plaintiff could lift 20 pounds
occasionally and 10 pounds frequently was inconsistent with the consultative examiner’s
“moderate-to-severe” limitation in lifting and carrying, noting however that a moderate
limitation “would not necessarily be incompatible with the ability to perform light work”).
Therefore, it appears that Dr. Ganesh’s opinion is also contrary to the ALJ’ finding that Plaintiff
retained the capacity to perform medium work.
As noted previously, the ALJ afforded limited weight to opinions provided by the
medical sources regarding Plaintiff’s physical limitations and has not clearly indicated what
contrary substantial evidence medical evidence supports his conclusion that Plaintiff retained the
ability to perform work specifically at the medium exertional level. Instead, the ALJ appears to
have relied quite heavily on a selection of Plaintiff’s reported daily activities when rejecting both
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opinions, such as Plaintiff’s reports that he enjoyed woodworking, that he was being more active,
and that he was helping with home improvement projects on his daughter’s house. (T 17-19,
21.) However, as discussed above in Part III.A of this Decision and Order, the ALJ’s assertions
that Plaintiff’s reported involvement in activities like home improvement and wood working
showed an ability to perform medium work are not supported by the scant evidence related to
those activities that is present in the record.
This Court is also not persuaded by Defendant’s attempts to argue semantics by asserting
that the ALJ’s indication that he accounted for the Single Decision Maker’s statement “in
assessing the severity of the claimant’s alleged conditions” means he only considered such
assessment at Step Two and not at the later steps of the sequential evaluation involving the RFC.
(Dkt. No. 12, at 13 [Def. Mem. of Law].) As already discussed, the ALJ concluded that Plaintiff
remained able to perform a range of medium work despite the fact that all medical sources who
offered functional assessments arguably found greater limitations warranted, and the ALJ failed
to adequately point to what medical or other evidence provided substantial evidence for that
conclusion. Given that the only evidence which clearly supports an ability to perform medium
work is the Single Decision Maker’s assessment, it is not clear that the ALJ restricted his
consideration of this opinion only to the matter of determining the severity of Plaintiff’s
impairments at Step Two. See Medick, 2017 WL 886944, at *15 (noting that, even where the
ALJ stated he “accounted for the opinion in assessing the severity of plaintiff’s conditions,” the
real issue was whether “it is clear that the ALJ did not actually rely on the SDM’s opinion in
making his RFC assessment;” the Court however concluded that it was not clear that the ALJ had
in fact restricted his consideration of the assessment to the issue of severity).

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Whether the ALJ erred in finding Plaintiff limited to even work at the light exertional
level matters in this specific case given Plaintiff’s age change from an individual closely
approaching advanced age to an individual of advanced age during the relevant period. The
Medical-Vocational Guidelines pertaining to light work show that there is a question as to
whether Plaintiff could have been found disabled upon obtaining age 55, though the record has
not been developed sufficiently on the matters of whether Plaintiff’s education provided direct
entry into skilled work or whether he had transferable skills to answer that question definitively.
See 20 C.F.R. § 404, Subpart P, Appendix II, Table No. 2. Consequently, if the ALJ did rely on
the Single Decision Maker’s opinion to make his finding that Plaintiff could perform medium
work, that error may have directly impacted the ultimate outcome of Plaintiff’s claim. Such
questions will need to be explored on remand.
For all the above reasons, this Court finds that the lack of clarity regarding the extent to
which the ALJ may have improperly relied on the Single Decision Maker’s assessment when
formulating the RFC merits remand for further administrative proceedings. See Gallow v.
Comm’r of Soc. Sec., No. 5:15-CV-1017, 2016 WL 5854281, at *6 (N.D.N.Y. Sept. 13, 2016)
(finding remand appropriate where “[t]his Court cannot determine whether substantial evidence
supported the ALJ’s RFC determination, because there is a ‘reasonable basis for doubt’ as to
whether correct legal principles were applied; therefore, the substantial evidence standard may
not be used to uphold the ALJ’s decision”) (citing Rockwood v. Astrue, 614 F.Supp.2d 252, 280
(N.D.N.Y. 2009)).

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C. Whether the ALJ Failed to Properly Resolve Conflicts Between the Vocational
Expert’s Testimony and the Dictionary of Occupational Titles
Given the errors identified previously relating to the weight afforded to the opinions of
Dr. Robinson and Dr. Ganesh (both of which suggest a capacity for less-than-medium work) and
the need for clarity regarding the degree to which the ALJ relied on the Single Decision Maker’s
assessment in making the conclusion that Plaintiff remained capable of performing a range of
medium work, the Court declines to reach the merits of the parties’ argument related to the
occupations identified at Step Five. Consideration of these issues according to the proper
standards on remand will necessarily require to the ALJ to also re-consider Plaintiff’s RFC and
the jobs he might be able to perform with that RFC, obviating the need for a detailed analysis of
the issue at this time.
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: May 19, 2017
Syracuse, New York
______________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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