Smith v. Berryhill
Filing
16
DECISION AND ORDER granting # 13 Plaintiff's motion for judgment on the pleadings; and denying # 14 Defendant's motion for judgment on the pleadings. Defendant's decision denying Plaintiff disability benefits is vacated, and this case is remanded pursuant to Sentence Four of 42 USC 405(g) for proceedings consistent with this Decision and Order. Signed by Chief Judge Glenn T. Suddaby on 4/5/18. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
ELIZABETH ANN SMITH,
Plaintiff,
v.
5:17-CV-0488
(GTS)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________
APPEARANCES:
OF COUNSEL:
LAW OFFICES OF KENNETH HILLER, PLLC
Counsel for Plaintiff
6000 North Bailey Avenue - Suite 1A
Amherst, NY 14226
KENNETH R. HILLER, 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
EMILY M. FISHMAN, 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 Elizabeth Ann Smith
(“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. Nos. 13 and 14.) 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 1971, making her 42 years old at the alleged onset date and 45 years
old at the ALJ’s decision. Plaintiff reported completing one year of college. Plaintiff has past
work as a group leader at a warehouse distribution center. Generally, Plaintiff alleges disability
due to multiple sclerosis (“MS”) and a right ankle impairment.
B.
Procedural History
Plaintiff applied for Disability Insurance Benefits on October 1, 2014, alleging disability
beginning August 1, 2014. Plaintiff’s application was initially denied on February 11, 2015,
after which she timely requested a hearing before an Administrative Law Judge (“ALJ”).
Plaintiff appeared at a hearing before ALJ Gregory M. Hamel on September 8, 2016. On
October 5, 2016, the ALJ issued a written decision finding Plaintiff was not disabled under the
Social Security Act. (T. 15-30.) 1 On March 9, 2017, the Appeals Council denied Plaintiff’s
request for review, making the ALJ’s decision the final decision of the Commissioner. (T. 1.)
C.
The ALJ’s Decision
Generally, in his decision, the ALJ made the following seven findings of fact and
conclusions of law. (T. 20-30.) First, the ALJ found that Plaintiff meets the insured status
requirements of the Social Security Act through December 31, 2018. (T. 20.) Second, the ALJ
found that Plaintiff has not engaged in substantial gainful activity since her alleged onset date.
(T. 20.) Third, the ALJ found that Plaintiff’s MS and right ankle sprain are severe impairments,
1
The Administrative Transcript is found at Dkt. No. 8. Citations to the Administrative
Transcript will be referenced as “T.” and the Bates-stamped page numbers as set forth therein
will be used rather than the page numbers assigned by the Court’s CM/ECF electronic filing
system.
2
while thyroid disease is not a severe impairment. (T. 20-21.) Fourth, the ALJ found that
Plaintiff does not have an impairment or combination of impairments that meet or medically
equal the severity of one of the listed impairments in 20 C.F.R. § 404, Subpart P, App. 1 (the
“Listings”). (T. 21.) Specifically, the ALJ considered Listings 1.02 (major dysfunction of a
joint) and 11.09 (multiple sclerosis). (T. 21.) Fifth, the ALJ found that Plaintiff has the residual
functional capacity (“RFC”) to perform sedentary work “but she can only occasionally climb
stairs, balance, stoop, kneel, crouch, and crawl; she cannot climb ladders or similar devices, or
work in hazardous environments, i.e. heights or dangerous machinery.” (T. 22.) Sixth, the ALJ
found that Plaintiff is unable to perform any past relevant work. (T. 25.) Seventh, and last, the
ALJ found that there are jobs that exist in significant numbers in the national economy that
Plaintiff can perform. (T. 26.) The ALJ therefore concluded that Plaintiff is not disabled.
D.
The Parties’ Briefings on Their Cross-Motions
1.
Plaintiff’s Motion for Judgment on the Pleadings 2
Generally, Plaintiff makes four arguments in support of her motion for judgment on the
pleadings. (Dkt. No. 13, at 15-28 [Pl.’s Mem. of Law].) First, Plaintiff argues that the ALJ
failed to conduct a thorough credibility analysis because he failed to address the credibility
factors. (Id. at 15-19.) Specifically, Plaintiff appears to argue that the ALJ emphasized her daily
activities, normal gait, and a lack of evidence of falling episodes noted in the medical reports
2
The Court notes that Plaintiff’s Memorandum of Law is twenty-nine pages long with
substantive argument extending through the twenty-eighth page. (Dkt. No. 13 [Pl.’s Mem. of
Law].) The Court directs Plaintiff’s attention to General Order No. 18(C)(3) (available at Dkt.
No. 4) and Northern District of New York Local Rule 7.1(a)(1) indicating that briefs may not
exceed twenty-five pages in length, double-spaced, without leave from the Court. A review of
the docket does not indicate that Plaintiff requested leave to file excess pages. Regardless, the
Court has considered Plaintiff’s Memorandum of Law in its entirety. Counsel is, however,
reminded to comply with this Court’s rules in the future.
3
while failing to note her good work history. (Id. at 18-19.) Plaintiff also argues that her simple
upkeep of her home and preparation of meals does not suggest that she could work five days a
week, eight hours a day. (Id. at 18.) Plaintiff additionally argues that the ALJ erred in
considering Plaintiff’s continued smoking because it is unclear what bearing, if any, her
continued smoking would have on her disability status. (Id. at 19.)
Second, Plaintiff argues that the ALJ’s decision is based on a selective reading of the
record. (Id. at 19-22.) Specifically, Plaintiff argues that the ALJ cherry-picked the evidence
pertaining to Plaintiff’s gait and reports of falling. (Id. at 21.) Plaintiff argues that a more
accurate finding regarding Plaintiff’s unsteady gait may have resulted in a determination that,
due to an inability to consistently get in and out of an office, there would be no available
employment for Plaintiff. (Id. at 22.) Plaintiff also argues that this case should be remanded to
consider all of the evidence and not just that which supports the ALJ’s decision. (Id.)
Third, Plaintiff argues that the ALJ failed to properly weigh the opinion evidence. (Id. at
22-26.) Specifically, Plaintiff argues that the ALJ failed to give good reasons for not affording
controlling weight to the opinion of treating physician Hassan Shukri, M.D. (Id.) Plaintiff
argues that the reasons provided by the ALJ fall short of “good reasons” and that the ALJ did not
mention the length of the treatment relationship, frequency of examination, the nature and extent
of the treatment relationship, the relevant evidence supporting the opinion, the consistency of the
opinion with the record as a whole, and whether Dr. Shukri was a specialist covering the
particular medical issues. (Id. at 24-25.) Plaintiff also argues that MS “is a disease which is
known to cause fatigue, yet the ALJ thought that his opinion was worth more than Dr. Shukri’s.”
(Id. at 25, 27-28.)
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Fourth, Plaintiff argues that the ALJ failed to develop the record regarding Plaintiff’s MS
and corresponding fatigue. (Id. at 26-28.) Specifically, Plaintiff argues that, because the ALJ
found that MS is a severe impairment, the ALJ should have obtained a consultative examination
“if he did not believe the opinion of Dr. Shukri.” (Id. at 27.) Plaintiff argues that the ALJ’s
choices were to make a decision in line with Dr. Shukri or to formulate a lay opinion based on
the medical evidence and that the ALJ chose to do the latter, substituting his own opinion for that
of Dr. Shukri. (Id. at 27-28.) Plaintiff also argues that the ALJ did not appear to consider the
fatiguing nature of MS at all and that this is error because an RFC incorporating rest periods
could have resulted in a finding of disabled, based on the VE’s testimony that being off-task for
breaks two hours out of a work day would preclude employment. (Id. at 28.) Plaintiff argues
that, on remand, the ALJ should clarify whether fatigue was truly considered and, if necessary,
get clarification from Dr. Shukri on his opinion and/or obtain a consultative examination. (Id.)
2.
Defendant’s Motion for Judgment on the Pleadings
Generally, Defendant makes four arguments in support of her motion for judgment on the
pleadings. (Dkt. No. 14, at 3-19 [Def.’s Mem. of Law].) First, Defendant argues that substantial
evidence supports the ALJ’s RFC finding. (Id. at 7-11.) Specifically, Defendant argues that,
contrary to Plaintiff’s argument regarding cherry-picking or selective review of the evidence, the
ALJ fully acknowledged the various subjective complaints and positive clinical findings
throughout the relevant period. (Id. at 7-10.) Defendant notes that some of the treatment notes
that Plaintiff faults the ALJ for not mentioning explicitly were dated prior to the start of the
relevant period. (Id. at 7, n. 5.) Defendant also argues that while the ALJ was not required to
specifically discuss every complaint and clinical finding in the record, Plaintiff cannot point to
any significant evidence that the ALJ ignored. (Id. at 10.) Defendant additionally argues that,
5
far from disregarding the relevant clinical findings throughout the record, the ALJ explained that
he accounted for these findings in the RFC. (Id. at 10-11.)
Second, Defendant argues that the ALJ provided good reasons for discounting Dr.
Shukri’s opinion, which was not entitled to controlling weight. (Id. at 11-13.) Specifically,
Defendant argues that, while the ALJ recognized that Dr. Shukri’s opinions (that Plaintiff was
unable to work) were not entitled to any special deference, the ALJ also properly evaluated all
evidence in the record to determine the extent to which these opinions were supported as directed
by Social Security Ruling (“SSR”) 96-5p. (Id. at 11-12.) Defendant argues that, based on the
substantial evidence discussed in the ALJ’s decision (including the normal mental status findings
and the absence of other significant neurological findings on examination), the ALJ reasonably
concluded that Dr. Shukri’s opinions appeared to be based on Plaintiff’s subjective complaints of
fatigue, rather than any objective clinical findings. (Id. at 12.) Defendant also argues that
remand is not warranted for a slavish recitation of each and every factor under 20 C.F.R. §§
404.1527(c)(1)-(6).
Third, Defendant argues that the ALJ properly considered Plaintiff’s subjective
allegations regarding the intensity, persistence, and limiting effects of her symptoms. (Id. at 1316.) Specifically, Defendant argues that the ALJ properly evaluated Plaintiff’s alleged
symptomology in accordance with the regulatory framework and in relation to the objective
medical evidence, which contained generally benign findings. (Id. at 13-14.) Defendant notes
that the ALJ’s decision is subject to SSR 16-3p (superseding SSR 96-7p) which makes reference
not to a claimant’s credibility, but rather to the consistency of her allegations with the record as a
whole. (Id. at 13, n. 7.)
6
Defendant also argues that the ALJ properly considered Plaintiff’s wide-ranging activities
of daily living (which the Commissioner’s regulations and rulings recognize as an important
indicator of a claimant’s functioning) and Plaintiff’s receipt of unemployment benefits during a
portion of the time she claimed to be disabled for Title II purposes. (Id. at 14-15.) Defendant
additionally argues that, while recognizing that it was not dispositive, the ALJ properly noted
that Plaintiff continued to smoke throughout the relevant period, despite being specially
counseled to quit by her treating primary care physician. (Id. at 15.) Defendant argues that there
was no error in the ALJ considering Plaintiff’s continued smoking, against medical advice, as
one of many factors in the analysis of how limited she was by her symptoms. (Id.) Defendant
also argues that work history is just one of many factors that the ALJ is instructed to consider in
weighing the credibility of claimant testimony. (Id. at 16.)
Fourth, Defendant argues that remand is not warranted to obtain an additional medical
opinion. (Id. at 16-19.) Specifically, Defendant argues that remand to secure another medical
opinion is not required where the record contains sufficient evidence from which the ALJ can
assess the RFC. (Id. at 17-18.) Defendant also argues that the Commissioner’s regulations do
not specifically require either recontacting Dr. Shukri or ordering a consultative examination, but
rather provide the adjudicator significant discretion to determine whether the existing evidence
of record is sufficient to make a disability determination. (Id. at 18-19.) Defendant argues that
the ALJ based his decision on a fully developed record with years’ worth of treatment notes
containing completely normal mental status findings and minimal evidence of gait disturbances
or other neurological deficits. (Id. at 19.) Defendant also argues that the ALJ properly relied on
Plaintiff’s testimony and statements regarding her functionality and that Plaintiff cannot point to
any obvious gap in the record warranting further development. (Id.)
7
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). 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
8
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.
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.
9
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 Properly Considered the Opinion Evidence and Other
Evidence of Record When Determining Plaintiff’s RFC
After careful consideration, the Court answers this question in the negative for the
reasons stated in Plaintiff’s memorandum of law. (Dkt. No. 13, at 19-26 [Pl.’s Mem. of Law].)
To those reasons, this 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.’” Pardee v. Astrue, 631 F. Supp. 2d
200, 210 (N.D.N.Y. 2009) (quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)). “In
making a residual functional capacity determination, the ALJ must consider a claimant’s
physical abilities, mental abilities, symptomology, including pain and other limitations which
could interfere with work activities on a regular and continuing basis.” Pardee, 631 F. Supp. 2d
at 210 (citing 20 C.F.R. § 404.1545(a)). “Ultimately, ‘[a]ny impairment-related limitations
created by an individual’s response to demands of work . . . must be reflected in the RFC
assessment.’” Hendrickson v. Astrue, 11-CV-0927, 2012 WL 7784156, at *3 (N.D.N.Y. Dec.
11, 2012) (quoting SSR 85-15, 1985 WL 56857, at *8).
“An ALJ should consider ‘all medical opinions received regarding the claimant.’” Reider
v. Colvin, 15-CV-6517, 2016 WL 5334436, at *5 (W.D.N.Y. Sept. 23, 2016) (quoting Spielberg
v. Barnhart, 367 F. Supp. 2d 276, 281 (E.D.N.Y. 2005)). “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
10
competent medical opinion.” Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (citing Burgess
v. Astrue, 537 F.3d 117, 131 (2d Cir. 2008)). In assessing a plaintiff’s RFC, an ALJ is entitled to
rely on opinions from both examining and non-examining State agency medical consultants
because these consultants are qualified experts in the field of social security disability. 20 C.F.R.
§§ 404.1513a, 404.1527(e); see also Frey ex rel. A.O. v. Astrue, 485 F. App’x 484, 487 (2d Cir.
2012) (summary order) (“The report of a State agency medical consultant constitutes expert
opinion evidence which can be given weight if supported by medical evidence in the record.”);
Little v. Colvin, 14-CV-0063, 2015 WL 1399586, at *9 (N.D.N.Y. Mar. 26, 2015) (“State agency
physicians are qualified as experts in the evaluation of medical issues in disability claims. As
such, their opinions may constitute substantial evidence if they are consistent with the record as a
whole.”) (internal quotation marks omitted). The 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).
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, 802 F.3d at 375 (quoting Burgess, 537 F.3d at
128). 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.’” Id. (quoting Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013)).
11
“Where an ALJ’s reasoning and adherence to the Regulations is clear, she is not required to
explicitly go through each and every factor of the Regulation.” Blinkovitch v. Comm’r of Soc.
Sec., 15-CV-1196, 2017 WL 782979, at *4 (N.D.N.Y. Jan. 23, 2017), Report and
Recommendation adopted by 2017 WL 782901 (N.D.N.Y. Feb. 28, 2017) (citing Atwater v.
Astrue, 512 F. App’x 67, 70 (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.’” Id. (quoting Burgess, 537 F.3d at 129-30). The factors for considering opinions from
non-treating medical sources are the same as those for assessing opinions from treating sources,
with the consideration of whether the source examined the claimant or not replacing the
consideration of the treatment relationship between the source and the claimant. See 20 C.F.R. §
404.1527(c)(1)-(6).
On July 15, 2015, treating neurologist Dr. Shukri completed a physical RFC
questionnaire and indicated that he had seen Plaintiff every three-to-six months since 2004. (T.
488-90.) Dr. Shukri indicated a diagnosis of MS with a poor prognosis. (T. 488.) He noted that
Plaintiff had chronic pain/paresthesia and that treatment included Tysabri infusions and
Topamax (which he noted can cause drowsiness). (Id.) Dr. Shukri did not fill out the functional
assessment or capacity portions of the questionnaire, indicating that his office did not do such
assessments. (T. 488-90.) At the end of the questionnaire, Dr. Shukri opined that Plaintiff was
not capable of sustaining full-time work (8 hours a day, 5 days a week) and that her
symptoms/limitation had been present as early as June 3, 2004. (T 490.)
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The ALJ afforded limited weight to Dr. Shukri’s July 15, 2015, opinion that Plaintiff is
not able to sustain full-time work (noting that Dr. Shukri repeated this opinion in treatment notes
on August 12, 2015, indicating that Plaintiff could not sustain any job due to fatigue). (T. 25,
490, 506, 525.) The ALJ stated that this opinion appeared to be based on Plaintiff’s subjective
allegations rather than an objective clinical assessment in the professional opinion of the
treatment provider and noted that Dr. Shukri refused to complete the evaluation form, only
checking the box at the end that Plaintiff was unable to work. (Id.) The ALJ also noted that the
issue of whether a claimant is disabled is a determination reserved to the Commissioner. (Id.)
Plaintiff argues the ALJ failed to properly weigh the opinion evidence and that the ALJ’s
decision is based on a selective reading of the record. (Dkt. No. 13, at 19-26 [Pl.’s Mem. of
Law].) The Court finds these arguments persuasive.
While Dr. Shukri’s opinion touches on an issue reserved to the Commissioner and
contains nothing in the way of functional limitations, it is the only examining opinion of record
and indicates a treatment relationship (of over ten years) with a physician specializing in
neurology. Furthermore, Dr. Shukri also noted a poor prognosis, chronic pain/paresthesia, and
treatment including Tysabri injections and Topamax (noted by Dr. Shukri to possibly cause
drowsiness), which the ALJ did not mention in his analysis of this opinion. (T. 488.)
The only other functional assessment of record was made by a Single Decision Maker at
the initial determination level in February 2015, indicating an RFC for a range of light work with
occasional climbing of ramps, stairs, ladders, ropes, and scaffolds. (T. 65-67.) Although the
RFC determination is clearly within the ALJ’s purview given, given the complex neurological
nature of Plaintiff’s impairment, it is unclear how the ALJ reached his RFC determination
without any functional assessment from a qualified medical professional. There is a difference
13
between analyzing medical records to determine what the weight of the evidence supports and
interpreting raw medical data that would require the expertise of a physician or other trained
medical source; the ALJ is precluded from doing only the latter. See Hanson v. Comm’r of Soc.
Sec., 15-CV-0150, 2016 WL 3960486, at *9 (N.D.N.Y. June 29, 2016), Report and
Recommendation adopted by 2016 WL 3951150 (N.D.N.Y. July 20, 2016) (noting that, while it
is impermissible for an ALJ to interpret “raw medical data” and substitute his own opinion for
that of a medical source, it is within the ALJ’s power to resolve conflicts in the medical record).
Given the complex nature of an impairment such as relapsing-remitting MS and
Plaintiff’s longstanding history of the disease including an exacerbation noted in late 2014 by her
treating neurologist Dr. Shukri, the lack of a functional assessment of Plaintiff’s physical and
mental limitations in this record indicates that the ALJ may have interpreted raw medical data
without the expertise of a trained medical source. (T. 458-59, 545-46.) This is most apparent in
the ALJ’s summary of the February 2016 treatment records, in which the ALJ noted normal
motor strength, coordination, and gait and that an “MRI showed a stable number and distribution
of white matter lesions compared to the June 2015 study” with “no evidence of demyelination.”
(T. 24, 515.) Without a functional assessment from an examining or treating physician opining
on Plaintiff’s limitations as they relate to these examination findings and the MRI result (which
was noted to be compatible with the history of MS and actually indicated no evidence of active
demyelination), this Court cannot determine how the ALJ concluded that Plaintiff had the
specific functional limitations included in the RFC. (T. 515.) Therefore, in reviewing the
evidence of record, the Court is unable to determine whether the ALJ’s conclusion that Plaintiff
is able to perform a modified range of sedentary work is supported by substantial evidence. See
Booker v. Astrue, 07-CV-0646, 2011 WL 3735808, at *5 (N.D.N.Y. Aug 24, 2011) (“The crucial
14
factors in an ALJ’s decision must be set forth in sufficient detail as to enable meaningful review
by the court.”) (citing Ferraris, 728 F.2d at 587); Hickman ex rel. M.A.H. v. Astrue, 728 F. Supp.
2d 168, 173 (N.D.N.Y. 2010) (“The ALJ must ‘build an accurate and logical bridge from the
evidence to [his] conclusion to enable a meaningful review.’”) (quoting Steele v. Barnhart, 290
F.3d 936, 941 (7th Cir. 2002)).
For the above reasons, the Court finds that the ALJ’s consideration of the opinion
evidence and the resulting RFC cannot conclusively be said to be supported by substantial
evidence. Remand is therefore necessary on this basis.
B.
Whether the ALJ Properly Developed the Record
After careful consideration, the Court answers this question in the negative for the
reasons stated in Plaintiff’s memorandum of law. (Dkt. No. 13, at 26-28 [Pl.’s Mem. of Law].)
To those reasons, this Court adds the following analysis.
Although the claimant has the general burden of proving that he or she has a disability
within the meaning of the Social Security Act, “‘the ALJ generally has an affirmative obligation
to develop the administrative record’” due to the non-adversarial nature of a hearing on disability
benefits. Burgess, 537 F.3d at 128 (quoting Melville, 198 F.3d at 52); citing Draegert v.
Barnhart, 311 F.3d 468, 472 (2d Cir. 2002), Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004),
Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000)). “‘It is the ALJ’s duty to investigate and
develop the facts and develop the arguments both for and against the granting of benefits.’”
Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting Lamay v. Comm’r of Soc. Sec., 562
F.3d 503, 508-09 (2d Cir. 2009)). An “ALJ must make every reasonable effort to help [the
claimant] obtain medical reports from the claimant’s medical sources so long as permission is
15
granted to request such reports.” Hart v. Comm’r, 07-CV-1270, 2010 WL 2817479, at *5
(N.D.N.Y. July 16, 2010) (quoting 20 C.F.R. § 404.1512(d) (internal quotation marks omitted)).
“The ALJ has discretion to order a consultative examination to further develop the
evidentiary record.” Cox v. Astrue, 993 F. Supp. 2d 169, 177 (N.D.N.Y. 2012) (citing Serianni
v. Astrue, 07-CV-250, 2010 WL 786305, at *5 (N.D.N.Y., Mar. 1, 2010)); see also 20 C.F.R.
404.1517. “‘Several courts have held . . . that in fulfilling the duty to conduct a full and fair
inquiry, an ALJ is required to order a consultative examination where the record establishes that
such an examination is necessary to enable the ALJ to render a decision.’” Cox, 993 F. Supp. 2d
at 177 (quoting Serianni, 2010 WL 786305, at *5). “Generally, the ALJ should order a
consultative examination when ‘a conflict, inconsistency, ambiguity, or insufficiency in the
evidence must be resolved.’” Id.
Plaintiff argues that the ALJ failed to develop the record regarding Plaintiff’s MS and
corresponding fatigue. (Dkt. No. 13, at 26-28 [Pl.’s Mem. of Law].) The Court finds this
argument persuasive.
As indicated above in Section III.A. of this Opinion and Order, it is unclear to the Court
how the ALJ reached his RFC determination. The ALJ afforded limited weight to the opinion of
treating neurologist Dr. Shukri (an opinion which contained no functional assessment) and does
not appear to have relied on the assessment of the non-medical Single Decision Maker at the
initial determination level (which, in any event, would have been improper). (T. 25, 65-67, 48890.) In light of the complex and progressive nature of Plaintiff’s longstanding relapsingremitting MS, the Court finds that the ALJ erred in failing to appropriately develop the record
with regard to the limitations caused by this impairment and its symptoms. This failure to
develop the record (particularly the failure to obtain a functional assessment of Plaintiff’s
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limitations either from a treating physician or through a consultative examination) is harmful
error because it negatively affected the ALJ’s analysis, based on the absence of a functional
assessment on which the ALJ could rely when determining Plaintiff’s RFC.
For the reasons above, the Court finds that the ALJ failed to fully develop the record.
Remand is therefore necessary on this basis. On remand, the ALJ should make reasonable
efforts to obtain a functional opinion of Plaintiff’s limitations.
C.
Whether the ALJ Properly Considered Plaintiff’s Credibility
Because remand is necessary and the ALJ will be required to address the deficiencies in
the evaluation of the opinion evidence and development of the record, the Court need not reach a
finding regarding whether the ALJ’s credibility finding is supported by substantial evidence; the
ALJ should reconsider this finding on remand.
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 Defendant’s decision denying Plaintiff disability benefits is VACATED
and this case is REMANDED, pursuant to Sentence Four of 42 U.S.C. § 405(g) for proceedings
consistent with this Decision and Order.
Dated: April 5, 2018
Syracuse, New York
______________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge
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