Nasci v. Colvin et al

Filing 23

DECISION AND ORDER granting # 17 Plaintiff's motion for judgment on the pleadings; and denying # 20 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 3/7/17. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
MATTHEW DAMIEN NASCI,
Plaintiff,
v.

6:15-CV-0947
(GTS)

CAROLYN W. COLVIN
Acting Comm’r of Soc. Sec.,
Defendant.
____________________________________
APPEARANCES:

OF COUNSEL:

OFFICE OF PETER M. HOBAICA
Counsel for Plaintiff
2045 Genesee Street
Utica, NY 13501

B. BROOKS BENSON, 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

JOANNE PENGELLY, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Matthew Damien Nasci
(“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. 17, 20.) 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 completed one year of college, completed heavy equipment training, and has
past work as a production welder, a heavy equipment operator, a landscape laborer, and a
welder. (T. 28, 179.)1 Generally, Plaintiff’s alleged disability consists of lower back disc
herniation with chronic pain, depression, scars and residuals, lower extremities and left flank
pain, and problems with the right wrist and elbow. (T. 24, 177.)
B.

Procedural History

On October 3, 2012, Plaintiff applied for a period of Disability and Disability Insurance
Benefits, alleging disability beginning September 10, 2007. (T. 20.) Plaintiff’s application was
initially denied on January 31, 2013, after which he timely requested a hearing before an
Administrative Law Judge (“ALJ”). (Id.) On April 3, 2014, Plaintiff appeared in a video
hearing before the ALJ, Lisa B. Martin. (T. 32-68.) On June 4, 2014, the ALJ issued a written
decision finding Plaintiff not disabled under the Social Security Act. (T. 14-31.) On June 5,
2015, the Appeals Council denied Plaintiff’s request for review, rendering the ALJ’s decision the
final decision of the Commissioner. (T. 1-7.) Thereafter, Plaintiff timely sought judicial review
in this Court.
C.

The ALJ’s Decision

Generally, in her decision, the ALJ made the following seven findings of fact and
conclusions of law. (T. 22-30.) First, the ALJ found that Plaintiff met the insured status
requirements of the Social Security Act through December 31, 2012. (T. 22.) Second, the ALJ

1

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

2

found that Plaintiff and did not engage in substantial gainful activity from September 10, 2007
(his alleged onset date) to December 31, 2012 (his date last insured). (Id.) Third, the ALJ found
that Plaintiff has the following severe impairments: lower extremity shrapnel injury; lumbar
spine disorder associated with grade I spondylolisthesis; hip disorder; bilateral carpal tunnel
syndrome; sleep apnea; and depression. (Id.) Fourth, 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. 22-24.) The ALJ
considered Listings 1.00, 4.00, 12.00, and 12.04. (Id.)
Fifth, the ALJ found that, through the date last insured, Plaintiff had the residual
functional capacity (“RFC”) to perform
a full range of sedentary work as defined in 20 CFR 404.1567(a),2
except the claimant requires the opportunity on an hourly basis to
change positions for one to two minutes, plus have access to normal
work breaks. The claimant must avoid climbing ladders, ropes, and
scaffolding, and is limited to occasional climbing of ramps and stairs,
balancing, stooping, kneeling, crouching, and crawling. The claimant
is limited to frequent, but not constant, upper extremity handling,
finding, and feeling tasks. The claimant must also avoid dangerous
work hazards (including unprotected heights and exposed
machinery). Because of pain and mental health distractions
preventing detailed decision making, the claimant is limited to
routine, uninvolved tasks not requiring a fast assembly quota pace.
(T. 24-28.) Sixth, the ALJ found that, through the date last insured, Plaintiff was unable to
perform any past relevant work. (T. 28-29.) Seventh, and finally, the ALJ determined that,
through the date last insured, there were other jobs that existed in significant numbers in the
national economy that Plaintiff could have performed. (T. 29-30.)

2

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).

3

D.

The Parties’ Briefings on Their Cross-Motions

Generally, Plaintiff asserts nine arguments in support of his motion for judgment on the
pleadings. First, Plaintiff argues that the ALJ erred in analyzing the mental opinion of treating
psychiatrist Dr. Komareth. (Dkt. No. 17, at 14-17 [Pl.’s Mem. of Law].) Second, Plaintiff
argues that the ALJ erred in affording less than controlling weight to the physical opinion of
treating physician Dr. Padmanabhan, and failing to analyze his findings indicating that Plaintiff
had a less than sedentary RFC. (Id. at 17-20.) Third, Plaintiff argues that the ALJ erred in
failing to set forth specific findings supporting her RFC determination that Plaintiff can perform
the mental and physical demands of sedentary work. (Id. at 20-22.) Fourth, Plaintiff argues that
the ALJ erred by failing to consider the mental opinion of consultative mental examiner Dr.
Loomis. (Id. at 22-23.) Fifth, Plaintiff argues that, in considering whether Plaintiff met the
mental Listings, the ALJ failed to consider treating psychiatrist Dr. Komareth’s opinion that
Plaintiff had marked limitations in social functioning and maintaining concentration. (T. 23-25.)
Sixth, Plaintiff argues that the ALJ erred in failing to find that Plaintiff’s obesity and
impairments of the legs and knees were severe impairments at step two of the sequential
analysis. (Id. at 25-26.) Seventh, Plaintiff argues that the ALJ improperly substituted her own
lay opinion for that of a medical professional in determining that Plaintiff had the RFC to
perform sedentary work, which was not supported by the medical opinion evidence. (Id. at 2628.) Eighth, Plaintiff argues that the ALJ’s credibility analysis failed to set forth the required
regulatory factors. (Id. at 28-29.) Ninth, and finally, Plaintiff essentially argues that the ALJ’s
step five determination relied on vocational expert testimony that was based on an incomplete
hypothetical. (Id. at 29-30.)

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Generally, Defendant asserts four arguments in support of her motion for judgment on
the pleadings. First, Defendant argues that substantial evidence supports the ALJ’s RFC finding.
(Dkt. No. 20, at 6-14 [Def.’s Mem. of Law].) Second, Defendant argues that the ALJ properly
considered the report of Dr. Loomis. (Id. at 14-15.) Third, Defendant argues that the ALJ
applied the proper legal standard in evaluating Plaintiff’s leg impairments and obesity at step
two, and substantial evidence supports the ALJ’s finding that these impairments did not cause
limitations beyond those included in the RFC. (Id. at 15-16.) Fourth, and finally, Defendant
argues that substantial evidence supports the ALJ’s finding that Plaintiff could perform jobs
existing in significant numbers in the national economy. (Id. at 16-17.)
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
5

support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971).
Where evidence is deemed susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.
1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both sides,
because an analysis of the substantiality of the evidence must also include that which detracts
from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by
substantial evidence, the Commissioner’s finding must be sustained “even where substantial
evidence may support the plaintiff’s position and despite that the court’s independent analysis of
the evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153
(S.D.N.Y. 1992). In other words, this Court must afford the Commissioner’s determination
considerable deference, and may not substitute “its own judgment for that of the
[Commissioner], even if it might justifiably have reached a different result upon a de novo
review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
B.

Standard to Determine Disability

The Commissioner has established a five-step evaluation process to determine whether an
individual is disabled as defined by the Social Security Act. 20 C.F.R. § 404.1520. The
Supreme Court has recognized the validity of this sequential evaluation process. Bowyen 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
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impairment, the third inquiry is whether, based solely on medical
evidence, the claimant has an impairment which is listed in Appendix
1 of the regulations. If the claimant has such an impairment, the
[Commissioner] will consider him disabled without considering
vocational factors such as age, education, and work experience; the
[Commissioner] presumes that a claimant who is afflicted with a
“listed” impairment is unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the fourth
inquiry is whether, despite the claimant’s severe impairment, he has
the residual functional capacity to perform his past work. Finally, if
the claimant is unable to perform his past work, the [Commissioner]
then determines whether there is other work which the claimant could
perform. Under the cases previously discussed, the claimant bears
the burden of the proof as to the first four steps, while the
[Commissioner] must prove the final one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982), accord, McIntyre v. Colvin, 758 F.3d 146,
150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can be made, the SSA
will not review the claim further.” Barnhart v. Thompson, 540 U.S. 20, 24 (2003).
III.

ANALYSIS
For the ease of analysis, Plaintiff’s arguments will be reorganized and consolidated

below.
A.

Whether the ALJ’s Step Two Determination Was Supported by Substantial
Evidence

According to Social Security Regulations, “[a]n impairment or combination of
impairments is not severe if it does not significantly limit a [claimant’s] physical or mental
ability to do basic work activities.” 20 C.F.R. § 404.1521(a). The regulations define “basic
work activities” as the “abilities and aptitudes necessary to do most jobs,” with examples
including the following: (1) physical functions such as walking, standing, lifting, pushing,
pulling, carrying or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding,
carrying out, and remembering simple instructions; (4) using judgment; (5) responding
appropriately to supervision, co-workers and usual work situations; and (6) dealing with changes
7

in a routine work setting. 20 C.F.R. § 404.1521(b). Accordingly, the severity of an impairment
is determined by the limitations imposed by the impairment, and not merely by diagnosis of the
impairment. Ellis v. Comm’r, 11-CV-1205, 2012 WL 5464632, at *4 (N.D.N.Y. Sept. 7, 2012)
(citing Coleman v. Shalala, 895 F. Supp 50, 53 [S.D.N.Y. 1995]); see also McConnell v. Astrue,
03-CV-0521, 2008 WL 833968 (N.D.N.Y. Mar. 27, 2008).
“The second step requirement under the prescribed disability analysis is truly de minimis,
and intended only to screen out the truly weakest of cases.” Davis v. Colvin, 11-CV-0658, 2013
WL 1183000, at *8 (N.D.N.Y. Feb. 27, 2013) (citing Dixon v. Shalala, 54 F.3d 1019, 1030 [2d
Cir. 1995]). When an ALJ finds that one or more of a plaintiff’s impairments are severe, an error
in the severity analysis at step two may be harmless because the ALJ continued with the fivestep analysis and did not deny the claim based on lack of a severe impairment alone. Ellis, 2012
WL 5464632, at *5; Tyron v. Astrue, 10-CV-0537, 2012 WL 398952, at *3 (N.D.N.Y. Feb. 7,
2012); Kemp v. Comm’r, 10-CV-1244, 2011 WL 3876526, at *8 (N.D.N.Y. Aug. 11, 2011).
When “an ALJ has omitted an impairment from step two of the sequential analysis, other
courts have declined to remand if the ALJ clearly considered the effects of the impairment in the
remainder of his analysis.” Chavis v. Astrue, 07-CV-0018, 2010 WL 624039, at *12 (N.D.N.Y.
Feb. 18, 2010); see also 20 C.F.R. § 404.1523 (stating that the ALJ is required to consider the
“combined effect of all of [a plaintiff’s] impairments without regard to whether any such
impairment, if considered separately would be of sufficient severity”). Here, Plaintiff argues that
the ALJ erred by failing to find that Plaintiff’s obesity and impairments of the legs and knees
were severe impairments at step two.
As an initial matter, the Court notes that obesity “is not in and of itself a disability.”
Yablonski v. Comm’r of Soc. Sec., 03-CV-0414, 2008 WL 2157129, at *6 (N.D.N.Y. Jan. 31,
8

2008) (citing inter alia SSR 02-1p, 2002 WL 34686281, at *4 [Sept. 12, 2002]). SSR 02-1p
provides that, as with any other medical condition, the SSA “will find that obesity is a ‘severe’
impairment when, alone or in combination with other medically determinable physical or mental
impairment(s), it significantly limits an individual’s physical or mental ability to do basic work
activities.” SSR 02-1p, 2002 WL 34686281, at *4. For disability program purposes, “[t]here is
no specific level of weight or BMI [body mass index] that equates with a ‘severe’ or ‘not severe’
impairment.” Id.
Pursuant to SSR 02-1p, the SSA undertakes “an individualized assessment of the impact
of obesity on an individual’s functioning when deciding whether the impairment is severe.”
Hulbert v. Comm’r, 06-CV-1099, 2009 WL 2823739, *11 (N.D.N.Y. Aug. 31, 2009).
“SSR 02-1p notwithstanding, an ALJ is not obligated to single out a claimant’s obesity for
discussion in all cases.” Hulbert, 2009 WL at *11 (internal citations and quotation marks
omitted).
Here, a review of Plaintiff’s disability reports indicates that he did not initially allege that
his obesity was a disabling impairment or limited his ability to perform basic work activities. (T.
177.) However, Plaintiff testified at the hearing that his weight gain since injuring his back in
2007 aggravated the pain from his back injury and shrapnel injuries (in the lower extremities),
and severely limited his ability to sit, stand, and walk. (T. 47-48.) In support of his argument
that the ALJ should have found his impairments of the legs and knees severe, Plaintiff cites a
medical treatment record stating that the shrapnel in his legs had recently been bothering him
around his hip and knees. (Dkt. No. 17, at 25 [Pl.’s Mem. of Law].) However, the ALJ found
that Plaintiff’s hip disorder and lower extremity shrapnel injury were severe impairments at step
two. (T. 22.) Therefore, the Court is unpersuaded by Plaintiff’s argument that the ALJ failed to
find that Plaintiff’s impairments of the legs and knees were severe.
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In any event, for the reasons discussed below in Point III.B. of this Decision and Order,
this matter is being remanded for the ALJ to reevaluate the medical opinion evidence and
Plaintiff’s RFC. Upon remand, the ALJ should also consider the severity of Plaintiff’s obesity
and any other impairments, as appropriate, in light of any new medical evidence obtained and
her reassessment of the medical opinion evidence.
B.

Whether the ALJ Properly Evaluated the Medical Opinion Evidence in
Determining Plaintiff’s RFC

After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Plaintiff’s memorandum of law. (Dkt. No. 17, at 17-23 [Pl.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
Residual functional capacity (“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.
Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96-8p, 1996 WL 374184, at *2
[July 2, 1996]). “Work-related mental activities generally required by competitive, remunerative
work include the abilities to: understand, carry out, and remember instructions; use judgment in
making work-related decisions; respond appropriately to supervision, co-workers and work
situations; and deal with changes in a routine work setting.” SSR 96-8p, 1996 WL 374184, at *6;
accord SSR 85-15, 1985 WL 56857 (Jan. 1, 1985).
“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
10

*8 (W.D.N.Y. Aug. 29, 2013) (citing 20 C.F.R. § 404.1545[a][3]-[4]). The ALJ must consider
opinions from 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.3 20 C.F.R. § 404.1513(a)(1)(5) (identifying the five types of acceptable medical sources as: (1) licensed physicians, (2)
licensed or certified psychologists, (3) licensed optometrists, (4) licensed podiatrists, and (5)
qualified speech-language pathologists).
Under the “treating physician’s rule,” controlling weight is afforded to an opinion from a
plaintiff’s treating physician when (1) the opinion is well supported by medically acceptable
clinical and laboratory diagnostic techniques, and (2) the opinion is not inconsistent with other
substantial evidence in the record, such as opinions of other medical experts. 20 C.F.R. §
404.1527(c)(2); Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015), 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. Greek, 801 F.3d at 375; 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 frequency, length, nature and extent of
the physician’s 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. 20 C.F.R. § 404.1527(c); Halloran v. Barnhart, 362 F.3d 28, 31-32 (2d Cir. 2004)

3

Social Security regulations define medical opinions as “statements from physicians and
psychologists or other acceptable medical sources that reflect judgments about the nature and severity of . . . [a
plaintiff’s] impairment(s), including . . . [a plaintiff’s] symptoms, diagnosis and prognosis, what . . . [a plaintiff] can
still do despite impairment(s), and . . . [a plaintiff’s] physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2).

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(listing regulatory factors).
For the ease of analysis, the Court will address the ALJ’s physical and mental RFC
determinations separately below.
i.

The ALJ’s Physical RFC Determination

The record includes opinions of Plaintiff’s work-related physical abilities and limitations
from the following two acceptable medical sources: (1) consultative examiner Marvin
Rabinowitz, M.D., and (2) treating physician Manesh Padmanabhan, M.D. (T. 236-40, 466-69.)
a.

Consultative Examining Dr. Rabinowitz

On December 28, 2012, Dr. Rabinowitz examined Plaintiff and diagnosed him with low
back pain, injured right knee, bilateral carpal tunnel syndrome, tennis elbow on the right, sleep
apnea, chronic headaches, shrapnel in the lower extremities, and hypertension. (T. 236-40.)
Additionally, Dr. Rabinowitz stated that an x-ray examination of Plaintiff’s left spine showed
spondylolisthesis and spondylosis. (T. 240.)
Upon examination, Dr. Rabinowitz observed that Plaintiff stayed off his left leg and
dragged it along while walking, and was unable to walk on his heels or tiptoes or squat due to
back pain. (T. 238.) Dr. Rabinowitz observed that Plaintiff was unable to flex his back due to
pain, had limited extension of the lumbar spine, could not perform lateral flexion or rotation, and
had limited straight leg raising on both sides. (T. 236.) Dr. Rabinowitz noted that Plaintiff was
treated by a chiropractor for four years, had physical therapy, took hydrocodone for his back, and
received two epidural shots that were deemed ineffective. (T. 233.) In sum, Dr. Rabinowitz
opined that Plaintiff had “moderate” limitations with prolonged standing, walking, bending,
squatting, lifting, and carrying. (T. 240.)

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b.

Treating Physician Dr. Padmanabhan

On October 11, 2013, Dr. Padmanabhan provided an opinion of Plaintiff’s work-related
physical abilities and limitations due to his chronic low back pain. (T. 466-69). Dr.
Padmanabhan opined that, during an eight-hour workday, Plaintiff could sit for two hours,
stand/walk for two hours, and would need to lay down intermittently throughout the day at an
unpredictable frequency. (Id.) Dr. Padmanabhan opined that Plaintiff could lift/carry ten pounds
or less on an “occasional basis” (defined as one to two times per hour up to one-third of an eighthour workday), and could lift/carry five pounds or less on a “frequent basis” (defined as four
times per hour up to two-thirds of an eight-hour workday). (T. 466.)
Dr. Padmanabhan further opined that Plaintiff could “occasionally” climb, balance, and
kneel; could “never” crouch, crawl, or stoop; and had “severe” limitation reaching in all
directions. (T. 467.) Dr. Padmanabhan opined that Plaintiff’s pain, fatigue, and/or weakness due
to his low back pain and obstructive sleep disorder would cause him to be off-task for at least 50
percent of an eight-hour workday. (T. 468.) Finally, Dr. Padmanabhan opined that Plaintiff’s
impairments would likely produce “good days” and “bad days,” and Plaintiff would likely be
absent from work more than four days per month. (Id.)
In assessing Plaintiff’s physical RFC, the ALJ afforded “significant” weight to Dr.
Padmanabhan’s opinion, but “did not find a basis” for his opinion that Plaintiff would be off-task
for at least 50 percent of a workday. (T. 27.) Additionally, the ALJ afforded “some” weight to
Dr. Rabinowitz’s opinion “to the extent the results of his physical examination support the
residual functional capacity assessed and are consistent with the record as a whole.” (Id.)
However, in finding that the Plaintiff had the RFC to perform a range of sedentary work, the ALJ
failed to cite, and the record does not contain, a medical opinion to establish that Plaintiff could
13

perform all of the exertional demands of the ALJ’s physical RFC (including sitting for six hours,
standing and walking for two hours, and lifting/carrying up to ten pounds in an eight-hour
workday). (T. 24-28); 20 C.F.R. § 404.1567(a); SSR 83-10, 1983 WL 31251 (1983). Notably,
Dr. Padmanabhan’s opinion of Plaintiff’s limitations (including sitting for no more than two hours
in an eight-hour workday) would limit him to less than sedentary work; and Dr. Rabinowitz’s
opinion of Plaintiff’s “moderate” physical limitations did not define the term “moderate” or
provide additional information to indicate the meaning of the term. (T. 240, 466-69.)
The Second Circuit has found that a consultative examiner’s use of the terms “moderate”
and “mild,” without additional information, was so vague as to render the opinion useless in
evaluating whether the plaintiff could perform the exertional requirements of sedentary work.
Curry v. Apfel, 209 F.3d 117, 123 (2d Cir. 2000) (superceded by statute on other grounds). The
use of terms like “mild” and “moderate” has been found to pass substantial evidence muster when
medical evidence shows relatively little physical impairment. Anderson v. Colvin, 12-CV-1008,
2010 WL 5939665, at *9 (N.D.N.Y. Nov. 5, 2013) (citing Waldau v. Astrue, 11-CV-0925, 2010
WL 6681262, at 4 ([N.D.N.Y. Dec. 21, 2003]). However, here, that is not the case because the
ALJ determined that Plaintiff’s lower extremity shrapnel injury, lumbar spine disorder associated
with grade I spondylolisthesis, hip disorder, bilateral carpal tunnel syndrome, and sleep apnea
were severe impairments. (T. 22.) Therefore, based on the current record, Dr. Rabinowitz’s
opinion is too vague to establish whether Plaintiff can perform the exertional demands of
sedentary work.4 Moreover, the ALJ did not recontact Dr. Rabinowitz to resolve any ambiguities

4

The Court notes that Dr. Rabinowitz did not indicate the number of hours that Plaintiff could sit,
stand, and walk in an eight-hour workday. (T. 240.) Nor did Dr. Rabinowitz indicate the amount of weight that
Plaintiff could lift and carry, and how frequently Plaintiff could lift and carry objects, during an eight-hour workday.
(Id.)

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in the opinion, or to obtain a more specific opinion of Plaintiff’s work-related physical abilities
and limitations.5
Accordingly, it appears that the ALJ improperly substituted her own lay opinion for
competent medical opinion evidence in finding that Plaintiff had greater physical abilities than
opined by treating physician Dr. Padmanabhan. It is well settled that the ALJ is not permitted to
substitute his or her own expertise or view of the medical proof for any competent medical
opinion. Greek, 802 F.3d at 375; Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (stating that
“the ALJ cannot arbitrarily substitute his own judgment for competent medical opinion”);
Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (“[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. Padmanabhan or Dr.
Rabinowitz’s opinions bound the ALJ under the regulations due to the ALJ’s aforementioned
omission. 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).
Moreover, even if the ALJ properly assessed the opinions of Dr. Padmanabhan and Dr.
Rabinowitz, the ALJ’s RFC determination that Plaintiff could perform a range of sedentary work
is not supported by substantial evidence based on the current record. See id., at 81-82 (finding

5

The Court recognizes that an ALJ is not required to seek additional information absent “obvious
gaps” in the administrative record that preclude an informed decision. Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d
Cir. 1999). However, 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, 168 F.3d 72, 80;
Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998).

15

that the ALJ’s RFC determination was not supported by substantial evidence in the absence of a
medical opinion indicating that the plaintiff could perform sedentary work); House v. Astrue, 11CV-0915, 2013 WL 422058, at *4 (N.D.N.Y. Feb. 1, 2013) (holding that remand was necessary
where there was no medical opinion supporting the ALJ’s RFC determination).
For these reasons, remand is necessary for the ALJ to reassess the opinions of treating
physician Dr. Padmanabhan and consultative examiner Dr. Rabinowitz. As appropriate, the ALJ
may recontact Dr. Padmanabhan and/or Dr. Rabinowitz to request clarification or additional
information regarding their opinions. See 20 C.F.R. § 404.1520b(c)(1) (providing that an ALJ
may recontact a medical source for clarification or to obtain additional information). This may
include recontacting Dr. Rabinowitz to obtain a more specific opinion of Plaintiff’s physical
abilities and limitations. Remand is also required for the ALJ to reevaluate Plaintiff’s RFC based
on a proper evaluation of the physical opinions and in light of any new information obtained.
ii.

The ALJ’s Mental RFC Determination

The record includes assessments of Plaintiff’s work-related mental abilities and limitations
from the following three acceptable medical sources: (1) consultative mental examiner Cheryl
Loomis, Ph.D., (2) State agency psychological consultant Juan Echevarria, M.D., and (3) treating
psychiatrist V. Komareth, M.D. (T. 76-77, 468-70, 524-27.)
a.

Consultative Mental Examiner Dr. Loomis

On December 10, 2012, Dr. Loomis examined Plaintiff and diagnosed him with major
depressive disorder without psychotic features. (T. 527.) Upon examination, Dr. Loomis
observed that Plaintiff’s affect was dysphoric and his mood was dysthymic. (T. 525.) Dr. Loomis
noted that Plaintiff reported depression in the form of dysphoria, crying spells, hopelessness,
diminished self-esteem, anhedonia, irritability, and recurrent thoughts of death or suicide. (T.
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525-26.) Dr. Loomis noted that Plaintiff denied socializing with anyone and described his family
relationships as okay. (T. 526.)
In sum, Dr. Loomis opined that Plaintiff could follow simple directions and instructions,
perform simple tasks independently, maintain attention and concentration, maintain a regular
schedule, and learn new tasks. (T. 526.) Dr. Loomis further opined that Plaintiff could perform
complex tasks with supervision, make appropriate decisions, and relate adequately with others.
(Id.) Dr. Loomis opined that Plaintiff could not appropriately deal with stress. (Id.) Finally, Dr.
Loomis concluded that the results of the examination appeared to be consistent with psychiatric
problems that may “significantly interfere with the claimant’s ability to function on a daily basis.”
(T. 527.)
b.

State Agency Psychological Consultant Dr. Echevarria

On January 24, 2013, Dr. Echevarria reviewed Plaintiff’s medical records and completed a
psychiatric review technique. (T. 76-77.) Dr. Echevarria indicated that Plaintiff had mild
restrictions in activities of daily living; and maintaining concentration, persistence, or pace. (T.
76.) Dr. Echevarria indicated that Plaintiff had no difficulties maintaining social functioning and
no repeated episodes of decompensation of extended duration. (Id.)
c.

Treating Psychiatrist Dr. Komareth

On October 24, 2013, Dr. Komareth provided an opinion of Plaintiff’s work-related mental
abilities and limitations due to his recurrent major depression. (T. 468-70.) Dr. Komareth opined
that Plaintiff had “marked” limitation in his ability to deal with the public; relate to authority
figures; deal with stress; maintain attention/concentration; understand, remember and carry out
detailed and complex instructions; behave in an emotionally stable manner; relate predictably in

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social situations; and demonstrate reliability.6 (T. 469.) Dr. Komareth further opined that
Plaintiff had “minimal” limitation in his ability to follow rules; relate to acquaintances and other
familiar people; use judgement; function independently; understand, remember, and carry out
simple instructions; and maintain personal appearance.7 (Id.) Finally, Dr. Komareth opined that
Plaintiff would likely be absent more than four days per month as a result of symptoms of his
mental impairment or treatment. (T. 467.)
In assessing Plaintiff’s mental RFC, the ALJ afforded “little” weight to Dr. Echevarria’s
psychiatric review technique; and “little” weight to treating psychiatrist Dr. Komareth’s opinion,
reasoning that Dr. Komareth’s reports failed to reveal significant abnormalities. (T. 28.)
Notably, in discounting Dr. Komareth’s opinion, the ALJ failed to cite an alternative medical
opinion to support her finding that Plaintiff had greater abilities than opined by Dr. Komareth in
many work-related mental activities.8 (T. 24.) For example, Dr. Komareth opined that Plaintiff
had a “marked” limitation in dealing with stress, meaning that he was “effectively precluded”
from dealing with stress consistently in a workday; and Dr. Loomis also opined that Plaintiff
could not appropriately deal with stress. (T. 469, 526.) Therefore it appears that the ALJ
improperly substituted her own lay opinion for that of a medical professional in discounting Dr.
Komareth’s opinion and determining Plaintiff’s mental RFC. Greek, 802 F.3d at 375; Rosa, 168
F.3d at 79.

6

The assessment form defined “marked” as effectively precluded from performing the activity
consistently and without interruption due to symptoms throughout an eight-hour period of time on a daily basis. (T.
469.)
7

The assessment form stated that “minimal” indicates that the individual retains the ability to
sustain this activity consistently and without interruption due to symptoms throughout an eight-hour period of time
despite the presence of limitations. (T. 469.)
8

Regarding the ALJ’s statement that Dr. Komareth’s reports failed to reveal significant
abnormalities, the Second Circuit has found that, “[i]n the absence of supporting expert medical opinion, the ALJ
should not have engaged in his own evaluations of the medical findings.” Balsamo, 142 F.3d at 81.

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The Court recognizes that, “where the medical evidence shows relatively little physical
impairment, an ALJ permissibly can render a common sense judgment about functional capacity
even without a physician's assessment.” House, 2013 WL 422058, at *4 (internal citation and
quotation marks omitted). However, that is not the case in the present matter. The Social
Security Rulings underscore the highly complex and individualized nature of mental impairments,
which may impact both exertional and nonexertional work functions. See, e.g., SSR 96-8p, at *6
(“[E]ven though mental impairments usually affect nonexertional functions, they may also limit
exertional capacity by affecting one or more of the seven strength demands. For example, a
mental impairment may cause fatigue or hysterical paralysis.”); SSR 85-15, 1985 WL 569857, at
*5 (“Since mental illness is defined and characterized by maladaptive behavior, it is not unusual
that the mentally impaired have difficulty accommodating to the demands of work and work-like
settings. Determining whether these individuals will be able to adapt to the demands or ‘stress’ of
the workplace is often extremely difficult.”).9
Finally, Plaintiff correctly notes that the ALJ failed to weigh the opinion of consultative
psychiatric examiner Dr. Loomis. (Dkt. No. 17, at 22-23 [Pl.’s Mem. of Law].) As noted above,
in assessing a claimant’s RFC, an 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

9

SSR 85-15 further provides that
The reaction to the demands of work (stress) is highly individualized, and
mental illness is characterized by adverse response to seemingly trivial
circumstances. The mentally impaired may cease to function effectively
when facing such demands as getting to work regularly having their
performance supervised, and remaining in the workplace for a full day .
. . . Thus, the mentally impaired may have difficulty meeting the
requirement of even so-called “low stress” jobs.

SSR 85-15, 15 *6.

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and other requirements of work.” Domm, 2013 WL 4647643, at *8 (citing 20 C.F.R. §
404.1545(a)(3)-(4)). The ALJ must consider opinions from acceptable medical sources, such as
Dr. Loomis, to show how a claimant’s impairments may affect his or her ability to work. 20
C.F.R. § 404.1513(a)(1)-(5).
For these reasons, remand is necessary for the ALJ to properly assess the opinions of
Plaintiff’s mental abilities and limitations. As appropriate, the ALJ may recontact the medical
sources to request clarification or additional information regarding their opinions. See 20 C.F.R.
§ 404.1520b(c)(1) (providing that an ALJ may recontact a medical source for clarification or to
obtain additional information). Remand is also required for the ALJ to reassess whether Plaintiff
met or equalled the mental Listings and reevaluate Plaintiff’s mental RFC based on a proper
evaluation of the mental opinions and in light of any new information obtained.
Because the Court has concluded that remand is required for the ALJ to reassess the
medical opinion evidence and reevaluate Plaintiff’s RFC based on a proper evaluation of the
medical opinion evidence, the Court need not reach Plaintiff’s remaining arguments concerning
subsequent steps of the sequential analysis.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 17) is
GRANTED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 20) is
DENIED; and it is further

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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:

March 7, 2017
Syracuse, NY
________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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