Ridley v. Colvin

Filing 15

MEMORANDUM-DECISION AND ORDER granting Pltf's 9 motion for judgment on the pleadings and denying Deft's 10 motion for judgment on the pleadings. This matter is remanded to Deft pursuant to 42 U.S.C. 405(g), for further proceedings consistent with this Decision and Order. Signed by Magistrate Judge William B. Carter on 2/7/18. (sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
DREW LESLIE RIDLEY,
Plaintiff,
v.

6:16-CV-1353
(WBC)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

OLINSKY LAW GROUP
Counsel for Plaintiff
300 S. State St., Ste. 420
Syracuse, NY 13202

HOWARD D. OLINSKY, 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

SIXTINA FERNANDEZ, ESQ.

William B. Mitchell Carter, U.S. Magistrate Judge,
MEMORANDUM-DECISION and ORDER
This matter was referred to me, for all proceedings and entry of a final judgment,
pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No. 18, and in
accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, N.D.N.Y. Local
Rule 73.1 and the consent of the parties. (Dkt. Nos. 4, 13).
Currently before the Court, in this Social Security action filed by Drew Leslie
Ridley (“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. 9, 10.) For the reasons set forth
below, Plaintiff’s motion is granted, to the extent it seeks remand under Sentence Four
of 42 U.S.C. § 405(g), and Defendant’s motion is denied.
I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff was born in 1981. (T. 70.) She completed high school. (T. 220.)
Generally, Plaintiff’s alleged disability consists of degenerative disc disease, diabetes,
arthritis, and asthma. (T. 248.) Her alleged disability onset date is February 1, 2013.
(T. 248.) Her date last insured is June 30, 2016. (T. 70.) She previously worked as a
cashier and in customer service. (T. 220.)
B.

Procedural History

On April 9, 2014, Plaintiff applied for a period of Disability Insurance Benefits
(“SSD”) under Title II, and Supplemental Security Income (“SSI”) under Title XVI, of the
Social Security Act. (T. 70.) Plaintiff’s applications were initially denied, after which she
timely requested a hearing before an Administrative Law Judge (“the ALJ”). On March
3, 2015, Plaintiff appeared before the ALJ, John Murdock. (T. 38-67.) On June 26,
2015, ALJ Murdock issued a written decision finding Plaintiff not disabled under the
Social Security Act. (T. 21-35.) On September 14, 2016 the Appeals Council (“AC”)
denied Plaintiff’s request for review, rendering the ALJ’s decision the final decision of
the Commissioner. (T. 1-6.) Thereafter, Plaintiff timely sought judicial review in this
Court.
C.

The ALJ’s Decision

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Generally, in his decision, the ALJ made the following five findings of fact and
conclusions of law. (T. 26-31.) First, the ALJ found that Plaintiff met the insured status
requirements through June 30, 2016 and Plaintiff had not engaged in substantial gainful
activity since February 1, 2013. (T. 26.) Second, the ALJ found that Plaintiff had the
severe impairments of degenerative disc disease of the lumbar spine, degenerative disc
disease of the cervical spine, status post laminectomy and discectomy of the lumbar
spine, hyperglycemia, and left wrist pain. (Id.) Third, the ALJ found that Plaintiff did not
have an impairment that meets or medically equals one of the listed impairments
located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (T. 27.) Fourth, the ALJ found
that Plaintiff had the residual functional capacity (“RFC”) to perform a full range of light
work. (Id.) 1 Fifth, the ALJ determined that Plaintiff was capable of performing her past
relevant work. (T. 30.)
II.

THE PARTIES’ BRIEFINGS ON PLAINTIFF’S MOTION
A.

Plaintiff’s Arguments

Plaintiff makes two separate arguments in support of her motion for judgment on
the pleadings. First, Plaintiff argues the RFC determination was not supported by
substantial evidence. (Dkt. No. 9 at 9-13 [Pl.’s Mem. of Law].) Second, and lastly,
Plaintiff argues the step four determination was not supported by substantial evidence.
(Id. at 13-14.)

1

Light work involves lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in
this category when it requires a good deal of walking or standing, or when it involves sitting most of the
time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full
or wide range of light work, you must have the ability to do substantially all of these activities. If someone
can do light work, we determine that he or she can also do sedentary work, unless there are additional
limiting factors such as loss of fine dexterity or inability to sit for long periods of time. 20 C.F.R. §§
404.1567(b), 416.967(b).

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B.

Defendant’s Arguments

In response, Defendant makes three arguments. First, Defendant argues the
ALJ correctly found at step two that Plaintiff’s depression was not a severe impairment.
(Dkt. No. 10 at 6- [Def.’s Mem. of Law].) Second, Defendant argues the ALJ’s RFC
determination was supported by substantial evidence. (Id. at 10-14.) Third, and lastly,
Defendant argues the ALJ correctly found Plaintiff was able to return to her past
relevant work.
III.

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. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v.
Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the
Commissioner’s determination will only be reversed 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.”); 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.

4

1420, 1427 (1971). Where evidence is deemed susceptible to more than one rational
interpretation, the Commissioner’s conclusion must be upheld. See 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. See 20 C.F.R.
§§ 404.1520, 416.920. The Supreme Court has recognized the validity of this
sequential evaluation process. See Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct.
2287 (1987). The five-step process is as follows:
(1) whether the claimant is currently engaged in substantial gainful activity;
(2) whether the claimant has a severe impairment or combination of
impairments; (3) whether the impairment meets or equals the severity of the
specified impairments in the Listing of Impairments; (4) based on a ‘residual
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functional capacity’ assessment, whether the claimant can perform any of
his or her past relevant work despite the impairment; and (5) whether there
are significant numbers of jobs in the national economy that the claimant
can perform given the claimant's residual functional capacity, age,
education, and work experience.
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).
IV.

ANALYSIS
The RFC is an assessment of “the most [Plaintiff] can still do despite [her]

limitations.” 20 C.F.R. §§ 404.1545(a)(1); 416.945(a)(1) 2. The ALJ is responsible for
assessing Plaintiff’s RFC based on a review of relevant medical and non-medical
evidence, including any statement about what Plaintiff can still do, provided by any
medical sources. Id. at §§ 404.1527(d), 404.1545(a)(3), 404.1546(c), 416.927(c),
416.945(a)(3), 416.946(c).
The relevant factors considered in determining what weight to afford an opinion
include the length, nature and extent of the treatment relationship, relevant evidence
which supports the opinion, the consistency of the opinion with the record as a whole,
and the specialization (if any) of the opinion’s source. 20 C.F.R. §§ 404.1527(c)(1)-(6),
416.927(c)(1)-(6).
The Second Circuit has long recognized the ‘treating physician rule’ set out in 20
C.F.R. §§ 404.1527(c) and 416.927(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

2

Effective March 27, 2017, many of the Regulation cited herein have been amended, as
have SSRs cited herein. Nonetheless, because Plaintiff’s social security application was filed before the
new regulations and SSRs went into effect, the Court reviews the ALJ's decision under the earlier
regulations and SSRs.

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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)).
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)). However, “[w]here 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., No. 3:15-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.’ ” Greek, 802 F.3d at 375 (quoting Burgess,
537 F.3d at 129-30).
A. Medical Evidence in the Record
The medical record contains a medical source statement completed by treating
source, Jennifer Quinn, M.D., and a medical source statement completed by
consultative examiner, Tanya Perkins-Mwantuali, M.D. (T. 398-402, 412-414.)

7

In her medical source statement, Dr. Quinn noted she began treating Plaintiff in
2013 and Plaintiff suffered from degenerative disc disease of the lumbar spine, sciatica,
hyperglycemia, depression and anxiety. (T. 412.)
Dr. Quinn provided exertional and non-exertional limitations. She indicated that
Plaintiff could sit for 30 minutes at a time and stand/walk for 10 minutes at a time. (T.
412.) She opined that in an eight hour workday, Plaintiff could sit for a total of three
hours and stand/walk for a total of one hour. (Id.) She checked the box “yes” indicating
Plaintiff would require a job which permitted shifting positions at will. (Id.) She checked
the box “yes” indicating Plaintiff would need to take unscheduled breaks during the day;
specifically, Plaintiff would need to take a 15 minute break every hour “if not more.” (Id.)
Dr. Quinn indicated that Plaintiff could occasionally lift and carry up to ten pounds, and
never lift and carry more than 20 pounds. (T. 413.) Dr. Quinn indicated that Plaintiff
had no limitations using her hands or fingers, but could only reach “10%” of the workday
with her arms. (Id.) Dr. Quinn opined Plaintiff would be absent more than four times a
month, was not a malingerer, her impairments were reasonably consistent with her
symptoms and functional limitations, and she was incapable for working eight hours a
day/five days a week. (Id.)
Dr. Perkins-Mwantuali performed an examination and provided a medical source
statement. In her statement, she opined that Plaintiff had “moderate to marked
limitations bending and twisting, moderate limitations with kneeling, crawling, squatting,
and climbing.” (T. 401.)
The ALJ afforded Dr. Quinn’s opinion “very limited weight.” (T. 29.) In support of
his determination, the ALJ reasoned that Dr. Quinn’s treatment notations were “not

8

entirely consistent” with her opinion and that treatment records failed to provide “strong
support.” (T. 29.) Specifically, the ALJ reasoned that Dr. Quinn never stated or found
any functional limitations during her treatment visits; Dr. Quinn never referred Plaintiff to
a specialist for her back or neck pain; imaging showed “some difficulties,” but Dr. Quinn
never “gave a list of functional limitations” or restricted Plaintiff from working or any
other activities; and Dr. Quinn prescribed medication that, at times, controlled Plaintiff’s
pain. (Id.)
Plaintiff asserts that the ALJ erred in his determination to afford Dr. Quinn’s
opinion “very limited weight” because he erred in his “interpretation” of the doctor’s
treatment notes. (Dkt. No. 9 at 10 [Pl.’s Mem. of Law].) Specifically, Plaintiff argues
that the ALJ’s statement, that Dr. Quinn never referred Plaintiff to a specialist, was
based on a misreading of the record. (Id.) In support of her argument, Plaintiff relies on
a treatment notation which indicated that an orthopedic evaluation was pending. (Id.; T.
434.) However, based on the context of the treatment notations, the orthopedic
evaluation was for Plaintiff’s left wrist pain and not for her back/neck pain. (T. 433.)
Therefore, the ALJ did not misread the medical record in concluding that Dr. Quinn did
not refer Plaintiff to a specialist for her back and neck impairments.
Defendant asserts that the ALJ did not err in his assessment of Dr. Quinn’s
opinion because the opinion was not consistent with her own treatment notes reflecting
mostly unremarkable findings. (Dkt. No. 10 at 13 [Def.’s Mem. of Law].) However, that
was not what the ALJ reasoned. To be sure, the ALJ stated Dr. Quinn’s opinion was
inconsistent with treatment notes; however, the ALJ did not find that her opinion was
inconsistent with “unremarkable findings.” (T.29.) The ALJ discredited Dr. Quinn’s

9

opinion, despite examination findings and imaging results, because treatment notations
failed to include specific functional limitations or other restrictions. (Id.) This is not good
reason to reject Dr. Quinn’s opinion. Dr. Quinn did not treat Plaintiff while she was
employed, nor did she treat Plaintiff in the context of a Worker’s Compensation claim.
Therefore, it not surprising that Dr. Quinn would not provide specific functional work
limitations in her treatment notations.
The Second Circuit held that a treating source’s silence as to a patient’s
credibility was unsurprising because a doctor’s “primary endeavor is to provide medical
expertise rather than to assess credibility.” Bliss v. Comm'r of Soc. Sec., 406 F. App'x
541, 542 (2d Cir. 2011). The same reasoning applies here. Dr. Quinn’s primary role
was to provide Plaintiff with medical treatment, not functional limitations, especially
given the fact that Plaintiff was not working at the time of treatment. Further, when Dr.
Quinn was asked to provide specific work related functional limitations she complied.
Therefore, the ALJ improperly “emphasized the lack of specific functional limitations
provided by the treating source[] and used this lack of information to support [his]
rejection of [her] opinion[].” Barton v. Colvin, No. 3:13-CV-1199 (GTS), 2015 WL
5511999, at *4 (N.D.N.Y. Sept. 15, 2015).
Plaintiff also argues that the ALJ erred in his analysis of Dr. Perkins-Mwantuali’s
opinion. (Dkt. No. 9 at 11 [Pl.’s Mem. of Law].) Plaintiff essentially argues that the
doctor’s opinion was supported by her examination of Plaintiff and the ALJ conducted
an impermissible “sit and squirm” test. (Id.)
The ALJ afforded Dr. Perkins-Mwantuali’s opinion “very limited weight.” (T. 29.)
The ALJ stated that although Plaintiff had “deficits during the examination” she was able

10

to rise from a chair, had a normal gait, control her pain with medication, and she did not
require an assistive device. (Id.) The ALJ further noted that Plaintiff never asked to get
up or change position during the hearing. (T. 29-30.) The ALJ also stated that because
Dr. Perkins-Mwantuali was a one-time consultative examiner, her opinion was entitled to
less weight than Plaintiff’s primary care provider. (T. 30.)
To be sure, under the substantial evidence standard of review, it is not enough
for Plaintiff to merely disagree with the ALJ’s weighing of the evidence or to argue that
the evidence in the record could support her position. Plaintiff must show that no
reasonable factfinder could have reached the ALJ’s conclusions based on the evidence
in record. See Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012);
see also Wojciechowski v. Colvin, 967 F.Supp.2d 602, 605 (N.D.N.Y. 2013)
(Commissioner’s findings must be sustained if supported by substantial evidence even if
substantial evidence supported the plaintiff’s position); see also Jones v. Sullivan, 949
F.2d 57, 59 (2d Cir.1991) (reviewing courts must afford the Commissioner’s
determination considerable deference and cannot substitute own judgment even if it
might justifiably have reached a different result upon a de novo review).
Here, the ALJ seemingly rejected the whole of Dr. Perkins-Mwantuali’s opinion
based on her negative findings, while ignoring other positive findings on examination.
Elsewhere in his determination, the ALJ noted Dr. Perkins-Mwantuali observations that
Plaintiff could partially squat and had limited range of motion in her spine. (T. 28-29.)
But in evaluating the doctor’s opinion the ALJ only relied on findings he determined
were inconsistent with the doctor’s opinion. Of note, the ALJ’s statement that Dr.

11

Perkins-Mwantuali’s opinion was entitled to less weight than Dr. Quinn was baffling
because the ALJ afforded both doctors’ opinions “very little weight.”
The ALJ committed further error in discounting Dr. Perkins-Mwantuali’s opinion
based on his lay assessment of Plaintiff’s ability to sit during the hearing. As outlined
herein, the relevant factors considered in determining what weight to afford an opinion
include the length, nature and extent of the treatment relationship, relevant evidence
which supports the opinion, the consistency of the opinion with the record as a whole,
and the specialization (if any) of the opinion’s source. 20 C.F.R. §§ 404.1527(c)(1)-(6),
416.927(c)(1)-(6). Although an ALJ may consider his own observations of a plaintiff at
the hearing as part of his overall credibility evaluation, it is improper for an ALJ to
discredit a physician’s opinion based on his observations at the hearing. SSR 96-7p,
1996 WL 374186, at *5. The ALJ impermissibly substituted his own opinion for that of a
medical opinion in discrediting Dr. Perkins-Mwantuali’s opinion based on personal
observations at a hearing. See Aubeuf v. Schweiker, 649 F.2d 107, 113 (2d Cir.1981)
(stating that serious questions are raised “with respect to the propriety of subjecting
claimants to a ‘sit and squirm index,’ and with respect to rendition by the ALJ of an
expert medical opinion which is beyond his competence); Selian v. Astrue, 708 F.3d
409, 419 (2d Cir. 2013) (an ALJ may not arbitrarily substitute his or her own judgment
for competent medical opinion).
For the reasons stated herein, the ALJ failed to properly analyze the medical
opinion evidence in the record. Remand is therefore appropriate.
B. RFC Determination

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First, Plaintiff argues that in rejecting both of medical source opinions in the
record he produced an RFC not supported by substantial evidence. (Dkt. No. 9 at 11
[Pl.’s Mem. of Law].) The Second Circuit has held that where, “the record contains
sufficient evidence from which an ALJ can assess the [claimant's] residual functional
capacity, a medical source statement or formal medical opinion is not necessarily
required. Monroe v. Comm'r of Soc. Sec., 676 F. App'x 5, 8 (2d Cir. 2017) (internal
citations and quotations omitted). Therefore, the ALJ did not err in formulating an RFC
without a specific medical opinion.
Second, Plaintiff argues the ALJ’s determination failed to provide sufficient
analysis to support his determination that Plaintiff could perform light work. (Dkt. No. 9
at 12 [Pl.’s Mem. of Law].) Although the ALJ outlined the medical evidence in the
record and provided an analysis of the weight he afforded opinion evidence, the ALJ’s
decision was silent concerning how he formulated his RFC determination or what
evidence in the record supported his RFC determination.
Plaintiff asserts that although the ALJ stated he did not rely on the opinion of the
single decision (“SDM”), the opinion of the SDM at the initial level was consistent with
the ALJ’s RFC. (Dkt. No. 9 at 12 [Pl.’s Mem. of Law].) 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 v. Comm'r of Soc. Sec., No. 5:15-CV-1359 (GTS), 2016 WL
7048709, at *5 (N.D.N.Y. Dec. 5, 2016) (quoting Martin v. Astrue, 10-CV-1113, 2012 WL
4107818, at *15); see also Box v. Colvin, 3 F.Supp.3d 27, 46 (E.D.N.Y. 2014)

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(“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 SDM’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 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)). Here, unlike in Hart, there was no opinion evidence that clearly
supported the ALJ’s conclusions in the RFC assessment and it was not clear whether
the ALJ would have found an ability to perform light work without having accounted for
this opinion. See Kociuba v. Comm'r of Soc. Sec., No. 5:16-CV-0064, 2017 WL
2210511, at *7 (N.D.N.Y. May 19, 2017). As in Kociuba, the ALJ here afforded “limited
weight” to the only two medical source who provided functional limitations, both of which
suggested Plaintiff could perform less than the RFC. Kociuba, 2017 WL 2210511, at *8.
Defendant asserts that the ALJ’s RFC determination was consistent with Dr.
Perkins-Mwantuali’s opinion. (Dkt. No. 10 at 12 [Def.’s Mem. of Law].) However, this
Court may not “create post-hoc rationalizations to explain the Commissioner's treatment
of evidence when that treatment is not apparent from the Commissioner's decision

14

itself.” Martinbeault v. Astrue, 2009 WL 5030789, *5 (N.D.N.Y. Dec. 14, 2009) (citing
Grogan v. Barnhart, 399 F.3d 1257, 1263 (10th Cir. 2005)); see also Snell, 177 F.3d
134 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962));
see also Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999). The ALJ did not state in his
opinion that he relied on Dr. Perkins-Mwantuali’s opinion in formulating the RFC. In
addition, the ALJ afforded Dr. Perkins-Mwantuali’s opinion “very little weight” indicating
that the ALJ found her opinion to be unsupportive of the requirements of light work.
Overall, remand is necessary for a proper evaluation of the medical opinion
evidence in the record and RFC determination.
C. Mental Impairments
Plaintiff argues that the ALJ failed to develop the record concerning Plaintiff’s
mental impairments and should have requested a psychiatric consultative examination
to fully assess the extent of any limitation. (Dkt. No. 9 at 13 [Pl.’s Mem. of Law].)
At step two the ALJ determined that Plaintiff did not have a severe mental impairment.
(T. 26.) The ALJ stated that although Dr. Quinn treated Plaintiff for depression, she did
not provide any mental functional limitations and at the hearing Plaintiff testified that she
did not receive mental health services from a specialist. (T. 27.)
Plaintiff bears the burden of presenting evidence establishing severity. Taylor v.
Astrue, 32 F. Supp. 3d 253, 265 (N.D.N.Y. 2012) (citing Miller v. Comm'r of Social Sec.,
No. 05-CV-1371, 2008 WL 2783418, at *6-7 (N.D.N.Y. July 16, 2008); see also 20
C.F.R. §§ 404.1512(a), 416.912(a). Although the Second Circuit has held that this step
is limited to “screen[ing] out de minimis claims,” Dixon v. Shalala, 54 F.3d 1019, 1030
(2d Cir.1995), the “mere presence of a disease or impairment, or establishing that a

15

person has been diagnosed or treated for a disease or impairment” is not, by itself,
sufficient to render a condition “severe.” Coleman v. Shalala, 895 F.Supp. 50, 53
(S.D.N.Y. 1995); see Prince v. Astrue, 514 F. App'x 18, 20 (2d Cir. 2013). A “finding of
‘not severe’ should be made if the medical evidence establishes only a ‘slight
abnormality’ which would have ‘no more than a minimal effect on an individual's ability
to work.’” Rosario v. Apfel, No. 97-CV-5759, 1999 WL 294727, at *5 (E.D.N.Y. March
19, 1999) (quoting Bowen v. Yuckert, 482 U.S. 137, 154 n.12, 107 S.Ct. 2287 (1987)).
Here, substantial evidence supported the ALJ’s step two determination that Plaintiff did
not have a severe mental impairment. Indeed, although Dr. Quinn diagnosed Plaintiff
with depression and provided medication, Plaintiff’s depression was controlled on
medication. (T. 360 (denied depression), T. 362 (depression well controlled), T. 427
(patient denies depression), T. 440 (mood well controlled on Zoloft), T. 443-444 (mood
stable; patient denies depression).) Therefore, substantial evidence supported the
ALJ’s step two evaluation and conclusion.
A consultative examination was not needed because the ALJ had sufficient
evidence in the record to support his determination. The relevant Regulations stipulate
that a consultative examination is ordered at the Administration's request, on an
individual case basis, and when appropriate. See 20 C.F.R. §§ 404.1519, 416.919; see
also id. at §§ 404.1517, 416.916. If the evidence in the record is sufficient to render a
decision on the plaintiff’s disability, an ALJ is not required to order a consultative
examination. See 20 C.F.R. §§ 404.1517, 416.917; see Kameisha v. Colvin, 100 F.
Supp. 3d 200, 208 (N.D.N.Y. 2015). Therefore, the ALJ did not err in his step two
determination nor was the ALJ required to hire a consultative examiner.

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D. Step Four Determination
Plaintiff argues the ALJ erred in his step four evaluation due to error identified
herein. (Dkt. No. 9 at 13-14 [Pl.’s Mem. of Law].) Plaintiff also asserts that the ALJ
failed to include any environmental limitations in the RFC as provided by the SDM. (Id.
at 14.) First, due to the errors in weighing the opinion evidence and RFC analysis, the
ALJ will also need to make a new finding related to whether Plaintiff can perform her
past relevant work. Second, as outlined herein and stressed by Plaintiff elsewhere in
her brief, ALJ’s should not afford any weight to the opinions of SDMs. Overall, remand
is required for a proper weighing of the medical opinion evidence, RFC determination,
and new findings related to whether Plaintiff can perform her past relevant work or work
that exists in the national economy. If warranted, the ALJ should consult a vocational
expert.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 9) is
GRANTED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 10)
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:

February 7, 2018

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