Vanhorn v. Commissioner of Social Security

Filing 18

ORDER - That the 17 Report-Recommendation of Magistrate Judge Victor E. Bianchini filed April 2, 2012 is ACCEPTED in its entirety. That Defendant's Motion for Judgment on the Pleadings is DENIED, that Plaintiff's Motion for Judgment on the Pleadings is GRANTED, and that this case is remanded for further administrative proceedings. Signed by Chief Judge Gary L. Sharpe on 4/24/2012. (Attachments: # 1 Judge Bianchini's Report-Recommendation) (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

COLLEEN ANN VANHORN,
REPORT AND
RECOMMENDATION
Plaintiff,
10-CV-1023
(GLS/VEB)
V.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

I. INTRODUCTION
In March of 2007, Plaintiff Colleen Ann VanHorn filed an application for disability
and disability insurance benefits under the Social Security Act. Plaintiff alleges that she
has been unable to work since March of 2007 due to physical impairments. The
Commissioner of Social Security denied Plaintiff’s claim.
Plaintiff, by and through her attorneys, Conboy McKay Bachman & Kendall, LLP,
Lawrence D. Hasseler, Esq., of counsel, commenced this action seeking judicial review of
the Commissioner’s decision pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3).
The Honorable Norman A. Mordue, Chief United States District Judge, referred this
case to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. §
636(b)(1)(A) and (B). (Docket No. 15).

II. BACKGROUND
The relevant procedural history may be summarized as follows:
Plaintiff applied for benefits on March 29, 2007, alleging disability beginning on
March 5, 2007. (T at 42, 85).1 The application was denied initially and Plaintiff requested
a hearing before an Administrative Law Judge (“ALJ”). A hearing was held in Canton, New
York, before ALJ Elizabeth W. Koennecke on May 27, 2009.2 (T at 19). Plaintiff appeared
with an attorney and testified. (T at 22-38).
On July 23, 2009, ALJ Koennecke issued a written decision finding that Plaintiff was
not disabled and was therefore not entitled to benefits. (T at 9-18). The ALJ’s decision
became the Commissioner’s final decision on August 7, 2010, when the Appeals Council
denied Plaintiff’s request for review. (T at 1-5).
Plaintiff, through counsel, timely commenced this action on August 24, 2010.(Docket
No. 1). The Commissioner interposed an Answer on December 13, 2010. (Docket No. 9).
Plaintiff filed a supporting Brief on January 19, 2011. (Docket No. 12). The Commissioner
filed a Brief in opposition on March 7, 2011. (Docket No. 17).
Pursuant to General Order No. 18, issued by the Chief District Judge of the Northern
District of New York on September 12, 2003, this Court will proceed as if both parties had
accompanied their briefs with a motion for judgment on the pleadings.3
For the reasons that follow, it is recommended that the Commissioner’s motion be
1

Citations to “T” refer to the Adm inistrative Transcript. (Docket No. 10).

2

The ALJ was located in Syracuse, New York. Plaintiff and her attorney appeared via
videoconference from Canton. (T at 9).
3

General Order No. 18 provides, in pertinent part, that “[t]he Magistrate Judge will treat the
proceeding as if both parties had accom panied their briefs with a m otion for judgm ent on the pleadings.”

2

denied, Plaintiff’s motion be granted, and this case be remanded for further administrative
proceedings.
III. DISCUSSION
A.

Legal Standard
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. 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.”); see 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
it 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, 28 L.Ed.2d 842 (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).
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

3

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).
The Commissioner has established a five-step sequential evaluation process to
determine whether an individual is disabled as defined under the Social Security Act. See
20 C.F.R. §§ 416.920, 404.1520. The United States Supreme Court recognized the validity
of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S.Ct. 2287, 96 L.Ed.2d
119 (1987), and it remains the proper approach for analyzing whether a claimant is
disabled.4

4

This five-step process is detailed as follows:

First, the [Com m issioner] considers whether the claim ant is currently engaged in substantial
gainful activity.
If he is not, the [Com m issioner] next considers whether the claim ant has a “severe im pairm ent”
which significantly lim its his physical or m ental ability to do basic work activities.
If the claim ant has such an im pairm ent, the third inquiry is whether, based solely on m edical
evidence, the claim ant has an im pairm ent which is listed in Appendix 1 of the regulations.
If the claim ant has such an im pairm ent, the [Com m issioner] will consider him disabled without
considering vocational factors such as age, education, and work experience; the [Com m issioner]
presum es that a claim ant who is afflicted with a “listed” im pairm ent is unable to perform
substantial gainful activity.
Assum ing the claim ant does not have a listed im pairm ent, the fourth inquiry is whether, despite
the claim ant's severe im pairm ent, he has the residual functional capacity to perform his past work.
Finally, if the claim ant is unable to perform his past work, the [Com m issioner] then determ ines
whether there is other work which the claim ant could perform .
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982) (per curiam ); see also Rosa v. Callahan, 168 F.3d
72, 77 (2d Cir.1999); 20 C.F.R. §§ 416.920, 404.1520.

4

While the claimant has the burden of proof as to the first four steps, the
Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S. at
146 n. 5; Ferraris v. Heckler, 728 F.2d 582 (2d Cir.1984).
The final step of the inquiry is, in turn, divided into two parts. First, the
Commissioner must assess the claimant's job qualifications by considering his or her
physical ability, age, education, and work experience. Second, the Commissioner must
determine whether jobs exist in the national economy that a person having the claimant's
qualifications could perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §§ 416.920(g);
404.1520(g); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 76 L.Ed.2d 66
(1983).
B.

Analysis
1.

Commissioner’s Decision

The ALJ found that Plaintiff met the insured status requirements of the Social
Security Act through December 31, 2012. The ALJ determined that Plaintiff had not
engaged in substantial gainful activity since March 5, 2007, the alleged onset date. (T at
11). The ALJ concluded that Plaintiff had the following “severe” impairments: fibromyalgia,
lumbar degenerative disc disease with radiculopathy, bilateral carpal tunnel syndrome, and
obesity. (T at 12).
The ALJ determined that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled one of the listed impairments found in 20 CFR
Part 404, Subpart P, Appendix 1 (the “Listings”). (T at 13). The ALJ concluded that Plaintiff
retained the residual functional capacity to perform the full range of sedentary work, as

5

defined in 20 CFR § 404.1567 (a). (T at 13-17).
The ALJ found that Plaintiff was unable to perform her past relevant work as a
cashier or nurse’s aide. (T at 17). However, considering Plaintiff’s age (40 years old as of
the alleged onset of disability), education (high school), and residual functional capacity,
the ALJ concluded that there were jobs that exist in significant numbers in the national
economy that Plaintiff can perform. (T at 17). Accordingly, the ALJ determined that Plaintiff
was not disabled under the Social Security Act and was therefore not entitled to benefits.
(T at 18). As noted above, the ALJ’s decision became the Commissioner’s final decision
on August 7, 2010, when the Appeals Council denied Plaintiff’s request for review. (T at
1-5).
2.

Plaintiff’s Claims

Plaintiff contends that the Commissioner’s decision should be reversed. She offers
five (5) principal arguments in support of this position. First, Plaintiff contends that the ALJ
should have concluded that her impairment met or medically equaled an impairment set
forth in the Listings. Second, Plaintiff argues that the ALJ did not properly assess the
medical evidence of record. Third, Plaintiff asserts that the ALJ did not properly evaluate
her credibility. Fourth, Plaintiff contends that the ALJ’s residual functional capacity
assessment was flawed. Fifth, Plaintiff argues that the ALJ’s conclusion regarding the
existence of jobs in the national economy that Plaintiff can perform is not supported by
substantial evidence. This Court will address each argument in turn.
a.

Listing-Level Impairment

If a claimant suffers from an impairment or combination of impairments that meets

6

or medically equals one of the impairments contained in the Listings, the claimant will be
considered disabled.
Specifically, the impairments listed in Appendix 1 of the Social Security Regulations
(the “Listings”) are “acknowledged by the [Commissioner] to be of sufficient severity to
preclude” substantial gainful activity. Accordingly, a claimant who meets or equals a Listing
impairment is “conclusively presumed to be disabled and entitled to benefits.” Dixon v.
Shalala, 54 F.3d 1019, 1022 (2d Cir.1995); see 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii) (“If you have an impairment(s) that meets or equals one of our listings in
appendix 1 of this subpart and meets the duration requirement, we will find that you are
disabled.”).
The claimant bears the burden of establishing that his or her impairments match a
Listing or are equal in severity to a Listing. See Naegele v. Barnhart, 433 F. Supp.2d 319,
324 (W.D.N.Y. 2006) (“It must be remembered that plaintiff has the burden of proof at step
3 that she meets the Listing requirements.”).
To show that an impairment matches a Listing, the claimant must show that his or
her impairments meet all of the specified criteria. Sullivan v. Zebley, 493 U.S. 521, 530
(1990); 20 C.F.R. § 416.925(d). If a claimant's impairment “manifests only some of those
criteria, no matter how severely,” the impairment does not qualify. Sullivan, 493 U.S. at
530.
To satisfy this burden the claimant must offer medical findings equal in severity to
all requirements, which findings must be supported by medically acceptable clinical and
laboratory diagnostic techniques. 20 C.F.R. § 416.926(b). Abnormal physical findings “must
be shown to persist on repeated examinations despite therapy.” 20 C.F.R. Pt. 404, Subpt.
7

P, App. 1 § 1.00(B). Further, the medical reports must indicate physical limitations based
upon actual observations and/or clinical tests, rather than the claimant's subjective
complaints. Id.
Plaintiff contends that her impairment meets or medically equals the impairment set
forth in § 1.04 (A) of the Listings (Disorders of the Spine). To satisfy that Listing, a
claimant must have a spine disorder “resulting in compromise of a nerve root (including the
cauda equina) or the spinal cord,” along with:
Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of the
spine, motor loss (atrophy with associated muscle weakness
or muscle weakness) accompanied by sensory or reflex loss
and, if there is involvement of the lower back, positive
straight-leg raising test (sitting and supine)
20 C.F.R. Part 404, Subpart P, Appendix 1, § 1.04.
There is no question that Plaintiff suffers from a spinal disorder that causes nerve
root compromise. A September 2008 MRI of the lumbar spine indicated a “moderate to
large central to right disc herniation with a fragment,” which extends with “slightly” inferior
indentation of the descending S1 nerve root within its lateral recess. (T at 376). The
Commissioner concedes that this aspect of Listing § 1.04 has been satisfied. (Docket No.
14, at p. 7).
Plaintiff argues that she suffers from neuro-anatomic distribution of pain (i.e. pain
attributable to the nerve root compromise). The Commissioner does not appear to contest
this point. (Docket No. 14, at p. 6-8). The medical record documents complaints of pain
radiating down Plaintiff’s right leg. (T at 218, 308, 311, 314). Dr. Juan Diego Harris, a pain
management specialist, described Plaintiff’s low back pain as “significant, . . . axial and
8

radicular in nature . . . .” (T at 407).

He attributed “some” of Plaintiff’s “radicular

symptomology” to her disc herniation. (T at 407).
Plaintiff contends that she also has a medically documented limitation in the motion
of her spine. In support of this argument, Plaintiff cites the report of Dr. James Naughten,
a consultative examiner. Dr. Naughten found diminished motion in Plaintiff’s cervical,
thoracic, and lumbar spine. (T at 244-45). The Commissioner points to treatment notes
describing Plaintiff’s spinal range of motion as normal (T at 220, 312) or, alternatively,
characterizing her spinal motor limitation as mild. (T at 293, 406).
Plaintiff also argues that she suffers from motor loss with muscle weakness
accompanied by sensory or reflex loss. Dr. Naughten observed that Plaintiff walked with
a wadding and stiff gait. (T at 244). He noted that she appeared imbalanced when walking
on heels and toes. (T at 244). Dr. Naughten also assessed limitations with regard to
Plaintiff’s fine motor skills, with a loss of grip strength (greater on the left) and “bilateral
thenar wasting of both hands.”5 (T at 244). Dr. Harris, the pain specialist, noted limited
reflexes. (T at 407). The Commissioner points to numerous records documenting normal
motor and sensory exams. (T at 196, 290, 291, 293, 297, 326, 329, 332, 384, 407, 414,
416).
Plaintiff contends that the positive straight-leg (“SLR”) test requirement was
satisfied, pointing to two records documenting positive SLR tests. (T at 245, 309). The SLR
test “is used to detect nerve root pressure, tension or irritation.” Mattison v. Astrue, No.

5

Bilateral thenar wasting refers to an atrophy of the m uscles of both thum bs. See
http://im ages.rheum atology.org/viewphoto.php?album Id=77030&im ageId=2897720 (last accessed March
28, 2012).

9

07–CV1042, 2009 WL 3839398, at *4 n. 10 (N.D.N.Y. Nov. 16, 2009). “A positive SLR
requires the reproduction of pain at an elevation of less than 60 degrees. A positive SLR
is said to be the most important indication of nerve root pressure.” Id. (citing Andersson &
McNeill, Lumbar Spine Syndromes 78–79 (Springer–Verlag Wein 1989)). In the present
case, Dr. Naughten noted a supine SLR test of 20 degrees, but indicated that the “seated
SLR bilaterally [was] negative.” (T at 245). The other record noting a positive SLR test is
non-specific as to the elevation and whether the test was supine, sitting, or both. (T at 309).
As noted above, the ALJ concluded that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled one of the listed impairments.
(T at 13). However, the ALJ supported her decision by simply reciting the requirements
of Listing § 1.04 and referring generically to the “evidence.” (T at 13).
This lack of specificity frustrates meaningful judicial review. The findings of Dr.
Naughten provide some support for Plaintiff’s claim that her impairment meets Listing §
1.04 (A). For example, Dr. Naughten found limitation of motion of the spine and motor loss
(associated with muscle atrophy in Plaintiff’s hands). (T at 244-45). The ALJ afforded
“significant weight” to Dr. Naughten’s assessment (T at 16), but did not reconcile that
finding with her conclusion that Listing § 1.04 (A) had not been satisfied. It also appears
Plaintiff made at least a prima facie showing that the other elements of Listing § 1.04 (A)
were present by, for example, pointing to positive SLR tests (T at 245, 309) and
neuro-anatomic distribution of pain. (T at 218, 308, 311, 314, 407).
This Court is mindful that “[c]onflicts in evidence . . . are for the Commissioner to
resolve. White v. Comm’r of Social Security, No. 06-CV-0564, 2008 WL 3884355, at *11
(N.D.N.Y. Aug. 18, 2008) (citing Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir.1983)).
10

However, the ALJ’s failure to cite specific evidence in support of her Listing determination
makes it difficult to discern whether or how the ALJ resolved those conflicts. Where, as
here, there is a question as to how the ALJ weighed the evidence and whether the ALJ
applied the appropriate legal standard, remand is the remedy.

This is particularly

appropriate where, as here, there is evidence in the record that supports the claimant’s
argument and it is not clear whether or how the ALJ reconciled that evidence with her
findings. See Conway v. Barnhart, No. 00 Civ. 8148, 2002 WL 31478192, at *4 (S.D.N.Y.
Nov.6, 2002) (holding that remand was proper “when there is a question as to how the ALJ
applied legal standards, such as determining what controlling weight was given to a
treating physician's conclusions and diagnosis” (citing Rosa v. Callahan, 168 F.3d 72,
79-81 (2d Cir.1999)).
b.

Assessment of Medical Evidence

Plaintiff challenges the ALJ’s assessment of certain medical evidence.

For

example, the ALJ afforded “significant weight” to Dr. Naughten’s findings, but then failed
to assess conflicts between those findings and the ALJ’s residual functional capacity
(“RFC”) determination. This Court finds this argument persuasive. In particular, Dr.
Naughten opined that Plaintiff “may need to be restricted from activities requiring mild to
greater exertion in terms of pushing, pulling, reaching, lifting, carrying, or handling objects.”
(T at 245). This finding was consistent with the assessment of Steven Nevorski, a
physician’s assistant, who treated Plaintiff and opined that she could not lift or carry any
weight and was limited with regard to her ability to push/pull. (T at 378-39).
The ALJ concluded that Plaintiff could lift/carry ten pounds frequently and push/pull
using all of her extremities consistent with sedentary exertion (T at 13), but did not
11

expressly reconcile these findings with Dr. Naughten’s assessment.

Moreover, Dr.

Naughten found limitations with regard to Plaintiff’s fine motor skills, with a loss of grip
strength (greater on the left). (T at 244). This finding was at odds with the ALJ’s conclusion
that Plaintiff had no manipulative limitations.6 (T at 13). Because the ALJ afforded
“significant” weight to Dr. Naughten’s opinion, her failure to reconcile these material
aspects of his assessment with her RFC determination undermines confidence in that
determination.
This Court is also persuaded that the ALJ did not properly assess the opinion of
physician’s assistant (PA) Neveroski. As referenced above, PA Neveroski opined that
Plaintiff could not lift or carry any weight. (T at 378). He also found that Plaintiff was limited
to standing and/or walking less than 2 hours in an 8-hour workday and could not sit for
more than 6 hours in an 8-hour workday. (T at 377-78). PA Neveroski also opined that
Plaintiff’s pain was present to such an extent as to be distracting to adequate performance
of daily activities or work and that the physical activity increased the pain and caused
abandonment of tasks related to daily activity or work. (T at 382).
The ALJ concluded that PA Neveroski’s opinion was not well-supported by objective
medical findings and appeared to be based “merely” on Plaintiff’s subjective complaints.
(T at 16). The ALJ did correctly note that a physician’s assistant is not an “acceptable
source” under the Social Security Regulations. (T at 16). However, the ALJ’s analysis is
problematic in at least three respects.
6

The ALJ m ight have found that Dr. Naughten’s findings with respect to Plaintiff’s left-side grip
strength could be discounted because Plaintiff subsequently had carpal tunnel release surgery on her left
hand. (T at 276). However, that would still not address the issue of loss of right-sided grip
strength/num bness (T at 30, 442) the fact that Plaintiff continued to experience som e num bness and
tingling in both hands in spite of the surgery. (T at 276, 442).

12

First, PA Neveroski’s opinion was supported by several pieces of important
evidence, including Dr. Naughten’s opinion, Dr. Harris’s finding that Plaintiff suffered from
“significant low back pain” (T at 407), and an MRI documenting a nerve-impinging disc
herniation. (T at 376).
Second, the Second Circuit has held that a patient’s complaints or reports of his
history are “an essential diagnostic tool.” Burgess v. Astrue, 537 F.3d 117, 128 (2d
Cir.2008) (quoting Green-Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir.2003)) (referring
to “a patient's report of complaints, or history, as an essential diagnostic tool.”). As such,
it was not improper for the physician’s assistant to use Plaintiff’s complaints of pain as a
diagnostic tool.
Third, while the ALJ was correct that PA Neveroski was not an “acceptable medical
source,”7 the ALJ should nevertheless have afforded careful consideration to his opinion,
particularly given the duration and frequency of the treating relationship.8 See Anderson
v. Astrue, No. 07-CV-4969, 2009 WL 2824584, at *9 (E.D.N.Y. Aug, 28, 2009)(finding that
“[b]ased on the particular facts of a case, such as length of treatment, it may be
appropriate for an ALJ to give more weight to a non-acceptable medical source than a
treating physician”).
In addition, this Court finds that the ALJ did not properly assess the evidence

7

There are five categories of "acceptable m edical sources." 20 C.F.R. § 404.1513 (a).
Chiropractors and physician's assistants are not included am ong the "acceptable m edical sources" and
their opinions are not entitled to any special weight. Rather, chiropractors and physician's assistants are
listed am ong the "other m edical sources," whose opinion m ay be considered as to the severity of the
claim ant's im pairm ent and ability to work. 20 C.F.R. § 416.913 (d)(1).
8

The treatm ent records constitute a m ajor portion of the m edical record. (T at 204-42, 260-75,

307-75).

13

concerning Plaintiff’s carpal tunnel syndrome. The ALJ noted Plaintiff’s carpal tunnel
diagnosis, but discounted the limiting effect of her symptoms because carpal tunnel
release surgery had been “generally successful in relieving the symptoms.” (T at 15).
However, the record contained evidence that Plaintiff continued to experience numbness
and tingling in both hands in spite of the surgery. (T at 276, 442). Indeed, the ALJ
concluded that Plaintiff’s bilateral carpal tunnel syndrome remained a “severe impairment”
even after surgery. (T at 12). The ALJ found that Plaintiff had no manipulative limitations
(T at 13), but failed to reconcile this finding with the evidence of ongoing carpal tunnel
symptoms.
Remand for reconsideration and possible further development of the record
concerning the nature and extent of Plaintiff’s possible manipulative limitations should
therefore be directed.
c.

Credibility

Courts in the Second Circuit have determined pain is an important element in
disability benefit claims, and pain evidence must be thoroughly considered. See Ber v.
Celebrezze, 333 F.2d 923 (2d Cir.1994). Further, if an ALJ rejects a claimant's testimony
of pain and limitations, he or she must be explicit in the reasons for rejecting the testimony.
See Brandon v. Bowen, 666 F.Supp. 604, 609 (S.D.N.Y.1997).
However, subjective symptomatology by itself cannot be the basis for a finding of
disability. A claimant must present medical evidence or findings that the existence of an
underlying condition could reasonably be expected to produce the symptomatology
alleged. See 42 U.S.C. §§ 423(d)(5)(A), 1382c (a)(3)(A); 20 C.F.R. §§ 404.1529(b),
416.929; SSR 96-7p; Gernavage v. Shalala, 882 F.Supp. 1413, 1419 (S.D.N.Y.1995).
14

“An administrative law judge may properly reject claims of severe, disabling pain
after weighing the objective medical evidence in the record, the claimant's demeanor, and
other indicia of credibility, but must set forth his or her reasons with sufficient specificity to
enable us to decide whether the determination is supported by substantial evidence.” Lewis
v. Apfel, 62 F.Supp.2d 648, 651 (N.D.N.Y.1999) (internal citations omitted).
To this end, the ALJ must follow a two-step process to evaluate the plaintiff's
contention of pain, set forth in SSR 96-7p:
First, the adjudicator must consider whether there is an
underlying medically determinable physical or medical
impairment (s) ... that could reasonably be expected to
produce the individual's pain or other symptoms ....
Second, ... the adjudicator must evaluate the intensity,
persistence, and limiting effects of the individual's symptoms
to determine the extent to which the symptoms limit the
individual's ability to do basic work activities ....

According to 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii) and 416.929(c)(3)(i)-(vii), if the
plaintiff's pain contentions are not supported by objective medical evidence, the ALJ must
consider the following factors in order to make a determination regarding the plaintiff’s
credibility:
1.
2.
3.
4.

5.
6.
7.

[Plaintiff's] daily activities;
The location, duration, frequency and intensity of
[Plaintiff's] pain or other symptoms;
Precipitating and aggravating factors;
The type, dosage, effectiveness, and side effects of any
medication [Plaintiff] take[s] or ha[s] taken to alleviate ...
pain or other symptoms;
Treatment, other than medication [Plaintiff] receive[s] or
ha[s] received for relief of ... pain or other symptoms;
Any measure [Plaintiff] use[s] or ha[s] used to relieve ...
pain or other symptoms;
Other factors concerning [Plaintiff's] functional
15

limitations and restrictions due to pain or other
symptoms.
If the ALJ finds that the plaintiff’s pain contentions are not credible, he or she must
state his reasons “explicitly and with sufficient specificity to enable the Court to decide
whether there are legitimate reasons for the ALJ's disbelief.” Young v. Astrue, No.
7:05-CV-1027, 2008 WL 4518992, at *11 (N.D.N.Y. Sept. 30, 2008) (quoting Brandon v.
Bowen, 666 F. Supp 604, 608 (S.D.N.Y.1987)).
In the instant case, Plaintiff testified that she experiences pain in her shoulders,
arms, back, knees, and hips, along with occasional spasms, radiating pain down her right
leg, and difficulties with balance. (T at 28-29). While she experiences some relief from
steroid injections and carpal tunnel release surgery, Plaintiff continues to suffer from
significant pain, sleep difficulties, and numbness in her hands. (T at 30, 36). Plaintiff
believes she could sit for 1 to 2 hours if permitted to change positions every fifteen
minutes. (T at 34). Plaintiff testified that she could not lift more than 10 pounds and could
perform limited household chores. (T at 35).
The ALJ concluded that Plaintiff’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms, but that her statements
concerning the intensity, persistence, and limiting effects of those symptoms were only
partially credible. (T at 14). The ALJ properly noted Plaintiff’s consistent work history (T
at 91), which entitled her testimony to enhanced credibility. See Rivera v. Schweiker, 717
F.2d 719, 725 (2d Cir. 1983)(“A claimant with a good work record is entitled to substantial
credibility when claiming an inability to work because of a disability.”).
However, the ALJ’s overall credibility analysis was inadequate. Specifically, the ALJ

16

did not adequately consider the extensive evidentiary record supporting Plaintiff’s claims
of disabling pain, including the assessment of her treating physician’s assistant (T at 382),
her pain management specialist (T at 407), the consultative examiner’s assessment (T at
245), as well as an MRI and clinical findings. (T at 376, 244-45, 309, 407).
In addition, Plaintiff has an extensive history of seeking relief for her conditions,
which further bolsters the credibility of her claims. The treatment has included surgery (T
at 259); a broad array of medications (T at 198-99, 211, 243, 265, 289-91, 311, 314, 383,
405, 414, 416, 442); physical therapy (T at 33, 289, 294); trigger point injections and nerve
blocks (T at 28-29, 196, 205, 243, 295-96, 407-11, 442); use of a cane (T at 405), and use
of a heating pad, ice, and a splint/brace. (T at 33, 205, 212).
The ALJ also noted that Plaintiff continued working after the alleged onset date and
found that this work activity “demonstrates that [Plaintiff] has maintained and is able to
maintain a reasonable functional level.” (T at 14). However, the ALJ concluded that this
work did not rise to the level of substantial gainful activity (T at 11-12) and the record
contains no evidence concerning the exertional or non-exertional demands of this work.
During the hearing, the IHO questioned Plaintiff about her past employment (T at 38), but
asked no questions concerning the demands of the job she maintained after the alleged
onset date. Before concluding that this employment indicated an ability to “maintain a
reasonable functional level,” the ALJ was obliged to develop the record in this regard.
The ALJ also speculated that, given Plaintiff’s complaints, “one might expect to see
some indication in the treatment records of restrictions placed on [Plaintiff] by her treating
physican’s [sic].” (T at 15). However, the ALJ does not appear to have accounted for the
fact that the treating providers could have considered the articulation of such restrictions
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unnecessary because Plaintiff was not working during much of the period covered by the
medical record.
This matter should be remanded with instructions to the ALJ to reconsider Plaintiff’s
credibility in light of the concerns expressed above.
d.

RFC

Residual functional capacity (“RFC”) is defined as: “what an individual can still do
despite his or her limitations.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999). “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.” Id.
When making a residual functional capacity determination, the ALJ considers a
claimant's physical abilities, mental abilities, symptomatology, including pain and other
limitations that could interfere with work activities on a regular and continuing basis. 20
C.F.R. § 404.1545(a). An RFC finding will be upheld when there is substantial evidence
in the record to support each requirement listed in the regulations. LaPorta v. Bowen, 737
F.Supp. 180, 183 (N.D.N.Y.1990).
The ALJ found that Plaintiff retained the RFC to lift/carry 10 pounds occasionally,
10 pounds frequently, stand/walk for about two hours and sit at least six hours in an 8-hour
work day, push/pull consistent with sedentary exertion, and work without postural,
manipulative, visual, communicative, or environmental limitations. (T at 13). For the
reasons outlined above, the RFC determination should also be revisited on remand.
Specifically, the ALJ did not adequately reconcile his RFC determination with Dr.
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Naughten’s findings (T at 244-45), PA Neveroski’s opinion (T at 378-82), or Plaintiff’s
testimony (T at 22-38). A remand is therefore recommended.
e.

Use of the Grids

At step 5 in the sequential evaluation, the ALJ was required to perform a two part
process to first assess Plaintiff's job qualifications by considering his physical ability, age,
education, and work experience, and then determine whether jobs exist in the national
economy that Plaintiff could perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §
404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 1954, 76 L.Ed.2d
66 (1983). The second part of this process is generally satisfied by referring to the
applicable rule of the Medical-Vocational Guidelines set forth at 20 C.F.R. Part 404,
Subpart P, Appendix 2 (commonly called “the Grids” or the “Grid”). See Bapp v. Bowen,
802 F.2d 601, 604 (2d Cir.1986).
The function of the Grids was succinctly summarized by the court in Zorilla v.
Chater, 915 F.Supp. 662, 667 (S.D.N.Y.1996) as follows:
In meeting [his] burden of proof on the fifth step of the sequential
evaluation process described above, the Commissioner, under
appropriate circumstances, may rely on the medical-vocational
guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2,
commonly referred to as “the Grid.” The Grid takes into account
the claimant's residual functional capacity in conjunction with the
claimant's age, education and work experience. Based on these
factors, the Grid indicates whether the claimant can engage in
any other substantial gainful work which exists in the national
economy. Generally the result listed in the Grid is dispositive on
the issue of disability.
Id.
“The Grid classifies work into five categories based on the exertional requirements
of the different jobs. Specifically, it divides work into sedentary, light, medium, heavy and
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very heavy, based on the extent of requirements in the primary strength activities of sitting,
standing, walking, lifting, carrying, pushing, and pulling.” Id. at 667 n. 2; see 20 C.F.R. §
404.1567(a). Upon consideration of the claimant's residual functional capacity, age,
education, and prior work experience, the Grid yields a decision of “disabled” or “not
disabled.” 20 C.F.R. § 404.1569, § 404 Subpt. P, App. 2, 200.00(a).
If a claimant's work capacity is significantly diminished by non-exertional
impairments beyond that caused by his or her exertional impairment(s), then the use of the
Grids may be an inappropriate method of determining a claimant's residual functional
capacity and the ALJ may be required to consult a vocational expert. See Pratts v. Chater,
94 F.3d 34, 39 (2d Cir.1996); Bapp v. Bowen, 802 F.2d 601, 604-605 (2d Cir.1986).
In this case, the ALJ used the Grids in reaching his disability determination. (T at
15). As the Second Circuit explained in Pratts v. Chater, the applicability of the Grids is
determined on a case-by-case basis. Pratts, 94 F.3d at 39 (citing Bapp, 802 F.2d at
605-06).
When nonexertional impairments are present, the ALJ must determine whether
those impairments “significantly” diminishes the claimant’s work capacity beyond that
caused by his or her exertional limitations. Id. A claimant’s work capacity is “‘significantly
diminished’ if there is an ‘additional loss of work capacity . . . that so narrows a claimant’s
possible range of work as to deprive him of a meaningful employment opportunity.’” Id.
(quoting Bapp, 802 F.2d at 606).
The ALJ concluded that a finding of “not disabled” would be directed by MedicalVocational Rule 201.27 based upon Plaintiff’s age, education, work experience, and RFC.
(T at 18). However, as outlined above, the record indicates that Plaintiff suffers from non20

exertional impairments, such as pain and numbness, limited range of motion, and difficulty
gripping and fingering objects. The ALJ recognized these non-exertional impairments, but
found that they had “little to no effect on the occupational base of unskilled sedentary
work,” and concluded that a finding of not disabled was warranted under the framework of
Rule 201.27. (T at 18). This finding was not supported by substantial evidence. As
outlined above, the record documented serious, sustained pain and fine motor limitations,
which could reasonably be expected to have more than a de minimus impact on the
occupational base of unskilled sedentary work. A remand for reconsideration of this issue
is recommended as well.
3.

Remand

“Sentence four of Section 405 (g) provides district courts with the authority to affirm,
reverse, or modify a decision of the Commissioner ‘with or without remanding the case for
a rehearing.’” Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir. 2002) (quoting 42 U.S.C. § 405
(g)). Remand is “appropriate where, due to inconsistencies in the medical evidence and/or
significant gaps in the record, further findings would . . . plainly help to assure the proper
disposition of [a] claim.” Kirkland v. Astrue, No. 06 CV 4861, 2008 WL 267429, at *8
(E.D.N.Y. Jan. 29, 2008). Given the deficiencies in the record as outlined above, it is
recommended that the case be remanded for further proceedings consistent with this
Report and Recommendation.

IV. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Defendant’s Motion

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for Judgment on the Pleadings be DENIED, that Plaintiff’s Motion for Judgment on the
Pleadings be GRANTED, and that this case be remanded for further administrative
proceedings.
Respectfully submitted,

Dated:

March 31, 2012
Syracuse, New York

V. ORDERS

Pursuant to 28 USC §636(b)(1), it is hereby ordered that this Report &
Recommendation be filed with the Clerk of the Court and that the Clerk shall send a copy
of the Report & Recommendation to all parties.

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ANY OBJECTIONS to this Report & Recommendation must be filed with the
Clerk of this Court within fourteen (14) days after receipt of a copy of this Report &
Recommendation in accordance with 28 U.S.C. §636(b)(1), Rules 6(a), 6(e) and 72(b)
of the Federal Rules of Civil Procedure, as well as NDNY Local Rule 72.1(c).
FAILURE TO FILE OBJECTIONS TO THIS REPORT & RECOMMENDATION
WITHIN THE SPECIFIED TIME, OR TO REQUEST AN EXTENSION OF TIME TO FILE
OBJECTIONS, WAIVES THE RIGHT TO APPEAL ANY SUBSEQUENT ORDER BY THE
DISTRICT COURT ADOPTING THE RECOMMENDATIONS CONTAINED HEREIN.
Thomas v. Arn, 474 U.S. 140 (1985); F.D.I.C. v. Hillcrest Associates, 66 F.3d 566 (2d. Cir.
1995); Wesolak v. Canadair Ltd., 838 F.2d 55 (2d Cir. 1988); see also 28 U.S.C.
§636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, and NDNY
Local Rule 72.1(c).
Please also note that the District Court, on de novo review, will ordinarily refuse to
consider arguments, case law and/or evidentiary material which could have been, but were
not, presented to the Magistrate Judge in the first instance. See Patterson-Leitch Co. Inc.
v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988).
SO ORDERED.

March 31, 2012

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