Manchester v. Commissioner of Social Security

Filing 19

MEMORANDUM-DECISION and ORDER. ORDERED that Manchester's motion for judgment on the pleadings is GRANTED. The Commissioner's motion for judgment on the pleadings is DENIED. Signed by Judge David N. Hurd on 10/6/2014. (dpk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------DAVID WAYNE MANCHESTER,
Plaintiff,
-v-

7:13-CV-00308

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
-------------------------------APPEARANCES:

OF COUNSEL:

OLINSKY LAW GROUP
Attorneys for Plaintiff
300 S. State Street, Suite 420
Syracuse, NY 13202

HOWARD D. OLINSKY, ESQ.

OFFICE OF REGIONAL GENERAL COUNSEL
SOCIAL SECURITY ADMINISTRATION REGION II
Attorneys for Defendant
26 Federal Plaza, Room 3904
New York, NY 10278

TOMASINA DIGRIGOLI, ESQ.

DAVID N. HURD
United States District Judge
MEMORANDUM–DECISION and ORDER
I. INTRODUCTION
Plaintiff David Wayne Manchester ("Manchester" or "plaintiff") brings this action,
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking review of defendant Commissioner
of Social Security's ("Commissioner" or "defendant") final decision denying his application for
Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). The parties

have filed their briefs, including the Administrative Record on Appeal, and the matter has
been submitted for decision without oral argument.1
II. BACKGROUND
On January 18, 2011, Manchester filed applications for DIB and SSI claiming a period
of disability beginning on November 1, 2010 as a result of his seizure disorder, right eye
blindness, and loss of smell. R. at 129-141.2 These applications were initially denied on
April 15, 2011, and plaintiff timely requested a hearing before an Administrative Law Judge
("ALJ"). Id. 54-61.
On March 6, 2012, ALJ Marie Greener presided over an administrative hearing in
Syracuse, New York, and Manchester, represented by an attorney, appeared and testified by
video in Watertown, New York. R. at 32-50. Plaintiff's testimony established, in relevant
part, that he suffered a serious head injury in 1998 after falling from a roof while working for a
construction company. Id. Plaintiff further testified that he is nearly blind in his right eye, and
that he now suffers from nocturnal episodes of seizures that cause him to feel exhausted the
next day. Id. 45. Plaintiff indicated that although he takes medication for these seizures,
they still occur approximately two to three times per month. Id. Plaintiff also testified that,
approximately once a week, he suffers from a headache that may cause him to feel dizzy
and force him to lie down. Id. 46.
On March 26, 2012, ALJ Greener rendered a written decision concluding that
Manchester was not disabled within the meaning of the Social Security Act from November 1,
1
Pursuant to General Order No. 18 of the Northern District of New York, consideration of this matter
will proceed as if both parties had accompanied their briefs with a motion for judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12(c).
2

Citations to "R." refer to the Administrative Record. ECF No. 10.
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2010, through the date of her decision. R. at 18-27. Plaintiff timely appealed this
unfavorable disability determination to the Appeals Council. Id. 13. On February 25, 2013,
the ALJ's decision became the final decision of the Commissioner when the Appeals Council
denied plaintiff's request for review. Id. 1-3. On March 18, 2013, Manchester filed this action
seeking judicial review of the Commissioner's denial of benefits. Because the parties are
familiar with the underlying facts, they are discussed only to the extent necessary to address
plaintiff's appeal.
III. LEGAL STANDARD
A. Scope of Review
A court's review of the Commissioner's final decision is limited to determining whether
the decision is supported by substantial evidence and the correct legal standards were
applied. Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per curiam). "Substantial
evidence means 'more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.'" Id. (quoting Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
"To determine on appeal whether an ALJ's findings are supported by substantial
evidence, a reviewing court considers the whole record, examining the 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) (citing
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). If the Commissioner's
disability determination is supported by substantial evidence, that determination is
conclusive. See id. Where evidence is deemed susceptible to more than one rational
interpretation, the Commissioner's decision must be upheld—even if the court's independent
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review of the evidence may differ from the Commissioner's. Rutherford v. Schweiker, 685
F.2d 60, 62 (2d Cir. 1982); Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992).
However, "where there is a reasonable basis for doubting whether the Commissioner
applied the appropriate legal standards," the decision should not be affirmed even though the
ultimate conclusion reached is arguably supported by substantial evidence. Martone v.
Apfel, 70 F. Supp. 2d 145, 148 (N.D.N.Y. 1999) (citing Johnson v. Bowen, 817 F.2d 983, 986
(2d Cir. 1987)).
B. Disability Determination—The Five-Step Evaluation Process
The Social Security Act defines "disability" as the "inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). In
addition, the Act requires that a claimant's:
physical or mental impairment or impairments [must be] of such
severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which exists in
the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.
Id. § 423(d)(2)(A).
The ALJ must follow a five-step evaluation process in deciding whether an individual is
disabled. See 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ must determine
whether the claimant has engaged in substantial gainful activity. A claimant engaged in
substantial gainful activity is not disabled, and is therefore not entitled to
benefits. Id. §§ 404.1520(b), 416.920(b).
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If the claimant has not engaged in substantial gainful activity, then step two requires
the ALJ to determine whether the claimant has a severe impairment or combination of
impairments which significantly restricts his physical or mental ability to perform basic work
activities. Id. §§ 404.1520(c), 416.920(c).
If the claimant is found to suffer from a severe impairment or combination of
impairments, then step three requires the ALJ to determine whether, based solely on medical
evidence, the impairment or combination of impairments meets or equals an impairment
listed in Appendix 1 of the regulations (the "Listings"). Id. §§ 404.1520(d), 416.920(d); see
also id. Pt. 404, Subpt. P, App. 1. If the claimant's impairment or combination of impairments
meets one or more of the Listings, then the claimant is "presumptively disabled." Martone,
70 F. Supp. 2d at 149 (citing Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984)).
If the claimant is not presumptively disabled, step four requires the ALJ to assess
whether—despite the claimant's severe impairment—he has the residual functional capacity
("RFC") to perform his past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f). The burden
of proof with regard to these first four steps is on the claimant. Perez v. Chater, 77 F.3d 41,
46 (2d Cir. 1996) (citing Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d
Cir. 1983)).
If it is determined that the claimant cannot perform his past relevant work, the burden
shifts to the Commissioner for step five. Perez, 77 F.3d at 46. This step requires the ALJ to
examine whether the claimant can do any type of work. 20 C.F.R. §§ 404.1520(g),
416.920(g). The regulations provide that factors such as a claimant's age, physical ability,
education, and previous work experience should be evaluated to determine whether a
claimant retains the RFC to perform work in any of five categories of jobs: very heavy,
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heavy, medium, light, and sedentary. Perez, 77 F.3d at 46 (citing 20 C.F.R. § 404, Subpt. P,
App. 2). "[T]he Commissioner need only show that there is work in the national economy
that the claimant can do; [she] need not provide additional evidence of the claimant's residual
functional capacity." Poupore, 566 F.3d at 306 (citing 20 C.F.R. § 404.1560(c)(2)).
IV. DISCUSSION
A. ALJ's Decision
ALJ Greener determined that Manchester had not engaged in substantial gainful
activity since November 1, 2010, the alleged onset date. R. at 20. The ALJ next found that
plaintiff's seizure disorder, right eye blindness, and headaches were severe impairments, but
that this combination of severe impairments did not meet or equal any of the
Listings. Id. 20-21. The ALJ then determined that plaintiff retained the RFC to:
lift and/or carry 20 pounds on an occasional basis; lift and/or carry
10 pounds on a frequent basis; stand and/or walk for about six
hours; and sit for about six hours . . . . the claimant should not have
any exposure to unusual workplace hazards such as working at
unprotected heights, working with dangerous equipment, working
with knives and blades, and working near unprotected
water . . . . [and] the claimant cannot perform any work requiring
binocular vision.
Id. at 21-22.
Based on these findings and Manchester's age, education, and work experience, the
ALJ determined that jobs existed in significant numbers in the national economy that plaintiff
could perform. R. at 25. Accordingly, the ALJ concluded that plaintiff was not disabled within
the meaning of the Act. Id. 27.
B. Plaintiff's Appeal
Manchester contends that ALJ Greener: (1) erred in determining his RFC by
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improperly evaluating the opinion of Abdul Latif, M.D., his treating neurologist; (2) failed to
analyze the required factors before finding his testimony to be "not entirely credible";
and (3) erred at step five by failing to elicit the testimony of a vocational expert despite the
existence of "significant nonexertional impairments." Pl.'s Mem. 13-19.
1. RFC Determination
Manchester contends that the ALJ's RFC determination is not supported by
substantial evidence because she erred in evaluating the opinion of Abdul Latif, M.D.,
plaintiff's treating neurologist. Pl.'s Mem. 13. The Commissioner responds that "the ALJ's
[RFC] finding is supported by medical and other evidence . . . [including] Dr. Latif's many
normal neurological findings." Def.'s Mem. 8.
Under the "treating physician rule," the opinion of a plaintiff's treating physician
regarding "the nature and severity" of the plaintiff's impairments is entitled to "controlling
weight" where it is "well supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence [in the case record]."
20 C.F.R. § 404.1527(c)(2). "Such opinions are not controlling, however, if they are contrary
to other substantial evidence in the record, including the opinions of other medical
experts." Lawton v. Astrue, No. 1:08-CV-0137 (LEK/DEP), 2009 WL 2867905, at *10
(N.D.N.Y. Sept. 2, 2009) (Kahn, J.) (citing Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.
2004)) (adopting Report-Recommendation of Peebles, M.J.).
Here, Manchester contends that the February 23, 2012 medical source statement
completed by Abdul Latif, M.D., plaintiff's treating neurologist, "should have been entitled to
great, if not controlling, weight." Pl.'s Mem. 16. This medical source statement indicates that
plaintiff's seizures, although "controlled" and occurring "rare[ly]," would still be likely to disrupt
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co-workers, cause plaintiff to require more supervision than an unimpaired worker, and cause
plaintiff to be absent from work "[a]bout two days per month." R. at 347-48.
ALJ Greener indicated that she gave "little weight" to Dr. Latif's opinion. R. at 24.
Specifically, the ALJ found that Dr. Latif's statement that Manchester would be unable to
work two days per month was "completely subjective" and "inconsistent with the objective
medical and other evidence of record." Id. 24-25. Likewise, the ALJ accorded "little weight"
to assessments completed by Lisa J. Trickey, P.A.-C., a physician's assistant in Dr. Latif's
office, who indicated that plaintiff was "100%" temporarily impaired.3 Id. Having accorded
"little weight" to the opinions of both plaintiff's treating physician and his treating physician's
assistant, the ALJ nevertheless determined the functional limitations arising from plaintiff's
severe impairments. She stated:
I have concluded that, because of the claimant's dizziness upon
exertion, he is restricted to lifting and/or carrying 20 pounds on an
occasional basis; lifting and/or carrying 10 pounds on a frequent
basis; standing and/or walking for about six hours; and sitting for
about six hours. I have also concluded that, as a result of the
claimant's seizure disorder and headaches, he should not have any
exposure to unusual workplace hazards such as working at
unprotected heights, working with dangerous equipment, working
with knives and blades, and working near unprotected water. I have
additionally determined that, due to the claimant's right eye
blindness, he cannot perform any work requiring binocular vision.
Id. 24.
It is unclear how ALJ Greener reached these conclusions in her written decision given

3

Although Dr. Trickey's assessments, as a physician's assistant, could "be considered when
determining severity of impairments and how they affect [an] individuals' ability to function," her statements
that plaintiff was "100%" temporarily impaired constitute opinions on a matter reserved to the
Commissioner. Griffin v. Colvin, No. 7:12-CV-976 (GLS/ESH), 2014 WL 296854, at *7 (N.D.N.Y. Jan. 27,
2014) (Sharpe, C.J.) (adopting Report-Recommendation of Hines, M.J.); Snell v. Apfel, 177 F.3d 128, 133
(2d Cir. 1999) ("[T]he ultimate finding of whether a claimant is disabled and cannot work . . . [is] 'reserved to
the Commissioner.'" (quoting 20 C.F.R. § 404.1527(e)(1)).
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that she rejected the medical opinions of both Dr. Latif and Dr. Trickey. "It is a fundamental
tenet of Social Security law that an ALJ cannot selectively pick and choose only parts of a
medical opinion that support h[er] determination." Balles v. Astrue, No. 3:11-CV-1386
(MAD), 2013 WL 252970, at *3 (N.D.N.Y. Jan. 23, 2013) (D'Agostino, J.) (citing Nix v. Astrue,
2009 WL 3429616, at *6 (W.D.N.Y. 2009)). And although the ALJ's written decision includes
a narrative discussion of the raw medical data contained in plaintiff's medical records, such
information is not an acceptable basis for making an RFC finding in the absence of a
supporting expert medical opinion. See, e.g., Collins v. Astrue, 10-CV-00718(A)(M), 2012
WL 2573264, at *11 (W.D.N.Y. May 11, 2012), adopted by 2012 WL 2573261 (W.D.N.Y.
June 29, 2012) ("[A]n ALJ is not qualified to assess a claimant's RFC on the basis of bare
medical findings." (citation omitted)); Hilsdorf v. Comm'r of Soc. Sec., 724 F. Supp. 2d 330,
347 (E.D.N.Y. 2010) ("Because an RFC determination is a medical determination, an ALJ
who makes an RFC determination in the absence of a supporting expert medical opinion has
improperly substituted his own opinion for that of a physician, and has committed legal error."
(citation and explanatory parenthetical omitted)); Zorilla v. Chater, 915 F. Supp. 662, 666-67
(S.D.N.Y. 1996) ("The lay evaluation of an ALJ is not sufficient evidence of the claimant's
work capacity; an explanation of the claimant's functional capacity from a doctor is
required.").
A review of the administrative record reveals a physical RFC assessment
electronically completed and signed by "Davison, D." on April 14, 2011, and a comparison of
this assessment with the ALJ's written decision reveals that she apparently relied on this
document in making her RFC finding. Compare R. at 314, with R. at 24. However, this
assessment fails to indicate whether "Davison, D." is a medical consultant or merely a state
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agency disability analyst.4 Id. 314. While the "evaluations of a non-examining [s]tate agency
medical . . . consultant[ ] may constitute substantial evidence in support of an RFC
determination," McEaney v. Comm'r of Soc. Sec., 536 F. Supp. 2d 252, 256 (N.D.N.Y. 2008)
(citation and explanatory parenthetical omitted), state agency disability analysts are not
medical professionals and "an RFC assessment from such an individual is entitled to no
weight as a medical opinion." Sears v. Astrue, No. 2:11-CV-138, 2012 WL 1758843, at *6
(D. Vt. May 15, 2012) (collecting cases).
Here, it is not only unclear whether the RFC assessment completed by "Davison, D."
would have been a sufficient basis for determining Manchester's RFC in the absence of other
medical opinions, but the ALJ's RFC finding appears to mirror this assessment without
making any reference to it in the written decision. See Aung Winn v. Colvin, 541 F. App'x 67,
69 (2d Cir. 2013) (summary order) (expressing skepticism of an ALJ's RFC determination
where it "correspond[ed] exactly" to the state agency disability analyst's assessment without
any corroborating medical data).
Further, the ALJ's apparent rejection of Dr. Latif's opinion based on the fact that it
appeared, in the ALJ's judgment, to conflict with the doctor's own conservative clinical

4

If "Davison, D." were a medical consultant, then it would have been permissible for the ALJ to
assign some degree of weight to the assessment in reaching her RFC determination. See Steele ex rel. M.D.
v. Astrue, No. 09-CV-347 (NAM/VEB), 2011 WL 3841534, at *7 (N.D.N.Y. Aug. 10, 2011) (Bianchini, M.J.)
(Report-Recommendation), adopted by 2011 WL 3841536 (N.D.N.Y. Aug. 29, 2011) (Mordue, J.) ("The
assessments of consultative examiners may constitute substantial evidence when supported by the weight of
the evidence.").
However, if "Davison, D." were merely a state agency disability analyst, then it is hard to imagine how
the ALJ could have properly reached her RFC determination in this case, especially given that she had
already given "little weight" to both Dr. Latif and Dr. Trickey's assessments. See Box v. Colvin, –F. Supp.
2d–, No. 12-CV-1317(ADS), 2014 WL 997553, at *20 (E.D.N.Y. Mar. 14, 2014) (finding error where ALJ
significantly relied on RFC assessment by a state agency disability analyst in denying benefits); Roth v.
Comm'r of Soc. Sec., No. 11-CV-00535, 2012 WL 4480688, at *6 (N.D.N.Y. Sept. 26, 2012) (McAvoy, S.J.)
("Numerous courts have concluded . . . that assigning any evidentiary weight to a[ ] [disability analyst's]
opinion is an error." (citation omitted)).
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findings in the medical record was improper.5 "[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 an opinion to
or] testified before him." Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (quoting
McBrayer v. Sec'y of Health & Human Servs., 712 F.2d 795, 799 (2d Cir. 1983)).
Because the record in this case does not contain an assessment from an acceptable
medical source, treating or otherwise, quantifying Manchester's physical capabilities, and it is
unclear whether the ALJ could have properly relied on the assessment completed by
"Davison, D.," there is no firm basis on which to find substantial evidence supports the ALJ's
RFC determination. See Lawton, 2009 WL 2867905, at *16 (adopting
Report-Recommendation of Peebles, M.J. recommending remand, in part, because "[t]he
record in this case contains no assessment from a treating source quantifying plaintiff's
physical capabilities" and collecting cases). Accordingly, the case will be remanded.
V. CONCLUSION
The ALJ's RFC finding is not supported by substantial evidence and further
development of the record is appropriate here. On remand, the ALJ should solicit functional
assessments from one or more acceptable medical sources, including Manchester's treating
physician, that adequately quantify plaintiff's limitations. Because the ALJ will be required to

5

As the ALJ noted in her written decision, Dr. Latif's medical source statement does "not provide any
assessment of [plaintiff's] ability to perform work-related activities." R. at 24. "It is well established in the
Second Circuit that an ALJ is under an obligation to develop the administrative record fully, to ensure that
there are no inconsistencies in the record that require further inquiry, and to obtain the reports of treating
physicians and elicit the appropriate testimony during the proceeding." Diakogiannis v. Astrue, 975 F. Supp.
2d 299, 317 (W.D.N.Y. 2013) (citation omitted). It is unclear whether the ALJ attempted to obtain a more
satisfactory functional assessment from Dr. Latif. Although a failure to request such an assessment "does
not necessarily mandate remand," the issue is "whether, in the absence of the assessment, the record was
sufficient to support the ALJ's RFC [finding]." Id. The record is insufficient to do so here.
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re-evaluate plaintiff's credibility in light of this additional evidence, and will also be required to
determine whether, and to what extent, her prior step five finding is impacted by an RFC
determination based on substantial evidence and the correct legal standards, it is
unnecessary to address plaintiff's remaining arguments. See Johnson v. Astrue, 811 F.
Supp. 2d 618, 631 n. 15 (E.D.N.Y. 2011) (declining to address similar arguments in light of
remand and instructing ALJ to consider whether the additional medical evidence alters either
determination).
Therefore, it is
ORDERED that
1. Manchester's motion for judgment on the pleadings is GRANTED;
2. The Commissioner's motion for judgment on the pleadings is DENIED; and
The Clerk of the Court is directed to close the file.
IT IS SO ORDERED.

Dated: October 6, 2014
Utica, New York.

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