Ostrom v. Commissioner of Social Security

Filing 14

MEMORANDUM-DECISION AND ORDER reversing and remanding 11 Report and Recommendations: The Court hereby ORDERS that the Report-Recommendation of Magistrate Judge Andrew Baxter, filed March 6, 2015, is ADOPTED in its entirety for the reasons stated t herein; and the Court further ORDERS that the Commissioner's decision denying disability benefits is REVERSED and this matter is REMANDED to the Commissioner, pursuant to sentence four of the 42 U.S.C. § 405(g), for further proceedings cons istent with Magistrate Judge Baxter's Report-Recommendation and this Memorandum-Decision and Order; and the Court further ORDERS that the Clerk of the Court shall enter judgment and close this case. Signed by U.S. District Judge Mae A. D'Agostino on 4/16/15. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
RIKI LYN OSTROM,
Plaintiff,
vs.

7:14-cv-00268
(MAD/ATB)

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

CONBOY, MCKAY, BACHMAN
& KENDALL, LLP
407 Sherman Street
Watertown, New York 13601-9990
Attorneys for Plaintiff

PETER L. WALTON, ESQ.

SOCIAL SECURITY ADMINISTRATION
Office of Regional General Counsel
Region II
26 Federal Plaza, Room 3904
New York, New York 10278
Attorneys for Defendant

SERGEI ADEN, ESQ.

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the
Commissioner of Social Security's ("Commissioner") decision to deny her application for
Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). This matter
was referred to United States Magistrate Judge Andrew T. Baxter for a Report-Recommendation
pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d), familiarity with which is assumed.
Magistrate Judge Baxter recommended that this Court reverse the Commissioner's decision

denying Plaintiff's application for benefits and remand the case for a proper evaluation of the
medical evidence and an appropriate determination of Plaintiff's residual functional capacity. See
Dkt. No. 11. Presently before the Court are Defendant's objections to the ReportRecommendation. See Dkt. No. 12.
II. BACKGROUND
Plaintiff applied for a period of disability and DIB on June 2, 2011 and, thereafter, applied
for SSI on June 21, 2011, alleging a disability onset date of February 1, 2009. See Dkt. No. 7,
Administrative Transcript ("T."), at 130-38. The applications were initially denied on September
16, 2011, see id. at 79-84, and Plaintiff requested a hearing, which was held on October 22, 2012
before Administrative Law Judge ("ALJ") Marie Greener. See id. at 39-61. The ALJ issued a
decision on November 13, 2012 finding that despite severe impairments – degenerative disc
disease of the lumbar spine, anxiety disorder, and depressive disorder – Plaintiff was not disabled
under the Social Security Administration's analysis pursuant to 20 C.F.R. §§ 404.1520; 416.920.
See T. at 17-34. Request for review by the Appeals Council was timely filed, see id. at 14-16,
and, on January 30, 2014, the request was denied rendering the ALJ's decision the
Commissioner's final decision. See id. at 1-3. Plaintiff commenced this action for judicial review
of that decision by filing a complaint on March 11, 2014. See Dkt. No. 1. Both parties have
moved for judgment on the pleadings. See Dkt. No. 9, 10.
III. DISCUSSION
Magistrate Judge Baxter found that the ALJ's determination of Plaintiff's residual
functional capacity ("RFC") is not supported by substantial evidence. See Dkt. No. 11.
Specifically, there was not substantial evidence in the administrative transcript to support that
Plaintiff has the RFC to perform light work as defined under 20 C.F.R. § 404.1567(b) because, as
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set forth by Magistrate Judge Baxter, the ALJ improperly discounted Plaintiff's treating physician
– the only competent medical evidence related to Plaintiff's ability to lift, carry, stand, walk, and
sit – and substituted her own judgment for that competent medical evidence. See Dkt. No. 11.
According to Magistrate Judge Baxter, the ALJ, based upon her own medical judgment,
concluded that Plaintiff's back condition had improved over time and that the clinical findings
suggest that Plaintiff's back impairments do not cause her physical limitations. See id. Because
of the ALJ's erroneous evaluation of the medical evidence, Magistrate Judge Baxter concluded
that the evaluation of Plaintiff's credibility and the ultimate determination that Plaintiff is not
disabled has been tainted. Magistrate Judge Baxter found that the ALJ's evaluation and disability
analysis of Plaintiff's mental residual functional capacity to be support by substantial evidence.1
Accordingly, it was recommended that the ALJ's decision be remanded for proper consideration
of the medical evidence to be followed by a re-evaluation of Plaintiff's credibility and an analysis
of Plaintiff's RFC related to her physical limitations. See id.
Defendant asserted in her filed objections that the Report-Recommendation has
improperly shifted the burden from Plaintiff to Defendant when stating that "the ALJ marshaled
no medical evidence" to support each and every functional area in the RFC. See Dkt. No. 12.
Further, Defendant points to medical and non-medical evidence that supports the ALJ's findings
and determination, including Plaintiff's daily activities, attending college classes, and
participation in an exercise class during the period of alleged disability. See id. Substantial
evidence, as it was argued by Defendant, does not mean that the Court's review of the evidence
must lead to the ALJ's findings but, instead, that a review of the evidence could reasonably lead to

Plaintiff was found to be able to perform low stress work that involves routine daily tasks
and duties that do not significantly change in pace or location and that do not require
confrontation such as arguing with customers, negotiating, restraining, or detaining others.
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those findings. See id.

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court engages in a de

novo review of any part of a Magistrate Judge's Report and Recommendation to which a party
specifically objects. Failure to timely object to any portion of a Magistrate Judge's Report and
Recommendation operates as a waiver of further judicial review of those matters. See Roland v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health & Human Servs., 892
F.2d 15, 16 (2d Cir. 1989)). "To the extent, . . . that [a] party makes only conclusory or general
arguments, or simply reiterates the original arguments, the Court will review the Report strictly
for clear error." Watson v. Astrue, No. 08 Civ. 1523, 2010 WL 1645060, *1 (S.D.N.Y. Apr. 22,
2010) (citing, inter alia, Ortiz v. Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y. 2008) (observing
that "[r]eviewing courts should review a report and recommendation for clear error where
objections are merely perfunctory responses, argued in an attempt to engage the district court in a
rehashing of the same arguments set forth in the original petition") (citation and internal quotation
marks omitted)).
Applying this standard of review, this Court has reviewed those portions of Magistrate
Judge Baxter's Report-Recommendation that are not objected to and find that there is no clear
error. The Court finds that Magistrate Judge Baxter is correct that substantial evidence supports
the ALJ's determination of Plaintiff's mental limitations as set forth in the RFC, and the Court
adopts those portions of the Report-Recommendation. However, based upon Plaintiff's
objections, the Court has engaged in a fresh judicial review of the ALJ's decision that relates to
Plaintiff's physical limitations due to her claimed impairment of degenerative disc disease, set
forth below.
In a judicial review of a final decision by the Commissioner under 42 U.S.C. § 405, the
Court does not determine anew whether a plaintiff is disabled. See 42 U.S.C. §§ 405(g),
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1383(c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990).
Rather, the Court must examine the administrative transcript to ascertain whether the correct legal
standards were applied and whether the decision is supported by substantial evidence. See Lamay
v. Comm'r of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009), cert. denied, 559 U.S. 962 (2010);
Schaal v. Apfel, 134 F.3d 496, 500-01 (2d Cir. 1998). "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 (1971) (citations and quotations omitted).
"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." Wilson v. Colvin, No. 6:14-cv-00122, 2015 WL 1472102, *4 (N.D.N.Y. Mar. 31, 2015).
If supported by substantial evidence, the Commissioner's finding must be sustained. See Rosado
v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). This Court must afford the Commissioner's
determination considerable deference, and may not substitute its own judgment, even if a
different result could be justifiably reached by the Court if it engaged in its own analysis. Valente
v. Sec'y of Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
For purposes of both DIB and SSI, a person is disabled when he is unable "to engage in
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), 1382c(a)(3)(A).
There is a five-step analysis for evaluating disability claims:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is not, the
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[Commissioner] next considers whether the claimant has a "severe
impairment" which significantly limits his physical or mental
ability to do basic work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based solely on medical
evidence, the claimant has an impairment which is listed in
Appendix 1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him disabled without
considering vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a claimant who is
afflicted with a "listed" impairment is unable to perform substantial
gainful activity. Assuming the claimant does not have a listed
impairment, the fourth inquiry is whether, despite the claimant's
severe impairment, he has the residual functional capacity to
perform his past work. Finally, if the claimant is unable to perform
his past work, the [Commissioner] then determines whether there is
other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see also Rosa v. Callahan, 168 F.3d 72, 77
(2d Cir. 1999) (citations omitted). The claimant bears the burden of proof on the first four steps,
while the Social Security Administration bears the burden on the last step. Id.
At the fourth step in the analysis, the ALJ determines a plaintiff's RFC, which is what a
plaintiff can still do despite his limitations. See SSR 96-8P, 1996 WL 374184, *2. The "RFC is
an administrative assessment of the extent to which an individual's medically determinable
impairments(s), including any related symptoms, such as pain, may cause physical or mental
limitations or restrictions that may affect his or her capacity to do work-related physical and
mental activities." Id. The assessment takes into consideration the limiting effects of all of a
plaintiff's impairments, severe and non-severe, and the determination sets forth the most a
plaintiff can do. See 20 C.F.R. § 404.1545(a)(1), (e). The RFC assessment is based upon all the
relevant evidence including medical source statements from treating and non-treating physicians
and descriptions and observations of limitations from lay sources. See 20 C.F.R. §
404.1545(a)(3).

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The plaintiff is responsible for providing evidence, medical and otherwise, of his/her
impairments, the severity of impairments, and the effect that those impairments have upon
functional abilities. See 20 C.F.R. § 404.1512(c). However, the ALJ must "affirmatively develop
the record in light of the essentially non-adversarial nature of a benefits proceeding." Moran v.
Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (stating that disability determinations are investigatory,
not adversarial). If there is insufficient or inconsistent evidence presented to determine if the
plaintiff is disabled, the ALJ will attempt to resolve the insufficiency or inconsistency by recontacting the plaintiff's treating physicians or other medical sources to seek additional evidence
or clarification, request additional medical records, conduct a consulting examination, and/or
make further inquiry from lay sources. See 20 C.F.R. § 404.1520b.
Upon review of the record in this case, the Court agrees with Magistrate Judge Baxter,
that a remand for further consideration of the RFC, as it relates to Plaintiff's physical impairments
and limitations, is required. Plaintiff's medical evidence from her long-term treating physician,
Dr. Lawrence Littell, included the treatment records and two medical source statements for
physical limitations. See T. at 378-438, 444-54. The ALJ stated that Dr. Littell's treatment
records do not document any clinical findings and accorded little weight to his medical source
statement. See id. at 30. The ALJ's basis for the assigned weight was "because, while [Dr.
Littell's] opinions suggest that the claimant's functional limitations have worsened, the diagnostic
images clearly show that her back condition has improved." See id.
Based upon the regulatory obligation of the ALJ to develop the record, the Court finds that
the ALJ should have re-contacted Dr. Littell to inquire about the basis for his medical source
statement since without documentation of clinical findings, the records alone were insufficient.
Without this information or attempt to obtain this information, this long-term treating physician's
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medical source statement cannot properly be discounted. See Rosa, 168 F.3d at 79 (finding that
an ALJ cannot reject a treating physician's diagnosis without first attempting to fill any clear gaps
in the record). Additionally, the Court agrees with Magistrate Judge Baxter that the ALJ
improperly substituted her own judgment for competent medical evidence by concluding that the
diagnostic images clearly show Plaintiff's back condition improving. See id. at 79. By making
that conclusion on the diagnostic images, which is a medical determination, the ALJ "improperly
'set [her] own expertise against that of' the treating physician." Id. (quoting Balsamo v. Chater,
142 F.3d 75, 81 (2d Cir. 1998)). Further, Dr. George Alexis Sirotenko, a consultative medical
examiner, completed a medical source statement for Plaintiff's physical limitations stating that
Plaintiff should avoid maintaining one position for an extended period of time. See T. at 342-44.
The Court finds that the ALJ should have requested further clarification on what Dr. Sirotenko
defined as "an extended period of time."
Although the ALJ does a thorough job of setting forth the basis for finding Plaintiff not
credible in her statement of symptoms, credibility is based in part upon the entire case record,
including the medical evidence. See SSR 96-7P, 1996 WL 374186, *1. Therefore, it is necessary
on remand that the ALJ also analyze Plaintiff's credibility in light of any new or clarified
evidence received.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-state reasons, the Court hereby
ORDERS that the Report-Recommendation of Magistrate Judge Andrew Baxter, filed
March 6, 2015, is ADOPTED in its entirety for the reasons stated therein; and the Court further

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ORDERS that the Commissioner's decision denying disability benefits is REVERSED
and this matter is REMANDED to the Commissioner, pursuant to sentence four of the 42 U.S.C.
§ 405(g), for further proceedings consistent with Magistrate Judge Baxter's ReportRecommendation and this Memorandum-Decision and Order; and the Court further
ORDERS that the Clerk of the Court shall enter judgment and close this case; and the
Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.

IT IS SO ORDERED.
Dated: April 16, 2015
Albany, New York

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