Merkley v. Colvin
DECISION AND ORDER granting # 14 Plaintiff's motion for judgment on the pleadings; and denying # 15 Defendant's motion for judgment on the pleadings. This matter is remanded for further administrative proceedings consistent with this Decision and Order pursuant to Sentence Four of 42 U.S.C. 405(g). Signed by Chief Judge Glenn T. Suddaby on 10/10/17. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
TAMARA R. MERKLEY,
COMMISSIONER OF SOCIAL SECURITY,
LEGAL AID SOCIETY OF NORTHEASTERN NY
Counsel for Plaintiff
55 Colvin Avenue
Albany, NY 12206
VICTORIA M. ESPOSITO, 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
DAVID B. MYERS, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Tamara R. Merkley
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”)
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are Plaintiff’s motion for judgment on the
pleadings and Defendant’s motion for judgment on the pleadings. (Dkt. Nos. 10, 11.) For the
reasons set forth below, Plaintiff’s motion for judgment on the pleadings is granted, and
Defendant’s motion for judgment on the pleadings is denied.
Plaintiff was born in 1975, making her 37 years old at the date she filed her application
and 39 years old at the date of the ALJ’s decision. Plaintiff reported obtaining her GED. The
ALJ found she has past work as a landscape laborer, personal care aide, and order filler.
Generally, Plaintiff alleges disability due to fibromyalgia, bone spurs, arthritis, depression,
anemia, and bowel problems.
Plaintiff applied for Supplemental Security Income on February 4, 2013. Plaintiff’s
application was initially denied on June 26, 2013, after which she timely requested a hearing
before an Administrative Law Judge (“ALJ”). Plaintiff appeared at a video hearing before ALJ
John M. Lischak on September 8, 2014, and again on April 17, 2015. On May 16, 2015, the ALJ
issued a written decision finding Plaintiff was not disabled under the Social Security Act. (T. 1727.) 1 On September 26, 2016, the Appeals Council denied Plaintiff’s request for review, making
the ALJ’s decision the final decision of the Commissioner. (T. 1-3.)
The ALJ’s Decision
Generally, in his decision, the ALJ made the following six findings of fact and
conclusions of law. (T. 19-25.) First, the ALJ found that Plaintiff has not engaged in substantial
gainful activity during the relevant period. (T. 19.) Second, the ALJ found that Plaintiff’s
fibromyalgia is a severe impairment, while anemia, bowel problems, migraine headaches, bone
The Administrative Transcript is found at Dkt. No. 9. Citations to the Administrative
Transcript will be referenced as “T.” and the Bates-stamped page numbers as set forth therein
will be used rather than the page numbers assigned by the Court’s CM/ECF electronic filing
spurs, anxiety, and depression are not severe impairments. (T. 20-21.) Third, the ALJ found that
Plaintiff’s severe impairment does not meet or medically equal one of the listed impairments in
20 C.F.R. § 404, Subpart P, App. 1 (the “Listings”). (T. 21.) Specifically, the ALJ considered
Listing 1.04 (disorders of the spine). (Id.) Fourth, the ALJ found that Plaintiff has the residual
functional capacity (“RFC”) to perform “the full range of sedentary work as defined in 20 C.F.R.
416.967(a).” (T. 21.) Fifth, the ALJ found that Plaintiff is unable to perform her past relevant
work with a limitation to sedentary work. (T. 25.) Sixth, the ALJ found that there are no nonexertional or other limitations that would erode the occupational base of sedentary work and
therefore Medical-Vocational Rule 201.27 directs a finding of not disabled. (T. 25.)
The Parties’ Briefings on Their Cross-Motions
Generally, Plaintiff makes five arguments in support of her motion for judgment on the
pleadings. First, Plaintiff argues that the ALJ erred in failing to find depression and anxiety to be
severe impairments. (Dkt. No. 14, at 16-17 [Pl. Mem. of Law].) Specifically, Plaintiff argues
that the opinion from treating psychiatrist Nedim Hukovic, M.D., establishes not only that these
impairments are severe but that Plaintiff meets Listing 12.04. (Id.) Plaintiff argues that the
failure to find these impairments severe is harmful because the ALJ failed to incorporate any
related limitations into the RFC. (Dkt. No. 14, at 17 [Pl. Mem. of Law].)
Second, Plaintiff argues that the RFC finding is legally erroneous and not supported by
substantial evidence. (Dkt. No. 14, at 17-18 [Pl. Mem. of Law].) Specifically, Plaintiff argues
that the failure to perform a function-by-function analysis was error meriting reversal. (Dkt. No.
14, at 17 [Pl. Mem. of Law].) Plaintiff also argues that the ALJ failed to explain why he did not
adopt the full range of limitations opined by consultative examiner Elke Lorensen, M.D., who
found marked limitations in the abilities to bend, lift, and reach. (Dkt. No. 14, at 17-18 [Pl.
Mem. of Law].) Plaintiff additionally argues that the ALJ misinterpreted the opinion from
treating Nurse Practitioner Laurie Brown and misunderstood the requirements of sedentary work.
(Dkt. No. 14, at 18 [Pl. Mem. of Law].)
Third, Plaintiff argues that the ALJ erred when assessing credibility because he provided
only boilerplate statements rather than meaningful reasons to support that finding. (Dkt. No. 14,
at 19-21 [Pl. Mem. of Law].) Plaintiff argues that her reported daily activities and the medical
evidence support the credibility of her allegations. (Id.)
Fourth, Plaintiff argues that the ALJ erred in affording only little weight to the opinion
from Nurse Practitioner Brown, which Plaintiff asserts is consistent with the findings of the other
medical sources in the treatment record. (Dkt. No. 14, at 21-22 [Pl. Mem. of Law].) Plaintiff
also argues that the ALJ erred in failing to afford controlling weight to the opinion from treating
psychiatrist Dr. Hukovic, which she argues is consistent with the other treatment evidence and
Plaintiff’s symptom reports. (Dkt. No. 14, at 22-23 [Pl. Mem. of Law].)
Fifth, Plaintiff argues that the Step Five finding is not supported by substantial evidence
because the ALJ improperly relied on the Medical-Vocational Guidelines rather than testimony
from the vocational expert despite the presence of non-exertional limitations. (Dkt. No. 14, at
23-24 [Pl. Mem. of Law].)
Generally, Defendant makes four arguments in support of her motion for judgment on the
pleadings. First, in response to Plaintiff’s first argument, Defendant argues that the ALJ’s
finding regarding the severity of anxiety and depression is supported by substantial evidence.
(Dkt. No. 15, at 4-9 [Def. Mem. of Law].) Specifically, Defendant argues that all the opinion
evidence other than Dr. Hukovic’s rejected opinion supports the ALJ’s finding that these
impairments did not impose limitations consistent with a severe impairment. (Dkt. No. 15, at 6-7
[Def. Mem. of Law].)
Second, in response to Plaintiff’s second and fourth arguments, Defendant argues that the
RFC finding is supported by substantial evidence. (Dkt. No. 15, at 9-17 [Def. Mem. of Law].)
More specifically, Defendant argues that the ALJ properly weighed the opinion evidence. (Dkt.
No. 15, at 11-17 [Def. Mem. of Law].) Defendant argues that the ALJ reasonably interpreted the
limitations in Dr. Lorensen’s opinion as indicative of an ability to perform sedentary work. (Dkt.
No. 15, at 11-12 [Def. Mem. of Law].) Defendant also argues that the ALJ correctly determined
that the opinion of medical expert Louis Fuchs, M.D., while afforded little weight, did not
suggest that Plaintiff was unable to perform sedentary work. (Dkt. No. 15, at 12-13 [Def. Mem.
of Law].) Defendant additionally argues that the ALJ appropriately afforded little weight to the
opinion from Nurse Practitioner Brown, which was no more restrictive than the RFC other than
the limitation for sitting. (Dkt. No. 15, at 13-14 [Def. Mem. of Law].) Defendant also argues
that the ALJ properly rejected the opinions from Dr. Hukovic because they were based on
Plaintiff’s subjective reports rather than objective evidence and because Dr. Hukovic had only
seen Plaintiff once between her initial evaluation and when he rendered his opinion. (Dkt. No.
15, at 7-8, 16-17 [Def. Mem. of Law].)
Third, in response to Plaintiff’s third argument, Defendant argues that the credibility
finding was supported by clear reasons that show he properly considered credibility according to
the appropriate legal standards. (Dkt. No. 15, at 18-22 [Def. Mem. of Law].) Specifically,
Defendant argues that the ALJ extensively detailed and considered Plaintiff’s subjective reports,
considered her daily activities that were inconsistent with her alleged limitations, and considered
factors such as her course of treatment and the effect of that treatment. (Dkt. No. 15, at 19-21
[Def. Mem. of Law].)
Fourth, in response to Plaintiff’s fifth argument, Defendant argues that the Step Five
finding is supported by substantial evidence due to the ALJ’s reliance on the Medical-Vocational
Guidelines because the ALJ appropriately found that the evidence as a whole did not support
non-exertional limitations that needed to be accounted for in the RFC. (Dkt. No. 15, at 22-23
[Def. Mem. of Law].)
RELEVANT LEGAL STANDARD
Standard of Review
A court reviewing a denial of disability benefits may not determine de novo whether an
individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health & Human Servs., 906 F.2d
856, 860 (2d Cir. 1990). Rather, the Commissioner’s determination will be reversed only if the
correct legal standards were not applied, or it was not supported by substantial evidence. See
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for
doubt whether the ALJ applied correct legal principles, application of the substantial evidence
standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made according to the correct legal
principles.”); accord Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983), Marcus v. Califano, 615
F.2d 23, 27 (2d Cir. 1979). “Substantial evidence” is evidence that amounts to “more than a
mere scintilla,” and has been defined as “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427 (1971). Where evidence is deemed susceptible to more than one rational
interpretation, the Commissioner’s conclusion must be upheld. Rutherford v. Schweiker, 685
F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both sides,
because an analysis of the substantiality of the evidence must also include that which detracts
from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by
substantial evidence, the Commissioner’s finding must be sustained “even where substantial
evidence may support the plaintiff’s position and despite that the court’s independent analysis of
the evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153
(S.D.N.Y. 1992). In other words, this Court must afford the Commissioner’s determination
considerable deference, and may not substitute “its own judgment for that of the
[Commissioner], even if it might justifiably have reached a different result upon a de novo
review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
Standard to Determine Disability
The Commissioner has established a five-step evaluation process to determine whether an
individual is disabled as defined by the Social Security Act. 20 C.F.R. §§ 404.1520, 416.920.
The Supreme Court has recognized the validity of this sequential evaluation process. Bowen v.
Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987). The five-step process is as follows:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is not, the
[Commissioner] next considers whether the claimant has a “severe
impairment” which significantly limits his physical or mental ability
to do basic work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based solely on medical
evidence, the claimant has an impairment which is listed in
Appendix 1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him disabled without
considering vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a claimant who is
afflicted with a “listed” impairment is unable to perform substantial
gainful activity. Assuming the claimant does not have a listed
impairment, the fourth inquiry is whether, despite the claimant’s
severe impairment, he has the residual functional capacity to
perform his past work. Finally, if the claimant is unable to perform
his past work, the [Commissioner] then determines whether there is
other work which the claimant could perform. Under the cases
previously discussed, the claimant bears the burden of the proof as
to the first four steps, while the [Commissioner] must prove the final
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord McIntyre v. Colvin, 758 F.3d 146,
150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can be made, the SSA
will not review the claim further.” Barnhart v. Thompson, 540 U.S. 20, 24 (2003).
Whether the Step Two Finding Regarding Plaintiff’s Mental Impairments is
Supported By Substantial Evidence
After careful consideration, the Court answers this question in the affirmative for the
reasons stated in Defendant’s memorandum of law. (Dkt. No. 15, at 4-9 [Def. Mem. of Law].)
To those reasons, the Court adds the following analysis.
At Step Two of the sequential evaluation process, the ALJ must determine whether the
claimant has a severe impairment that significantly limits his physical or mental abilities to do
basic work activities. 20 C.F.R. § 416.920(c). Basic work activities include walking, standing,
sitting, lifting, carrying, pushing, pulling, reaching, handling, seeing, hearing, speaking,
understanding, remembering and carrying out simple instructions, using judgment, and
responding appropriately to supervision, co-workers and usual work situations. Taylor v. Astrue,
32 F. Supp. 3d 253, 265 (N.D.N.Y. 2012) (citing Gibbs v. Astrue, No. 07-CV-10563, 2008 WL
2627714, at *16 (S.D.N.Y. July 2, 2008); 20 C.F.R. § 404.1521(b)(1)-(5)). “Although the
Second Circuit has held that this step is limited to ‘screening out de minimis claims’ , the ‘mere
presence of a disease or impairment, or establishing that a person has been diagnosed or treated
for a disease or impairment’ is not, by itself, sufficient to render a condition severe.” Taylor, 32
F. Supp. 3d at 265 (quoting Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995); Colvin v.
Shalala, 895 F. Supp. 50, 53 (S.D.N.Y. 1995)). Overall, the claimant retains the burden of
presenting evidence to establish severity. Taylor, 32 F.Supp.3d at 265 (citing Miller v. Comm’r
of Soc. Sec., No. 7:05-CV-1371, 2008 WL 2783418, at *6-7 (N.D.N.Y. July 16, 2008)).
Plaintiff’s argument that depression and anxiety should have been considered severe
impairments relies solely on the opinion of Dr. Hukovic. On March 26, 2015, Dr. Hukovic
indicated in a check-box opinion that Plaintiff had marked limitations in her abilities to
understand, remember and carry out detailed instructions, make judgments on simple workrelated decisions, and respond appropriately to work pressures in a routine work setting, with
additional moderate limitations in her abilities to understand, remember, and carry out short and
simple instructions, interact appropriately with supervisors, and respond appropriately to changes
in a routine work setting. (T. 372-73.) Dr. Hukovic also provided an opinion form related to
Listing 12.04 for affective disorders in which Dr. Hukovic noted Plaintiff had symptoms and
marked limitations which would indicate she meets the criteria of that listing.
The ALJ afforded no weight to Dr. Hukovic’s opinions, finding they were “no more than
a listing of the claimant’s subjective allegations” based on very limited treatment contact
consisting of an initial evaluation and a brief medication management appointment. (T. 20-21.)
The ALJ’s reasons for rejecting Dr. Hukovic’s opinions are supported by substantial evidence.
Notably, the explanations Dr. Hukovic included with his opinions support the ALJ’s findings
that they were based on Plaintiff’s subjective reports rather than Dr. Hukovic’s independent
professional judgment. When asked what findings supported the opined limitations, Dr. Hukovic
noted that “[p]atient reports that preoccupation with worries and anxious thoughts negatively
impacts her ability to focus on tasks and instructions; she reports being very distracted by her
thoughts,” and that “[p]atient reports that she treats supervisors poorly/inappropriately if she
does not feel she is treated well—also reports inability to handle work pressures in healthy
ways.” (T. 372-73.) These statements strongly suggest that Dr. Hukovic merely accepted
Plaintiff’s reports when rendering this opinion. A source’s reliance on a claimant’s subjective
reports rather than the medical evidence constitutes a good reason for affording less weight to a
medical opinion, even from a treating physician. See Aldrich v. Astrue, 5:08-CV-0402, 2009 WL
3165726, at *7 (N.D.N.Y. Sept. 28, 2009) (finding that the ALJ was entitled to afford less than
controlling weight to the opinion of a treating physician who appeared to rely on the plaintiff’s
subjective complaints more than any diagnostic or clinical evidence); Dailey v. Comm’r of Soc.
Sec., No. 5:14-CV-1518, 2016 WL 922261, at *5 (N.D.N.Y. Feb. 18, 2016) (noting that “[a]n
ALJ may provide less weight to a treating source’s opinion if that opinion is based on plaintiff’s
subjective complaints and not on objective medical evidence”) (citing Rivera v. Colvin, 592 F.
App’x 32, 33 (2d Cir. 2015); Roma v. Astrue, 468 F. App’x 16, 19 (2d Cir. 2012); Major v.
Astrue, No. 12-CV-304S, 2013 WL 2296396, at *5 (W.D.N.Y. May 24, 2013); Ford v. Astrue,
No. 1:06-CV-1227, 2010 WL 3825618, at *9 (N.D.N.Y. Sept. 24, 2010)).
While Dr. Hukovic does indicate that reviewers should refer to clinical records from
Gouverneur Wellness Center at the end of the Listing 12.04 opinion, these records do not show
findings supportive of the limitations opined in either opinion. At an evaluation on November
25, 2014, Dr. Hukovic observed that Plaintiff was well-groomed, visibly anxious, and tearful at
times though she was able to calm down after a few minutes. (T. 343.) She had a fairly
organized thought process, normal speech, a fair ability to focus, no difficulties spelling ‘world’
forward or backward, and the ability to abstract and interpret a proverb. (Id.) Dr. Hukovic noted
she reported a sad mood and memory problems, but she was observed to recall three of three
objects immediately, two of three from her recent memory, and had preserved remote memory.
(Id.) A therapy note from Emily Petrus on this same date showed that Plaintiff was alert and
oriented with intermittent eye contact, clear and understandable speech that was elevated in rate
but normal in tone and volume, low average to average intellectual functioning and fair/poor
insight into her conditions. (T. 354.) Ms. Petrus also noted Plaintiff reported memory
difficulties and inability to focus, but did not make any objective findings related to Plaintiff’s
memory and focus. (Id.) On November 28, 2014, Ms. Petrus observed that Plaintiff was alert
and oriented with intermittent eye contact, and clear and understandable speech that was elevated
in rate but normal in tone and volume. (T. 345.) These treatment notes, which show minimal
mental health abnormalities, do not support the extensive limitations in Dr. Hukovic’s opinion.
Rather, the minimal findings and minimal mental health treatment support the ALJ’s finding that
Plaintiff’s mental impairments are not severe. Because the ALJ provided reasons supported by
substantial evidence for affording no weight to Dr. Hukovic’s opinion, Plaintiff’s arguments that
this opinion required the ALJ to find her mental impairments severe must be rejected.
In addition to the treatment notes that do not reveal symptoms that would impose more
than minimal work-related limitations of functioning, the other opinion evidence supports the
ALJ’s severity finding. On June 14, 2013, consultative examiner Dennis Noia, Ph.D., noted
fairly normal mental status findings and opined that Plaintiff’s mental impairments did not
impose any limitations on her work-related functioning. (T. 279-81.) On June 19, 2013, State
Agency psychological consultant L. Hoffman found Plaintiff’s mental impairments non-severe.
(T. 102-03.) Nurse Practitioner Brown noted on August 15, 2014, that anxiety and depression
were stable and would not interfere with her work abilities. (T. 318.) Nurse Practitioner Brown
more specifically opined that these impairments would not cause any restriction on Plaintiff’s
abilities to understand, remember and carry out instructions or to respond appropriately to
supervision, co-workers, and work pressures in a work setting. (T. 319-20.) The ALJ noted
these opinions in the written decision when discussing the Step Two finding, suggesting he relied
on them as support for that finding. (T. 19-20.)
Because the ALJ properly declined to rely on Dr. Hukovic’s opinion, and because the
medical and opinion evidence is consistent with the ALJ’s finding, the ALJ did not err in finding
anxiety and depression were non-severe impairments. Remand is not warranted on this basis.
Whether the RFC Finding is Supported By Substantial Evidence
After careful consideration, the Court answers this question in the negative for some of
the reasons in Plaintiff’s memorandum of law. (Dkt. No. 14, at 17-18 [Pl. Mem. of Law].) To
those reasons, the Court adds the following analysis.
The Second Circuit has long recognized the ‘treating physician rule’ set out in 20 C.F.R.
§ 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 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)). However, 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).
The factors for considering opinions from non-treating medical sources are the same as
those for assessing treating sources, with the consideration of whether the source examined the
claimant or not replacing the consideration of the treatment relationship between the source and
the claimant. See 20 C.F.R. § 416.927(c)(1)-(6). Additionally, when weighing opinions from
sources who are not considered “medically acceptable sources” 2 under the regulations, the ALJ
must consider the same factors as used for evaluating opinions from medically acceptable
sources. Saxon v. Astrue, 781 F. Supp. 2d 92, 104 (N.D.N.Y. 2011) (citing Canales v. Comm’r
of Soc. Sec., 698 F. Supp. 2d 335, 344 (E.D.N.Y. 2010)); SSR 06-03p, 2006 WL 2329939.
Medically acceptable sources are noted to include the following: licensed physicians;
licensed or certified psychologists; licensed optometrists; licensed podiatrists; and qualified
speech-language pathologists. SSR 06-03p, 2006 WL 2329939 (Aug. 9, 2006).
Plaintiff makes multiple arguments related to the RFC finding: (1) the ALJ erred in
affording little weight to the opinion of physical functioning from Nurse Practitioner Brown; (2)
the ALJ failed to provide an explanation for failing to incorporate into the RFC marked
limitations opined by consultative examiner Dr. Lorensen despite appearing to rely on that
opinion; and (3) the ALJ erred in failing to provide a specific function-by-function assessment.
(T. 17-18, 21-22.)
First, Plaintiff argues that the ALJ erred in affording little weight to the opinion from
Nurse Practitioner Brown, asserting that Nurse Practitioner Brown’s opinion was entitled to extra
consideration given Plaintiff’s location in a rural area and because she had a treatment
relationship with Plaintiff and her opinion was consistent with the findings of other physicians
who found she had significant symptoms of fibromyalgia. (Dkt. No. 14, at 21-22 [Pl. Mem. of
Law].) On August 15, 2014, Nurse Practitioner Brown opined that Plaintiff could sit four hours
total, stand and walk two hours each, lift and carry up to 50 pounds occasionally and up to ten
pounds frequently, occasionally bend and squat, never crawl and climb, and was able to use her
hands for repetitive actions. (T. 317-18.) The ALJ afforded Nurse Practitioner Brown’s opinion
little weight because she had been treating Plaintiff for only five months at the time she rendered
her opinion, her treatment notes did not show a basis for the sitting limitation, and she is not a
medically acceptable source according to the regulations. (T. 23.)
The ALJ’s decision to afford little weight to this opinion, particularly the sitting
limitation, is supported by substantial evidence because, as the ALJ noted, nothing in Nurse
Practitioner Brown’s treatment notes (or the other evidence) supports such a restriction in the
ability to sit. X-rays of the cervical, thoracic, and lumbar spine and sacroiliac joints from April
17, 2012, were unremarkable other than a notation of slightly diminished range of motion in the
cervical spine. (T. 303-06.) On April 26, 2012, she was observed to have limited cervical spine
range of motion secondary to pain, cervical and lumbar area tenderness, sacroiliac joint
tenderness, normal straight leg raising, and otherwise normal range of motion, strength, and
sensation. (T. 273.) On July 5, 2012, Plaintiff was observed to have tenderness in the cervical
and lumbar triangle regions, tautness over the trapezius muscles, mild crepitus with passive
range of motion in the shoulders, greater than 11 fibromyalgia trigger points, and otherwise good
range of motion. (T. 270.) On June 14, 2013, consultative examiner Dr. Lorensen observed a
normal gait, ability to walk on her toes without difficulty, a 30 percent squat ability, negative
straight leg raising, full range motion other than decreased cervical and lumbar range of motion,
fibromyalgia trigger points, and normal sensation and strength. (T. 283-84.) On April 3, 2014,
Nurse Practitioner Brown observed Plaintiff’s fibromyalgia pain had been well managed on her
current medication, which included hydrocodone. (T. 313.) Nurse Practitioner Brown observed
joint and muscle tenderness, particularly in the back with palpation. (T. 314-15.) On July 2,
2014, Nurse Practitioner Brown noted Plaintiff’s pain was tolerable with hydrocodone
management, and that Plaintiff reported feeling fairly well with her current medications. (T.
310.) The treatment evidence, while showing symptoms related to fibromyalgia, therefore does
not establish specifically that Plaintiff experienced limitations in her ability to sit, particularly as
she reported her medication improved her pain. Notably, although Dr. Lorensen observed
decreased range of motion and fibromyalgia trigger points, she did not include any limitation on
the ability to sit in her opinion. (T. 283-85.) Because the ALJ found Nurse Practitioner Brown’s
sitting limitation in particular was not substantiated by the treatment notes, the ALJ has provided
an adequate reason for affording little weight to this opinion. See Saxon, 781 F. Supp. 2d at 102
(“The less consistent an opinion is with the record as a whole, the less weight it is to be given.”)
(citing Stevens v. Barnhart, 473 F. Supp. 2d 357, 362 (N.D.N.Y. 2007)); Aldrich v. Astrue, 08CV-0402, 2009 WL 3165726, at *7 (N.D.N.Y. Sept. 28, 2009) (finding that the ALJ was entitled
to afford less than controlling weight to the opinion of a treating physician who appeared to rely
on the plaintiff’s subjective complaints more than any diagnostic or clinical evidence); Otts v.
Comm’r of Soc. Sec., 249 F. App’x 887, 889 (2d Cir. 2007) (noting that an ALJ may reject an
opinion from a treating physician “upon the identification of good reasons, such as substantial
contradictory evidence in the record”) (citing Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.
2004)); 20 C.F.R. § 416.927(c)(4) (indicating that the extent that an opinion is consistent with
the record as a whole is one of the factors considered when determining the amount of weight to
which an opinion is entitled). Notably, other than the sitting limitation, there is nothing in Nurse
Practitioner Brown’s opinion that would suggest Plaintiff cannot perform sedentary work. 3
Plaintiff’s corollary argument that remand is warranted because the ALJ’s discussion of
Nurse Practitioner Brown’s opinion showed he had an erroneous concept of the demands of
sedentary work is also not persuasive. (Dkt. No. 14, at 18 [Pl. Mem. of Law].) When asserting
that Nurse Practitioner Brown’s opinion supported an ability to perform at least sedentary work,
the ALJ stated that “[w]hile [sedentary] work normally requires the ability to sit for about 6
hours, given normal breaks, a finding that the claimant can sit 4 hours does not mean she could
not sit for about 6 hours with breaks.” (T. 23.) The Court agrees with Plaintiff that this rationale
Nurse Practitioner Brown did opine Plaintiff could only occasionally bend and squat and
never crawl and climb, but these postural limitations would not impact the ability to perform a
significant number of sedentary jobs. See SSR 96-9p, 1996 WL 374185, at *7-8 (July 2, 1996)
(noting that postural limitations do not usually erode the occupational base of unskilled sedentary
work because they are not usually required for that work). Consequently, although these
limitations are more extensive than the RFC accounted for, they would not themselves
undermine the validity of the ALJ’s Step Five finding.
is questionable at best, and it appears to represent a misinterpretation of Nurse Practitioner
Brown’s opinion, as she opined Plaintiff could sit for a total of four hours in an eight-hour
workday, not that Plaintiff could sit for four hours exclusive of time for breaks. (T. 317.)
However, this Court does not agree that this attempt to make Nurse Practitioner Brown’s opinion
consistent with sedentary work necessitates remand because even a proper consideration of the
sitting limitation would not have altered the ALJ’s findings. The ALJ also afforded little weight
to this opinion based on additional reasons, including the length and nature of the treatment
relationship and a lack of support for the sitting limitation, reasons which provide substantial
support for the ALJ’s rejection of this opinion regardless of whether he made unsupported
assertions that this opinion was consistent with sedentary work. Plaintiff’s argument that the
ALJ erred in failing to afford greater weight to Nurse Practitioner Brown’s opinion must
therefore be rejected.
Second, Plaintiff argues that the ALJ failed to explain why he rejected the marked
limitations in Dr. Lorensen’s opinion. (Dkt. No. 14, at 17-18 [Pl. Mem. of Law].) After
conducting a physical examination, Dr. Lorensen opined that Plaintiff had moderate restrictions
in turning her head sideways, looking upward, and squatting as well as marked limitations in
bending, lifting, and reaching. (T. 285.) Plaintiff argues that the ALJ’s failure to explain how
the marked limitations in particular were consistent with an ability to perform sedentary work
renders the ALJ’s findings inadequate. In response, Defendant argues that “[n]othing in Dr.
Lorensen’s opinion is inconsistent with [the] demands [of sedentary work] as the ALJ
concluded,” and asserts that this Court must uphold the ALJ’s rational interpretation of this
opinion evidence even if the “slightest hint of ambiguity” is present. (Dkt. No. 15, at 11-12 [Def.
Mem. of Law].)
However, the problem in this instance is that too much ambiguity exists in the ALJ’s
explanation (or lack thereof) of his reliance on Dr. Lorensen’s opinion. The only statement the
ALJ made regarding the weight afforded to this opinion was his assertion that it “would permit
performance of at least sedentary work.” (T. 23.) The ALJ cannot simply assert that an opinion
is consistent with his findings without providing some degree of explanation or support as to
why his assertion is consistent with the evidence and legal standards. The ALJ’s failure to
provide any explanation as to how he reached the conclusion that these limitations were
consistent with sedentary work is compounded by the fact that he did not even provide an
explicit indication of the weight he afforded to Dr. Lorensen’s opinion. This failure to state what
weight he afforded this opinion makes it impossible to review whether the ALJ’s consideration
of this opinion was consistent with the standards outlined in the regulations because there is no
clear indication of the degree to which the ALJ relied on it. Consequently, the ALJ has not met
his duty to set forth his reasons “with sufficient specificity to enable [the Court] to decide
whether the determination is supported by substantial evidence.” Ferraris v. Heckler, 728 F.2d
582, 587 (2d Cir. 1984); see also Hamedallah ex rel. E.B. v. Astrue, 876 F. Supp. 2d 133, 142
(N.D.N.Y. 2012) (“A court ‘cannot . . . conduct a review that is both limited and meaningful if
the ALJ does not state with sufficient clarity the legal rules being applied and the weight
accorded the evidence considered.’”) (quoting Morgan on behalf of Morgan v. Chater, 913 F.
Supp. 184, 188-89 (W.D.N.Y. 1996)); Booker v. Astrue, No. 1:07-CV-0646, 2011 WL 3735808,
at *5 (N.D.N.Y. Aug 24, 2011) (“The crucial factors in an ALJ’s decision must be set forth in
sufficient detail as to enable meaningful review by the court.”) (citing Ferraris, 728 F.2d at 587).
This Court is most troubled by the ALJ’s unexplained implicit rejection of the marked
limitation for reaching. The record contains some support for this limitation. Dr. Lorensen
observed decreased cervical range of motion and fibromyalgia trigger points, including in her
bilateral trapezius, bilateral supraspinatus, and bilateral anterior cervical regions. (T. 284.)
Plaintiff was observed to have limited cervical spine range of motion secondary to pain on April
26, 2012. (T. 273.) On July 5, 2012, she was observed to have tenderness in her cervical spine
region, tautness over the trapezius muscles, and mild crepitus in the shoulders. (T. 270.) On
April 3, 2014, she was observed to have joint and muscle tenderness. (T. 315.)
The ALJ found at Step Five that Plaintiff remained capable of performing the broad
occupational base of sedentary work, but it is not clear what impact a marked restriction on the
ability to reach would have on that occupational base. SSR 96-9p notes that sedentary unskilled
jobs require good use of the hands and fingers, but is silent regarding what impact such a
significant restriction on the ability to reach would have on that occupational base. See SSR 969p, 1996 WL 374185, at *8. This Court and the Second Circuit, however, have noted that
reaching is “‘required in almost all jobs’” and “a reaching limitation ‘may eliminate a large
number of occupations a person could otherwise do.’” Gishey v. Colvin, No. 8:13-CV-1036,
2015 WL 1505674 at *8 (N.D.N.Y. Mar. 31, 2015) (quoting Selian v. Astrue, 708 F.3d 409, 422
(2d Cir. 2013)). Consequently, whether or not the ALJ properly rejected this limitation could
have a material impact on the validity of the ALJ’s Step Five finding, yet the ALJ provided no
explanation as to whether he found this limitation unsupported or why. The ALJ’s failure to
explain his findings regarding Dr. Lorensen’s opinion is therefore not harmless error in this
Additionally, contrary to Defendant’s contention that this Court must accept the ALJ’s
findings in the face of ambiguity, we have remanded previously in situations similar to the one
presented here. In Rowe v. Colvin, 166 F. Supp. 3d 234 (N.D.N.Y. 2016), this Court remanded
where the ALJ concluded the plaintiff could perform a full range of sedentary work despite
explicitly adopting a consultative examiner’s opinion that the plaintiff had marked limitations in
bending, neck motion, reaching, pushing, pulling, lifting, and carrying. Rowe, 166 F. Supp. 3d at
239-40. The Court noted that the ALJ “failed to explain the discrepancy between [his] adoption
of Dr. Magurno’s findings and his RFC finding (which explicitly rejected these non-exertional
impairments” and that “[a]s a result, the Court cannot be certain the [ALJ] applied the correct
legal principles, and thus remand is required to sort out the apparent contradiction.” Id. at 240.
In the present case, the ambiguity is even greater because it is not even certain to what extent the
ALJ did rely on Dr. Lorensen’s opinion due to his complete failure to provide any explanation
other than a bare assertion that the opinion supported an ability to perform sedentary work. It is
simply not clear whether the ALJ applied the proper scrutiny and factors required by the
regulations when considering Dr. Lorensen’s opinion. Consequently, remand is warranted.
Third, Plaintiff argues that the ALJ erred in failing to provide a specific function-byfunction analysis. (Dkt. No. 14, at 17 [Pl. Mem. of Law].) The Second Circuit has found that
the failure to provide a function-by-function analysis is not a per se ground for remand, noting
that “[w]here an ALJ’s analysis at Step Four regarding a claimant’s functional limitations and
restrictions affords an adequate basis for meaningful judicial review, applies the proper legal
standards, and is supported by substantial evidence such that additional analysis would be
unnecessary or superfluous,  remand is not necessary merely because an explicit function-byfunction analysis was not performed.” Cichocki v. Astrue, 729 F.3d 172, 176-77 (2d Cir. 2013)
(collecting case from other circuit courts that have declined to adopt a per se rule). The Second
Circuit did note that remand might be appropriate “where an ALJ fails to assess a claimant’s
capacity to perform relevant functions, despite contradictory evidence in the record, or where
other inadequacies in the ALJ’s analysis frustrate meaningful review.” Cichocki, 729 F.3d at 177
(citing Myers v. Apfel, 238 F.3d 617, 621 (5th Cir. 2001)).
In this case, there are inadequacies in the ALJ’s analysis that frustrate meaningful review,
most notably being the lack of clear explanation regarding the treatment of Dr. Lorensen’s
opinion as already discussed in detail previously. Given the need for further proceedings to
properly consider that opinion and the questions that error raises about the validity of the
credibility and Step Five findings, on remand the ALJ should take care to provide a clearer
explanation of the basis for his findings related to Plaintiff’s specific functional abilities.
For the above reasons, remand is warranted for the ALJ to provide a proper analysis and
explanation of the weight afforded to Dr. Lorensen’s opinion and to provide clearer findings
regarding how he reached the conclusion that Plaintiff remains able to perform the specific
functions required for sedentary work.
Whether the Credibility Finding is Supported By Substantial Evidence
Due to the errors already identified and the impact they may have on the credibility
finding, the ALJ should reassess Plaintiff’s credibility on remand.
Whether the Step Five Finding is Supported By Substantial Evidence
Due to the errors in weighing Dr. Lorensen’s opinion, in particular the failure to explain
why he implicitly rejected the marked limitation for reaching, the ALJ will also need to make
new findings related to what other work Plaintiff retains the ability to perform in the national
economy, and should consult a vocational expert for testimony if warranted by the findings on
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 14) is
GRANTED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 15) is
DENIED; and it is further
ORDERED that this matter be REMANDED for further administrative proceedings
consistent with this Decision and Order pursuant to Sentence Four of 42 U.S.C. 405(g).
Dated: October 10, 2017
Syracuse, New York
Hon. Glenn T. Suddaby
Chief U.S. District Judge
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