Richardson v. Commissioner of Social Security

Filing 23

MEMORANDUM OPINION AND ORDER: re 15 MOTION for Judgment on the Pleadings. filed by Commissioner of Social Security, 19 MOTION for Judgment on the Pleadings. filed by Claire Richardson. The Court has considered all of the arguments of the parties . To the extent not specifically addressed above, the remaining arguments are either moot or without merit. For the foregoing reasons, the Commissioner's decision is reversed and this case is remanded for further proceedings, pursuant to the fourth sentence of 42 U.S.C. § 405(g). The Clerk is directed to enter judgment and to close this case. (Signed by Judge John G. Koeltl on 3/27/2013) (djc) Modified on 3/27/2013 (djc).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
CLAIRE RICHARDSON,
Plaintiff,

11 Civ. 5142 (JGK)

- against -

MEMORANDUM OPINION
AND ORDER

MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The plaintiff, Claire Richardson, brought this action to
reverse a final decision of the defendant, the Commissioner of
Social Security (the “Commissioner”), that the plaintiff was not
entitled to Disability Insurance Benefits (“DIB”).

The

plaintiff filed an application for DIB on September 2, 2008,
alleging that she was disabled beginning February 25, 1995.
insured status had expired on December 31, 2000.

Her

The

plaintiff’s application was denied initially on December 26,
2008.

After a hearing on March 2, 2010, an Administrative Law

Judge (“ALJ”) denied the plaintiff’s application on May 26,
2010, finding that the plaintiff was not disabled during the
relevant time period.

The ALJ’s decision became the final

decision of the Commissioner after the Appeals Council declined
to review it on January 27, 2011.

The parties have filed cross-

motions for judgment on the pleadings pursuant to Rule 12(c) of
the Federal Rules of Civil Procedure.

I.
The administrative record contains the following facts. 1
The plaintiff was born in 1954.

(Tr. 42, 110.)

She worked

as a registered nurse at a hospital from 1980 to February 1995.
(Tr. 42-43, 127.)

Her nursing job involved, within an eight-

hour day, about seven hours of walking or standing, about three
hours of sitting, and lifting objects weighing up to twenty
pounds.

(Tr. 127.)

In 1974, the plaintiff was involved in a

car accident, fracturing multiple bones in her right leg-specifically, her right femur, tibia, and fibula.

(Tr. 191.)

One year later she was in another car accident, re-fracturing
those same bones as well as fracturing her left femur.

(Tr.

191.)
On January 10, 1995, a magnetic resonance imaging (“MRI”)
scan of the plaintiff’s right knee revealed “[s]evere
degenerative and/or post-traumatic changes . . . associated with
a medial meniscus tear and a probable small tear involving the

1

Although much of the medical evidence in the record relates to
the period after December 31, 2000, the period at issue only
spans from the plaintiff’s alleged disability onset date,
February 25, 1995 through her date last insured, December 31,
2000.

2

lateral meniscus.”

(Tr. 251-52.)

On February 24, 1995, the

plaintiff underwent arthroscopic surgery of the right knee at
the Hospital for Joint Diseases.

(Tr. 173-82.)

Nine days after her knee surgery, the plaintiff saw a
physical therapist for an initial evaluation, which revealed
reduced motor strength and range of motion of the plaintiff’s
right knee and leg.

(Tr. 385.)

She began physical therapy

exercise on the day of her evaluation, and she attended
frequently over the next few weeks.

(Tr. 375, 386-87.)

On

March 24, 1995, the plaintiff was able to walk without crutches.
(Tr. 387.)

She was discharged from physical therapy three days

later, and was instructed to follow a home exercise program.
(Tr. 250, 387.)
On April 24, 1995, Dr. Stuart Springer noted that the
plaintiff was making very slow progress with physical therapy
but that he might allow her to return to work on May 21, 1995.
(Tr. 253.)

On June 19, 1995, Dr. Springer noted that recent

Cybex testing revealed that the plaintiff’s right leg had a
“36% quadriceps [muscle] deficit and a 64% hamstring [muscle]
deficit.”

(Tr. 254.)

Because the plaintiff had not met her

physical therapy goals with respect to strengthening her right
leg, Dr. Springer recommended that she resume physical therapy.
(Tr. 254.)

After additional physical therapy, the plaintiff

reported on July 12, 1995 that her knee pain was 3 on a scale of

3

10, and her walking tolerance had increased to thirty minutes.
(Tr. 392.)

On October 18, 1995, Dr. Springer wrote a note

stating that although the plaintiff had made some progress with
an intensive physical therapy program, she still had a
significant deficit with respect to her quadriceps and hamstring
strength, and he recommended that she continue her program.
(Tr. 393.)
On January 23, 1996, the plaintiff saw orthopedist Dr.
Barton Nisonson for her right leg pain.

(Tr. 639-40.)

The

plaintiff reported that she had swelling and increasing pain in
her right leg, and that she had seen several doctors over the
past couple of years.

(Tr. 639.)

Dr. Nisonson noted that the

plaintiff’s right leg was shorter as a result of her injuries,
and that she had “rather severe changes” in one part of her knee
after her arthroscopic procedure.

(Tr. 639.)

Dr. Nisonson also

mentioned that another doctor had recommended an osteotomy
because the plaintiff continued to have serious problems.
639.)

(Tr.

Dr. Nisonson then referred the plaintiff to another

doctor, recommending a total knee replacement “due to the
severity of her . . . serious and complex problem.”

(Tr. 640.)

On a prescription pad note dated February 13, 1996, Dr.
Frederick Buechel also opined that for the plaintiff “TKR”
(total knee replacement) surgery would be preferable to a tibial
osteotomy.

(Tr. 394.)

4

On February 15, 1996, Dr. Chitranjan Ranawat saw the
plaintiff.

(Tr. 397.)

The plaintiff reported severe and

disabling right-knee pain.

(Tr. 397.)

She could walk one to

three blocks, had difficulty climbing stairs, and used no
external supports.

(Tr. 397.)

Dr. Ranawat noted: “Pain is

severe and disabling to her, more on activities and somewhat
less with rest.”

(Tr. 397.)

Dr. Ranawat’s examination of the

plaintiff revealed varus alignment of both lower extremities.
(Tr. 397.)
On April 17, 1996, a physical therapist reported that the
plaintiff had improved walking endurance and minimal to no
instances of ankle locking or knee buckling.

(Tr. 406.)

The

plaintiff was also able to shift comfortably onto her right leg.
(Tr. 406.)
On May 29, 1996, the plaintiff saw Dr. Jose Rodriguez for
left leg pain after an accident she had while running after her
toddler five days earlier.

(Tr. 400-01.)

Dr. Rodriguez’s

impression of the plaintiff’s left leg injury upon examination
was a large hematoma of the left thigh muscle.

(Tr. 401.)

Although the plaintiff noted that her left leg pain remained
quite high, she was able to bear weight on that leg without real
difficulty.

(Tr. 400.)

She was advised to continue assisted

walking as the pain and swelling gradually resolved.

(Tr. 401.)

With respect to her right knee, Dr. Rodriguez advised the

5

plaintiff about “the complexity of her problem” and informed her
that an osteotomy “would not give her enough relief.”
400.)

(Tr.

Dr. Rodriguez discussed the possibility of a total knee

replacement with the plaintiff.

(Tr. 400.)

On September 15, 1997, the plaintiff returned to Dr.
Springer, who noted her right-knee and gait problems.
410.)

(Tr.

In a letter dated February 15, 1998, Dr. Springer

explained the plaintiff’s past medical history and noted that he
did a physical examination of her in April 1995, at which he
discussed a new course of physical therapy with her and
instructed her to use a cane.

(Tr. 426-28.)

Dr. Springer then

stated that “[u]nfortunately, since that time she seemed to not
significantly improve and began to experience other sensations
including a burning like sensation which she described being
like a poker was in her knee.”

(Tr. 427.)

Dr. Springer also

noted that the pain and swelling the plaintiff experienced
“restricted not only her range of motion, but also her ability
to ambulate properly.”

(Tr. 427.)

Dr. Springer concluded that

the plaintiff had “many, many problems with her right knee” and
that it was likely that “she will need further, more major,
surgery in the future.”

(Tr. 428.)

On October 13, 1998, the plaintiff saw Dr. Dae-Sik Rho for
pain in the legs, ankles, and right knee that was “at times
. . . severe” and had become “progressively worse since the

6

spring.”

(Tr. 479-80.)

After acupuncture treatment, the

plaintiff experienced decreased pain in the left leg but not in
the right leg.

(Tr. 479.)

Upon physical examination, Dr. Rho

observed that the plaintiff walked with a slight limp, and that
her right leg was slightly shorter than her left leg.
479.)

(Tr.

Dr. Rho also noted that the plaintiff had bone elevation

in the right thigh and right tibia, crepitation in the right
knee, and tender muscle at the fracture sites.

(Tr. 479.)

Dr.

Rho’s impression was that the plaintiff had “residual
(myofascial) pain” from her multiple fractures of the bilaterial
extremities, as well as arthritis.

(Tr. 480.)

Dr. Rho’s

recommended treatment for the plaintiff was physical therapy and
therapeutic exercises.

(Tr. 480.)

On October 26, 1998, Dr. Gerald Smallberg saw the plaintiff
for complaints of increasing leg pain.

(Tr. 191-92.)

The

plaintiff reported that the pain “involves both legs, right more
than left, most severe when she gets out of bed in the morning,
and it takes her several hours to loosen up.

She also has

difficulty walking, and currently cannot walk more than about
one to two blocks without having to stop because of severe pain
in her legs.

This could go from the hips to the feet, although

at times she has some pain into the buttocks.”

(Tr. 191.)

On

examination, Dr. Smallberg observed that the plaintiff was “a
healthy-appearing woman complaining of pain.”

7

(Tr. 191.)

Straight leg raising was unremarkable and there was no definite
muscle pain to palpation, but “[t]here was some pain over her
knees and bones in the legs that did not completely reproduce
her pain.”

(Tr. 191.)

The results of the plaintiff’s

neurological, motor, and sensory examinations were largely
normal.

(Tr. 192.)

Dr. Smallberg concluded that the plaintiff

had “pain in the legs that I cannot fully characterize.”
192.)

(Tr.

Dr. Smallberg also suspected that there was “some

underlying rheumtalogical problem that needs further
evaluation.”

(Tr. 192.)

On November 6, 1998, Dr. Harry Spiera saw the plaintiff,
who complained of increased leg pain.

(Tr. 498-500.)

The

plaintiff reported that she has had “persistent pain in the
right knee” ever since her knee surgery.

(Tr. 498.)

In the

summer of 1998, “she had increased pain in her thighs, which she
describes as a squeezing and burning sensation, which comes and
goes and occasionally occurs at rest.”

(Tr. 498.)

At the time

she saw Dr. Spiera, the plaintiff believed her ability to walk
was “getting worse.”

(Tr. 498.)

The plaintiff described the

pain as “going from the hips down to the ankles but particularly
the left foot.”

(Tr. 498.)

She also stated that “there is a

major difference from last year.”

(Tr. 498.)

Dr. Spiera observed that the plaintiff limped on her right
leg and also avoided putting pressure on her left foot.

8

(Tr.

499.)

The plaintiff had no pain on straight-leg raising, but

she had decreased sensation in her feet, tenderness in her left
foot, and obvious osteoarthritic changes to her right knee.
(Tr. 499.)

Lab studies revealed a positive rheumatoid factor.

(Tr. 499-500.)

Dr. Spiera ordered a bone scan of the feet

because of the plaintiff’s severe pain and noted that “there is
a major change in both feet.”

(Tr. 500.)

Dr. Spiera concluded

that “[t]he clinical picture is rather confusing” and found it
“difficult to make any specific diagnosis here.”

(Tr. 500.)

He

ordered an MRI scan of the plaintiff’s foot to see “if something
else is going on locally such as a possible osteomyelitis.”
(Tr. 500.)
A bone scan of the plaintiff’s lower extremities taken on
November 6, 1998 revealed several physiological defects.
489-92.)

(Tr.

A three-phase bone scan of both feet was performed,

demonstrating increased perfusion to the left mid-foot as
compared to the right.

(Tr. 489.)

Immediate blood pool images

demonstrated increased osseous and soft-tissue deposition within
the left mid-foot as compared to the right.

(Tr. 489.)

Delayed

images of both feet demonstrated intense increased uptake in the
left mid-foot.

(Tr. 489.)

Anterior and posterior images of the

pelvis and lower extremities demonstrated increased uptake
within both knees and ankles “consistent with degenerative
change.”

(Tr. 489.)

There were also faint sites of increased

9

uptake in the mid-shafts of both femurs and in the mid-shaft of
the right tibia consistent with previous fractures.

(Tr. 489.)

In sum, the examination revealed the following: (1) the bone
scan of both feet demonstrated increased activity in all three
phases of the left mid-foot, which may have been related to
osteomyelitis or possibly post-traumatic etiology; (2) there was
increased isotopic activity in the mid-shafts of both femurs and
in the mid-shaft of the right tibia, consistent with previous
fractures; and (3) there was increased isotopic activity in both
knees and ankles which was “most likely degenerative in nature.”
(Tr. 489-90.)
An MRI scan of the plaintiff’s left foot taken on or about
November 23, 1998 also revealed several physiological defects.
(Tr. 412-13.)

There was synovitis of the ankle, as well as

fluid about the sheath of the flexor hallucis longus tendon.
(Tr. 412.)

There was also soft-tissue fullness in the sinus

tarsi “on an inflammatory and/or post-traumatic basis.”
412.)

(Tr.

There was signal alteration involving the navicular bone

and distal talus centrally and laterally.

(Tr. 412.)

The

talonavicular joint was narrowed, and there was a moderately
prominent ventromarginal osteophyte.

(Tr. 412.)

There were

also moderate degenerative changes of the calcaneocuboid joint
with marginal lipping laterally.

(Tr. 412.)

The reviewing

physician noted that “[a] major consideration is stress reaction

10

with underlying arthritic process,” but osteomyelitis was
thought to be unlikely.

(Tr. 412-13.)

On May 10, 2000, the plaintiff saw Dr. Smallberg for
complaints of numbness in the right hand.

(Tr. 528-29.)

The

plaintiff mentioned that her leg pains had improved since
October 1998, but stated that recently she had been experiencing
intermittent numbness in her right foot.

(Tr. 528.)

On

examination, Dr. Smallberg noted that the plaintiff was “a
healthy-appearing woman in no acute distress.”

(Tr. 528.)

The

results of the plaintiff’s motor examination and sensory
examination were normal.

Dr. Smallberg concluded that the

plaintiff had “a history of multiple problems that are difficult
to tie together with one simple diagnosis,” and he referred her
for additional testing, including an MRI scan.

(Tr. 529.)

On

May 19, 2000, an MRI scan of the plaintiff’s cervical spine
revealed mild disc bulging and spondylosis at CS-6 greater than
C4-5, as well as possible mild stenosis of the right neural
foramen at CS-6, but no evidence of spinal cord compression.
(Tr. 438.)
In an undated note, Dr. Steven Lamm stated that the
plaintiff had been his patient since 1998 and opined that she
was “increasingly disabled” from a variety of conditions,
including “[d]egenerative arthritis involving knees and ankles”
for which “surgery [was] not helpful.”

11

(Tr. 445.)

At the hearing before the ALJ on March 2, 2010, the
plaintiff testified about her condition within the period from
February 1995 through December 2000.

(Tr. 35-72.)

The

plaintiff stated that during this period she had pain “every
day,” mostly in her legs, and “[s]ome days were excruciating.”
(Tr. 49.)

The plaintiff had pain mostly in the right knee and

right ankle between 1995 and 2000, as well as pain in the left
knee and left ankle in about 1998.

(Tr. 45.)

The plaintiff

stated that “sometimes [she] would have episodes of really
severe pain” in her right leg and eventually in her left leg as
well.

(Tr. 45.)

During the period at issue, the plaintiff described her
daily activities as “limited,” and she had to hire someone to
take care of her small child.

(Tr. 46.)

The plaintiff used a

cane to walk prior to December 2000, and had difficulty using
stairs.

(Tr. 47.)

The plaintiff stated that usually she could

walk one or two blocks, but that there were periods of time when
she could not do that.

(Tr. 48.)

In addition, the plaintiff

stated that during the period at issue she was having problems
sitting.

(Tr. 50-51.)

If she were sitting in a chair, she

would have to change positions every fifteen or twenty minutes.
(Tr. 50-51.)

The plaintiff stated that sometimes she could not

sit at all and would need to lie down because sitting was “a
very uncomfortable position” for her.

12

(Tr. 50-51.)

She noted

that this scenario--in which she needed to lie down on a couch
or bed--would occur as frequently as “five out of seven days.”
(Tr. 51.)
In his decision dated May 26, 2010, the ALJ evaluated the
plaintiff’s claim for DIB pursuant to the five-step sequential
evaluation process set forth in 20 C.F.R. § 404.1520(a).
21-28.)

(Tr.

First, the ALJ found that the plaintiff had not engaged

in substantial gainful activity from her alleged disability
onset date of February 25, 1995 through her date last insured of
December 31, 2000.

(Tr. 23.)

Second, the ALJ found that the

plaintiff had the following severe impairments: “arthritis of
the knees and ankles, status post right knee arthroscopy, and
status post multiple fractures to the legs as a result of two
motor vehicle accidents.”

(Tr. 23.)

Third, the ALJ determined

that the plaintiff’s impairments or combination of impairments
did not meet or equal one of the impairments listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1.

(Tr. 24.)

Fourth, the ALJ

stated: “After careful consideration of the entire record, the
undersigned finds that, through the date last insured, the
claimant had the residual functional capacity [“RFC”] to perform
the full range of sedentary work as defined in 20 CFR
404.1567(a).”

(Tr. 24.)

The ALJ determined that the plaintiff

was unable to perform her past relevant work.

(Tr. 26.)

Fifth,

the ALJ applied the medical-vocational guidelines (“the grids”)

13

and determined that, given the plaintiff’s age, education, work
experience, and “residual functional capacity for the full range
of sedentary work,” the plaintiff was not disabled.

(Tr. 27,

citing Medical-Vocational Rule 201.21, 20 C.F.R. Part 404,
Subpart P, Appendix 2.)

The ALJ therefore concluded that the

plaintiff had not been under a disability at any time from
February 25, 1995 through December 31, 2000.

(Tr. 27.)

II.
A.
A court may set aside a determination by the Commissioner
only if it is based on legal error or is not supported by
substantial evidence in the record.

See 42 U.S.C. § 405(g);

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per
curiam).

Substantial evidence is “more than a mere scintilla”;

it is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.”

Richardson v. Perales,

402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)) (internal quotation marks omitted);
see also Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995);
Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991).
A claimant seeking DIB is considered disabled if the
claimant is unable “to engage in any substantial gainful
activity by reason of any medically determinable physical or

14

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). 2

The analytical framework for evaluating claims of
disability for DIB is defined by regulations of the
Commissioner, which set forth a five-step inquiry.
C.F.R. § 404.1520.

See 20

The Court of Appeals for the Second Circuit

has described this five-step process as follows:
1.

The
Commissioner
considers
whether
the
claimant is currently engaged in substantial
gainful activity.

2.

If not, the Commissioner considers whether
the claimant has a “severe impairment” which
limits his or her mental or physical ability
to do basic work activities.

3.

If the claimant has a “severe impairment,”
the Commissioner must ask whether, based
solely on medical evidence, claimant has an
impairment listed in Appendix 1 of the
regulations.
If the claimant has one of
these
enumerated
impairments,
the
Commissioner will automatically consider him
disabled,
without
considering
vocational
factors such as age, education, and work
experience.

2

The definition of disability for the purposes of Supplemental
Security Income (“SSI”) benefits under Title XVI of the Social
Security Act is similar. See 42 U.S.C. § 1382c(a)(3)(A). The
determination of disability under Title XVI is also similar to
the determination of disability for purposes of DIB under Title
II of the Act. Ramos v. Apfel, No. 97 Civ. 6435, 1999 WL 13043,
at *4 n.1 (S.D.N.Y. Jan. 12, 1999). Cases under 42 U.S.C.
§ 1382c(a)(3) are cited interchangeably with cases under 42
U.S.C. § 423. See Hankerson v. Harris, 636 F.2d 893, 895 n.2
(2d Cir. 1980).

15

4.

If the impairment is not “listed” in the
regulations,
the
Commissioner
then
asks
whether,
despite
the
claimant’s
severe
impairment,
he
or
she
has
residual
functional capacity to perform his or her
past work.

5.

If the claimant is unable to perform his or
her
past
work,
the
Commissioner
then
determines whether there is other work which
the
claimant
could
perform.
The
Commissioner bears the burden of proof on
this last step, while the claimant has the
burden on the first four steps.

Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000) (citation
omitted); see also Selian v. Astrue, 708 F.3d 409, 417-18 (2d
Cir. 2013).
The claimant bears the initial burden of proving that the
claimant is disabled within the meaning of the Social Security
Act.

See 42 U.S.C. § 423(d)(5); see also Shaw, 221 F.3d at 132.

This burden encompasses the first four steps described above.
See Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir. 1983).

If

the claimant satisfies the burden of proof through the fourth
step, the claimant has established a prima facie case and the
burden shifts to the Commissioner to prove the fifth step.

See

id. at 722-23.
In meeting the burden of proof on the fifth step for DIB
eligibility determinations, the Commissioner, under appropriate
circumstances, may rely on the medical-vocational guidelines
contained in 20 C.F.R. Part 404, Subpart P, Appendix 2, commonly

16

referred to as “the grids.” 3

See 20 C.F.R. § 404.1569.

The

grids take into account the claimant’s residual functional
capacity 4 in conjunction with the claimant’s age, education, and
work experience.

Based on these factors, the grids indicate

whether the claimant can engage in any other substantial gainful
work that exists in the national economy.

Generally, the result

listed in the grids is dispositive on the issue of disability.
However, the grids are not dispositive where they do not
accurately represent a claimant’s limitations because the
claimant suffers from non-exertional limitations that
significantly limit the claimant’s capacity to work.

See Pratts

v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).
When employing this five-step process, the Commissioner
must consider four factors in determining a claimant’s
entitlement to benefits: “(1) the objective medical facts;
(2) diagnoses of medical opinions based on such facts;
(3) subjective evidence of pain or disability testified to by
the claimant or others; and (4) the claimant’s educational
3

The grids classify work into five categories based on the
exertional requirements of the different jobs. Specifically, it
divides work into sedentary, light, medium, heavy, and very
heavy, based on the extent of requirements in the primary
strength activities of sitting, standing, walking, lifting,
carrying, pushing, and pulling.
4

Residual functional capacity (“RFC”) is an assessment of an
individual’s ability, despite the impairment, to meet physical,
mental, sensory, and other demands of jobs based on all relevant
evidence. See 20 C.F.R. § 404.1545.
17

background, age, and work experience.”

Brown v. Apfel, 174 F.3d

59, 62 (2d Cir. 1999) (internal quotation marks and citation
omitted).
In the assessment of medical evidence, a treating
physician’s opinion is given controlling weight when that
opinion 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); see also Schisler v. Sullivan,
3 F.3d 563, 567 (2d Cir. 1993).

The Commissioner’s regulations

require that greater weight generally be given to the opinion of
a treating physician rather than a non-treating physician.

See

20 C.F.R. § 404.1527(c)(2).
“In order to override the opinion of the treating physician
. . . the ALJ must explicitly consider, inter alia: (1) the
frequen[cy], 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.”

Selian, 708

F.3d at 418 (citing Burgess v. Astrue, 537 F.3d 117, 129 (2d
Cir. 2008)).
The ALJ is also required to explain the weight given to the
treating source’s opinion and give good reasons for doing so.
See 20 C.F.R. § 404.1527(c)(2) (“We will always give good

18

reasons in our notice of determination or decision for the
weight we give your treating source’s opinion.”).

B.
The Court reviews the ALJ’s determination according to the
same five-step process used by the ALJ.

There is no dispute

that the ALJ correctly resolved the first three steps in the
process.

The plaintiff contends, however, that the ALJ

incorrectly determined the plaintiff’s residual functional
capacity at the fourth step.

Specifically, the plaintiff argues

that there is no substantial evidence supporting the ALJ’s
determination that “the claimant had the residual functional
capacity to perform sedentary work as defined in 20 CFR
404.1567(a).”

(Tr. 24.)

Section 404.1567(a) provides: “Sedentary work involves
lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and
small tools.

Although a sedentary job is defined as one which

involves sitting, a certain amount of walking and standing is
often necessary in carrying out job duties.

Jobs are sedentary

if walking and standing are required occasionally and other
sedentary criteria are met.”

20 C.F.R. § 404.1567(a).

“‘Occasionally’ means occurring from very little up to one-third
of the time, and would generally total no more than about

19

2 hours of an 8-hour workday.

Sitting would generally total

about 6 hours of an 8-hour workday.”

SSR 96-9p, 1996 WL 374185,

at *3 (July 2, 1996).
SSR 96-8p provides, in relevant part: “The [ALJ’s] RFC
assessment must first identify the individual’s functional
limitations or restrictions and assess his or her work-related
abilities on a function-by-function basis . . . .

Only after

that may RFC be expressed in terms of the exertional levels of
work, [e.g.,] sedentary, light, medium, heavy, and very heavy.”
SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996).

However,

“[t]he Second Circuit has not yet decided whether non-compliance
with SSR 96-8p is per se grounds for a remand.”

Goodale v.

Astrue, No. 11 Civ. 821, 2012 WL 6519946, at *6 (N.D.N.Y. Dec.
13, 2012).

C.
Citing two cases from this Circuit, the plaintiff argues
that the ALJ has an obligation to spell out the ALJ’s assessment
of residual functional capacity, specifying each of the
particular functions remaining within the plaintiff’s capacity
and articulating the basis for each function found to exist.
In Ferraris v. Heckler, 728 F.2d 582 (2d Cir. 1984), the
plaintiff Ferraris appealed the district court’s decision
affirming the Secretary of Health and Human Services’ denial of

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his DIB application.

Id. at 583.

Ferraris had been injured in

a car accident and had resulting pain in his lower back and
legs.

Id.

This pain restricted him from standing, sitting, or

walking for prolonged periods of time.

Id.

The Second Circuit Court of Appeals reviewed the record in
Ferraris’ case and particularly the ALJ’s finding that Ferraris
had the residual functional capacity to perform sedentary work.
Id. at 585-86.

The court then held that the ALJ failed to

perform all of the duties required of him, and that in
particular his findings on Ferraris’ residual functional
capacity to perform sedentary work were “wholly insufficient.”
Id. at 586.

The court noted that the ALJ’s findings were simply

that Ferraris could not do any prolonged standing or frequent
lifting of more than ten pounds, and from that the ALJ found in
a conclusory manner that Ferraris could do sedentary work as
defined in 20 C.F.R. § 404.1567(a).

Id.

The court then discussed the medical evidence on the issue
and pointed out that although Ferraris’ ability to sit for
prolonged periods of time was critical to the ultimate
determination of his disability, the ALJ made minimal reference
to Ferraris’ ability to sit.

Id. at 586-87.

Although the ALJ

vaguely referred to a “consensus” among the consulting
physicians regarding Ferraris’ residual functional capacity, the
court observed that the record revealed no such consensus.

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Id.

The court ultimately held that, on the basis of the ALJ’s
insufficient findings, it could not determine whether the ALJ’s
conclusory statement that Ferraris could carry out sedentary
work was supported by substantial evidence.

Id. at 587.

Therefore, the court instructed the ALJ on remand to “make
specific findings of exactly what Ferraris can do, especially
with reference to his ability to sit and for how long.

The ALJ

then should determine, based on such specific findings, whether
Ferraris has the residual functional capacity to perform
sedentary work, bearing in mind what has developed as the
concept of sedentary work.”

Id. (footnote omitted).

In LaPorta v. Bowen, 737 F. Supp. 180 (N.D.N.Y. 1990), the
district court similarly remanded the case to the ALJ because
the ALJ’s determination of LaPorta’s residual functional
capacity was not supported by substantial evidence.

Id. at 181.

The ALJ had found LaPorta capable of performing “light work,”
noting in support of his finding that LaPorta had no major joint
deformities, x-rays showed mild degenerative changes, and
LaPorta was receiving conservative treatment with no surgery
scheduled.

Id. at 183.

However, the court held that ALJ failed

to show by substantial evidence that LaPorta could perform each
of the requirements of “light work” as set forth in 20 C.F.R.
§ 404.1567(b).

Id.

Accordingly, the court instructed the ALJ

on remand to “specifically state what requirements of light work

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[LaPorta] is capable of doing and the basis for his
determination.”

Id. at 184.

D.
In the present case, upon reviewing the evidence before him
the ALJ first described the plaintiff’s leg injuries and then
discussed some of the medical evidence from February 1995
through December 2000.

(Tr. 25-26.)

The ALJ pointed out that

“[a]lthough Dr. Ranawat noted that the claimant complained of
severe pain, [the claimant] required no external support in
order to walk from one to three blocks.”

(Tr. 25.)

The ALJ

also noted that the plaintiff experienced improved walking after
physical therapy in April 1996.

(Tr. 25.)

The ALJ discussed

Dr. Smallberg’s findings, which included a positive rheumatoid
factor but largely normal results for the neurological
examination.

(Tr. 25.)

The ALJ then discussed the findings of

Dr. Spiera, who noted that the plaintiff limped and complained
of foot pain.

(Tr. 25-26.)

The plaintiff also had decreased

sensation in her feet, but no pain on straight-leg raising.
(Tr. 26.)

A bone scan revealed major change in both feet, but

an x-ray revealed no arthritic changes or fractures.

(Tr. 26.)

The “confusing picture” prevented Dr. Spiera from arriving at a
specific diagnosis for the plaintiff’s musculoskeletal
complaints.

(Tr. 26.)

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The ALJ ultimately found that although the plaintiff’s
impairments could have caused some of the alleged symptoms,
“[her] statements concerning the intensity, persistence and
limiting effects of these symptoms are not credible to the
extent that they are inconsistent with the [ALJ’s] residual
functional capacity assessment.”

(Tr. 26.)

The ALJ stated that

there were no specific functional limitations noted in the
medical reports, the plaintiff’s doctors did not have a
consensus on the cause of her complaints, and the x-ray and MRI
studies were “either unremarkable or do not show much other than
the residuals of her knee surgery and motor vehicle accidents
from the distant past.”

(Tr. 26.)

The ALJ also pointed out

that Dr. Spiera only noted a slight limp, and that physical
therapy notes showed significant improvement.

(Tr. 26.)

The

ALJ then concluded that “[t]he totality of the evidence
indicates that the claimant had the residual functional capacity
for at least sedentary work prior to her DLI.”

(Tr. 26.)

E.
Here, as in Ferraris, the ALJ’s findings with respect to
the plaintiff’s capacity to perform sedentary work are wholly
insufficient.

From these insufficient findings, the Court

cannot determine whether there is substantial evidence to
support the ALJ’s conclusory statement that the plaintiff can

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perform sedentary work as defined in 20 C.F.R. § 404.1567(a).
In particular, the Court cannot determine whether there is
substantial evidence to support a finding that the plaintiff
could walk and stand for up to “about 2 hours of an 8-hour
workday” and sit for “about 6 hours of an 8-hour workday,” as
required for sedentary work.

SSR 96-9p, 1996 WL 374185, at *3.

According to the plaintiff’s own testimony, during the
period at issue she had daily leg pain that was “really severe”
and “excruciating” at times.

(Tr. 45, 49.)

walk, and had difficulty using stairs.

She used a cane to

(Tr. 47.)

She stated

that usually she could walk one or two blocks, but that there
were periods of time when she could not do that.

(Tr. 48.)

In

addition, the plaintiff stated that she had problems sitting,
such that if she were sitting in a chair, she would have to
change positions every fifteen or twenty minutes.

(Tr. 50-51.)

She stated that on about five out of seven days, she could not
sit at all and would need to lie down because sitting was “a
very uncomfortable position” for her.

(Tr. 50-51.)

Although the ALJ found that the plaintiff’s statements
concerning the extent of her pain were “not credible” (Tr. 26),
none of the many physicians who saw the plaintiff discredited
her complaints of pain.

Moreover, the ALJ’s statement that

there were no specific functional limitations noted in the
medical reports is simply untrue.

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The medical record includes

reports noting specific functional limitations and appears to
corroborate the plaintiff’s statements overall.
The record reveals that after undergoing some post-surgery
physical therapy in 1995, the plaintiff’s walking tolerance was
approximately thirty minutes.

(Tr. 392.)

Dr. Springer

instructed the plaintiff to use a cane upon examining her in
April 1995 (Tr. 427), and noted in October 1995 that the
plaintiff still had a significant deficit with respect to her
quadriceps and hamstring strength (Tr. 393).
In February 1996, Dr. Ranawat noted that the plaintiff
could walk one to three blocks and had difficulty climbing
stairs, and his examination of her revealed varus alignment of
both lower extremities.

(Tr. 397.)

Dr. Ranawat also noted:

“Pain is severe and disabling to her, more on activities and
somewhat less with rest.”

(Tr. 397.)

Given the severity of the

plaintiff’s problems, three doctors who saw her in 1996--Dr.
Nisonson, Dr. Buechel, and Dr. Rodriguez--independently
discussed the possibility of total knee replacement surgery for
the plaintiff.

(Tr. 640, 394, 400.)

In February 1998, Dr. Springer noted that the plaintiff’s
pain and swelling “restricted not only her range of motion, but
also her ability to ambulate properly,” and that the plaintiff’s
right-knee problems likely would require more major surgery in
the future.

(Tr. 427-28.)

Later in 1998, both Dr. Rho and Dr.

26

Spiera observed that the plaintiff walked with a limp.
479, 499.)

(Tr.

Dr. Smallberg noted in October 1998 that the

plaintiff “has difficulty walking, and currently cannot walk
more than about one to two blocks without having to stop because
of severe pain in her legs.”

(Tr. 191.)

Contrary to the ALJ’s assertion that the x-ray and MRI
studies were “unremarkable” (Tr. 26), a bone scan of the
plaintiff’s lower extremities taken in November 1998 revealed
several physiological defects (Tr. 489-92).

In particular, the

bone scan of both feet demonstrated increased activity in the
left mid-foot that may have been related to osteomyelitis, and
there was increased isotopic activity in both knees and ankles
which was “most likely degenerative in nature.”

(Tr. 489-90.)

An MRI scan of the plaintiff’s left foot taken that same month
also revealed several physiological defects, including synovitis
of the ankle, a moderately prominent osteophyte at one joint,
and degenerative changes of another joint.

(Tr. 412-13.)

An

MRI scan of the plaintiff’s cervical spine taken in May 2000
revealed mild disc bulging and spondylosis as well as possible
mild stenosis at one location.

(Tr. 438.)

F.
“[T]he crucial factors in any determination must be set
forth with sufficient specificity to enable [the court] to

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decide whether the determination is supported by substantial
evidence.”

Ferraris, 728 F.2d at 587 (citing Treadwell v.

Schweiker, 698 F.2d 137, 142 (2d Cir. 1983) (“the propriety of
agency action must be evaluated on the basis of stated
reasons”)).

In light of the evidence in the record here, the

ALJ’s findings are insufficient to support his conclusory
statement that the plaintiff could perform sedentary work as
defined in 20 C.F.R. § 404.1567(a).
Without listing the demands of sedentary work or explaining
how the plaintiff was capable of performing them, the ALJ
summarily found the plaintiff’s testimony concerning the extent
of her pain “not credible,” and incorrectly stated that there
were no specific functional limitations noted in the medical
reports.

(Tr. 26.)

The Court is left to question whether the

plaintiff’s ability to walk for one to three blocks would
actually amount to an ability to walk and stand for up to “about
2 hours of an 8-hour workday” as required for sedentary work.
SSR 96-9p, 1996 WL 374185, at *3.

It is also unclear whether

the plaintiff, given her reported problems with sitting, could
meet the other sedentary-work requirement of sitting for “about
6 hours of an 8-hour workday.”

Id.

Because the Court cannot determine whether there is
substantial evidence to support the ALJ’s finding that the
plaintiff could perform sedentary work, this case is remanded

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for the ALJ to state specifically what requirements of sedentary
work the plaintiff was capable of performing as well as the
basis for those determinations.

The ALJ then should determine,

based on such specific findings, whether the plaintiff has the
residual functional capacity to perform sedentary work as
defined in 20 C.F.R. § 404.1567(a).

CONCLUSION
The Court has considered all of the arguments of the
parties.

To the extent not specifically addressed above, the

remaining arguments are either moot or without merit.

For the

foregoing reasons, the Commissioner’s decision is reversed and
this case is remanded for further proceedings, pursuant to the
fourth sentence of 42 U.S.C. § 405(g).

The Clerk is directed to

enter judgment and to close this case.
SO ORDERED.
Dated:

New York, New York
March 27, 2013

__/s/________________________
John G. Koeltl
United States District Judge

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