Catalano v. Berryhill
Filing
27
OPINION AND ORDER re: 21 MOTION to Remand to Social Security Administration for further Administrative proceedings, filed by David Michael Catalano, 24 MOTION for Judgment on the Pleadings, filed by Nancy A. Berryhill. I GRA NT Plaintiff Catalano's motion for judgment on the pleadings, ECF No. 21, VACATE the Commissioner's denial of benefits, and REMAND the case to the Commissioner for further fact-finding into Plaintiff Catalano's capacity to perform work requiring medium exertion and the effect that work would have on his nonexertional symptoms. (Signed by Magistrate Judge Sarah Netburn on 12/7/2018) (ras) Transmission to Docket Assistant Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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12/7/2018
DAVID CATALANO,
Plaintiff,
17-CV-7120 (SN)
OPINION AND ORDER
-againstNANCY BERRYHILL,
Defendant.
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SARAH NETBURN, United States Magistrate Judge:
Plaintiff David Catalano brings this action pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3), seeking judicial review of the final determination of the Commissioner of Social
Security (the “Commissioner”) denying his application for Disability Insurance Benefits (“DIB”)
and Supplemental Security Income (“SSI”). Plaintiff moves for judgment on the pleadings to
reverse and remand the Commissioner’s determination under Federal Rule of Civil Procedure
12(c). The Commissioner cross-moves to uphold the Commissioner’s determination and dismiss
the case.
For the reasons discussed below, I find that the ALJ’s determination that Plaintiff could
perform a full range of work at all exertional levels was not supported by substantial evidence. I
also find that the ALJ failed to fully develop the record of Plaintiff’s exertional and
nonexertional limitations. For these reasons, I GRANT the plaintiff’s motion for judgment on the
pleadings, VACATE the Commissioner’s denial of benefits, and REMAND the case. I also
DENY the Commissioner’s cross-motion for judgment on the pleadings.
BACKGROUND
I.
Mr. Catalano’s Early Life
Mr. Catalano, who was born in 1953, reportedly has suffered anxiety since his childhood,
which he describes as filled with difficulty and traumatic experiences. See Tr. at 63, 386. He
reportedly had significant difficulty in school. See Tr. at 1066. He struggled, for example, to
comprehend the subjects taught, he could not sit still, he became bored easily, he had poor
concentration, and he had a low capacity to tolerate his ensuing frustration. See id. Due to these
struggles, he attended special education classes throughout school before he dropped out without
obtaining his high school degree. See Tr. at 181. His father used these struggles as a basis to
verbally belittle him as a child. See Tr. at 1066.
II.
Job History before Alleged Disability Onset
After Mr. Catalano dropped out of high school, he served in the Navy from 1973 to 1977.
Tr. at 34, 386. During that time, he worked on an oiler in the engine room where he learned some
of the skills necessary to become a mechanic. Tr. at 35.
It is unclear what work Plaintiff performed immediately after leaving the Navy, but
Plaintiff did eventually gain employment as an auto mechanic from 1988-1991 and from 19942003. 1 See Tr. at 182. He reportedly left his job in late 2003 because of his anxiety. See Tr. at
2143. About a year earlier, he started having feelings of depression, low energy, low motivation,
and more anxiety, and this made it difficult for him to handle the pressure of work. See Tr. at
386, 2143.
1
Plaintiff’s disability report states that he worked at Beacon Automotive from February 1994 to
February 2004. See Tr. at 182. This is inconsistent, however, with other more contemporary records and
testimony indicating that Plaintiff had left his job as a mechanic in late 2003. See, e.g., Tr. at 2143
(psychiatric note from December 2003 reporting that Plaintiff had left his job three months earlier).
2
III.
Plaintiff’s First Course of Treatment for Psychic Distress
After Plaintiff’s symptoms worsened in 2003, his internist prescribed a serotonin and
norepinephrine reuptake inhibitor (an “SNRI”) to take daily and Klonopin to take once daily as
needed for his symptoms. See Tr. at 2143. Eventually, after he left his job as a mechanic, he also
began seeing a psychiatrist, Dr. Win, at the Department of Veterans Affairs (the “VA”) in
December 2003. See Tr. at 2143. Plaintiff reported to Dr. Win that he was feeling better on his
medication. See id. After this visit, Dr. Win assessed anxiety disorder. Tr. at 2144. Although Dr.
Win ruled out major depressive disorder during this first visit, see Tr. at 2144, Dr. Win later
diagnosed Plaintiff with depression, see Tr. at 1186.
Dr. Win continued with Plaintiff’s course of psychotropic medication, and Plaintiff saw
Dr. Win roughly every two months from that first visit until February 2007. See Tr. at 433-60
(patient encounter summaries); see also Tr. at 1098-1105, 1107-09, 1115-16, 1118-20, 1142-44,
1151-62, 1164-66, 1176-81, 1186-87.
Throughout 2004 and early 2005, Plaintiff reported that he generally did well on his
medications, that they helped him manage his anxiety, and that they did not give him any side
effects. See Tr. at 1186-87 (psychiatric notes from January 23, 2004 noting that Plaintiff “feels
better with taking Effexor Xr and not taking a lot of klonopin, no episodes of anxiety
symptoms”); Tr. at 1180 (psychiatric notes from March 2004 showing same); Tr. at 1179 (patient
notes from June 2004 showing same); Tr. at 1176 (psychiatric notes from August 2004 reporting
that Plaintiff “feels depressed once in a while but lesser than before”); Tr. at 1165 (psychiatric
notes from November 2004 finding that Plaintiff had made “[m]oderate progress”); Tr. at 1161
(psychiatric notes from February 2005 showing same).
Indeed, Plaintiff apparently felt well enough during this period to keep looking for work.
See Tr. at 1180 (patient notes from March 2004 indicating he was looking for a job at Home
3
Depot); Tr. at 1179 (patient notes from June 2004 indicating he was searching for a job).
Eventually, sometime in mid-2004, he found work again at a grocery store in its produce
department, which he felt was a job with lower stress. See Tr. at 1176 (psychiatric note from
August 2004 noting Plaintiff’s employment). That job did not, however, last past 2004, see Tr. at
182, and although Plaintiff continued to look for work, see Tr. at 1161, he apparently never
found a part or full time job again.
Plaintiff was doing well enough by mid-2005 that Dr. Win began tapering Plaintiff off of
his SNRI. See Tr. at 1159 (psychiatric notes from May 2005 reporting that Plaintiff “tapering
effexor, he does not need Effexor at this time”). He responded well and eventually discontinued
the medication. See Tr. at 1157 (psychiatric notes from June 2005 reporting that he had a “few
episodes of anxiety but able to handle anxiety without problems” after discontinuing Effexor).
Later, however, Plaintiff’s symptoms worsened and he went back on the medication. See
Tr. at 1154 (psychiatric notes from September 2005 noting that he “still has depression and
anxiety, discussed about restart effexor for his depression, he agrees” and that he had made
“minimal progress”). Dr. Win restarted Plaintiff on the medication and steadily increased his
dosage until Plaintiff again reported abated and stable symptoms similar to where they had been
before. See Tr. at 1152 (psychiatric notes from December 2005 noting that Plaintiff “still has
anxiety, will increase Effexor to get better responce [sic]”) Tr. at 1143 (psychiatric notes from
February 2006 reporting that Plaintiff was responding well to increased dose); Tr. at 1119
(psychiatric notes from April 2006 showing same); Tr. at 1115 (psychiatric notes from June 2006
reporting that Plaintiff felt “slightly better with higher dose of effexor”).
Eventually, Plaintiff felt well enough that he asked to go off the medication in August
2006. See Tr. at 1108. Dr. Win continued Plaintiff’s prescription, but Plaintiff nevertheless
4
stopped taking his medication by December 2006. See Tr. at 1103. He reported to Dr. Win that
he still had “ups and downs mood with afew [sic] anxiety,” but that he was nevertheless “able to
deal with his stress without any difficulties.” Tr. at 1103. Plaintiff continued to do well off of the
medication as late as February 2007. Tr. at 1099. Indeed, Plaintiff was doing well enough that he
reported to Dr. Win that he was “functioning well without medication,” and that although he still
had “anxiety . . . [he was] able to manage without any problems.” Tr. at 1099. At that time
Plaintiff informed Dr. Win that he would stop returning for treatment because he was planning to
move to Florida.
IV.
Plaintiff’s Second Course of Treatment for Psychic Distress
Plaintiff never did move to Florida. See Tr. at 386. But he also did not continue to see Dr.
Win for treatment. See id. Instead, he went two and a half years without treatment before
returning to the VA on October 28, 2009. See id.
On that day, Plaintiff saw Dr. Julianne Suojanen. See id. He told her that his anxiety had
become so bad that he could no longer “go out into public to a restaurant,” which he said his
medication had helped him with before. See id. Dr. Suojanen observed that Plaintiff was
“extremely self-critical and overly apologetic, expressing extreme guilt and low self esteem” and
that Plaintiff appeared to be traumatized. See id. Dr. Suojanen also noted that Plaintiff reported
OCD behaviors, such as checking faucets repeatedly. See Tr. at 386. Dr. Suojanen performed the
Beck Anxiety Inventory, for which Plaintiff received a score of 26, signifying moderate-severe
anxiety, as well as the Patient Health Questionnaire, the results of which were indicative of
moderate-to-severe depression. Tr. at 387. In response, Dr. Soujanen prescribed the selective
serotonin reuptake inhibitor (“SSRI”) Zoloft to be taken daily as well as Klonopin to be taken
daily as needed. When Plaintiff saw Dr. Suojanen again in November, he reported that he had
“some reduction in anxiety symptoms as evidenced by increased ability to tolerate social
5
interaction without immediately becoming self-conscious, sensing others are making fun of him
and that he is ‘stupid.’” Tr. at 1066.
Later that month, Plaintiff saw a different psychiatrist, Dr. Lesniak. See Tr. at 379.
During that visit, Plaintiff reported that his anxiety had “improved with the meds” and so had his
OCD behaviors. Id. Dr. Lesniak assessed that Plaintiff was improving and increased his SSRI
dosage. See Tr. at 381.
From then on, Plaintiff saw Dr. Lesniak roughly every two months from January 2010
through March 2014. See Tr. at 951-54, 967-92, 999-1006, 1013-15, 1022-41, 1422-35.
Throughout this period, Plaintiff generally reported that the medication was working, making
him feel less anxious, less depressed, and less obsessive-compulsive. See Tr. at 1039 (psychiatric
note from January 2010 noting that Plaintiff “says he is doing better . . . decreased depression”);
Tr. at 1037 (patient notes from March 2010 noting that Plaintiff “Says his anxiety has decreased .
. . Says the ocd has also decreased. Feels down occasionally”); Tr. at 1035 (psychiatric note from
May 2010 showing same); Tr. at 1033 (psychiatric note from July 2010 reporting that “Mr.
Catalano says that he is doing much better.”); Tr. at 1029 (psychiatric note from October 2010
showing same); Tr. at 1025 (psychiatric note from January 2011 showing same).
Eventually, though, Dr. Lesniak lessened his SSRI dosage in response to some adverse
side effects, and Plaintiff’s symptoms worsened. See Tr. at 1022 (psychiatric notes from April
2011 showing that Plaintiff reported “some increase in checking behavior”); Tr. at 1014
(psychiatric notes from May 2011 showing same); Tr. at 1008 (psychiatric notes from August
2011 showing same).
These compulsive behaviors increased enough that Plaintiff later asked to increase his
SSRI dosage again, which helped him manage his symptoms better. See Tr. at 1006 (psychiatric
6
notes from September 2011); Tr. at 1001 (psychiatric notes from October 2011 noting that
Plaintiff reports continued “anxiety in social situations but says this has improved”); Tr. at 999
(psychiatric notes from December 2011 showing continued improvement with higher dosage);
Tr. at 991 (psychiatric notes from February 2012 showing same); Tr. at 987 (psychiatric notes
from April 25, 2012 showing same); Tr. at 984 (psychiatric notes from June 2012 showing
same); Tr. at 982 (psychiatric notes from August 2012 reporting same); Tr. at 979 (psychiatric
notes from October 2012 reporting “a decrease in OCD, decreased checking, compulsions after
the sertraline was increased . . . Reports decrease in anxiety”). Eventually, Plaintiff felt well
enough that he decreased his dosage, and he was still able to manage his symptoms well at that
lower dose. See Tr. at 975 (psychiatric notes from February 2013); Tr. at 972 (psychiatric notes
from March 2013 reporting that his OCD was “not too bad and is improved from before”); Tr. at
967 (psychiatric notes from May 2013 reporting same); Tr. at 951 (psychiatric notes from July
2013 showing same); Tr. at 921-22 (psychiatric notes from October 2013 showing same); Tr. at
501-2 (psychiatric notes from December 2013 showing same); Tr. at 1422 (psychiatric notes
from March 2014 reporting same); Tr. at 1418 (psychiatric notes from June 2014 showing same);
Tr. at 1413 (psychiatric notes from October 2014 showing same); Tr. at 1407-8 (psychiatric
notes from December 2014 showing same); Tr. at 1402 (psychiatric notes from March 2015
showing same); Tr. at 1397 (psychiatric notes from June 2015 showing same).
Plaintiff eventually experienced a worsening of his anxiety symptoms in September 2015,
but this was managed by putting him back on Klonopin as needed. See Tr. at 1393. Afterwards,
he reported that his OCD symptoms and depression continued to be manageable. See Tr. at
7
1388-9 (psychiatric notes from November 2015); Tr. at 1385 (patient notes from January 2016
showing same).
V.
Physical Ailments
During the relevant period, Plaintiff has also experienced some joint pain, specifically in
his lower back and left knee. This reported pain appears to be attributable to osteoarthritis.
The first record of his back pain is in July 2000, when an image was taken of his spine
that revealed degenerative spondylosis of the lumbar spine, i.e., osteoarthritis in the spine. See
Tr. at 674. Later, Plaintiff’s back pain drove him to see Dr. Mark H. Hittman who assessed the
most likely cause to be the degeneration of the spine. See Tr. at 1522. An image taken on that
day confirmed that there was spondylotic degeneration. See Tr. at 671. His earlier image showed
degeneration limited from L3 – L5, whereas this later scan showed degeneration ranging from
L2 – S1. Compare Tr. at 671 with Tr. at 1522.
The earliest record of his knee pain comes from October 2, 2013, when he visited the
emergency department with left knee pain and swelling that had persisted for several days. Tr. at
506-13. An image of Plaintiff’s left knee showed what may have been a loose body as well as
mild osteoarthritis and a small amount of fluid. Tr. at 336. Afterwards, on November 6, 2013,
Plaintiff saw Dr. Harvey Seigel for an orthopedic consultation regarding his left knee pain. Tr. at
367-68. Dr. Seigel noted that x-rays showed moderate degenerative joint disease and assessed
osteoarthritis of the knee. Tr. at 369
VI.
Plaintiff’s Application for Benefits
Plaintiff applied for DIB and SSI payments in September 2014, alleging disability since
December 31, 2003, due to a mental illness, anxiety, attention-deficit hyperactivity disorder,
depression, being anti-social, a back injury, a left knee injury, and a liver injury. Tr. at 150-59,
180. The applications were denied initially and Plaintiff requested a hearing before an
8
administrative law judge (“ALJ”). Tr. at 92-93, 112-13. On April 11, 2016, Plaintiff appeared
with counsel and testified before ALJ Kieran McCormack. Tr. at 25-71.
In addition to that testimony, the medical record, and Plaintiff’s disability application,
four experts offered opinion evidence via reports or testimony. The first expert opinion came
from Dr. Litchmore, who performed an internal medicine consultative examination. Tr. at 121114. In his report, Dr. Litchmore relayed that he had identified no physical impairments, noting
that Plaintiff had a full range of movement, and that he had full (5/5) motor strength. See id. Dr.
Litchmore opined that Plaintiff had “no limitations in [his] ability to sit, stand, climb, push, pull,
or carry heavy objects 15 pounds or less.” Tr. at 1214. He added, however, that Plaintiff had
marked limitations relating to his psychiatric condition that required further evaluation. Tr. at
1214
The second expert opinion was that of a state agency psychological consultant, Dr.
Alpert, who reviewed Plaintiff’s medical records and opined that:
The totality of the data on file indicates that the claimant would have
limits in his stress tolerance associated with limits in his persistence
and pace. . . . [T]he claimant’s psychiatric status does produce
serious limitations as noted above but despite these limitations the
claimant has the mental residual capacity to carry out work
procedures with an adequate level of persistence and pace, relate
adequately with coworkers and supervisors and tolerate the stress of
full-time employment.
Tr. at 75-76, 88-89. Dr. Alpert never performed an examination of Plaintiff.
The third opinion was that of Plaintiff’s internist, Dr. Kandala, whom Plaintiff visited for
treatment about once a year. See Tr. at 480-87, 852-55, 1218-19, 1509-10, 2145-47. Dr. Kandala
filled out a medical examination form and assessed Plaintiff with chronic back pain. See Tr. at
9
1218. He assessed that Plaintiff had moderate limitations in pushing, pulling, and bending. See
Tr.at 1219.
Finally, the fourth opinion came from a vocational expert who testified during the
hearing. During that hearing, the ALJ offered several hypotheticals to assess Plaintiff’s capacity
to obtain jobs available in the national economy. That expert opined that given Plaintiff’s
capacity for work, he could not perform his previous substantial gainful activity, but that he
could perform some jobs such as that of mail clerk and ticket taker. See Tr. at 65. In response to
that testimony, the ALJ asked the vocational expert to focus specifically on jobs that required
more than the capacity to perform light physical work, as defined by regulation, because
otherwise the Plaintiff would be per se eligible for benefits. See id. In response to that line of
questioning, the vocational examiner opined that Plaintiff could perform the job of automobile
detailer and laundry laborer. See Tr. at 65-66.
VII.
The ALJ’s Decision
The ALJ denied Plaintiff’s request for benefits. The ALJ first found that Plaintiff had not
engaged in substantial gainful activity (“SGA”) since December 31, 2003. Tr. at 13. He then
found that Plaintiff had the severe impairments of anxiety, depression, social phobia, and
obsessive compulsive disorder, but that his physical impairments were not severe. Tr. at 13. The
ALJ concluded that none of these impairments met or medically equaled the severity of any of
the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1. See Tr. at 21.
The ALJ then defined Plaintiff’s residual functional capacity (“RFC”) as the capacity:
to perform a full range of work at all exertional levels but with the
following nonexertional limitations: the claimant can work at low
stress jobs, defined as jobs containing no more than simple, routine,
and repetitive tasks, involving only simple work-related decisions
with few, if any, workplace changes and where there is only
10
occasional interaction with supervisors, coworkers, and/or the
general public.
Tr. at 15-16. At Step 4, based on the vocational expert’s testimony, the ALJ found Plaintiff
unable to perform any past relevant work. Tr. at 18. At Step 5, however, he found that Plaintiff
could perform several representative jobs available in the national economy that required
medium exertion such as automobile detailer and laundry laborer. Based on that testimony, he
concluded that Plaintiff was not disabled under the statute. Tr. at 19-20.
VIII. Subsequent Appeal
The ALJ’s decision became the final decision of the Commissioner when the Appeals
Council denied Plaintiff’s request for review. See Tr. at 1-4, 147-49. Plaintiff initiated this action
on September 19, 2017. See Compl. (ECF No. 1). Both parties consented to my jurisdiction, see
ECF Nos. 11, 18, and they later filed cross motions for judgment on the pleadings, see ECF Nos.
21, 24.
APPLICABLE LAW
I.
Definition of Disability
A claimant is disabled under the Social Security Act if he demonstrates an “inability to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A). A “physical or mental impairment” is defined as “an impairment that results
from anatomical, physiological, or psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques.” Id. §§ 423(d)(3),
1382c(a)(3)(D). A claimant will be determined to be disabled only if the “impairments are of
such severity that he is not only unable to do his previous work but cannot, considering his age,
11
education, and work experience, engage in any other kind of substantial gainful work which
exists in the national economy.” Id. §§ 423(d)(2)(A), 1382c(a)(3)(B).
The Social Security Administration has established a five-step sequential evaluation
process for making disability determinations. See 20 C.F.R. §§ 404.1520, 416.920. The steps are
followed in order: if it is determined that the claimant is not disabled at a step of the evaluation
process, the evaluation will not progress to the next step. The Court of Appeals has described the
process as follows:
First, the Commissioner considers whether the claimant is currently
engaged in substantial gainful activity. Where the claimant is not,
the Commissioner next considers whether the claimant has a “severe
impairment” that significantly limits her 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 that is listed in 20 C.F.R.
pt. 404, subpt. P, app. 1. . . . Assuming the claimant does not have a
listed impairment, the fourth inquiry is whether, despite the
claimant’s severe impairment, she has the residual functional
capacity to perform her past work. Finally, if the claimant is unable
to perform her past work, the burden then shifts to the Commissioner
to determine whether there is other work which the claimant could
perform.
Jasinski v. Barnhart, 341 F.3d 182, 183–84 (2d Cir. 2003) (quoting Tejada v. Apfel, 167 F.3d
770, 774 (2d Cir. 1999)). “The claimant bears the burden of proof in the first four steps of the
sequential inquiry; the Commissioner bears the burden in the last.” Selian v. Astrue, 708 F.3d
409, 418 (2d Cir. 2013).
II.
Standard of Review
A motion for judgment on the pleadings should be granted if it is clear from the pleadings
that “the moving party is entitled to judgment as a matter of law.” Burns Int’l Sec. Servs., Inc. v.
Int’l Union, 47 F.3d 14, 16 (2d Cir. 1995). The court may “enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or reversing the decision of the
12
Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42
U.S.C. § 405(g). The court may set aside the Commissioner’s decision only if “it is based upon
legal error or is not supported by substantial evidence.” Rosa v. Callahan, 168 F.3d 72, 77 (2d
Cir. 1999) (quoting Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998)). Substantial evidence is
“‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.’” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004)
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
DISCUSSION
Plaintiff offers two overall bases for remand. First, he argues that the ALJ failed to fulfill
his duty of developing the record. Second, he argues that the ALJ’s RFC determination and the
subsequent hypotheticals posed to the vocational expert lacked the support of substantial
evidence. Defendant disputes both bases for remand.
For the reasons discussed below, the Court agrees with both arguments. The ALJ’s
conclusion that Plaintiff could perform work at all exertional levels lacked a basis in substantial
evidence, and the ALJ failed to develop the record fully in order to properly assess how
Plaintiff’s exertional and nonexertional limitations eroded his RFC. The Court, therefore, must
remand for further fact-finding.
I.
The Exertional RFC was not Supported by Substantial Evidence
After reviewing the evidence, the ALJ determined that Plaintiff had the residual
functional capacity “to perform a full range of work at all exertional levels. . . .” Tr. at 15.
Plaintiff argues that this determination was not supported by substantial evidence, and that this
error requires remand for further proceedings. Pl.’s Mem. at 21 (ECF No. 23). The
Commissioner disagrees, arguing that the ALJ’s finding was supported by the consultative
13
examination and the extensive medical record. Def.’s Opp. at 21-25 (ECF No. 25). For the
reasons discussed below, the Court agrees with Plaintiff.
The ALJ’s conclusion that Plaintiff could perform work at all exertional levels is a lofty
assessment of Plaintiff’s physical health unsupported by substantial evidence in the record. The
regulations define five categories of exertional capacity: sedentary, light, medium, heavy, and
very heavy. See 20 C.F.R. § 404.1567. Each category is defined by the amount of weight that a
claimant can lift and carry. See id. Thus, by concluding that Plaintiff could perform work at all of
these levels, the ALJ implicitly determined that Plaintiff could also perform very heavy work,
which is defined as “lifting objects weighing more than 100 pounds at a time with frequent
lifting or carrying of objects weighing 50 pounds or more.” 20 C.F.R. § 404.1567(e).
At the time he applied for disability benefits, Plaintiff was 60 years old, see Tr. at 19, had
degenerating bones and osteoarthritis in his knee and spine, see Tr. at 633, 670-1, 674, 1016, and
had an “overweight” BMI, see Tr. at 618. One of his treating physicians, Dr. Kandala, had
indicated that he had moderate limitations in lifting, carrying, pushing, pulling, and bending. See
Tr. at 1219. And the consultative examiner concluded that “Plaintiff had “no limitations in [his]
ability to sit, stand, climb, push, pull, or carry heavy objects 15 pounds or less,” Tr. at 1214,
which strongly suggests that Plaintiff had at least some limitations in manipulating objects over
15 pounds, see Fraser v. Comm’r of Soc. Sec., 2013 U.S. Dist. LEXIS 164702, at *16 (E.D. Cal.
Nov. 18, 2013) (“If the most Dr. Spellman can say is that Plaintiff is ‘definitely’ not limited to
sedentary work, it is unlikely that Plaintiff is capable of lifting and carrying 100 pounds.”).
Given this record, a reasonable mind would suspect that Plaintiff has at least some
limitation on his ability to lift and carry heavy weight. The ALJ, however, concluded otherwise.
He discounted the consultative examiner’s conclusion because it was “inconsistent with the
14
examiner’s completely normal physical examination of the claimant and with the totality of the
rest of the medical evidence.” Tr. at 13. As for the treating physician, the ALJ dismissed it
“because no explanations are provided . . . . [and it] is also inconsistent with treatment records
that found no physical limitations.” Tr. at 14.
There are two flaws to the ALJ’s logic. First, the ALJ did not consider that Dr. Kandala’s
opinion was from a treating physician, and his cursory treatment of the opinion is insufficient to
overcome the presumption that a treating physician’s conclusions are accurate. See Selian v.
Astrue, 708 F.3d 409, 418 (2d Cir. 2013) (holding that “to override the opinion of a treating
physician . . . the ALJ must explicitly consider” six factors). This alone is a sufficient basis for
remand. See Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (“The failure to provide good
reasons for not crediting the opinion of a claimant’s treating physician is a ground for remand.”)
(citation and quotation marks omitted). 2
Second, the ALJ’s appears to have assumed that “a claimant who does not suffer any
exertional limitations can be presumed to be capable of lifting and carrying 100 pounds
occasionally and 50 pounds frequently.” Fraser v. Comm’r of Soc. Sec., 2013 U.S. Dist. LEXIS
164702, at *15-16 (E.D. Cal. Nov. 18, 2013). That presumption is flawed, however, because “a
person without any medically recognizable impairments may be unable to lift and carry such
weights.” Id.
2
In his brief, the Commissioner defends the ALJ’s decision as harmless error by pointing to some
instances of Plaintiff reporting a lack of pain. See, e.g., Tr. at 485. But a few chart notes of “[n]o joint
pain, [n]o acute or chronic back pain,” is not enough to dismiss Dr. Kandala’s opinion without thorough
consideration. See Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013). That is especially true here because
there is ample evidence that Plaintiff did have pain in his knee and back, and that he suffered from
degeneration consistent with those symptoms. See, e.g., Tr. at 674; Tr. at 671; Tr. at 336; Tr. at 333.
15
Third, the treatment records do not in fact show that Plaintiff had no impairments on his
exertional capacity. The Court can only see two possible sources for such a conclusion, but
neither constitutes substantial evidence. First, there is the body of the consultative examiner’s
report, which states that Plaintiff had “5/5 [strength] in the upper and lower extremities” as well
as 5/5 grip strength. See Tr. at 1213-1214. That statement, however, cannot be read literally.
Clearly, “5/5” cannot mean that Plaintiff—at 60 years old—had the maximum strength humanely
possible. Rather, the “5/5” assessments must stand for Plaintiff’s ability to lift something less,
rendering it much too vague to map that conclusion onto an assessment of Plaintiff’s capacity to
lift as much as 100 pounds. Compare with Lewis v. Comm’r of Soc. Sec., 2018 U.S. Dist.
LEXIS 6902, at *9 (N.D.N.Y. Jan. 16, 2018) (finding that substantial evidence supported
conclusion that Plaintiff could perform medium work because “Dr. Goldstein opined that based
on a review of the medical evidence in the record, Plaintiff could occasionally lift and carry up to
50 pounds and could frequently lift and carry up to 20 pounds”).
Support for the conclusion that Plaintiff has no exertional limitations can also be found in
Plaintiff’s application paperwork. There, he reported that in some of the earlier jobs held from
1988 – 2004 he frequently lifted weight ranging from 20 to 50 pounds, and that he lifted objects
weighing up to 100 pounds or more. See Tr. at 205-209. That evidence does suggest that Plaintiff
could, at one point in time, perform very heavy work. But it is also subjective and predates
evidence of degeneration in his knee and spine. Compare Tr. at 206 (report that Plaintiff
performed very heavy work at a job he left in 2004) with Tr. at 671 (record of image, taken on
May 23, 2011, because of back pain, showing “spondylotic degenerative changes”) and with Tr.
at 336 (record of image, taken on October 2, 2013, because of a swollen and painful left knee,
showing that Plaintiff had osteoarthritis) and with Tr. at 333 (record of image, taken on
16
November 6, 2013, because of painful knee swelling, showing that Plaintiff had osteoarthritis). It
does not, therefore, constitute substantial evidence sufficient to justify the ALJ’s decision
without other, more recent evidence. Accord Rivera v. Barnhart, 2005 U.S. Dist. LEXIS 36968,
at *34-36 (W.D.N.Y. Dec. 9, 2005) (finding that decision plaintiff could perform work at
medium exertional level was not supported by substantial evidence when only evidence of ability
to lift close to fifty pounds came from plaintiff’s subjective testimony about work performed
thirteen years prior).
Thus, there was significant reason to believe that Plaintiff’s capacity to manipulate
objects of heavy weight had degenerated since 2004; objective evidence showed worsening
osteoarthritis in the spine and knee, and his treating physician had assessed Plaintiff with
“moderate” exertional limitations. There was not, therefore, substantial evidence to support the
conclusion that Plaintiff could perform work at all exertional levels.
II.
The ALJ Failed to Develop the Record with Regards to Plaintiff’s Exertional
Limitations
The finding that the ALJ’s determination lacked support from substantial evidence does
not necessarily demand remand. Instead, so long as the hypotheticals posed to the vocational
expert were justified by substantial evidence, the Court could affirm his decision as harmless
error. See, e.g., Akey v. Astrue, 467 F. App’x 15, 17 (2d Cir. 2012) (“The ALJ’s failure to
include the limitation to unskilled and semi-skilled work is harmless because the only jobs the
vocational expert identified were unskilled or semi-skilled.”). But, the Court cannot determine
whether the RFC determination was harmless error here because there are significant gaps in the
record. The ALJ, therefore, failed to fulfill his duty to develop the record, and the Court must
remand Plaintiff’s case for further fact-finding.
17
The dispositive question here is whether Plaintiff can perform work requiring medium
exertion. This is because the regulations provide that certain applicants matching an age,
education, and work experience profile “grid out,” meaning that they are per se disabled. See 20
C.F.R. § 404, subpt. P, app. 2. Because Plaintiff is of advanced age and limited education, he
would “grid out” if he is limited to light work or less. See 20 C.F.R. § 404, subpt. P, app. 2, rule
202.02 20. He would not, however, if he can perform work requiring medium exertion. See 20
C.F.R. § 404, subpt. P, app. 2, rule 203.12; see also Tr. at 65. This is why the ALJ specifically
asked the vocational examiner for positions available in the national economy requiring medium
exertion. See Tr. at 65-66. Thus, Plaintiff’s eligibility hinges on whether he is limited to
manipulating objects ranging from 25 to 50 pounds or more (medium exertion and up) or if he is
instead limited to objects weighing no more than 10 to 20 pounds (light exertion). See 20 C.F.R.
§ 404.1567(b), (c).
As discussed supra, however, the record is indeterminate on this point. There is ample
indication that Plaintiff has some limitations. The consultative examiner opined on Plaintiff’s
ability to manipulate up to fifteen pounds, which suggests that he has limitations over that
amount, see Fraser, 2013 U.S. Dist. LEXIS 164702, at *16, but also offers no help in
determining where those limitations lie. His treating physician opined that he has moderate
exertional limitations in general, see Tr. at 1218, but that opinion cannot be translated to a
specific weight classification. See Selian v. Astrue, 708 F.3d 409, 421 (2d Cir. 2013) (finding
that doctor’s report could not support a finding of exertional capacity because it was “remarkably
vague. . . . [and what it] means by ‘mild degree’ and ‘intermittent’ is left to the ALJ’s sheer
speculation”). There would have been, therefore, insufficient evidence in this record for the ALJ
to conclude that Plaintiff could perform work requiring medium exertion. See id. (reversing
18
finding that plaintiff could perform light work based on doctor’s vague opinion); Laureano v.
Comm’r of Soc. Sec., 2018 U.S. Dist. LEXIS 165809, at *43-44 (S.D.N.Y. Sep. 26, 2018)
(finding same because “neither Dr. Axline nor Dr. Mescon made specific findings regarding
Laureano’s ability . . . to lift.”); Bowers v. Comm’r of Soc. Sec., 2018 U.S. Dist. LEXIS 12590,
at *13-15 (N.D.N.Y. Jan. 26, 2018) (finding that determination of capacity to perform medium
work lacked support of substantial evidence because “a careful review of the record reveals no
evidence which could support the finding that Plaintiff could lift up to 50 pounds and
frequent[ly] lift and carry 25 pounds”); Rivera, 2005 U.S. Dist. LEXIS 36968, at *34-36 (finding
same because there was no evidence to support the ALJ’s conclusion that plaintiff is capable of .
. . lifting 50 occasionally”). Thus, it is impossible to say whether the exertional RFC
determination was harmless error.
Given this gap in evidence, the ALJ should have developed the record further. See Selian,
708 F.3d at 421 (“At a minimum, the ALJ likely should have contacted Dr. Naughten and sought
clarification of his report.”) (citation omitted); Melendez v. Astrue, 630 F. Supp. 2d 308, 314-15
(S.D.N.Y. 2009) (finding that ALJ had not fulfilled legal obligation to fully develop the record
when a doctor’s report “indicated that Melendez could be expected to stand and/or walk for less
than two hours in an eight hour workday. . . . [leaving it] unclear how much fewer than two hours
he thinks Melendez has the capacity to stand and/or walk”). The Court must, therefore, order
remand for further fact-finding into Plaintiff’s RFC to perform work requiring medium exertion.
III.
The ALJ also Failed to Develop the Record of Plaintiff’s Nonexertional Limitations
Plaintiff also argues that the ALJ failed to fulfill his duty to develop the record fully with
regard to his non-exertional impairments. Pl.s’ Mem. at 18-21. Specifically, Plaintiff claims that
no one assessed how Plaintiff’s severe mental impairments impacted his ability to perform work.
Id. Defendant disagrees, arguing that Dr. Alpert’s non-examining opinion was sufficient
19
evidence for the ALJ to reach a conclusion. Def.’s Opp. at 17-18. For the reasons discussed
below, the Court agrees with Plaintiff.
Unlike a trial judge, a social security ALJ “must on behalf of all claimants . . .
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) (internal quotation marks and
citation omitted). And in cases like Mr. Catalano’s that involve mental impairments, the
regulations specifically “require a robust examination that is sensitive to the dynamism of mental
illnesses and the coping mechanisms that claimants develop to manage them.” Corporan v.
Comm’r of Soc. Sec., 2014 U.S. Dist. LEXIS 180996, at *43-44 (S.D.N.Y. Mar. 27, 2014)
(citing 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00). Such cases require particular attention
“because persons with mental illnesses ‘adopt a highly restricted and/or inflexible lifestyle within
which they appear to function well.’” Id. (quoting SSR 85-15, 1985 SSR LEXIS 20). These
structured “structured settings . . . [allow claimaints] to function adequately ‘by lowering
psychological pressures, by medication, and by support from services.’” Id. For that reason, an
ALJ is required to consider the evidence in light of “the characteristics of any structured setting .
. . and the effects of any treatment.” 20 CFR 404 App. 1 Subpt. P. App. 1, § 12.00(D)(1).
Defendant claims that Dr. Alpert’s opinion satisfies this duty. In that report, Dr. Alpert
summarizes the admittedly extensive psychiatric records from the VA before concluding:
The totality of the data on file indicates that the claimant would have
limits in his stress tolerance associated with limits in his persistence
and pace. . . . [T]he claimant’s psychiatric status does produce
serious limitations as noted above but despite these limitations the
claimant has the mental residual capacity to carry out work
procedures with an adequate level of persistence and pace, relate
adequately with coworkers and supervisors and tolerate the stress of
full-time employment.
Tr. at 75-76, 88-89.
20
Superficially, this report appears to consider how Plaintiff’s severe mental impairments
affected his capacity to work, just as Defendant says. But this opinion is based entirely on a
review of the VA records, and nothing in those records suggest that Plaintiff, despite his
limitations, can “tolerate the stress of full-time employment.” Tr. at 76. The records of Plaintiff’s
mental health treatment begin shortly after he left his job because his anxiety and depression
made it difficult for him to handle the pressure of work. See Tr. at 386, 2143. Since then, his
mental health treatment has overlapped with only one, brief period of employment in a produce
department, a job that Plaintiff described as “low stress” but that nevertheless did not last more
than a few months. See Tr. at 1176. Dr. Alpert’s conclusion, therefore, is based entirely on how
Plaintiff’s symptoms became stable within the “highly restricted and/or inflexible lifestyle within
which [he] appear[ed] to function well.’” Corporan, 2014 U.S. Dist. LEXIS 180996, at *44
(citation omitted). That is not evidence of how Plaintiff’s symptoms would manifest in the
context of full-time employment.
The jump between Dr. Alpert’s opinion and the ALJ’s RFC determination underscores
this point. Dr. Alpert, after reviewing the records, simply concluded that Plaintiff could “relate
adequately with coworkers and supervisors and tolerate the stress of full-time employment.” Tr.
at 75. From that statement, the ALJ concluded that he could:
work at low stress jobs, defined as jobs containing no more than
simple, routine, and repetitive tasks, involving only simple workrelated decisions with few, if any, workplace changes and where
there is only occasional interaction with supervisors, coworkers,
and/or the general public.
Tr. at 15-16. This opinion, which is much more specific than Dr. Alpert’s, suggests that the ALJ
dug through the longitudinal records himself to assess Plaintiff’s capacity to adapt to the
stressors of work, and such an independent determination of Plaintiff’s specific capacity for
stress was beyond the scope of the ALJ’s discretion. See Manson v. Colvin, 2016 U.S. Dist.
21
LEXIS 127080, 2016 WL 4991608, at *11 (N.D.N.Y. Sept. 19, 2016) (“[A]n ALJ cannot assess
a plaintiff’s RFC based on the ALJ’s own interpretation of the medical evidence” (citing
Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998))).
Instead of drawing his own conclusions and presenting them to the vocational expert, the
ALJ should have sought out an expert opinion, perhaps from a consultative examiner or from one
of the psychiatrists who had treated plaintiff for years. The ALJ did not do so, however, and this
is a cause for remand. See Scheurer v. Berryhill, 269 F. Supp. 3d 66, 86-87 (W.D.N.Y. 2017)
(citations omitted) (remanding because the ALJ based the denial of benefits on expert opinions
that “did not account for how [the plaintiff] would specifically react to an employment setting”);
see also Lancellotta v. Secretary of Health and Human Services, 806 F.2d 284, 285 (1st Cir.
1986) (“Without an evaluation of claimant’s vocational abilities in light of [her diagnosis of
bipolar disorder], there is no basis for the ALJ’s conclusion that [she] can perform low stress
work.”); Durrett v. Apfel, 2000 U.S. Dist. LEXIS 7388, 2000 WL 680430, at *7 (S.D. Ind. Mar.
27, 2000) (“Both Lancellota and Social Security Rule 85-15, 1985 SSR LEXIS 20 require the
ALJ to consider the effect of stress on the individual claimant and not to make unsupported
conclusions regarding a claimant’s ability to cope with stress.”). The Court, therefore, must
remand for further fact-finding.
CONCLUSION
Accordingly, I GRANT Plaintiff Catalano’s motion for judgment on the pleadings, ECF
No. 21, VACATE the Commissioner’s denial of benefits, and REMAND the case to the
Commissioner for further fact-finding into Plaintiff Catalano’s capacity to perform work
requiring medium exertion and the effect that work would have on his nonexertional symptoms.
22
In addition, I DENY the Commissioner’s cross-motion for judgment on the pleadings, ECF No.
24.
SO ORDERED.
DATED:
December 7, 2018
New York, New York
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