Rivera v. Commissioner of Social Security
Filing
28
OPINION AND ORDER: re: 15 MOTION for Judgment on the Pleadings filed by Commissioner of Social Security. For the foregoing reasons, Rivera's motion (Docket # 22) is granted and the Commissioner's motion (Docket # 15) is denied. This case is remanded to the Commissioner for further proceedings consistent with this opinion. The Clerk is requested to enter judgment. SO ORDERED. (Signed by Magistrate Judge Gabriel W. Gorenstein on 9/10/2019) Copies Sent By Chambers. (ama) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
LISSETTE RIVERA,
:
Plaintiff,
OPINION & ORDER
:
-against18 Civ. 1935 (GWG)
:
COMMISSIONER OF SOCIAL SECURITY,
:
Defendant.
:
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GABRIEL W. GORENSTEIN, United States Magistrate Judge
Pro se plaintiff Lissette Rivera brings this action pursuant to 42 U.S.C. § 405(g) for
judicial review of the final decision of the Acting Commissioner of Social Security (the
“Commissioner”) denying her claim for Disability Insurance Benefits and Supplemental Security
Income under the Social Security Act (the “Act”). Both Rivera and the Commissioner have
moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).1 For
the reasons stated below, Rivera’s motion is granted and the Commissioner’s motion is denied.
I. BACKGROUND
A. Procedural History
Rivera filed applications for a period of disability and Disability Insurance Benefits
(“DIB”) and Supplemental Security Income (“SSI”) in January and February 2015 alleging a
disability onset date of January 17, 2014. See Certified Administrative Record, filed July 27,
1
See Notice of Motion, filed July 27, 2018 (Docket # 15); Memorandum of Law in
Support of the Commissioner’s Motion for Judgment on the Pleadings, filed July 27, 2018
(Docket # 16) (“Def. Mem.”); Plaintiff’s Declaration and Memorandum of Law in Opposition to
Commissioner’s Motion for Judgment, filed Dec. 10, 2018 (Docket # 22) (“Pl. Opp.”); Reply
Memorandum of Law in Further Support of the Commissioner’s Motion for Judgment on the
Pleadings, filed Feb. 19, 2019 (Docket # 25) (“Def. Reply”).
2018 (Docket # 14) (“R.”), at 228, 237. The Social Security Administration (“SSA”) denied
Rivera’s applications on May 4, 2015. R. 123-28. Rivera then requested a hearing before an
administrative law judge (“ALJ”) to review the denial. R. 140-42. Rivera was represented by
her then-attorney at a hearing before an ALJ, which occurred on April 26, 2017. R. 73-100. In a
written decision dated May 12, 2017, the ALJ found that Rivera was not disabled within the
meaning of the Act. R. 47-64. Rivera requested that the Appeals Council review the ALJ’s
decision, R. 37-38, and on January 16, 2018, the Appeals Council denied Rivera’s request for
review of the ALJ’s decision, R. 1-5. Rivera then timely filed her complaint in this matter.
Complaint, filed Mar. 1, 2018 (Docket # 2).
B. The Hearing Before the ALJ
Rivera’s hearing before ALJ, which was conducted by video, occurred on April 26, 2017.
R. 73, 75. At the hearing, Rivera gave testimony through a Spanish-language interpreter and
was represented by her attorney, Ellen Ragin. R. 75, 79. Also present and testifying was a
vocational expert (“VE”), Estelle Hutchinson. R. 75, 95-99, 338-40.
At the time of the hearing, Rivera was 46 years old and lived with two of her three
children, one of whom suffers from attention-deficit/hyperactivity disorder. R. 79-80. Rivera
was born in Puerto Rico and never received any formal education in the United States. R. 80.
She speaks only “some English.” R. 80.
Rivera testified first to her employment history. She last worked as a kitchen aide at a
cafeteria in New York City. R. 81. She worked four to five hours a day for five days a week.
R. 88-89. Her duties included preparing breakfast, cleaning tables, serving food, and washing
dishes. R. 88. The duties required lifting and carrying large trays of food, sometimes weighing
around 25 pounds. R. 89. She would sometimes use a serving cart or wagon to deliver the food
2
upstairs. R. 89. She became injured in January 2014 while cleaning tables one day when she
“heard a click” and noticed something had happened to her right lower back. R. 89. Previously,
she had worked for the City of New York as a park cleaner in the early 2000s, where her duties
required her to stand sometimes and sit most of the time because “there wasn’t that much to do”
in the winter months. R. 81. Those duties consisted mainly of “picking up garbage, and also
taking garbage out of the canisters.” R. 82. From about 2003 to 2010, Rivera worked at Rain
Senior Option as a food delivery driver bringing food to seniors. R. 82. As delivery driver,
Rivera would have to walk up and down sometimes five flights of stairs with “heavy” bags in
her hands, which usually weighed at least 15 pounds in total. R. 90. Sometimes Rivera would
walk more than five flights of stairs if she felt sorry for the person to whom she was delivering
food. R. 90. Rivera did not believe she would currently be able to perform the cafeteria worker
job, the park cleaner job, and the delivery driver position due to pain, which she experiences just
from sitting down. R. 83. Rivera has not worked at all since her January 2014 injury. R. 80-81.
Rivera testified regarding her pain. She experiences pain in her right foot, which has
bothered her for “[a]bout a year.” R. 86-87. Rivera has been prescribed medication for her right
foot pain, which helps “[s]omewhat.” R. 87. As to her back pain, Rivera stated that the pain is
worse when standing upright. R. 83-84. She also experiences stiffness, and it is difficult for her
to bend or twist. R. 84. She has never had surgery on her back. R. 85. Although her doctors
have offered the possibility of injections for the back pain, she has refused them because she is
afraid. R. 85. Rivera has a back brace, and although she used to “us[e] it all the time,” she no
longer does so because “it’s very uncomfortable.” R. 85. She also participates in physical
therapy, which helps. R. 85-86. From physical therapy, Rivera has learned exercises that can be
done at home. R. 86. While she used to perform the home exercises, she has since stopped.
3
R. 86.
Rivera also takes medication for the pain, and stated that it “helps a little.” R. 84-85.
The only side effect from her pain medication is drowsiness. R. 95. Rivera testified to other
areas of pain. She has neck pain, which radiates from the middle of her neck down to her midback area. R. 91. She described the neck pain as giving her a “stiffness,” as opposed to a
“sharp,” or “throbbing” pain. R. 91. She also has pain in her right hand, her dominant hand,
stemming from a “second degree burn” and “a daily accident.” R. 91. As a result of the hand
pain, Rivera can no longer “lift heavy things” with her right hand. R. 92. Rivera also recently
had received treatment for right leg pain. R. 92-93. She now walks with a limp, and can only
walk “a block or two” before the “pain increases.” R. 93. Rivera testified that since she stopped
working, she has not gone an entire day without experiencing pain. R. 86. She cannot even
“grab a gallon of milk” for more than “a little while” before she starts to feel pain. R. 84. There
is no position Rivera can maintain without feeling pain. She stated: “In all positions I feel pain.”
R. 84. Sitting for an extended period of time only exacerbates her lower back pain. R. 92. Even
sleeping is difficult, because “[e]very time [she] move[s] [she] wake[s] up.” R. 95.
As to daily activities, Rivera testified that, due to neck pain, she has trouble lifting her
arms over her head to pull on a shirt or put her arms through a coat. R. 93. She needs to sit
down to tie her shoes. R. 93-94. She has needed help getting dressed “[o]nce or twice.” R. 94.
She can bathe herself, though “it does bother [her] a little bit just to get into the bath.” R. 94.
Rivera testifies that she has difficulty doing chores around the house. R. 87. Rivera can still
cook. R. 94. She explained that prior to her injury, she “was able to clean and move furniture,”
and clean the bathtub or ceiling tiles, but can no longer manage these tasks on her own due to her
pain. R. 87-88, 94. She is still able to engage in some chores, but only with the help of her
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husband or son. R. 88. For instance, while she used to go food shopping alone, now her
husband or son has to go with her to help carry the grocery bags. R. 94. Rivera stated that she
has no hobbies, and that she is “always in the house.” R. 88. Although she does not take
vacations, Rivera visited her mother in Puerto Rico for around two weeks. R. 87. The air travel
to Puerto Rico “was not easy” because of the constant sitting. R. 87.
The ALJ asked whether Rivera was treating with a specialist for depression or anxiety,
and Rivera responded that she was not. R. 88.
The ALJ then elicited testimony from the VE. The VE began by characterizing Rivera’s
past relevant work as “kitchen aide or kitchen helper” and “delivery driver,” occupations
requiring medium exertion, and “street cleaner,” which involved light exertion. R. 96. The ALJ
then posed a series of hypothetical questions to the VE. First, the ALJ asked the VE to
[a]ssume a hypothetical Claimant with this Claimant’s age, education and work
experience. The hypothetical [claimant] would be limited to light exertion as that
term is defined in the DOT and Social Security Regulations. Standing/walking
could be six hours in an eight hour workday, and sitting could be eights hours in
an eight hour work day. Could occasionally climb ramps, stairs, ladders, ropes,
and scaffolds, and occasionally balance, stoop, kneel, crouch and crawl.
R. 96-97. Considering those restrictions, the VE stated that such a hypothetical individual would
be able to perform the job of park cleaner / street cleaner, but would not be able to perform the
job of kitchen aide or delivery driver. R. 96-97. The VE also confirmed the existence of “other
representative occupations in the national economy that could be performed within those
restrictions,” assuming a limitation of unskilled, light work exertion. R. 97. Those jobs were
“officer cleaner,” and “hand packager.” R. 97. Second, the ALJ asked the VE: “So if a
hypothetical Claimant, everything else being the same, but instead of being limited to light
exertion is limited to sedentary, that would rule out the past relevant work, is that correct?”
R. 97. The VE confirmed that a limitation of sedentary exertion would rule out past relevant
5
work. R. 97.
C. The Medical Evidence
The medical evidence in the record is described accurately in the Commissioner’s brief.
See Def. Mem. at 4-22. We discuss the medical evidence pertinent to the adjudication of this
case in Section III below.
D. The ALJ’s Decision
The ALJ denied Rivera’s applications on May 12, 2017. R. 64. First, the ALJ found that
Rivera met the insured status requirements of the SSA through September 13, 2019. R. 49.
Then, following the five-step test set forth in the SSA regulations, the ALJ found at step one that
Rivera had not engaged in “substantial gainful activity” since January 17, 2014, the alleged onset
date. R. 50. At step two, the ALJ found that during the relevant period, Rivera suffered from a
“severe impairment” of “spine disorder.” R. 50. The ALJ also found that Rivera suffered from
“non-severe impairments” of “plantar fasciitis,” “right wrist tendinitis,” “depressive, bipolar and
related disorders, and anxiety and obsessive-compulsive disorders.” R. 50. Also at step two,
the ALJ found that Rivera’s “medically determinable mental impairments of depressive, bipolar
and related disorders, and anxiety and obsessive-compulsive disorders, considered singly and in
combination, do not cause more than minimal limitation in the claimant’s ability to perform
basic mental work activities and are therefore non-severe.” R. 50. At step three, the ALJ found
that none of Rivera’s impairments, singly or in combination, met or medically equaled the
severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”).
R. 52. In reaching this conclusion, the ALJ gave particular attention to Listing 1.04 (disorders of
the spine). R. 52. Before moving to step four, the ALJ addressed Rivera’s residual functional
capacity (“RFC”). R. 52-62. After consideration of the record, the ALJ found that Rivera had
6
the RFC to perform “light work,”2 with the restrictions that Rivera “can lift and carry 20 pounds
occasionally and 10 pounds frequently and can sit, stand, and walk 6 hours each in an 8-hour
work day. [Rivera] can occasionally climb ramps, stairs, ladders, ropes, or scaffolds. She can
occasionally balance, stoop, kneel, crouch, and crawl.” R. 52. In making the RFC
determination, the ALJ considered Rivera’s “symptoms and the extent to which these symptoms
can reasonably be accepted as consistent with the objective medical evidence and other
evidence.” R. 52. In addition, the ALJ accorded varying weights to the opinions of treating and
non-treating sources who examined Rivera and/or her medical records. R. 56-62. Having
determined Rivera’s RFC, the ALJ evaluated at step four whether Rivera could perform her past
relevant work as a park cleaner and concluded that based on Rivera’s RFC, she could. R. 62.
Even though the ALJ found that Rivera could perform her past relevant work as a park cleaner,
the ALJ continued in the sequential analysis. Thus, at step five, the ALJ concluded — based on
Rivera’s age, education, work experience, and RFC — that there were other jobs that exist in
significant numbers in the national economy that Rivera could also perform pursuant to 20
C.F.R. §§ 404.1569, 404.1569(a), 416.969, and 416.969(a). R. 62-63. For these reasons, the
ALJ concluded that Rivera “has not been under a disability, as defined in the Social Security
Act, from January 17, 2014, through the date of this decision.” R. 63. Accordingly, the ALJ
2
Pursuant to 20 C.F.R. § 404.1567(b), “light work”
involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds. Even though the weight lifted may be very
little, a job is in this category when it requires a good deal of walking or standing,
or when it involves sitting most of the time with some pushing and pulling of arm
or leg controls. To be considered capable of performing a full or wide range of
light work, [a claimant] must have the ability to do substantially all of these
activities. If someone can do light work, we determine that he or she can also do
sedentary work, unless there are additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.
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found Rivera to be “not disabled” under sections 216(i) and 223(d) of the Act. R. 64.
II. GOVERNING STANDARDS OF LAW
A. Scope of Judicial Review Under 42 U.S.C. § 405(g)
A court reviewing a final decision by the Commissioner “is limited to determining
whether the [Commissioner’s] conclusions were supported by substantial evidence in the record
and were based on a correct legal standard.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013)
(per curiam) (citations and internal quotation marks omitted); accord Greek v. Colvin, 802 F.3d
370, 374-75 (2d Cir. 2015) (per curiam); see generally 42 U.S.C. § 405(g) (“The findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be
conclusive . . . .”). 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.’” Richardson
v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229
(1938)); accord Greek, 802 F.3d at 375; Burgess v. Astrue, 537 F.3d 117, 127-28 (2d Cir. 2008);
Matthews v. Leavitt, 452 F.3d 145, 152 n.9 (2d Cir. 2006); Shaw v. Chater, 221 F.3d 126, 131
(2d Cir. 2000). The “threshold for such evidentiary sufficiency is not high.” Biestek v.
Berryhill, 139 S. Ct. 1148, 1154 (2019).
“Even where the administrative record may also adequately support contrary findings on
particular issues, the ALJ’s factual findings must be given conclusive effect so long as they are
supported by substantial evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per
curiam) (citation and internal quotation marks omitted). Thus, “[i]f the reviewing court finds
substantial evidence to support the Commissioner’s final decision, that decision must be upheld,
even if substantial evidence supporting the claimant’s position also exists.” Johnson v. Astrue,
563 F. Supp. 2d 444, 454 (S.D.N.Y. 2008) (citing Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.
8
1990)). The Second Circuit has characterized the substantial evidence standard as “a very
deferential standard of review — even more so than the ‘clearly erroneous’ standard.” Brault v.
Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (per curiam) (citation omitted).
“The substantial evidence standard means once an ALJ finds facts, [a court] can reject those
facts only if a reasonable factfinder would have to conclude otherwise.” Id. (emphasis in
original) (citations and internal quotation marks omitted). “The role of the reviewing court is
therefore quite limited and substantial deference is to be afforded the Commissioner’s decision.”
Johnson, 563 F. Supp. 2d at 454 (citations and internal quotation marks omitted). Importantly, it
is not a reviewing court’s function “to determine de novo whether [a claimant] is disabled.”
Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (citation and internal quotation marks
omitted); accord Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012).
B. Standard Governing Evaluation of Disability Claims by the Agency
The Social Security Act defines the term “disability” as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see id.
§ 1382c(a)(3)(A). A person will be found to be disabled only if it is determined that his
“impairments are of such severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
To evaluate a Social Security claim, the Commissioner is required to examine: “(1) the
objective medical facts; (2) diagnoses or 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
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educational background, age, and work experience.” Mongeur v. Heckler, 722 F.2d 1033, 1037
(2d Cir. 1983) (per curiam); accord Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (per curiam);
Craig v. Comm’r of Soc. Sec., 218 F. Supp. 3d 249, 260 (S.D.N.Y. 2016).
Regulations issued pursuant to the Act set forth a five-step process that the
Commissioner must use in evaluating a disability claim. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4); see also Burgess, 537 F.3d at 120 (describing the five-step process). First, the
Commissioner must determine whether the claimant is currently engaged in any “substantial
gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). Second, if the claimant is
not engaged in substantial gainful activity, the Commissioner must decide if the claimant has a
“severe medically determinable physical or mental impairment,” 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii), which is an impairment or combination of impairments
that “significantly limits [the claimant’s] physical or mental ability to do basic work activities,”
20 C.F.R. §§ 404.1520(c), 416.920(c). Third, if the claimant’s impairment is severe and is listed
in 20 C.F.R. Part 404, Subpart P, Appendix 1, or is equivalent to one of the listed impairments,
the claimant must be found disabled regardless of his age, education, or work experience. See
20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d). Fourth, if the
claimant’s impairment is not listed and is not equal to one of the listed impairments, the
Commissioner must review the claimant’s RFC to determine if the claimant is able to do work
he or she has done in the past, i.e., “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv). If the claimant is able to do such work, he or she is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Finally, if the claimant is unable to perform past
relevant work, the Commissioner must decide if the claimant’s RFC, in addition to his or her
age, education, and work experience, permits the claimant to do other work. 20 C.F.R.
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§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant cannot perform other work, he or she
will be deemed disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). The claimant bears
the burden of proof on all steps except the final one — that is, proving that there is other work
the claimant can perform. See Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam).
C. The “Treating Physician” Rule
Under the so-called “treating physician” rule, in general, the ALJ must give “more
weight to medical opinions” from a claimant’s “treating source” — as defined in the regulations
— when determining if the claimant is disabled. See 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2).3 Treating sources, which includes some professionals other than physicians, see
20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2), “may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings alone or from reports of
individual examinations, such as consultative examinations.” 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2). The Second Circuit has summarized the deference that must be accorded the
opinion of a “treating source” as follows:
Social Security Administration regulations, as well as our precedent, mandate
specific procedures that an ALJ must follow in determining the appropriate
weight to assign a treating physician’s opinion. First, the ALJ must decide
whether the opinion is entitled to controlling weight. “[T]he opinion of a
claimant’s treating physician as to the nature and severity of [an] 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.’” Burgess, 537 F.3d at
128 (third brackets in original) (quoting 20 C.F.R. § 404.1527(c)(2)). Second, if
the ALJ decides the opinion is not entitled to controlling weight, it must
determine how much weight, if any, to give it. In doing so, it must “explicitly
consider” the following, nonexclusive “Burgess factors”: “(1) the frequen[cy],
length, nature, and extent of treatment; (2) the amount of medical evidence
3
Although the SSA has since revised its rules to eliminate the treating physician rule,
because the claim here was filed before March 27, 2017, the rule applies in this case. See, e.g.,
Conetta v. Berryhill, 365 F. Supp. 3d 383, 395 n.5 (S.D.N.Y. 2019).
11
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, 537 F.3d at 129 (citing 20 C.F.R. § 404.1527(c)(2))).
At both steps, the ALJ must “give good reasons in [its] notice of determination or
decision for the weight [it gives the] treating source’s [medical] opinion.”
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam) (quoting 20
C.F.R. § 404.1527(c)(2)). . . . An ALJ’s failure to “explicitly” apply the Burgess
factors when assigning weight at step two is a procedural error. Selian, 708 F.3d
at 419-20.
Estrella v. Berryhill, 925 F.3d 90, 95-96 (2d Cir. 2019). Accordingly, the Second Circuit has
stated that it will “not hesitate to remand when the Commissioner has not provided ‘good
reasons’ for the weight given to a treating physician[’]s opinion and [it] will continue remanding
when [it] encounter[s] opinions from ALJ[s] that do not comprehensively set forth reasons for
the weight assigned to a treating physician’s opinion.” Halloran, 362 F.3d at 33; accord Estrella,
925 F.3d at 96; see also Greek, 802 F.3d at 375-77.
Nonetheless, the Commissioner is not required to give deference to a treating physician’s
opinion where the treating physician “issued opinions that are not consistent with other
substantial evidence in the record, such as the opinions of other medical experts.” Halloran, 362
F.3d at 32 (citation omitted). In fact, “the less consistent [a treating physician’s] opinion is with
the record as a whole, the less weight it will be given.” Snell v. Apfel, 177 F.3d 128, 133 (2d
Cir. 1999) (citing 20 C.F.R. § 404.1527(d)(4)); see also Veino v. Barnhart, 312 F.3d 578, 588
(2d Cir. 2002) (“Genuine conflicts in the medical evidence are for the Commissioner to
resolve.”) (citation omitted). Finally, a “slavish recitation of each and every [factor listed in 20
C.F.R. § 404.1527(c)]” is unnecessary “where the ALJ’s reasoning and adherence to the
regulation are clear,” Atwater v. Astrue, 512 F. App’x 67, 70 (2d Cir. 2013) (summary order)
(citing Halloran, 362 F.3d at 31-32), and even where the ALJ fails to explicitly apply the
“Burgess factors,” a court may, after undertaking a “‘searching review of the record,’” elect to
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affirm the decision if “‘the substance of the treating physician rule was not traversed.’” Estrella,
925 F.3d at 96 (quoting Halloran, 362 F.3d at 32).
III. DISCUSSION
Rivera raises essentially three grounds for reversing the ALJ’s decision, which mirror
those in her brief to the Appeals Council, R. 346-49. First, Rivera argues that the ALJ erred in
failing to consider all of Rivera’s medical records necessary to “discern the ALJ’s rationale” in
finding Rivera not disabled.4 Pl. Mem. ¶¶ 3-6. Second, Rivera argues that — as a result of the
ALJ ignoring medical evidence — the ALJ improperly weighed the opinions of her treating
physicians and discounted her hearing testimony. Id. ¶¶ 7-8. Third, Rivera argues the ALJ erred
in according great weight to the opinions of “single decision-maker” M. Robinson. Id. ¶ 9.
Because we find merit to the third argument, we need not decide whether the other issues by
themselves would warrant remand.
The ALJ assigned “great weight” to the opinions of “state medical consultant M.
Robinson” that Rivera could occasionally “lift and/or carry 20 pounds[,] . . . climb ramps, stairs,
ladders, ropes, or scaffolds,” and “balance, stoop, kneel, crouch, and crawl.” R. 56; see R. 10708, 119-20. Although the ALJ refers to Robinson as a “state medical consultant,” there is every
indication that Robinson was a “single decision-maker,” or “SDM.” R. 109, 120. The ALJ
appears to have incorporated Robinson’s opinions into his ultimate RFC determination. See
R. 52, 107-08, 119-20.
“SDMs are non-physician disability examiners who may make the initial disability
4
Rivera notes that the ALJ has “an affirmative duty to accurately develop the
administrative record.” Pl. Mem. ¶ 7 (citing Burgess, 537 F.3d at 129). We agree. But there is
no evidence that the ALJ failed in this respect, and Rivera does not point to any records the ALJ
failed to procure or a specific doctor that the ALJ failed to contact.
13
determination in most cases without requiring the signature of a medical consultant.” Barrett v.
Berryhill, 286 F. Supp. 3d 402, 429 (E.D.N.Y. 2018) (citations and internal quotation marks
omitted). As of May 2010, ALJs have been instructed that “RFC determinations by SDMs
should not be afforded any evidentiary weight at the administrative hearing level.” Curtis v.
Astrue, 2012 WL 6098258, at *6 (N.D.N.Y. Oct. 30, 2012) (citation omitted). Accordingly,
“[a]n SDM assessment is not a medical opinion for the purposes of appeals.” Sylcox v. Colvin,
2015 WL 5439182, at *12 (S.D.N.Y. Sept. 15, 2015) (citing Alberalla v. Colvin, 2014 WL
4199689 at *10 (W.D.N.Y. Aug. 22, 2014), and Sears v. Astrue, 2012 WL 1758843 at *6 (D. Vt.
May 15, 2012)). “It is thus legal error to weigh an SDM’s opinion as if he or she were a medical
professional.” Barrett, 286 F. Supp. 3d at 429 (citing Box v. Colvin, 3 F. Supp. 3d 27, 46
(E.D.N.Y. 2014)); accord Buono v. Colvin, 2015 WL 4390645, at *2 (E.D.N.Y. July 15, 2015);
Charles v. Colvin, 2014 WL 4425796, at *5 (E.D.N.Y. Sept. 10, 2014); see also Sears, 2012 WL
1758843 at *6 (citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987), for the proposition
that the harmless error standard applies to improperly weighing the opinions of an SDM).
Here, the ALJ erred in according “great weight” to the opinions of SDM Robinson that
Rivera could occasionally “lift and/or carry 20 pounds[,] . . . climb ramps, stairs, ladders, ropes,
or scaffolds,” and “balance, stoop, kneel, crouch, and crawl.” R. 56. While “any error an ALJ
may have made in weighing the opinion of an SDM as if he was a medical consultant” may be
found to harmless, this is true only if “the ALJ did not heavily rely on this opinion in denying
benefits.” Sylcox, 2015 WL 5439182, at *12 (citations, internal quotation marks, and alterations
omitted). Here the ALJ gave the SDM opinion “great weight” and adopted the SDM’s opinions
entirely in the ALJ’s ultimate RFC determination. Compare R. 52, with R. 107-08, 119-20.
Courts have remanded where, as here, the ALJ accorded great weight to the opinions of the
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SDM, see, e.g., Sylcox, 2015 WL 5439182, at *12; Box, 3 F. Supp. 3d at 46-47; see also
Andrisani v. Comm’r of Soc. Sec., 2019 WL 1292233, at *3 (W.D.N.Y. Mar. 21, 2019)
(remanding where the ALJ assigned the SDM’s opinion “some weight,” and “appears to have
used the SDM’s opinion as a template or an anchor for a light-work RFC”).
Remand is especially warranted here because “the Court cannot tell how much influence
the SDM’s opinion had over the ALJ’s analysis.” Andrisani, 2019 WL 1292233, at *4. It
appears that the ALJ relied heavily on Robinson’s opinions. Indeed, the ALJ assigned “great
weight” to the opinions of only two other professionals. He accorded great weight to the
opinions of T. Inman-Dundon, a state psychological consultant, R. 57, who opined as to Rivera’s
mental impairments, but not her physical impairments, R. 106, 117. The ALJ also accorded
great weight to the March 2015 opinions of Dr. Syeda Asad, the physical consultative examiner.
R. 58. Thus, the ALJ relied heavily on the opinions of Robinson and Dr. Asad. However, while
Dr. Asad opined that Rivera had only “[m]ild limitation with squatting and kneeling because of
lower back pain,” and “mild to moderate restriction for heavy lifting and carrying because of
herniated lumbar disc,” R. 541-42, Dr. Asad also found on examination that Rivera’s “[l]umbar
spine show[ed] flexion 45 degrees due to pain in the lower back region,” R. 540-41, suggesting
that Rivera’s ability to stoop, i.e., bend, was significantly limited. See R. 500 (chart showing full
lumbar flexion-extension to be 90 degrees); see also Golembiewski v. Barnhart, 322 F.3d 912,
917-18 (7th Cir. 2003) (remanding case after finding that the ALJ’s conclusion that claimant
could stoop occasionally was undermined by limitation of flexion to 40 degrees); cf. Molina v.
Barnhart, 2005 WL 2035959, at *8 (S.D.N.Y. Aug. 17, 2005) (citing cases where ALJ failed to
properly address claimants’ ability to stoop or bend). This limitation as to Rivera’s lumbar
flexion conflicts with the ALJ’s RFC finding that Rivera could, for example, stoop
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“occasionally,” which includes up to a third of the day. See Golembiewski, 322 F.3d at 917
(citing SSR 83-14). The limitation was further confirmed by Rivera during her hearing
testimony when she stated that it was difficult for her to bend. See R. 84; see also id. (Rivera
testifying that she cannot lift a gallon of milk without experiencing pain). Furthermore, ALJ
accorded “little weight” to the only other physicians who opined as to Rivera’s most severe
physical limitations relating to the ALJ’s final RFC determination. See R. 59, 61 (the ALJ
according little weight to treating physicians’ opinions concerning Rivera’s ability to sit/stand,
stoop, and crawl in an eight hour workday). The ALJ cited no other opinion evidence “that
clearly supported the ALJ’s conclusions in the RFC assessment and it was not clear whether the
ALJ would have found an ability to perform light work without having accounted for [the
SDM’s opinions].” Ridley v. Comm’r of Soc. Sec., 2018 WL 799160, at *6 (N.D.N.Y. Feb. 8,
2018). Thus, it appears that the ALJ relied heavily, if not exclusively, on the findings of
Robinson to make the RFC determination. “Such reliance was not harmless.” Sylcox, 2015 WL
5439182, at *12; see, e.g., Buono, 2015 WL 4390645, at *2 (“[T]he ALJ erred in basing his RFC
finding almost exclusively on the SDM’s RFC determination.”); Charles, 2014 WL 4425796, at
*5 (“By basing his RFC assessment almost exclusively upon a standardized form prepared by a
non-medical professional, the ALJ failed [in his] duty.”).
Even the Commissioner appears to acknowledge the ALJ’s erroneous reliance on the
opinions of Robinson, though the Commissioner argues any such error was harmless. See Def.
Mem. at 27 n.1 (“It is unclear from the record whether M. Robinson was a medical doctor or a
single decision-maker (“SDM”) . . . , but any mistake was harmless given the supporting
opinions from other physicians, like Dr. Asad.”); Def. Reply at 4-5 (same). The Commissioner
cites two cases in support of its harmless error argument. See Def. Mem. at 27 n.1; Def. Reply
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at 5. The reasoning of these cases, however, is inapplicable here. First, in Vargas v. Berryhill,
2017 WL 2274240 (W.D.N.Y. May 25, 2017), "the ALJ's RFC assessment was generally more
restrictive than the SDM's opinion." Id. at *5. Here, the ALJ made an RFC determination
mirroring the RFC opinions of the SDM. In Sears v. Astrue, 2012 WL 1758843 (D. Vt. May 15,
2012), the court found that "any error the ALJ may have made in weighing the opinion of [the]
SDM ... as ifhe was a medical consultant [was] harmless, given that the ALJ did not heavily
rely on this opinion in denying benefits." Id. at *6. Here, as discussed above, the ALJ gave
great weight to the SDM' s opinions and appeared to have relied heavily on his opinions in
making an ultimate disability determination. Thus, these cases do not support the
Commissioner's position.
In sum, because the ALJ improperly accorded great weight to the opinions of SDM
Robinson as explained above, the case is remanded for further proceedings.
IV. CONCLUSION
For the foregoing reasons, Rivera's motion (Docket# 22) is granted and the
Commissioner's motion (Docket # 15) is denied. This case is remanded to the Commissioner for
further proceedings consistent with this opinion. The Clerk is requested to enter judgment.
SO ORDERED.
Dated: New York, New York
September 10, 2019
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Copy sent to:
Lissette Rivera
2141 Prospect Avenue, Apt. 2
Bronx, New York 10457
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