McHugh v. Commissioner of Social Security
-CLERK TO FOLLOW UP-DECISION AND ORDER granting 9 Motion for Judgment on the Pleadings to the extent that the Commissioner's decision is reversed and the matter is remanded for further administrative proceedings; denying 13 Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 8/6/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PATRICK DENNIS McHUGH,
DECISION AND ORDER
-vsMICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY
Represented by counsel, Patrick Dennis McHugh (“Plaintiff” or
“McHugh”), brings this action pursuant to Titles II and XVI of the
Social Security Act (“the Act”), seeking review of the final
Commissioner”) denying his application for disability insurance
benefits (“DIB”) and supplemental security income (“SSI”).
Court has jurisdiction over this action pursuant to 42 U.S.C.
On August 27, 2009, Plaintiff filed applications for DIB and
conditions afflicting his neck, back, and right shoulder.
Plaintiff’s applications for benefits were denied
Citations to “T.__” refer to pages from the administrative
on February 24, 2010.
T.67-74. Plaintiff was represented by
October 1, 2010, Administrative Law Judge Timothy McGuan (“the
ALJ”) denied Plaintiff’s application for benefits. T.13-31. The
Appeals Council denied Plaintiff’s request for review on May 24,
This action followed. Presently before the Court are the
parties’ competing motions for judgment on the pleadings pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure.
Relevant Medical Evidence
Evidence Before the Onset Date
On April 25, 2007, Plaintiff was involved in a motor vehicle
accident (“MVA”) and sustained injuries to his neck and right upper
On June 12, 2007, Plaintiff underwent an MRI of the
cervical spine, which revealed disc herniations at C6-C7, C5-C6,
C4-C5, and C3-C4. An MRI of Plaintiff’s right shoulder revealed
tenodesis with no identifiable tears, moderate osteoarthritis of
supraspinatus outlet, and degenerative changes of the superior
See T.281-83, 479.
On September 27, 2007, Plaintiff was referred by his primary
care physician, Thomas F. Hughes, M.D., to Lee R. Guterman, M.D. ,
who found that Plaintiff had “severe limited range of motion of his
rotation[.]” Dr. Guterman noted that Plaintiff “ha[d] a weak grip,
approximately 4/5, biceps 4/5, triceps 4+/5.” Id.
He also noted
loss of sensation in Plaintiff’s right upper extremity, although
Plaintiff’s reflexes appeared to be normal. Dr. Guterman diagnosed
Plaintiff with cervicalgia and joint pain in the shoulder region.
Following a referral from Dr. Guterman, P. Jeffrey Lewis,
M.D., evaluated Plaintiff on November 2, 2007. Plaintiff had a
herniated disc at C6-C7 with right C7 radiculopathy and muscle
atrophy of the right triceps muscle.
Dr. Lewis also noted that
Plaintiff had right cubital tunnel syndrome from the ulnar nerve
compressing the elbow on the right. Both conditions were caused by
Plaintiff’s 2007 MVA. See T.317-19.
On November 15, 2007, Plaintiff met with Eugene Gosy, M.D. and
Deborah Dzielski, ANP.
Plaintiff’s neck extension was 10% of
normal, and his flexion and right rotation were 50% of normal.
Plaintiff’s trapezius was tender, there were no trigger points on
Plaintiff’s strength in both his upper and lower extremities was
5/5, his joint pressing maneuvers were normal, his sensation was
intact to pinprick, and his cranial nerves were intact. See T.21315.
On November 21, 2007, Plaintiff had x-rays taken of his
cervical spine, which revealed spondylosis at C5-C6 and C6-C7, and
November 30, 2007, Dr. Lewis performed disc replacement surgery on
Plaintiff. T.340-42. Post-surgery, Plaintiff underwent physical
therapy and pain management treatment with Dr. Gosy.
treatment with Gerald L. Peer, M.D. in early August 2008. T.284-86.
shoulder bilaterally was 50% of normal, his abduction was 90% of
normal, his upper extremity strength was 5/5 bilaterally, and his
range of motion in his left shoulder was full. T.289. Plaintiff
could walk heel to toe, and had right-sided hypoesthesia at C6-C7.
Id. Plaintiff’s reflexes were symmetrical bilaterally. Dr. Peer’s
diagnosis was intervertebral disc displacement without myelopathy,
stimulation (“TENS”) unit. Dr. Peer noted that Plaintiff was
working part-time on a light duty basis, and his disability was
“moderate, partial and temporary.”
T.289. Plaintiff continued to
treat with Dr. Peer on a monthly basis until May 7, 2009.
On September 17, 2008, Plaintiff was involved in another MVA,
which resulted in increased neck pain and injury to his right
shoulder. T.327. On November 17, 2008, Plaintiff underwent a
magnetic resonance arthrogram of his right shoulder, which revealed
a full thickness tear of his posterior supraspinatus tendon.
On December 17, 2008, orthopedist Joseph E. Buran, M.D.
performed arthroscopic surgery on Plaintiff’s right shoulder to
repair the torn rotator cuff.
Post-surgery, Dr. Buran
noted that Plaintiff was doing “generally” well, his pain had
diminished, and he was neurologically intact. Dr. Buran determined
therapist. T.304, 307.
Medical Evidence After the Onset Date
Due to his chronic pain, Plaintiff returned to see Dr. Peer on
February 11, 2009, at which time Dr. Peer determined that Plaintiff
was temporarily totally disabled due to his right shoulder surgery.
On March 25, 2009, Plaintiff underwent a computed tomography
(“CT”) scan of his cervical spine, which showed no abnormalities at
C2-C3, C3-C4 and T1-T2. T.243.
In April 2009, Dr. Lewis noted that Plaintiff was recovering
well from his recent shoulder, and that he appeared to have
symptoms associated with ulnar nerve compression syndrome at the
elbow. T.329. An MRI of Plaintiff’s cervical spine revealed subtle
degenerative changes at C5-C6 with the possibility of scoliosis.
T.337. Dr. Lewis opined that Plaintiff could return to work on a
part-time basis. T.322.
On June 19, 2009, Plaintiff returned to Dr. Buran’s office.
Vincent E. Lorenz conducted an assessment and determined that
Plaintiff was doing well but had some residual loss of range of
motion in his shoulder. He also noted that Plaintiff had “excellent
reference to his shoulder.” T.312. Lorenz assessed that Plaintiff
“is disabled at this time, not because of the shoulder, but because
of the neck.”
On June 23, 2009, Plaintiff underwent an EMG nerve study which
revealed mild chronic left C8 radiculopathy and bilateral nerve
On July 8, 2009, Dr. Guterman examined Plaintiff and found
slight weakness in his right grip and biceps, diminished range of
motion in his neck, and diminished pinprick sensation in the left
T.507. Dr. Guterman assessed that Plaintiff
had a “reasonable” range of motion in the cervical spine except for
right rotation, which was limited. Flexion and extension were good.
Dr. Guterman concluded that Plaintiff could not return to doing
On November 24, 2009, Plaintiff underwent surgery on his left
elbow to address his cubital tunnel syndrome.
surgery, Plaintiff reported to Dr. Lewis that he felt much better
and that he was able to feel his fingers.
X-rays and an MRI of Plaintiff’s cervical spine were taken on
February 26, 2010. The x-rays revealed dextroscoliosis; early
prosthetic disc insertion at C6-C7, with no evidence of loosening
The MRI revealed a mild disc bulge at C4-C5,
and an annular tear and small central disc herniation at C3-C4.
At a follow-up visit on March 5, 2010, Dr. Lewis reported that
Plaintiff had some residual symptoms from the November 2009 surgery
but was improving. T.134. Plaintiff had residual neck pain and the
MRI showed an artifact at C6-7 and C5-C6 (the prosthetic disc
replacement), with some degeneration and bulging at C3-C4 and C4-5,
which possibly was the site of Plaintiff’s pain.
did not believe that further surgery was required, and he advised
Plaintiff to continue taking Loratab and begin pain management
Kathleen Kelley, M.D. performed a consultative examination of
Plaintiff on December 9, 2009. Dr. Kelley diagnosed Plaintiff with
status post-cervical spine surgery with radiculopathy, status postright shoulder surgery with decreased range of motion, left ulnar
decompression, seizure disorder since childhood, and headaches with
associated migraines. Dr. Kelley opined that when Plaintiff engaged
required comfort breaks.
She also opined that Plaintiff needed to
refrain from repetitive activity using his right arm, especially
with overhead reaching. See T.431-35.
Neurologist Michael J. Battaglia, M.D. had treated Plaintiff
for his epilepsy for about 20 years. He noted, in a March 28, 2010
report, that he had last seen Plaintiff in May 2006. T.487-88.
Dr. Battaglia stated that Plaintiff suffered from complex partial
seizures, as well as nocturnal seizures. Dr. Battaglia opined that
Plaintiff’s seizures were clustering, and noted that Plaintiff
would suffer from a severe headache the day after a seizure.
Plaintiff reported to Dr. Battaglia on March 26, 2010, that his
seizures had increased from 2 to 15 times a night, each lasting a
couple of minutes. T.487. Dr. Battaglia recommended that Plaintiff
undergo blood tests and advised him to avoid drinking any alcohol.
Dr. Battaglia noted that it was unsafe for Plaintiff to drive a
motor vehicle because of his “poorly controlled” epilepsy, and that
Plaintiff should not swim, climb ladders or work at heights. T.488.
Other Relevant Evidence
Plaintiff testified that he was 41-years-old and had an
His past relevant work was as a foreman and
scaffold rigger in a family business involved in stained glass
renovations of historic buildings. Plaintiff testified that he has
suffered from epilepsy since he was 9 or 10 years-old. T.36-40.
In April 2007, Plaintiff was involved in an MVA, in which he
Following the accident, he tried physical therapy and massage
therapy, epidural and trigger point injections, use of a TENS unit
and pain management, but none of these modalities provided longterm
accident, he attempted to go back to work. Because it was a family
business at which he had worked for approximately 20 years, they
accommodated his disability. He could not do anything physical and
was only able to give others instructions.
worked approximately 20 hours per week.
He testified that he
In September 2008, Plaintiff was involved in another MVA, in
which he sustained injuries to his right shoulder and left elbow.
Subsequently, he underwent surgery on his right rotator cuff and
his left elbow.
Plaintiff testified that he treated with Drs. Capicotta,
Guterman, and Lewis for his neck injury, and that Dr. Lewis
performed surgery on his neck in 2007. Plaintiff testified that he
also treated with Drs. Gosy, Peer and Wagmire for pain management.
He saw Dr. Guterman for trigger point injections every three to
After his neck surgery, Plaintiff experienced pain at the
level of a 4 or 5 out of 10.
He testified further that, since his
surgery, he has fewer muscle spasms and his right arm symptoms have
He still experienced shoulder pain, but not as
extensively as before his shoulder surgery.
that he can lift his right arm to shoulder height, frontwards and
sideways but is limited in extending his arm backwards.
Plaintiff stated that he takes medication for his migraine
headaches, epilepsy, and pain. T.58. Plaintiff’s migraine headaches
and epilepsy are discussed further, infra.
The Vocational Expert’s Testimony
Vocational Expert Jay Steinbrenner (“the VE”) testified that
Plaintiff’s window manufacturing job was skilled and medium in
exertional demands. Plaintiff’s part-time light-duty job after his
neck injury was skilled and sedentary. T.60-61.
The ALJ presented the VE with a hypothetical individual of the
same age as Plaintiff, with the same education and vocational
background, and who was limited to sedentary work, but who could
not perform overhead reaching with his dominant (right) arm; climb
ropes, ladders and/or scaffolds; and who needed to avoid all
concentrated exposure to height and hazards. The VE testified that
this individual could not perform Plaintiff’s past job, but could
marketer and telephone surveyor. The VE testified further that if
this individual needed to lie down during regular breaks, but not
at will, this individual could still perform these jobs.
General Legal Principles
Title 42 U.S.C., Section 405(g) directs the Court to accept
the findings of fact made by the Commissioner, provided that such
findings are supported by substantial evidence in the record.
Substantial evidence is “such relevant evidence as a reasonable
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
Court’s scope of review is limited to whether the Commissioner’s
findings were supported by substantial evidence in the record, and
whether the Commissioner employed the proper legal standards in
evaluating the plaintiff’s claim. E.g., Mongeur v. Heckler, 722
F.2d 1033, 1038 (2d Cir. 1983) (citations omitted).
However, “[b]efore the insulation of the substantial evidence
test comes into play, it must first be determined that the facts of
a particular case have been evaluated in light of correct legal
standards.” Klofta v. Mathews, 418 F. Supp. 1139, 1411 (E.D. Wis.
1976) (quoted in Costanzo v. Apfel, No. 98-CV-606H, 2000 WL 575660,
at *2 (W.D.N.Y. Feb. 8, 2000)). The Commissioner’s determination
will not be upheld if it is based on an erroneous view of the law
that fails to consider highly probative evidence. Tejada v. Apfel,
167 F.3d 770, 773 (2d Cir. 1999). In such cases, the reviewing
court has the authority to reverse with or without remand. See
42 U.S.C. §§ 405(g), 1383(c)(3).
The ALJ’s Decision
20 C.F.R. §§ 404.1520(a)(4)(i)-(v) and 416.920(a)(4)(i)-(v), for
evaluating disability claims.
Under step one, the ALJ
activity since December 19, 2008.
At step two, the ALJ
concluded that Plaintiff has the following severe impairments:
cervical disk without myelopathy and status post-surgery; brachial
neuritis or radiculitis; status post-surgery of the shoulder; and
status post-surgery of the elbow. T.15-16. At step three, the ALJ
determined that none of these severe impairments, considered singly
or in combination, met or medically equaled a listed impairment.
Id. At steps four and five, the ALJ concluded that Plaintiff had
the residual functional capacity (“RFC”) to perform sedentary work,
subject to certain limitations. T.16-24.
Relying on the VE’s
testimony, the ALJ found that Plaintiff was unable to perform any
certain jobs that exist in significant numbers in the national
III. Analysis of Plaintiff’s Arguments
The ALJ’s Finding Regarding Listing 1.04(A)
Plaintiff’s impairments do not meet or equal the listed impairment
for spinal disorders as set forth in 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 1.04(A). See Plaintiff’s Memorandum of Law (“Pl’s Mem.”)
at 10. Defendant does not specifically address this argument but
contends that the record as a whole supports the ALJ’s finding of
At step three, the burden of establishing that a condition
meets or equals one of the listed impairments rests with the
claimant. Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000). A
claimant may definitively establish disability at step three by
proving that his impairment meets all of the requirements of a
Alternatively, disability may be shown when a claimant’s condition,
although it does not meet the specific criteria of a listing, is
functionally equivalent to a listed condition. Id. For a claimant
to qualify for benefits by showing that his unlisted impairment, or
combination of impairments, is “equivalent” to a listed impairment,
he must present “medical findings equal in severity to all the
criteria for the one most similar listed impairment.”
Zebley, 493 U.S. 521, 531 (1990) (citing 20 C.F.R. § 416.926(a))
(emphasis in original). “A claimant cannot qualify for benefits
under the ‘equivalence’ step by showing that the overall functional
impact of his (or her) unlisted impairment or combination of
impairments is as severe as that of a listed impairment.”
493 U.S. at 531 (citation omitted).
Listing 1.04(A) provides, in relevant part, as follows:
1.04 Disorders of the spine (e.g., herniated nucleus
pulposus [herniated disc], spinal arachnoiditis, spinal
stenosis, osteoarthritis, degenerative disc disease,
facet arthritis, vertebral fracture), resulting in
compromise of a nerve route (including the cauda equina)
or the spinal cord. With:
characterized by neuro-anatomic distribution
of pain, limitation of motion of the spine,
motor loss (atrophy with associated muscle
weakness or muscle weakness) or accompanied by
sensory or reflex loss and, if there is
involvement of the lower back, positive
supine); . . .
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04(A). Thus, a disability
under Listing 1.04(A) requires an image of a herniated nucleus
pulposus (herniated disc), evidence of neuro-anatomic distribution
of pain, limited motion, motor loss, sensory loss, and positive
straight-leg-raising tests. See id.
Under the regulations, the ALJ’s determination as to whether
the claimant’s impairment meets or equals the Listings must reflect
a comparison of the symptoms, signs, and laboratory findings about
the impairment, as shown in the medical evidence, with the medical
criteria as shown with the listed impairment. See, e.g., 20 C.F.R.
§§ 404.1526(a); 416.926(a). When an adverse finding is made at step
three, the ALJ must justify this determination with more than a
brief, conclusory statement that the claimant’s conditions do not
“meet[ ] or equal one of [the] listings in appendix 1 to subpart
P of part 404.” 20 C.F.R. § 416.920(a)(4)(iii). E.g., Rivera v.
Astrue, No. 10 CV 4324(RJD), 2012 WL 3614323, at *11 (E.D.N.Y.
Aug. 21, 2012) (citing Berry v. Schweiker, 675 F.2d 464, 468
(2d Cir. 1982)). Rather, the ALJ must “set forth a specific
rationale in support of the . . . conclusion.” Berry, 675 F.2d at
468; see also Rivera v. Sullivan, 771 F. Supp. 1339, 1354 (S.D.N.Y.
1991) (The ALJ’s decision must contain “a sufficient explanation of
his reasoning to permit the reviewing court to judge the adequacy
of his conclusions.”). Here, the ALJ found, without analysis or
establish that the claimant has an impairment that meets, equals,
or even remotely approaches the level of severity required by
[Listing] 1.04.” T.23 (emphasis supplied).
Failure to set forth a “specific rationale” does not dictate
determination can be “reasonably inferred” based on “substantial
evidence” contained elsewhere in the opinion. Berry, 675 F.2d at
468-69. The Second Circuit has cautioned, however, that there would
be cases in which a court “would be unable to fathom the ALJ's
rationale in relation to evidence in the record, especially where
credibility determinations and inference drawing is required of the
ALJ.” Berry, 675 F.2d at 469. In such cases, the Second Circuit
“would not hesitate to remand the case for further findings or a
clearer explanation for the decision.” Id. (internal citations
omitted). This is such a case.
First, the ALJ failed to support his step-three conclusions
with a “specific rationale[,]” Berry, 675 F.2d at 468, merely
stating that he had considered Listing 1.04(A) and Plaintiff did
not come “remotely close” to meeting it. However, as Plaintiff
notes, although he had a disc replaced at C6-C7, he still has
“three or four [disc] herniations and two annular tears” as well as
“objective findings which cover the requirements set forth in
1.04(A)[,]” including pain and diminished range of motion in his
neck and sensory loss. Pl’s Mem. at 10 (citing T.213-20, 370).
Plaintiff points to an EMG conducted after his neck surgery which
showed chronic left C-8 radiculopathy and bilateral medial nerve
compression. Id. (citing T.331, 338-339). In addition, Plaintiff
states, he has loss of reflexes and muscle weakness indicative of
motor loss. Id. (citing T.317, 366).
Second, unlike in Berry, the balance of the evidence in the
record does not permit this Court to discern the ALJ’s rationale,
inference drawing” required of the ALJ in this case, Berry, 675
selective—recitation of Plaintiff’s medical history. At no point,
however, did the ALJ attempt to link any given piece of evidence to
the criteria set forth in Listing 1.04(A).
disregarded substantial and uncontradicted evidence of Plaintiff’s
seizure disorder and erred in making his credibility determination.
“The balance of the record thus does not cure the ALJ’s failure to
include a ‘specific rationale’ for his step-three conclusion[.]”
Rivera v. Astrue, No. 10 CV 4324(RJD), 2012 WL 3614323, at *12
(E.D.N.Y. Aug. 21, 2012). The Court is unable to determine whether
the ALJ’s step three conclusion is supported by “substantial
evidence”, and remand is therefore warranted.
On remand, the ALJ should explain his reasons for finding that
Plaintiff does not meet or equal Listing 1.04(A) and should do so
with sufficient specificity to allow a court to meaningfully review
Failure to Consider Epilepsy and Headaches as “Severe
Plaintiff’s second argument is principally focused on the
ALJ’s failure to address, at step two, whether his epilepsy and
migraine headaches were severe impairments.
Id. at 12. Plaintiff
combination, render him unable to do the full range of sedentary
Pl’s Mem. at 11.
The Commissioner is required to “consider the combined effect
of all of [the claimant’s] impairments without regard to whether
sufficient severity” to establish eligibility for Social Security
20 C.F.R. §§ 404.1523; 416.923.
If the Commissioner
“do[es] find a medically severe combination of impairments, the
combined impact of the impairments will be considered throughout
the disability determination process.”
Id.; see also 20 C.F.R.
At step two, impairments are considered “severe”
when they significantly limit a claimant’s physical or mental
cautioned that the severity standard at step two is to be applied
“solely to screen out de minimis claims.” Dixon v. Shalala, 54 F.3d
1019, 1030 (2d Cir. 1995) (citation omitted).
The ALJ found that “there are [sic] no objective evidence
[Plaintiff] has a seizure disorder.” T.23. This statement is
erroneous and is plainly contradicted by the medical record. For
instance, in the diagnosis section of her report, consultative
examiner Dr. Kelley referenced a “seizure disorder” based on
Plaintiff’s history of epileptic seizures since childhood. T.435.
Neurologist Dr. Battaglia diagnosed Plaintiff with epilepsy, which
is clearly recognized as “a type of seizure disorder.”2 In 2006,
accessed July 30, 2013). The Merck Manuals Online Medical Library
states that “[a] seizure disorder (epilepsy) is diagnosed when a
patient has $ 2 seizures not related to reversible stressors.”
Plaintiff reported to Dr. Battaglia that he was experiencing
cluster seizures 2 to 6 times per night, followed by severe
headaches the next day. T.487. In 2010, Plaintiff was suffering
from “complex partial seizures” as well as “nocturnal seizures”.
He reported having 2 to 15 seizures per night, and rarely having
Plaintiff’s seizure disorder was unusual in terms of its frequency
and characteristics. T.488.
Not only did the ALJ err in concluding that Plaintiff did not
suffer from a seizure disorder, he erred in ignoring Plaintiff’s
epilepsy/seizure disorder. T.435. Plaintiff testified that he has
chronic headaches approximately 20 to 30 times per month, and that
these headaches transform into migraines 2 to 15 times per month.
T.47. Plaintiff’s “bad” headaches, which cause photosensitivity,
epileptic seizures, which occur in clusters ranging from 30 seconds
to 5 minutes in duration, sometimes combine with a severe headache.
nt/sec16/ch214/ch214a.html (last accessed July 30, 2013). See
also Franklin v. Consolidated Edison Co. of N.Y., Inc., No. 98
Civ. 2286(WHP), 1999 WL 796170, at *11 (S.D.N.Y. Sept. 30, 1999)
(“Plaintiff has idiopathic seizure disorder, commonly known as
The resultant symptoms can last for several days.
seizures that last approximately 5 minutes cause debilitating
after-effects, and the post-seizure symptoms can last for a 5- to
8-day period. According to Plaintiff, the seizures are sometimes so
severe that he does not leave the house.
T.54. Plaintiff believes
his inability to sleep through the night due to chronic pain
increases his stress level which increases the frequency of his
seizures. T.53. Plaintiff testified that his previous employer made
accommodations for him when he suffered from epileptic seizures and
related symptoms by, e.g., allowing him to go home from work early.
Where, as here, an ALJ misreads a critical piece of evidence
in the record, and then relies on his error in reaching his
“substantial evidence.” See, e.g., Maldonado v. Apfel, 98 Civ.
9037(AKH), 2000 WL 23208, at *1 (S.D.N.Y. Jan. 13, 2000) (decision
of ALJ denying disability benefits could not stand where ALJ had
misread a doctor’s report, and it was thus “plain” that the opinion
improperly “picked and chose” evidence in the record that supported
his conclusion that Plaintiff’s migraine headaches and epilepsy
were not “severe” impairments. See, e.g., Fiorello v. Heckler, 725
Courts in this Circuit have generally remanded for a renewed
severity determination when an ALJ has made an error at step two.
E.g., Spears v. Heckler, 625 F. Supp. 208, 212–13 (S.D.N.Y. 1985);
see also Taylor v. Astrue, No. 6:11–cv–588(GLS), 2012 WL 1415410,
at *2 (N.D.N.Y. Apr. 24, 2012) (cited in Pierce v. Astrue, ___ F.
Supp.2d ___, 2013 WL 2179295, at *13 (W.D.N.Y. May 17, 2013)).
Here, as discussed above, the ALJ erred at step two in finding that
Plaintiff’s epilepsy was not a seizure disorder and in ignoring
suggests that Plaintiff’s seizure disorder and migraine headaches
are “severe impairments” for purposes of step two which, as the
Second Circuit has emphasized, is not a demanding standard.
determination the ALJ shall re-contact Plaintiff’s neurologist,
Dr. Battaglia’s report should also include an evaluation of the
effects, if any, caused by Plaintiff’s various medications.
This information should prove useful in re-assessing Plaintiff’s
The ALJ’s Credibility Assessment
Plaintiff argues that the ALJ failed to properly evaluate his
In particular, Plaintiff claims, the ALJ ignored the
objective medical evidence substantiating his subjective complaints
of pain (e.g., EMG evidence of radiculopathy and bilateral medial
nerve compression) and failed to consider the limiting effects of
Plaintiff’s seizure disorder and migraine headaches. The Court has
already determined sufficient bases exist for ordering the matter
remanded. However, the Court will briefly address Plaintiff’s
contentions so that further errors can be avoided on remand.
The ALJ here found that Plaintiff’s medically determinable
impairments could reasonably be expected to cause the alleged
intensity, persistence and limiting effects were only “partially
consistent with the record.” T.23. In particular, the ALJ noted
that the record did not support Plaintiff’s claim of frequency of
physician, Dr. Hughes, from November 2008, to November 2009,
“indicated he denied any seizures and headaches.” Id. (citing
Dr. Hughes from April 2007, to November 2009. Throughout this timeperiod, in every treatment note except for three, Dr. Hughes
specifically indicating ICD-9-CM code 784.0). T.361-64, 383-84,
387-405, 421-22. On September 22, 2008, Plaintiff denied recent
seizures, but he still was on Depakote, an anticonvulsant used in
the treatment of epilepsy and severe headaches. T.413-14. At an
appointments November 24, 2008, and December 16, 2008, which were
around the time of his second MVA and shoulder surgery, there is no
specific diagnosis of epilepsy or headaches. However, he was on
Depakote which, as noted, is a medication used to treat epilepsy
and headaches. T.416, 418. Thus, Plaintiff was still suffering from
a seizure disorder which apparently was relatively well controlled
on medication at that time.
“Because the ALJ’s adverse credibility finding, which was
crucial to his rejection of [the claimant's] claim, was based on a
misreading of the evidence, it did not comply with the ALJ's
obligation to consider ‘all of the relevant medical and other
evidence,’ 20 C.F.R. § 404.1545(a)(3), and cannot stand.” Genier v.
Astrue, 606 F.3d 46, 50 (2d Cir. 2010); see also Horan v. Astrue,
350 F. App’x 483, 485 (2d Cir. 2009) (finding that where ALJ’s
credibility analysis was based on a number of factual errors
inconsistencies with other evidence, it was not supported by
substantial evidence). The ALJ again selectively parsed the record
to find evidence to support his adverse credibility finding, and
misconstrued the record in his analysis. Accordingly, the Court
cannot say that his credibility determination is supported by
“substantial evidence” and for this additional reason, remand is
warranted. E.g., Rivera v. Astrue, 2012 WL 3614323, at *9 (citing
Genier, 606 F.3d at 48–49 (remanding where ALJ’s credibility
determination was based on the statement that plaintiff admitted
that he was able to perform certain household tasks when, in fact,
assistance because of severe fatigue)).
Commissioner’s denial of DIB and SSI was erroneous as a matter of
law and not based on substantial evidence. Plaintiff’s motion
(Dkt. No. 9) for judgment on the pleadings is granted to the extent
that the Commissioner’s decision is reversed and the matter is
remanded for further administrative proceedings consistent with
this Decision and Order.
The Commissioner’s cross-motion for
judgment on the pleadings (Dkt. No. 13) is denied.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
August 6, 2013
Rochester, New York
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