Palascak v. Astrue

Filing 13

-CLERK TO FOLLOW UP- DECISION AND ORDER denying 7 Commissioner's Motion for Judgment on the Pleadings; granting 9 Plaintiff's 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 consistent with this Decision and Order. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 5/14/14. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SUSAN JANE PALASCAK,
Plaintiff,
DECISION and ORDER
No. 1:11-CV-0592(MAT)

-vsCAROLYN COLVIN, Commissioner of
Social Security,
Defendant.

I.

Introduction
Susan Jane Palascak (“Plaintiff”), represented by counsel,

brings this action pursuant to Title II of the Social Security Act
(“the

Act”),

seeking

review

of

the

final

decision

of

the

Commissioner of Social Security (“the Commissioner”)1 denying her
application for Disability Insurance Benefits (“DIB”). This Court
has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c). Presently before the Court are the parties’ motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure.
II.

Procedural History
Plaintiff filed her application for DIB on November 18, 2008,

alleging disability beginning February 15, 2006, due to back pain,

1

Carolyn W. Colvin has replaced Michael J. Astrue as the Commissioner of
Social Security. She therefore is automatically substituted as the defendant in
this action pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.

a torn rotator cuff, and arthritis. T.121.2 After the application
was denied, T.68, 70-74, Plaintiff requested a hearing before an
administrative law judge. On September 15, 2010, Plaintiff and her
representative appeared before administrative law judge Eric Glazer
(“the ALJ”) for the hearing. See T.9, 31-67, 78-106. The ALJ issued
a decision on October 27, 2010, finding Plaintiff not disabled.
T.12-26. The ALJ’s decision became the final decision of the
Commissioner when the Appeals Council denied Plaintiff’s request
for review on May 17, 2011. T.1-6. This timely action followed.
III. Background
A.

Medical Evidence Prior to the Onset Date

On July 28, 1998, Plaintiff was referred by Naren Kansal, M.D.
to physical therapy for lumbar pain with radiculopathy. T.227.
Plaintiff reported episodic back pain for several years. One month
ago, she developed right foot paresthesias and increased pain on
sitting.

She

was

discharged

on

August

25,

1998,

after

11 treatments, and the physical therapist noted that her lumbar
pain with radiculopathy was resolved. T.228.
Plaintiff returned to the physical therapist on August 15,
2000, with severe left lower extremity pain with numbness into the
left lateral foot, along with severe leg cramping and shooting
pains into the posterior thigh with increased intensity in the

2

Numerals preceded by “T.” refer to pages from the transcript of the
administrative record submitted by Defendant as a separately bound exhibit.

-2-

posterior knee. T.229. Plaintiff had difficulty sitting, standing,
and lying down. She was “unable to do functional activities without
severe pain.” T.229. Plaintiff stopped attending therapy several
weeks into the program because she was doing well and did not feel
she needed further therapy.

She was discharged on December 8,

2000. T.232.
On December 21, 2000, Plaintiff saw Drs. Frederick McAdam and
Paul Olizarowicz at Buffalo Spine & Sports Medicine, P.C., in
follow-up after receiving an epidural injection for her low back
and lower extremity pain secondary to a disc herniation at L5-S1.
The epidural resulted in “[i]mproved symptomatology” but she still
was taking hydrocodone 7.5 mg, as needed. She was performing a home
exercise program after completing a course of physical therapy and
chiropractic care. Drs. Olizarowicz and McAdam noted that her past
medical history was significant for an anxiety disorder. T.247. She
was to follow up with them as needed. Id.
On January 28, 2002, Plaintiff saw Dr. Michael Parentis for
evaluation of her left knee. She explained that she had been trying
out some cheerleading moves with her daughter and her friends, and
when she landed, her knee buckled. She felt a “pop” and was unable
to stand. T.254. Dr. Parentis noted there was a very mild effusion
of the knee, medial joint line tenderness, and significant pain
medially upon meniscal grind testing. T.254. Plaintiff elected to
have

an

arthroscopy

rather

than

-3-

continue

with

conservative

management (anti-inflammatories and a steroid injection). T.255. On
February 8, 2002, Plaintiff underwent a successful left knee
arthroscopy and partial medial, performed by Dr. Parentis. T.25657. Subsequent treatment notes from Dr. Parentis indicate that
Plaintiff developed a deep vein thrombosis (“DVT”) following the
arthroscopy, T.259, but there are no records related to the DVT in
the administrative record.
In May of 2003, Plaintiff saw her primary care physician Shawn
E. Cotton, M.D. with complaints of recurrent depression, anxiety,
panic attacks, and attention deficit disorder. T.522, 525.
On January 27, 2005, Plaintiff returned to see Dr. Parentis
after she slipped while knocking down icicles from her roof. She
had significant pain and swelling in her right knee. T.259. X-rays
revealed a small knee joint effusion along with minimal patellar
spurring and minimal distal femoral and proximal tibial spurring.
The impression was “mild degenerative changes.” T.253. Dr. Parentis
opined that the injury was just a strain and advised conservative
treatment. T.259.
B.

Medical Evidence from February 16, 2006, to June 30, 2006
(The Date Last Insured)

On February 17, 2006, physician’s assistant Robin Massing (“PA
Massing”) at Dr. Cotton’s office evaluated Plaintiff, who had been
having right shoulder pain for the past 3 weeks. The pain was
exacerbated by reaching and putting on clothes, but there was no
weakness, numbness, swelling, or tingling. T.311-12. Examination
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revealed tenderness in the right bicep region and increasing pain
with internal and external rotation and resisted elevation. Motor
and grip strengths were more than full at 5+/5. Deep tendon
reflexes were equal bilaterally in the upper extremities, and there
were no focal deficits. T.311. An x-ray of the right shoulder was
unremarkable. T.252. PA Massing assessed right shoulder pain caused
by a rotator cuff tear and tendinitis, and prescribed lortab and
diclofenac. T.311-12.
At a follow-up visit on February 27, 2006, Plaintiff reported
that her shoulder was still very painful, with increasing pain when
she

lifted,

prednisone

pushed,

had

and

provided

pulled.
slight

T.308-09.

She

improvement.

Upon

stated

that

examination,

PA Massing observed some palpable tenderness. PA Massing assessed
right rotator cuff tendinitis, referred Plaintiff to physical
therapy, and continued prednisone for one week, to be followed by
Daypro. T.308. If there was no improvement, an MRI or orthopedic
referral was indicated. Id.
At a March 3, 2006 examination at East Aurora Family Practice,
Plaintiff complained of right shoulder pain for the past 3 months
unrelieved by prednisone. T.306-07. On examination, Plaintiff had
decreased movement in her right shoulder and pain during movement.
T.307.

The

“probable”

cause

of

the

pain

was

right

shoulder

impingement. Id. Plaintiff received an injection of Kenalog and
Depomedrol in her right shoulder. Id.

-5-

On April 10, 2006, Physician’s Assistant Matthew Mazurczak
(“PA Mazurczak”) at Dr. Parentis’ office evaluated Plaintiff for
complaints of right shoulder pain, which flared up at work. T.260.
On examination, Plaintiff’s had full strength and range of motion
in her right shoulder; she had no pain on cross-arm conduction,
Speed’s testing, or over the biceps; but there was an exquisitely
positive

Hawkins’

sign.

PA

Mazurczak

diagnosed

right-sided

subacromial impingement, and injected the space with a mixture of
Marcaine, Lidocaine, and Kenalog. T.260. Dr. Parentis reviewed and
agreed with this course of treatment. Id.
On

May

12,

2006,

Dr.

Parentis

performed

right

shoulder

diagnostic arthroscopy, arthroscopic subacromial decompression, and
mini-open rotator cuff repair fixed with 2 arthrex corkscrew metal
anchors. T.261-62. Plaintiff tolerated the procedure well. T.262.
Plaintiff

attended

a

PT

appointment

on

May

16,

2006,

complaining of constant right shoulder and upper arm pain, causing
her to be unable to sleep. Plaintiff reported aggravation of
symptoms on reaching overhead/behind, personal care activities,
donning/doffing clothing, sleeping 1 to 2 hours, lifting 2 pounds,
driving, writing,

and

opening doors

and

jars.

At

that

time,

Plaintiff was waiting to be admitted to an alcohol rehabilitation
program.

T.364.

Physical

therapy

with

recommended biweekly for 4 weeks. T.365.

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various

modalities

was

On May 23, 2006, Plaintiff returned to see Dr. Parentis for
follow-up and reported that she was quite sore. T.263. Dr. Parentis
commented, “[o]f note, she had her x-ray done and when she was
moving her body she had increasing discomfort. I think this is just
some scar.” T.263. X-rays were normal, showing good positioning of
the anchors and a “Type I” acromion. Dr. Parentis noted that
Plaintiff was “having a lot pain” but he thought it was “just
standard with some lysis of adhesions.” Id. continue with passive
motion exercises at therapy for the time being. Id.
At

a

reported

June
that

13,
her

2006
right

physical
shoulder

therapy
soreness

session,
had

Plaintiff

improved

with

antibiotics. T.362-63. Plaintiff reported aggravation of symptoms
with

reaching

overhead

and

behind,

personal

care

activities,

donning/doffing clothing, sleeping 3 hours and lifting 2 pounds.
T.363.. Plaintiff was “progressing slowly” and would benefit from
continued

treatment,

including

cold

therapy,

electrical

stimulation, functional training, self-care/home management, home
exercise,

isotonic

strengthening,

and

posterior

shoulder

stabilization exercises. T.363. Active range of right shoulder
flexion had increased to 170 degrees, and passive flexion had
increased to tolerance. Plaintiff was unable to lift her arm
against gravity. Id.
Dr. Parentis examined Plaintiff on June 26, 2006, and noted
that she was doing reasonably well. Some of her discomfort was

-7-

starting

to

dissolve,

and

her

incision

was

well-healed.

On

examination, she had full range of motion with a “little bit” of
discomfort. She had full (5/5) strength with external rotation and
mildly reduced (4-/5) strength with forward flexion. Dr. Parentis
noted that “[o]verall the shoulder is starting to come around. At
this point we can really start to work on strengthening.” T.264. He
expected to see significant improvement in six weeks time. Id.
A June 27, 2006 PT discharge summary indicated that Plaintiff
had failed to show for, or cancelled, additional appointments since
June 20, 2006, due to her admission to an out-of-state alcohol
rehabilitation program, where she underwent a more progressive
strength and home exercise regime. T.362. Her scapular strength was
“improving” but she was still “very weak”. Id.
C.

Medical Evidence After the June 30, 2006 Date Last
Insured

On July 21, 2006, Plaintiff saw PA Andrea Fisher at Dr.
Cotton’s office after being discharged recently from White Deer Run
Medical Center (“WDRMC”) for alcohol withdrawal. T.303. Plaintiff
was complaining of depression and dehydration; she had contracted
an intestinal parasite at WDRMC and had been having diarrhea for
24 days in a row. While she was at WDRMC, she was put on Vistaril,
Robaxin, Sinequan, Cymbalt, Lamictal, Lisinopril, and Pen-Vee-K.
T.303.

PA

Fisher

added

Zyprexa

hypertension. Id.

-8-

for

anxiety

and

Toprol

for

In October 2007, Plaintiff was referred to Dr. Kang for mental
health treatment after she verbalized plans of self-harm while
intoxicated. T.344-46, 357-61. The only report from Dr. Kang’s
office is the note dictated on March 18, 2009, over the telephone
by Ellen Silver, LCSW (“LCSW Silver”) at the request of the state
disability agency. Id. LCSW Silver noted that Plaintiff’s diagnoses
were major depression, recurrent; panic disorder; alcohol abuse;
and a history of attention deficit disorder. T.345. According to
LCSW Silver, Plaintiff had a history of recurrent episodes of
depression and anxiety for 16 years and sought psychiatric help
over those years.3
On

October

3,

2008,

Plaintiff

saw

PA

Mazurczak

at

Dr. Parentis’ office with complaints of a new problem with her
right knee. T.265-66. PA Mazurczak injected the knee with a mixture
of Marcaine, lidocaine, and Kenalog. T.265. She was instructed to
return in 2 weeks for an MRI if the injection did not provide
relief.
Also on October 3, 2008, Plaintiff saw Dr. Cotton complaining
of being unable to sit or stand for more than about an hour at a
time due to radiating pain in her right hip. She was tearful and
depressed but looking forward to future events (e.g., going back to

3

Although LCSW Silver indicates that Plaintiff sought treatment for her
depression and anxiety for 16 years, there are no other records from a mental
health provider in the administrative record. Plaintiff’s attorney indicated at
the hearing that the record was complete.

-9-

school).

T.277.

Her

past

medical

history

was

notable

for

depression/panic attacks. Id. Dr. Cotton diagnosed chronic pain
syndrome and major depression, not otherwise specified. T.278. See
also T.279-80 (Dr. Cotton’s notes from October 20, 2008).
Plaintiff saw Dr. Cotton on August 10, 2008, complaining of
depression and chronic pain (muscle aches, lower back pain with
movement, joint pain and stiffness, and leg cramps). T.285. Her
medications were Topamax, Keflex, MS Contin, Cymbalta, Lyrica,
Lamisil, lisinopril,
Dr.

Cotton

metoprolol,

diagnosed

chronic

doxepin,
pain

and

Prempro.

syndrome

and

T.284.
venous

insufficiency. T.285.
On November 13, 2008, Plaintiff returned to Dr. Parentis’
office

with

complaints

of

bilateral

shoulder

pain

that

was

worsening every week. Plaintiff told PA Mazurczak that at her first
post-op visit after her right rotator cuff repair in 2006, she was
“getting an x-ray and felt a pop. Ever since she says she is [sic]
not

felt

completely

better.”

T.266.

PA

Mazurczak

noted

that

Plaintiff might have a re-tear of her right shoulder rotator cuff
and possibly an impingement of the left shoulder. Id. Plaintiff was
scheduled for an MRI arthrogram of the right shoulder, id., which
revealed a large, “significantly” atrophied and retracted rotator
cuff tear. T.267.
On November 21, 2008, Plaintiff saw PA Mazurczak in follow-up
regarding her right shoulder, complaining of “extreme pain.” T.267.

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PA Mazurczak injected the right shoulder subacromial space with a
mixture of Marcaine, lidocaine, and Kenalog. Id. Because she “can
no longer live at [sic] this[,]” PA Mazurczak scheduled her for a
right shoulder debridement and possible repair (although the chance
for repair was probably 10% or less). He also ordered an MRI
arthrogram of the left shoulder. Id. His assessment was rotator
cuff arthropathy and a significantly retracted rotator cuff tear.
T.267.
On January 12, 2009, Dr. Parentis performed a right shoulder
diagnostic

arthroscopy

with

subacromial

decompression,

distal

clavicle excision, and overall joint debridement and synovectomy.
T.268-71. However, the right rotator cuff was irreparable. Id.
Plaintiff attended physical therapy at Partners In Rehab
beginning January 14, 2009, and was discharged May 4, 2009, due to
poor

patient

follow-up/attendance.

T.366-74.

At

discharge,

Plaintiff was “overall . . . doing good” but was “limited by her
pain and strength.” T.374. She had full passive range of motion of
her right shoulder but had overall weakness in that area. Id.
On January 27, 2009, Plaintiff returned to PA Mazurczak at
Dr. Parentis’ office for her two-week post-op visit. She was still
having pain in her right shoulder. She had good passive range of
motion but a lot of pain with active range of motion. The PA was
unable to

test

her

strength.

T.271.

His

assessment

was that

Planitiff had a “chronically torn” rotator cuff with arthropathy

-11-

and a left-sided full-thickness rotator cuff tear. T.271. Both
shoulders were injected with a mixture of Marcaine, lidocaine, and
Kenalog. Id. Surgery for her left rotator cuff was expected to be
done in 2 to 3 weeks. Id.
On

March

11,

2009,

Plaintiff

saw

Dr.

Cotton,

reporting

increased difficulty with concentration and feeling overwhelmed.
Plaintiff was tearful but denied suicidal thoughts or plans. T.272.
She was taking MS Contin, Lyrica, Prempro, Wellbutrin XL, Cymbalta,
lisinopril, metoprolol, doxepin, and Ritalin. T.272. Dr. Cotton’s
diagnoses

were

chronic

otherwise

specified;

pain

syndrom;

insomnia;

major

depression,

not

menopausal

and

hypertension;

postmenopausal disorder, unspecified; attention deficit disorder,
without mention of hyperactivity. T.273.
In August 2009, Plaintiff underwent bunionectomy surgery.
T.376-79, 397-98. From June 2008, to November 2009, Plaintiff had
a number of issues related to her toes and feet, including acute
gouty attacks, arthritis, significant mycosis of the nails, and
paronychia. T.353, 393-401. She treated with podiatrist Anthony F.
Devincentis, M.D. Id.
On

September

1,

2009,

Plaintiff

was

in

a

motor vehicle

accident (“MVA”), which resulted in chronic cervical pain. She saw
neurologist Kenneth Murray, M.D. on November 25, 2009, whose
impression was that she had suffered acute exacerbation of chronic
pain related to fibromyalgia due to the MVA, and that she also had

-12-

suffered a cervical strain injury. Her pain at that time was
debilitating in nature, and she was having symptoms down both upper
extremities suggestive of possible radiculopathy. T.445.
Plaintiff received physical therapy from Partners In Rehab
from October 12, 2009, to November 9, 2009. T.382-89. She was
discharged due to lack of continued progression, although the
physical therapist had opined that her prognosis was good. T.386,
389.
When she returned on December 9, 2009, Dr. Murray commented
that “[s]ubjectively, her pain was unrelenting and severe,” T.446,
and she was not experiencing any relief with the Lidoderm patches
or Cymbalta. T.445. Dr. Murray reiterated his opinion that she
suffered acute exacerbation of chronic pain related to fibromyalgia
due to the MVA, and that there was “disability stemming from that
accident.” T.446. Dr. Murray discontinued Cymbalta and started her
on Savella; if her mood worsened despite the anti-depressive
effects of Savella, she should restart citalopram. T.448.
Plaintiff was referred to neurologist Eugene Gosy, M.D., who
treated her from March 3, 2010, to June 23, 2010. T.433-41, 445-51,
476-92. Dr. Gosy’s diagnoses were cervicalgia, myofascial pain
syndrome,

brachial

neuritis

or

radiculitis,

not

otherwise

specified, and depressive disorder not otherwise specified. He
prescribed Norco and Skelaxin. T.435.

-13-

In May 2010, she commenced treatment with rheumatologist
Dr.

Carlos

Martinez,

who

diagnosed

her

with

myofascial

pain

syndrome. T.463-73; repeated T.505-12, 514-15.
Additionally, Plaintiff continued receiving treatment from
Dr. Cotton East Aurora Family Practice for various conditions,
including chronic pain syndrome, anxiety/panic attacks, depression,
acute renal failure due to a combination of over-the-counter gingko
biloba diet pills and prescribed medications (Effexor XR, Lyrica,
doxepin, Vistaril pamoate), and bilateral deep vein thrombosis.
T.272-305, 403-31, 454-61, 539-40. When Plaintiff saw Dr. Cotton on
March 29, 2010, he noted that Dr. Gosy had discontinued gabapentin,
administered a cervical epidural, and started her on baclofen and
lortab. However, her pain level was “the same or worse.” T.459.
IV.

General Legal Principles
A.

Eligibility Standards for DIB

In order to be entitled to DIB under Title II of the Act, a
claimant must establish that she became disabled prior to the
expiration of her insured status. 42 U.S.C. §§ 423(a)(1) (A),
423(c)(1).

To

establish

disability

for

purposes

of

DIB,

the

claimant must demonstrate that she is unable to engage in any
substantial

gainful

activity

due

to

a

medically

determinable

physical or mental impairment, or combination of impairments, which
has lasted, or can be expected to last, for a continuous period of
at least 12 months. 42 U.S.C. §§ 423(d)(l)(A). A disabling physical

-14-

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.” 42 U.S.C. § 423(d)(3).
The

five-step

sequential

evaluation

for

adjudicating

disability claims is set forth in 20 C.F.R. §§ 404.1520 and
416.920. The claimant bears the burden of proof at steps 1 through
4,

at

which

Commissioner

point
to

there

demonstrate

is

a

that

limited
there

burden-shift
is

other

work

to

the

in

the

national economy that the claimant can perform. Curry v. Apfel, 209
F.3d 117, 122-23 (2d Cir. 2000).
Evidence of an impairment which reached disabling severity
after the expiration of insured status, or which was exacerbated
after such expiration, cannot be the basis for entitlement to a
period of disability and disability insurance benefits, even though
the impairment itself may have existed before the claimant’s
insured status expired.

See Arnone v. Bowen, 882 F.2d 34, 37–38

(2d Cir. 1989) (“A ‘period of disability’ can only commence,
however, while an applicant is ‘fully insured.’ . . . [R]egardless
of the seriousness of his present disability, unless [the claimant]
became disabled before [the date last insured], he cannot be
entitled to benefits.”) (citations omitted)). In the present case,
Plaintiff’s date last insured was June 30, 2006.

-15-

B.

Standard of Review

Under the Act, the “findings of the Commissioner as to any
fact, if supported by substantial evidence, shall be conclusive.”
42 U.S.C. § 405(g). In reviewing the Commissioner’s decision, a
court will set aside the “decision only where it is based upon
legal error or is not supported by substantial evidence.” Balsamo
v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). An ALJ must set forth
the

crucial

factors

justifying

his

findings

with

sufficient

specificity to allow a court to determine whether substantial
evidence supports the decision. Ferraris v. Heckler, 728 F.2d 582,
587 (2d Cir. 1984).
A reviewing court may not affirm an ALJ’s decision if it
reasonably doubts whether the proper legal standards were applied,
even if

the

decision appears

to

be

supported

by

substantial

evidence. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
V.

The ALJ’s Decision
The ALJ found at step one that Plaintiff had not engaged in

substantial gainful employment. He noted that Plaintiff began
working in April 2009 for PTM Enterprises, earning $3,644.00 in
2009, and $6,254.00 as of August 23, 2010. T.17. The number of
hours she has worked has varied between 10 and 29 per week. Id. At
the time of the hearing, Plaintiff was employed in retail sales at
a consignment shop. T.17-18. She testified that she arranges

-16-

clothing on selling floor display racks and operates the cash
register. Id.
At

step

two,

he

noted

that

Plaintiff

had

“reported the

following severe impairments: right should rotator cuff tear and
impingement, lumbar spine degenerative disc disease, L3-4 and L5-Sl
disc bulge, and L4-5 disc herniation.” T.18. The ALJ found that
these impairments “caused significant limitations” in her ability
to perform basic work activities. Id. (citation omitted). The ALJ
further found that Plaintiff’s “medically determinable behavioral
health-related

impairments

of

depression,

anxiety,

and

panic

attacks did not cause more than minimal limitation” in her “ability
to perform basic mental work activities during the period at issue
and were therefore

nonsevere.”

Id.

The

ALJ then

completed

a

Psychiatric Review Technique, considering the four broad functional
areas set out in the disability regulations for evaluating mental
disorders and in section 12.00C of the Listing of Impairments. See
T.18-19.

Because

determinable

the

mental

ALJ

found

impairment

that

Plaintiff’s

caused

no

more

“medically

than

‘mild’

limitation in any of the first three functional areas and ‘no’
episodes of decompensation which have been of extended duration in
the fourth area, it was nonsevere[.]” T.19 (citing 20 C.F.R.
§ 404.1520a(d)(l)).
At

step

three,

the

ALJ

found

that

Plaintiff’s

asserted

physical impairments did not meet the criteria set forth in Listing

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1.02, Major dysfunction of a joint(s) (due to any cause), and
Listing 1.04, Disorders of the spine. T.19-20.
At step four, the ALJ found that, “giving the claimant the
benefit of the doubt, . . . [she] had the residual functional
capacity to perform no less than light work as defined in 20 CFR
404.1567(b) except that she could do no overhead lifting or lifting
of

heavy

objects

(over

twenty

pounds)

with

the

right

upper

extremity.” T.20; see also T.20-24.
At step five, the ALJ concluded that through the date last
insured, Plaintiff was capable of performing her past relevant work
as a cook for a catering company and teacher’s aide because this
work did not require the performance of work-related activities
precluded by her residual functional capacity.
found

that

Plaintiff

could

perform

work

In addition, he

within

her

residual

functional capacity. T.24-25. Accordingly, Plaintiff was found not
to be under a disability prior to her date last insured. T.25.
VI.

Discussion
A.

Improper Interpretation Of Raw Medical Data By The ALJ

Plaintiff’s sole contention on this appeal is that the ALJ
erroneously

“supported

his

RFC

assessment

with

his

own

interpretation of the objective findings on diagnostic studies[,]”
and in so doing, “made a medical determination that he was not
qualified to make.” Plaintiff’s Memorandum at 6 (citing Balsamo v.
Chater, 142 F.3d 75, 80-81 (2d Cir. 1998); McBrayer v. Secretary of

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Health and Human Servs., 712 F.2d 795, 799 (2d Cir. 1983)).
Defendant has not addressed this argument. As discussed further
below, the Court agrees with Plaintiff.
As

Plaintiff

points

out,

there

are

no

opinions

from

an

acceptable medical source during the period from February 15, 2006,
through June 30, 2006, regarding Plaintiff’s functional limitations
caused

by

her

administrative
source–either
consultative

multiple
record
one

of

examiner

Plaintiff’s

medical

physical
reveals

and
that

Plaintiff’s
retained

history

by

and

mental
no

acceptable

treating
the
given

impairments.

an

medical

physicians

SSA–ever

has

opinion

The

or

a

reviewed
regarding

Plaintiff functional limitations during the relevant period of
time.
Although

residual

functional

capacity

determinations

are

reserved for the Commissioner, see 20 C.F.R. § 404.1527(e)(2),
“administrative law judges are unqualified to assess residual
functional capacity on the basis of bare medical findings in
instances when there is a relatively high degree of impairment.”
Kinslow v. Colvin, Civil Action No. 5:12–cv–1541 (GLS/ESH), 2014 WL
788793, at

*5

(N.D.N.Y.

Feb.

25,

2014)

(citing

Hazlewood

v.

Commissioner of Social Sec., No. 6:12–CV–798 (DNH/ATB), 2013 WL
4039419, at *5 (N.D.N.Y. Aug. 6, 2013) (citing Walker v. Astrue,
No. 08–CV–828, 2010 WL 2629832, at *6 (W.D.N.Y. June 11, 2010));
see also Deskin v. Commissioner of Social Sec., 605 F. Supp.2d 908,

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912 (N.D. Ohio 2008); Isaacs v. Astrue, ___ F. Supp.2d ___, 2009 WL
3672060, at *11 (S.D. Ohio 2009) (“The ALJ rendered her RFC finding
for medium work without reference to any medically determined RFC
opinion bridging the raw medical data to specific functional
limitations. Because there is no medical source opinion supporting
the ALJ’s finding that the plaintiff can perform ‘medium’ work, the
Court concludes the ALJ’s RFC determination is without substantial
support in the record”)).
Here, the ALJ found that Plaintiff had the RFC to perform “no
less than” light work with one limitation–that she could not lift
greater than 20 pounds with her right arm. The RFC for light work,
however,

contemplates

the

ability

to

perform

sustained

work

activities in an ordinary work setting on a regular and continuous
basis. “A ‘regular and continuous basis' means 8 hours a day, for
5 days a week, or an equivalent work schedule.” SSR 96–8, 1996 WL
374184, at *1. Light work requires the ability not only to lift
objects weighing up to 20 pounds, but also capacity to carry
frequently objects weighing up to 10 pounds. See SSR 83–10, Titles
II

and

XVI:

Determining

Capability

To

Do

Other

Work—The

Medical–Vocational Rules of Appendix 2, 1983 WL 31251, at *5
(S.S.A. 1983). It requires ability to stand and walk up to 6 hours
in a normal work day, or to sit most of the time with some pushing
and pulling of arm-hand or leg-foot controls. Id.

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As

noted

above,

no

acceptable

medical

sources

expressed

opinions about Plaintiff’s capacities to engage in work at any
exertional level on a regular and continuous basis in an ordinary
work setting. There is no medical opinion regarding Plaintiff’s
capacity to sit, stand, walk, push, lift and pull, which are
necessary activities for light work. As discussed below, the ALJ
failed to make a function-by-function assessment of Plaintiff’s
limitations, and thus he did not even specifically opine regarding
Plaintiff’s capacity to sit, stand, walk, push, lift and pull.
Rather, he simply stated that “[a]lthough she had pain complaints,
the record did not establish a reasonable basis for disabling pain
reports prior to June 2006” because “[h]er activities of daily
living

included

a

heavy

family

schedule

with

the

claimant

attending, without limitation, all school functions associated with
her middle school and high school level daughters.” T.24. Plaintiff
testified,

however,

that

she

attended

her

daughters’

school

functions despite the fact that she experienced significant pain
during them. It is unclear to this Court how occasionally attending
a school function is equivalent to performing the equivalent of
light work, 8 hours a day, for 5 days a week. “[P]erformance of
daily activities is not necessarily a clear and convincing reason
to discredit a [claimant’s] testimony.” Provencio v. Astrue, No. CV
11–141–TUC–BPV, 2012 WL 2344072, at *12 (D. Ariz. June 20, 2012)
(citing Webb v. Barnhart, 433 F.3d 683, 687-88 (9th Cir. 2005) (“The

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mere fact that a plaintiff has carried on certain daily activities,
such as grocery shopping, driving a car, or limited walking for
exercise, does not in any way detract from her credibility as to
her

overall

disability.

One

does

not

need

to

be

‘utterly

incapacitated’ in order to be disabled.”) (quoting Vertigan v.
Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (brackets omitted)).
Where, as here, the medical findings and reports merely
diagnose the claimant’s impairments without relating the diagnoses
to specific physical, mental, and other work-related capacities,
the

administrative

law

judge’s

“determination

of

residual

functional capacity without a medical advisor’s assessment of those
capacities is not supported by substantial evidence.” Id. (citing
Hazlewood, 2013 WL 4039419, at *5); see also Deskin, 605 F. Supp.2d
at 912. Given Plaintiff’s multiple physical and mental impairments,
this is not a case where the medical evidence shows “relatively
little physical impairment” such that the ALJ “can render a common
sense

judgment

about

functional

capacity.”

Manso-Pizarro

v.

Secretary of Health & Human Servs., 76 F.3d 15, 17 (1st Cir. 1996).
In sum, because there is no medical source opinion to support
the ALJ’s residual functional capacity finding, the Court concludes
that it lacks substantial evidentiary support. E.g., House v.
Astrue, No. 5:11–CV–915 (GLS), 2013 WL 422058, at *4 (N.D.N.Y. Feb.
1, 2013) (citations omitted); Aceto v. Commissioner of Social Sec.,
No. 6:08–CV–169 (FJS), 2012 WL 5876640, at *16 (N.D.N.Y. Nov. 20,

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2012) (because “the ALJ had nothing more than treatment records and
consultative reports to review, he had an affirmative duty to
develop the record and request that Plaintiff’s treating physicians
assess her RFC”). “A pivotal finding” such as residual functional
capacity that is “unsupported by substantial evidence is not a
harmless error.” Anderson v. Colvin, Civil Action No. 5:12–cv–1008
(GLS/ESH), 2013 WL 5939665, at *9 & n.28 (N.D.N.Y. Nov. 5, 2013)
(citations omitted). Remand accordingly is required. See id.
B.

Other Errors

The ALJ made a number of other errors that Plaintiff has not
raised, but which deserve mention here in order to avoid repeating
of them on remand.
The ALJ erred by failing to make a function-by-function
assessment of Plaintiff’s ability to perform the physical and
mental requirements of light-duty work. The Act’s regulations
require

that

the

“function-by-function

ALJ

include

analysis

of

in

his

the

RFC

assessment

claimant’s

a

functional

limitations or restrictions and an assessment of the claimant’s
work-related abilities on a function-by-function basis.” Zurenda v.
Astrue, No. 11–CV–1114 (MAD/VEB), 2013 WL 1183035, at *4 (N.D.N.Y.
Mar. 1, 2013), report and recommendation adopted, 2013 WL 1182998
(N.D.N.Y.

Mar. 21, 2013). In other words, the ALJ “must make a

function-by-function assessment of the claimant’s ability to sit,
stand, walk, lift, carry, push, pull, reach, handle, stoop, or

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crouch.” Id. (citing 20 C.F.R. § 404.1513(c)(1); §§ 404.1569a(a),
416.969a(a); Martone v. Apfel, 70 F. Supp.2d 145, 150 (N.D.N.Y.
1999)).

The

ALJ’s

RFC

assessment

simply

recites

Plaintiff’s

testimony and summarizes the medical record without tying this
evidence to the physical and mental functional demands of light
work.
The ALJ’s credibility assessment was flawed because he failed
to give consideration to the required factors. See Brandon v.
Bowen, 666 F. Supp. 604, 608 (S.D.N.Y. 1987) (citing, inter alia,
Valente v. Secretary of Health and Human Servs., 733 F.2d 1037,
1045 (2d Cir. 1984); footnote omitted). Instead, he simply found
Plaintiff’s statements not credible to the extent they conflicted
with his own RFC assessment. “The assessment of a claimant’s
ability to work will often depend on the credibility of her
statements

concerning

the

effects of her symptoms.”

intensity,

persistence

and

limiting

Otero v. Colvin, 12–CV–4757, 2013 WL

1148769, at *7 (E.D.N.Y. Mar. 19, 2013). Thus, it is not logical to
decide a claimant’s RFC prior to assessing her credibility. To then
use that RFC to discredit the claimant’s testimony merely compounds
the error.
The

Id.
ALJ

also

materially

misstated

the

record

when

he

commented, “Psychiatric problems do not enter into the clinical
picture until after the date last insured[,]” T.24, i.e., June 30,
2006. Earlier he had noted that Plaintiff had been “treated for

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depression, anxiety, and attention deficit disorder by Balvinder
Kang, M.D., but not until 2007.” T.20. This is incorrect. The
medical record clearly indicates that Plaintiff was being treated
for depression, anxiety, and attention deficit disorder prior to
the

date

last

insured.

For

instance,

treatment

notes

from

Dr. Cotton from May 6, 2003, state that Plaintiff was in the office
“for reevaluation of her depression and anxiety. She has a long
history of treatment resistant to depression for which she has been
on multiple medications. She also has panic attacks that keep her
from driving on many roads.” T.522. In addition, while she was in
the month-long alcohol rehabilitation program in June-July 2006,
she was prescribed Vistaril, Sinequan, Cymbalta, and Lamictal for
depression and anxiety. The Court notes that Plaintiff’s admission
to rehab occurred prior to the date last insured. Thus, her
depression and anxiety were being treated before the date last
insured. Furthermore, the note on which the ALJ relied to find that
Plaintiff did not see Dr. Kang until 2007 contains an important
notation, wholly ignored by the ALJ–that Plaintiff had a 16-year
history of recurrent episodes of depression and anxiety and had
sought psychiatric help over those years before coming to seek
Dr. Kang. It is true, as the ALJ notes, that Plaintiff’s attorney
indicated that the record was complete.

However, the fact that a

claimant has an attorney representative does not obviate the ALJ’s
duty to develop the record fully. Pagan on behalf of Pagan v.

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Chater, 923 F. Supp. 547, 553 (S.D.N.Y. 1996) (citations omitted).
On remand, the ALJ is directed to obtain the records from the
16 years of mental health treatment referenced in Dr. Kang’s note
and to obtain a medical source statement from one of Plaintiff’s
mental health services providers with regard to the period of time
at issue. Based upon the contents of these records, a new step two
severity determination and residual functional capacity assessment
likely will be required.
In

addition,

the

ALJ’s

phrasing

of

Plaintiff’s

RFC

is

ambiguous. Insofar as he states that she retains the capacity to
perform “no less than” light work, he implies that she could
perform work at a greater exertional level. Similar ambiguities
should be avoided on remand.
VII. Conclusion
For the foregoing reasons, Defendant’s motion for judgment on
the pleadings is denied, and Plaintiff’s motion 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.
SO ORDERED.
S/Michael A. Telesca
________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

May 14, 2014
Rochester, New York
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