Demler v. Colvin

Filing 15

DECISION AND ORDER granting in part and denying in part 5 Plaintiff's Motion for Judgment on the Pleadings consistent with this Decision and Order; denying 11 Commissioner's Motion for Summary Judgment. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 3/28/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK
MARGARET R. DEMLER,
Plaintiff,

14-CV-424

-vNANCY A. BERRYHILL,
Acting Commissioner OF Social
Security1,

DECISION AND ORDER

Defendant.

Plaintiff Margaret R. Demler (“plaintiff”) brings
this action under Title II of the Social Security Act
(the “SSA”), claiming that Defendant Nancy A. Berryhill,
the

Acting

Commissioner

“Commissioner”

or

of

“defendant”)

Social

Security

improperly

denied

(the
her

application for disability insurance benefits (“DIB”).
Currently 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.

For the

reasons set forth below, plaintiff’s motion is granted in
part and denied in part, defendant’s motion is denied,

1

Nancy A. Berryhill replaced Carolyn W. Colvin as Acting
Commissioner of Social Security on January 23, 2017. The Clerk of
the Court is instructed to amend the caption of this case pursuant
to Federal Rule of Civil Procedure 25(d) to reflect the
substitution of Acting Commissioner Berryhill as the defendant in
this matter.

and

the

matter

is

remanded

to

the

Commissioner

for

further administrative proceedings consistent with this
Decision and Order.
PROCEDURAL HISTORY
On June 1, 2011, plaintiff filed an application for
DIB alleging disability as of September 6, 2010, due to
chronic

pulmonary

depression,

and

obstructive

(“T.”) 71, 116-22, 141.

(“COPD”),

Administrative

anxiety.

disease

Transcript

Plaintiff’s application was

denied on October 11, 2011.

T.

72-75.

A hearing, at

which plaintiff testified, was held on October 29, 2012,
before

administrative

McDougall.

T. 40-64.

law

judge

("ALJ")

Donald

T.

The ALJ issued an unfavorable

decision on December 6, 2012. T. 19-39.
Considering the case de novo and applying the fivestep

analysis

contained

in

the

Social

Security

Administration’s regulations (see 20 C.F.R. §§ 404.1520,
416.920),
findings:

the
(1)

requirements

of

ALJ

made,

inter

plaintiff
the

SSA

met
through

alia,
the

the

following

insured

December

31,

status
2015;

(2) plaintiff had not engaged in substantial gainful

2

activity since September 6, 2010, the alleged onset date;
(3) plaintiff’s COPD, asthma, sleep apnea, degenerative
joint disease, osteoarthritis, and obesity were severe
impairments;

(4)

plaintiff’s

impairments,

singly

or

combined, did not meet or medically equal the severity of
any impairments listed in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520[d], 404.1525, 404.1526); and
(5)

plaintiff

had

the

residual

functional

(“RFC”)

capacity to perform the full range of sedentary work. T.
22-31.

The ALJ further found that plaintiff was able to

perform her past relevant work as a secretary and that
she had not been under a disability as defined in the SSA
from September 6, 2010, through the date of the ALJ’s
decision.

T. 34.

Plaintiff filed a request for review with the Appeals
Council on February 1, 2013.

T. 17-18.

On March 13,

2014, the Appeals Council issued a Notice of Appeals
Council Action granting review of the ALJ’s decision and
indicating that the Appeals Council planned to make a
corrective

decision

determination.

to

modify

T. 112-115.

3

the

ALJ’s

RFC

Then, on May 7, 2014, the

Appeals Council (apparently inadvertently) issued two
different orders.

The first order (the “Remand Order”)

remanded the claim to the ALJ to consider nonexertional
limitations in the RFC and to obtain a vocational expert
to opine on the effect of the assessed limitations on
plaintiff’s occupational base.

T.

11-13.

The second

order (the “Modification Order”) modified the ALJ’s RFC
finding to include a limitation on concentrated exposure
to cold/heat, wetness/humidity, and fumes, gases, odors,
dust, etc., and otherwise upheld the ALJ’s findings.
8-9.

T.

On July 2, 2014, the Appeals Council sent a letter

to plaintiff explaining that the Remand Order had been
added to the electronic file in error and that the
Modification Order represented the final decision of the
Commissioner.

T. 1-2.

Plaintiff seeks review of the

Commissioner’s final decision in the instant action.
DISCUSSION
I.

General legal principles
42 U.S.C. § 405(g) grants jurisdiction to district

courts to hear claims based on the denial of Social
Security benefits.

Section 405(g) provides that the

4

District Court “shall have the power to enter, upon the
pleadings

and

transcript

of

the

record,

a

judgment

affirming, modifying, or reversing the decision of the
Commissioner

of

Social

Security,

with

or

without

remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
This section directs that when considering such a claim,
the Court must accept the findings of fact made by the
Commissioner, provided that such findings are supported
by substantial evidence in the record.
When determining whether the Commissioner’s findings
are supported by substantial evidence, the Court's task
is

“‘to

examine

contradictory

the

evidence

entire
and

record,

evidence

including
from

which

conflicting inferences can be drawn.’” Brown v. Apfel,
174 F.3d 59, 62 (2d Cir. 1999), quoting Mongeur
Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983).

v.

Section

405(g) limits the scope of the Court’s review to two
inquiries: (1) whether the Commissioner’s findings were
supported by substantial evidence in the record as a
whole and (2) whether the Commissioner’s conclusions are
based upon an erroneous legal standard. See Green–Younger

5

v. Barnhart, 335 F.3d 99, 105–106 (2d Cir. 2003).

“The

Court [cannot] defer to the Commissioner’s determination
if it is the product of legal error.” Wilson v. Colvin,
107

F.

Supp.

3d

387,

401

(S.D.N.Y.

2015)

(internal

quotation marks ommitted).
A.

Relevant medical evidence

Plaintiff’s medical records show that she has treated
with primary care physician Dr. Jihad H. Abialmouna and
nurse practitioner (“NP”) Lori A. Moresco of Tonawanda
Medical Practice (“TMP”) since March 2000.
65, 322-40, 345-57.

T.

144, 227-

Notably, the administrative record

only contains medical records from TMP from January 5,
2010 to September 20, 2012.
Plaintiff was admitted to the hospital in June 2009
after two days of shortness of breath and coughing.
198.

The

T.

administrative record does not contain any

records from this hospital admission.
On October 6, 2009, plaintiff was seen at TMP.

T.

198.

After noting that plaintiff’s pulse oximetry was

90%,

Dr.

Abialmouna

admitted

plaintiff

to

DeGraff

Memorial Hospital (“DeGraff”) for additional evaluation.

6

Id.

Plaintiff was admitted to DeGraff for 10 days (from

October 6, 2009, to October 15, 2009), during which time
she required oxygen and a Ventolin inhaler every four
hours. Id. Plaintiff’s final diagnoses were exacerbation
of COPD, secondary bronchitis, hypertension, and mild
depression.

Id.

On discharge, plaintiff’s medications

were avelox, xopenex, advair, prednisone, lisinopril, and
hydrochlorothiazide.

Id.

Plaintiff was also started on

a NicoDerm patch to aid with smoking cessation.

Id.

Plaintiff presented at the DeGraff emergency room on
November 15, 2009, complaining of a debilitating headache
that she apparently believed had been triggered by a COPD
attack.

T.

211-15.

Plaintiff was admitted and a CT

scan of her head and brain was performed, which was
unremarkable

T. 215.

Plaintiff was discharged later the

same day as her condition had improved.

T. 214.

Plaintiff treated with NP Moresco at TMP on January
5, 2010.

T. 228-29.

Plaintiff reported that she was

feeling better and had ceased using oxygen at home.
228.

T.

Plaintiff further reported that she had ceased

7

smoking in October and continued to be smoke-free.

Id.

Plaintiff had decreased breath sounds bilaterally.

Id.

Plaintiff

was

again

hospitalized

at

DeGraff

on

January 14, 2010, and an echocardiogram was performed,
which showed evidence of diastolic dysfunction.
202.

The

administrative

record

does

not

T. 200-

contain

a

discharge summary or other information regarding the
reason

for

this

hospitalization

or

any

associated

diagnoses.
Plaintiff was admitted to DeGraff on April 25, 2010,
for shortness of breath.

T. 219-226.

Plaintiff was

diagnosed with acute exacerbation of asthma and a chest
x-ray was performed, which showed no pathology.
226.

T. 220,

Plaintiff was discharged later that same day.

T.

220.
On May 25, 2010, Plaintiff treated with NP Moresco at
TMP.

T. 232-33.

smoking.

Plaintiff reported that she had resumed

T. 232.

Plaintiff was experiencing shortness

of breath and wheezing.
expiratory

wheezes

over

Id.
the

She exhibited rhonchi and
lungs

bilaterally.

Id.

Records of plaintiff’s visits with NP Moresco indicate

8

that plaintiff continued to smoke through July and August
of 2010.

Tr. 234, 238.

On September 9, 2010, plaintiff presented to the
DeGraff emergency room with shortness of breath that had
not

improved

with

use

of

her

nebulizer.

T.

203.

Plaintiff was diagnosed with exacerbation of COPD and
secondary bronchitis, and was hospitalized from September
9, 2010, to September 14, 2010, during which time she
received nebulizer treatments every two hours.
discharge,

plaintiff

was

advised

to

Id.

continue

On
her

medications, which included cymbalta, prozac, lisinopril,
and chantix for smoking cessation.

Id.

Plaintiff followed up with NP Moresco on September
17, 2010.

T. 240.

Plaintiff was taking her medication

as prescribed but was still smoking.

Id.

Plaintiff

exhibited rhonchi and expiratory wheezes over the lungs
bilaterally.

Id.

Plaintiff saw NP Moresco again on

September 24, 2010, at which time she reported that she
was

“breathing

better.”

T.

242.

Plaintiff

again

exhibited rhonchi and expiratory wheezes over the lungs
bilaterally.

Id.

On September 30, 2010, plaintiff saw

9

NP Moresco for disability paperwork.

T.

244.

At that

time, her lungs were clear anteriorly, posteriorly, and
laterally.

Id.

Plaintiff treated with NP Moresco on November 30,
2010.

T.

248.

Plaintiff was not smoking at the time,

but was concerned about returning to work at the casino,
which was smoke-filled.

Id.

Plaintiff’s lungs were

again clear anteriorly, posteriorly, and laterally.

Id.

Plaintiff saw NP Moresco on February 11, 2011, at
which time she was not smoking.
2011, plaintiff returned to TMP.

T. 251.

On March 7,

T. 253.

Plaintiff was

still not smoking at this time, but was struggling with
wheezing

and

examination,

breathing
she

difficulties.

exhibited

rhonchi,

Id.
wheezes,

respiratory wheezes over the lungs bilaterally.
NP

Moresco

completed

a

Pulmonary

Medical

Statement dated April 6, 2011. T. 303-306.
diagnoses were COPD and hypertension.

On
and

Id.
Source

Plaintiff’s
T. 303.

NP

Moresco noted that Plaintiff had been hospitalized “3-4
times” for exacerbation of her COPD symptoms.

Id.

NP

Moresco further noted that Plaintiff had asthma attacks

10

on a daily basis, but these attacks were better managed
by

medication

During

an

and

Plaintiff’s

average

attack,

incapacitated for one week.

Id.

pulmonary
Plaintiff

doctor.

Id.

would

be

NP Moresco noted that

working in a facility that allows smoking exacerbated
Plaintiff’s COPD often.

Id.

NP Moresco further opined

that Plaintiff’s impairments had lasted or were expected
to last at least twelve months, and that plaintiff could:
walk three city blocks without rest or severe pain; sit
for fifteen minutes at a time; stand for fifteen minutes
at a time; stand or walk for about two hours in an eight
hour workday; and sit for 4-6 hours in an eight hour
workday. T. 304.

According to NP Moresco, plaintiff

would require unscheduled breaks during the working day
on an unpredictable basis, during which time she would
need to sit quietly.

Id. Moreover, plaintiff could:

frequently lift and carry 10 pounds, occasionally lift
and carry 20 pounds, and never lift and carry 50 pounds,
never twist, rarely stoop, crouch, or squat, never climb
ladders, and never to rarely climb stairs.

T. 305.

NP

Moresco opined that plaintiff was to avoid all exposure

11

to extreme heat, high humidity, cigarette smoke, fumes,
odors, and gases, dust, and chemicals.
was likely to be “off task”

Id.

Plaintiff

25% or more of the time, was

incapable of even “low stress” jobs, and was likely to be
absent from work about one day per month.

T. 305-306.

Plaintiff was seen at TMP in May and June of 2011,
and was not smoking.
plaintiff

returned

T. 255-58.

to

TMP

complaining

T.

respiratory symptoms.
smoking at the time.

On July 26, 2011,

339.

Id.

of

worsening

Plaintiff was not

On examination, plaintiff’s

lungs were hyperventilated, and she exhibited bilateral
wheezing.

Id.

It was recommended that plaintiff seek

breathing treatments.
at

TMP

on

September

T.
2,

340.

Plaintiff was seen again

2011,

where

she

reported

continuing to have difficulty breathing and wheezing.

T.

337.

On

Plaintiff was not smoking at this time.

Id.

examination, plaintiff exhibited rhonchi, wheezes, and
expiratory wheezes over the lungs bilaterally.
On

September

6,

2011,

plaintiff

T. 338.

underwent

a

consultative internal medicine examination by Dr. Donna
Miller.

T.

266-69.

Plaintiff

12

underwent

a

limited

pulmonary

function

test,

obstruction

with

medication.

T. 269.

should

avoid

tobacco.

any

no

which

significant

showed

moderate

improvement

post

Dr. Miller opined that plaintiff

exposure

to

dust,

irritants,

and

Id.

On October 13, 2011, plaintiff presented at the
DeGraff emergency room with shortness of breath.

T. 308.

Plaintiff had taken two nebulizer treatments at home
without improvement.
Plaintiff

received

Id.

While in the emergency room,

Solu-Medrol

IV,

as

well

as

two

nebulizer treatments, with no significant improvement.
Id.

An EKG test showed sinus tachycardia.

T. 311.

Plaintiff was assessed with (1) exacerbation of COPD; (2)
asthmatic

bronchitis;

(3)

symptomatic

tachycardia

secondary to inhaled bronchodilators; (4) history of
allergies;

and

(5)

history

of

tobacco

abuse.

Id.

Plaintiff was admitted to the hospital for one week,
until October 20, 2011.

T. 316-17.

On November 3, 2011, plaintiff underwent an exercise
stress test and myocardial perfusion study at DeGraff,
both of which showed unremarkable results.

13

T. 318, 320.

Plaintiff saw NP Moresco at TMP on November 11, 2011.
T. 331.
time.

Plaintiff continued to be smoke-free at that
Id.

Plaintiff

difficulty breathing.

complained

Id.

of

wheezing

and

On examination, diminished

sound was appreciated over her lungs bilaterally.

T.

332.
Plaintiff returned to TMP on January 12, 2012.
327.

T.

Plaintiff was still a non-smoker at that time,

though she reported that she still craved nicotine.

Id.

On examination, diminished sound was again appreciated
over her lungs bilaterally.

T. 328.

On May 3, 2012, plaintiff was seen at TMP for an
annual physical.

T. 351-53.

Plaintiff had resumed

smoking at that time, though she claimed that she was
“not

[smoking]

that

much.”

Id.

On

examination,

plaintiff exhibited inspiratory wheezes over her lungs
bilaterally.

Id.

On September 12, 2012, plaintiff was seen by NP
Moresco.

T.

wheezing

and

345-46.

Plaintiff complained of increased

shortness

of

breath.

T.

345.

On

examination, diminished sounds with some fine crackles

14

and

wheezing

were

appreciated

over

the

lungs.

Id.

Plaintiff was given a nebulizer treatment with albuterol,
which improved her condition.

T. 346.

On September 20, 2012, Dr. Abialmouna reviewed and
signed off on the Pulmonary Medical Source Statement
completed by NP Moresco.
B.

T.

341-44.

Relevant non-medical evidence.

Plaintiff was born on May 11, 1958, and was 52 years
old as of the alleged onset date of September 6, 2010.
T.

44.

Plaintiff is a high school graduate and has

worked throughout her adult life.

T.

122-37.

Plaintiff

most recently worked as a professional fundraiser from
August

1993

to

December

2000

and

as

a

cage

shift

supervisor at the Seneca Niagara Casino from December
2002 to December 2010.

T.

142.

Plaintiff’s employment

with the Seneca Niagara Casino ended because they were
unable to provide her with a smoke-free work environment.
T. 44.
Plaintiff testified before the ALJ that she used a
nebulizer once or twice a week, and that she took Xanax
daily because the nebulizer made her “shaky.”

15

T. 45-46.

Plaintiff stated that she could keep her asthma under
control “most days” and that she was currently smokiung
half a pack of cigarettes per day.

T. 48-49.

II. Remand is required because the ALJ failed to properly
consider medical listing 3.03.(B) for asthma.
Plaintiff contends that remand is warranted for the
following
listing

reasons:

3.03.(B)

(1)

for

to

properly

asthma;

(2)

consider

the

ALJ

medical

failed

to

properly evaluate the opinion of treating physician Dr.
Abialmouna

and

failed

to

weigh

the

opinion

of

consultative physician Dr. Miller at all; (3) the ALJ
erred

in

failing

to

find

plaintiff’s

heart

disease,

anxiety, and depression to be severe impairments; (4) the
Commissioner violated SSR 96-3P and SSR 96-SP and relied
on an RFC finding that is not based on substantial
evidence; and (5) the ALJ failed to develop the record.
Defendant responds that the ALJ’s determination was based
on

substantial

evidence

in

the

record.

The

Court

concludes that remand is warranted due to legal error
because the ALJ failed to properly consider

medical

listing 3.03.(B) for asthma and additional development of
the record is necessary.
16

At step three of his analysis, the ALJ was required
to assess whether plaintiff’s impairments, considered
alone or in combination, met or equaled the severity of
any impairment listed at 20 C.F.R. Part 404, Subpart P,
Appendix 1. At the time the ALJ issued his decision in
this matter, medical listing 3.03(B) for asthma provided
as follows:
[A]ttacks (as defined in 3.00C), in spite of
prescribed treatment and requiring physician
intervention, occurring at least once every 2
months or at least six times a year. Each
in-patient hospitalization for longer than 24
hours for control of asthma counts as two
attacks, and an evaluation period of at least 12
consecutive months must be used to determine the
frequency of attacks.
20 C.F.R. Pt. 404, Subpt. P, App. 1, §3.03(b) (as of
December

6,

2012).2

In

considering

medical

listing

3.03(B), the ALJ held that plaintiff’s “asthma fails to
2

Medical listing 3.03(B) was amended effective October
7, 2016, and now requires three attacks within a twelvemonth period, each of which must last at least fortyeight hours. However, in reviewing the Commissioner’s
decision, the Court applies the listing as it existed
when that decision became final. See Lowry v. Astrue, 474
Fed. Appx. 801, 805 n. 2 (2d Cir. 2012) (where
regulations governing the ALJ’s evaluation of a claim are
amended after the ALJ’s decision, the court will “apply
and reference the version ... in effect when the ALJ
adjudicated [the claimant’s] disability claim”).
17

meet or equal the criteria [of this listing] . . .
[because she does not] have attacks requiring physician
intervention at least once every two months.

She has

been hospitalized, but only twice since the alleged onset
date.”

T. 31.

The ALJ’s consideration of medical listing 3.03(B)
failed to apply the proper legal standard, because the
ALJ failed to acknowledge that medical listing 3.03(B) is
met where a claimant has attacks requiring physician
intervention at least six times per year, and not just
when attacks occur once every two months.

See Green v.

Colvin, 2016 WL 943620, at *12 (W.D.N.Y. Mar. 14, 2016)
(remand is required where ALJ does not clearly consider
the criteria set forth in a medical listing); see also
Norman v. Astrue, 912 F. Supp. 2d 33, 81 (S.D.N.Y. 2012)
(the ALJ has an obligation to discuss the potential
applicability
explanation

of

of

listing

his

criteria

reasoning

as

and
to

to
why

provide

an

plaintiff’s

impairments do not meet or equal them).
Significantly, this is not a case in which it is
clear from the record that application of the correct

18

legal standard could lead only to one conclusion.

See

Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010)
(remand is not required “where application of the correct
legal principles to the record could lead [only to the
same] conclusion”).

To the contrary, the record shows

that plaintiff was hospitalized for asthma attacks on
October 6, 2009; April 25, 2010; and September 9, 2010,
for a total of at least five attacks (with the October 6,
2009 and September 9, 2010 hospitalizations each counting
for two attacks, because they lasted for more than 24
hours).

Plaintiff was also hospitalized on November 15,

2009, and January 14, 2010, but the administrative record
is incomplete with respect to these hospital admissions.
With respect to the November 15, 2009 admission, the
record does not contain the discharge summary or nurses’
notes,

and

the

records

that

are

references to plaintiff’s COPD.
January

14,

2010

admission

are

present

do

contain

The records for the
even

more

sparse,

consisting solely of the results of an echocardiogram.
Without complete records of these hospital admissions,
the Court is unable to determine whether plaintiff in

19

fact had six attacks, as defined in medical listing
3.03(B), within a twelve month period.
“It is the rule in our circuit that the ALJ, unlike
a judge in a trial, must . . . affirmatively develop the
record in light of the essentially non-adversarial nature
of a benefits proceeding.
Commissioner’s
complete

This duty arises from the

regulatory

medical

record

obligations
before

making

to
a

develop

a

disability

determination . . . and exists even when, as here, the
claimant is represented by counsel.”
94

F.3d

omitted).

34,

37

(2d

Cir.

1996)

Pratts v. Chater,

(internal

quotations

In this case, the ALJ was alerted to the

missing records regarding the January 14, 2010 hospital
admission by plaintiff’s attorney (see T. 63), but did
not seek any additional records.
obligated

to

seek

further

While the ALJ is not

medical

records

where

the

record evidence is sufficient for the ALJ to make a
disability determination (see Martinez-Paulino v. Astrue,
2012 WL 3564140, *14 (S.D.N.Y. 2012)), here, the missing
records are critical to the assessment of whether or not

20

plaintiff’s impairments meet or equal medical listing
3.03(B).
Defendant argues that remand is unnecessary in this
matter

because

(1)

plaintiff

did

not

adhere

to

her

prescribed medical regimen, inasmuch as she continued to
smoke, and (2) plaintiff did not have six attacks after
her disability onset date.

These arguments are without

merit.
First, with respect to the issue of smoking, the
record shows that plaintiff did in fact make extensive
efforts to quit smoking, including by taking Chantix and
using

NicoDerm

patches,

successful in doing so.

and

that

she

was

largely

While it is true that plaintiff

suffered from occasional relapses, this Court cannot
determine

as

a

matter

of

law

that

these

relapses

constitute an unjustified failure to adhere to prescribed
treatment.

See, e.g., Neely v. Astrue, 2010 WL 3895349,

at *2 (D. Md. Sept. 30, 2010) (ALJ erred in determining
that claimant did not meet medical listing 3.03(B) for
failure to comply with treatment plan because there are
circumstances in which less than perfect compliance may

21

be justified).

Instead, the ALJ, as the fact-finder,

must make that determination on remand.
Second, nothing in medical listing 3.03(B) (as it
existed at the time of the Commissioner’s final decision
in this case) requires that the six attacks in question
occur after the disability onset date.

To the contrary,

the regulations make it clear that the criteria of a
medical listing are considered separate and apart from
the regulatory duration requirement.

See 20 C.F.R. §

404.1525(c)(3) (an impairment meets the requirements of
a listing if it “satisfies all of the criteria of that
listing” and “meets the duration requirement”). Notably,
when medical listing 3.03(B) was amended in October 2016,
language was added to expressly require that the attacks
occur

“within

the

period

[the

Commissioner]

is

considering in connection with [claimant’s] application
or continuing disability review.”

20 C.F.R. Pt. 404,

Subpt. P, App. 1, §3.03(b) (effective October 7, 2016).
In other words, where the regulations are meant to impose
a specific time frame within the criteria of a listing,
they do so expressly.

The prior version of medical

22

listing 3.03(B), which applies here, contained no such
time frame.

As a result, plaintiff was not required to

show that all six of her asthma attacks occurred after
her disability onset date.
Finally, the Court notes that plaintiff has requested
that this matter be remanded for the calculation of
benefits only.

However, as set forth above, there are

issues in this case that require additional development
of the record, a task which is left for the Commissioner
on remand.

As a result, plaintiff’s request for remand

solely for the calculation of benefits is denied.
III. The ALJ’s RFC Finding, as modified by the Appeals
Council, is not supported by substantial evidence.
The ALJ found that plaintiff had the RFC to perform
the full range of sedentary work. T. 31.

The Appeals

Council modified the ALJ’s RFC determination to provide
that plaintiff “cannot have concentrated exposure to
cold/heat; wetness; humidity; and fumes, gases[,] odors,
dust, etc.”

T. 9.

Plaintiff argues that the RFC as

modified is not supported by substantial evidence because
none

of

the

medical

evidence

23

of

record

supports

a

limitation only on concentrated exposure to irritants.
The Court agrees.
As the Appeals Council acknowledged in modifying the
ALJ’s RFC determination, the necessity for environmental
limitations is well-supported by plaintiff’s history of
respiratory

ailments.

See

T.

9.

However,

the

environmental limitations imposed by the Appeals Council
are not grounded in the medical evidence of record.
treating

physician

Dr.

Albiamouna

and

Both

consultative

physician Dr. Miller opined that plaintiff was required
to avoid any exposure to respiratory irritants such as
dust and chemicals.

See T. 269, 343.

The Appeals

Council provided no explanation why it rejected those
opinions

and

instead

imposed

a

limitation

only

for

concentrated exposure.
The Appeals Council, like the ALJ, is required to
provide sufficient explanation for its determinations to
permit a court to perform meaningful review.

See, e.g.,

Tuttle v. Colvin, 2015 WL 4506715, at *5 (N.D.N.Y. July
23, 2015).

Here, the Appeals Council simply added a

limitation to the RFC without any explanation of how it

24

was reached or what evidence of record supports it.

The

Appeals Council’s “lack of explanation of its reasoning
results in ambiguity that makes it impossible for a
reviewing court to determine whether this conclusion is
based on substantial evidence.”

Id.

Remand is therefore

also required for further consideration of plaintiff’s
RFC,

in

the

event

the

Commissioner

determines

that

plaintiff’s impairments do not meet or equal medical
listing 3.03(B).
IV. On remand, the
proper weight to
and the severity
of the record as

Commissioner shall reconsider the
give the medical opinions of record
of plaintiff’s impairments in light
a whole.

As set forth above, plaintiff also argued that the
Commissioner failed to give proper weight to the medical
opinions

of

treating

physician

Dr.

Abialmouna

and

consultative physician Dr. Miller, and erred in failing
to

find

plaintiff’s

heart

disease,

depression to be severe impairments.

anxiety,

and

Because the Court

has determined that remand is necessary for the reasons
set

forth

above,

it

need

not

reach

these

issues.

Instead, the Court instructs the Commissioner on remand

25

to reconsider these findings in light of the record as a
whole.
CONCLUSION
For the reasons stated above, the plaintiff’s motion
for judgment on the pleadings (Docket No. 5) is granted
in part and denied in part, and defendant's cross-motion
for judgment on the pleadings (Docket No. 11) is denied.
This case is remanded to the Commissioner for further
proceedings consistent with this Decision and Order.
ALL OF THE ABOVE IS SO ORDERED.
S/ MICHAEL A. TELESCA
HONORABLE MICHAEL A. TELESCA
UNITED STATES DISTRICT JUDGE
DATED:

Rochester, New York
March 28, 2017

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