Demler v. Colvin
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,
-vNANCY A. BERRYHILL,
Acting Commissioner OF Social
DECISION AND ORDER
Plaintiff Margaret R. Demler (“plaintiff”) brings
this action under Title II of the Social Security Act
(the “SSA”), claiming that Defendant Nancy A. Berryhill,
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.
reasons set forth below, plaintiff’s motion is granted in
part and denied in part, defendant’s motion is denied,
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
further administrative proceedings consistent with this
Decision and Order.
On June 1, 2011, plaintiff filed an application for
DIB alleging disability as of September 6, 2010, due to
(“T.”) 71, 116-22, 141.
Plaintiff’s application was
denied on October 11, 2011.
A hearing, at
which plaintiff testified, was held on October 29, 2012,
The ALJ issued an unfavorable
decision on December 6, 2012. T. 19-39.
Considering the case de novo and applying the fivestep
Administration’s regulations (see 20 C.F.R. §§ 404.1520,
(2) plaintiff had not engaged in substantial gainful
activity since September 6, 2010, the alleged onset date;
(3) plaintiff’s COPD, asthma, sleep apnea, degenerative
joint disease, osteoarthritis, and obesity were severe
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
capacity to perform the full range of sedentary work. T.
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
Plaintiff filed a request for review with the Appeals
Council on February 1, 2013.
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
Then, on May 7, 2014, the
Appeals Council (apparently inadvertently) issued two
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.
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.
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
Plaintiff seeks review of the
Commissioner’s final decision in the instant action.
General legal principles
42 U.S.C. § 405(g) grants jurisdiction to district
courts to hear claims based on the denial of Social
Section 405(g) provides that the
District Court “shall have the power to enter, upon the
affirming, modifying, or reversing the decision of the
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
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).
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
v. Barnhart, 335 F.3d 99, 105–106 (2d Cir. 2003).
Court [cannot] defer to the Commissioner’s determination
if it is the product of legal error.” Wilson v. Colvin,
quotation marks ommitted).
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.
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.
administrative record does not contain any
records from this hospital admission.
On October 6, 2009, plaintiff was seen at TMP.
After noting that plaintiff’s pulse oximetry was
Memorial Hospital (“DeGraff”) for additional evaluation.
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
On discharge, plaintiff’s medications
were avelox, xopenex, advair, prednisone, lisinopril, and
Plaintiff was also started on
a NicoDerm patch to aid with smoking cessation.
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
Plaintiff was admitted and a CT
scan of her head and brain was performed, which was
Plaintiff was discharged later the
same day as her condition had improved.
Plaintiff treated with NP Moresco at TMP on January
Plaintiff reported that she was
feeling better and had ceased using oxygen at home.
Plaintiff further reported that she had ceased
smoking in October and continued to be smoke-free.
Plaintiff had decreased breath sounds bilaterally.
January 14, 2010, and an echocardiogram was performed,
which showed evidence of diastolic dysfunction.
discharge summary or other information regarding the
Plaintiff was admitted to DeGraff on April 25, 2010,
for shortness of breath.
diagnosed with acute exacerbation of asthma and a chest
x-ray was performed, which showed no pathology.
Plaintiff was discharged later that same day.
On May 25, 2010, Plaintiff treated with NP Moresco at
Plaintiff reported that she had resumed
Plaintiff was experiencing shortness
of breath and wheezing.
She exhibited rhonchi and
Records of plaintiff’s visits with NP Moresco indicate
that plaintiff continued to smoke through July and August
Tr. 234, 238.
On September 9, 2010, plaintiff presented to the
DeGraff emergency room with shortness of breath that had
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.
medications, which included cymbalta, prozac, lisinopril,
and chantix for smoking cessation.
Plaintiff followed up with NP Moresco on September
Plaintiff was taking her medication
as prescribed but was still smoking.
exhibited rhonchi and expiratory wheezes over the lungs
Plaintiff saw NP Moresco again on
September 24, 2010, at which time she reported that she
exhibited rhonchi and expiratory wheezes over the lungs
On September 30, 2010, plaintiff saw
NP Moresco for disability paperwork.
time, her lungs were clear anteriorly, posteriorly, and
Plaintiff treated with NP Moresco on November 30,
Plaintiff was not smoking at the time,
but was concerned about returning to work at the casino,
which was smoke-filled.
Plaintiff’s lungs were
again clear anteriorly, posteriorly, and laterally.
Plaintiff saw NP Moresco on February 11, 2011, at
which time she was not smoking.
2011, plaintiff returned to TMP.
On March 7,
still not smoking at this time, but was struggling with
respiratory wheezes over the lungs bilaterally.
Statement dated April 6, 2011. T. 303-306.
diagnoses were COPD and hypertension.
Moresco noted that Plaintiff had been hospitalized “3-4
times” for exacerbation of her COPD symptoms.
Moresco further noted that Plaintiff had asthma attacks
on a daily basis, but these attacks were better managed
incapacitated for one week.
NP Moresco noted that
working in a facility that allows smoking exacerbated
Plaintiff’s COPD often.
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.
Moresco opined that plaintiff was to avoid all exposure
to extreme heat, high humidity, cigarette smoke, fumes,
odors, and gases, dust, and chemicals.
was likely to be “off task”
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.
Plaintiff was seen at TMP in May and June of 2011,
and was not smoking.
smoking at the time.
On July 26, 2011,
Plaintiff was not
On examination, plaintiff’s
lungs were hyperventilated, and she exhibited bilateral
It was recommended that plaintiff seek
Plaintiff was seen again
continuing to have difficulty breathing and wheezing.
Plaintiff was not smoking at this time.
examination, plaintiff exhibited rhonchi, wheezes, and
expiratory wheezes over the lungs bilaterally.
consultative internal medicine examination by Dr. Donna
Dr. Miller opined that plaintiff
On October 13, 2011, plaintiff presented at the
DeGraff emergency room with shortness of breath.
Plaintiff had taken two nebulizer treatments at home
While in the emergency room,
nebulizer treatments, with no significant improvement.
An EKG test showed sinus tachycardia.
Plaintiff was assessed with (1) exacerbation of COPD; (2)
secondary to inhaled bronchodilators; (4) history of
Plaintiff was admitted to the hospital for one week,
until October 20, 2011.
On November 3, 2011, plaintiff underwent an exercise
stress test and myocardial perfusion study at DeGraff,
both of which showed unremarkable results.
T. 318, 320.
Plaintiff saw NP Moresco at TMP on November 11, 2011.
Plaintiff continued to be smoke-free at that
On examination, diminished
sound was appreciated over her lungs bilaterally.
Plaintiff returned to TMP on January 12, 2012.
Plaintiff was still a non-smoker at that time,
though she reported that she still craved nicotine.
On examination, diminished sound was again appreciated
over her lungs bilaterally.
On May 3, 2012, plaintiff was seen at TMP for an
Plaintiff had resumed
smoking at that time, though she claimed that she was
plaintiff exhibited inspiratory wheezes over her lungs
On September 12, 2012, plaintiff was seen by NP
Plaintiff complained of increased
examination, diminished sounds with some fine crackles
Plaintiff was given a nebulizer treatment with albuterol,
which improved her condition.
On September 20, 2012, Dr. Abialmouna reviewed and
signed off on the Pulmonary Medical Source Statement
completed by NP Moresco.
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.
Plaintiff is a high school graduate and has
worked throughout her adult life.
most recently worked as a professional fundraiser from
supervisor at the Seneca Niagara Casino from December
2002 to December 2010.
with the Seneca Niagara Casino ended because they were
unable to provide her with a smoke-free work environment.
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.”
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.
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
properly evaluate the opinion of treating physician Dr.
consultative physician Dr. Miller at all; (3) the ALJ
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
concludes that remand is warranted due to legal error
because the ALJ failed to properly consider
listing 3.03.(B) for asthma and additional development of
the record is necessary.
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
[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
3.03(B), the ALJ held that plaintiff’s “asthma fails to
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”).
meet or equal the criteria [of this listing] . . .
[because she does not] have attacks requiring physician
intervention at least once every two months.
been hospitalized, but only twice since the alleged onset
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
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
legal standard could lead only to one conclusion.
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
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
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’
references to plaintiff’s COPD.
The records for the
consisting solely of the results of an echocardiogram.
Without complete records of these hospital admissions,
the Court is unable to determine whether plaintiff in
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.
This duty arises from the
determination . . . and exists even when, as here, the
claimant is represented by counsel.”
Pratts v. Chater,
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.
While the ALJ is not
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
plaintiff’s impairments meet or equal medical listing
Defendant argues that remand is unnecessary in this
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
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
successful in doing so.
While it is true that plaintiff
suffered from occasional relapses, this Court cannot
constitute an unjustified failure to adhere to prescribed
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
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
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
listing 3.03(B), which applies here, contained no such
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
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
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.
Council modified the ALJ’s RFC determination to provide
that plaintiff “cannot have concentrated exposure to
cold/heat; wetness; humidity; and fumes, gases[,] odors,
Plaintiff argues that the RFC as
modified is not supported by substantial evidence because
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
environmental limitations imposed by the Appeals Council
are not grounded in the medical evidence of record.
physician Dr. Miller opined that plaintiff was required
to avoid any exposure to respiratory irritants such as
dust and chemicals.
See T. 269, 343.
Council provided no explanation why it rejected those
The Appeals Council, like the ALJ, is required to
provide sufficient explanation for its determinations to
permit a court to perform meaningful review.
Tuttle v. Colvin, 2015 WL 4506715, at *5 (N.D.N.Y. July
Here, the Appeals Council simply added a
limitation to the RFC without any explanation of how it
was reached or what evidence of record supports it.
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.”
Remand is therefore
also required for further consideration of plaintiff’s
plaintiff’s impairments do not meet or equal medical
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
As set forth above, plaintiff also argued that the
Commissioner failed to give proper weight to the medical
consultative physician Dr. Miller, and erred in failing
depression to be severe impairments.
Because the Court
has determined that remand is necessary for the reasons
Instead, the Court instructs the Commissioner on remand
to reconsider these findings in light of the record as a
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
Rochester, New York
March 28, 2017
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