Torres v. Colvin
Filing
13
DECISION AND ORDER GRANTING Plaintiff's 7 Motion for Judgment on the Pleadings; DENYING Defendant's 11 Motion for Judgment on the Pleadings; REMANDING this case to the Commissioner of Social Security as specified. Signed by William M. Skretny, United States District Judge on 7/30/2015. (MEAL) - CLERK TO FOLLOW UP -
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANGEL M. TORRES,
Plaintiff,
v.
DECISION AND ORDER
14-CV-479S
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
1.
Plaintiff Angel M. Torres challenges an Administrative Law Judge’s (“ALJ”)
determination that he is not disabled within the meaning of the Social Security Act (“the
Act”). Plaintiff alleges that he has been disabled since April 2, 2012, due to diabetes
mellitus, degenerative disc disease of the cervical and lumbar spine, right shoulder pain,
and circulation difficulty.
2.
The Commissioner of Social Security (“Commissioner”) denied Plaintiff’s
application for disability benefits on July 26, 2012, after which Plaintiff requested an
administrative hearing. Plaintiff received that hearing via video conference before ALJ
Robert T. Harvey on April 3, 2013. The ALJ considered the case de novo, and on April 18,
2013, issued a decision denying Plaintiff’s application. Plaintiff filed a request for review
with the Appeals Council, but the Council denied that request, prompting Plaintiff to file the
current civil action on June 20, 2014, challenging Defendant’s final decision.1
3.
On December 22, 2014, Plaintiff filed a motion for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket No. 7). The
1
The ALJ’s April 18, 2013 decision became the Commissioner’s final decision in this case when
the Appeals Council denied Plaintiff’s request for review.
1
Commissioner followed suit with her own motion on March 20, 2015. (Docket No. 11). For
the following reasons, Plaintiff’s motion is granted, the Commissioner’s motion is denied,
and this case is remanded for further proceedings.
4.
A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec’y
of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s
determination will be reversed only if it is not supported by substantial evidence or there
has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v.
Califano, 615 F.2d 23, 27 (2d Cir. 1979). Substantial evidence is that which amounts to
“more than a mere scintilla”; it has been defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971). Where
evidence is deemed susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60,
62 (2d Cir. 1982).
5.
“To determine on appeal whether the ALJ's findings are supported by
substantial evidence, a reviewing court considers the whole record, examining the
evidence from both sides, because an analysis of the substantiality of the evidence must
also include that which detracts from its weight.” Williams on Behalf of Williams v. Bowen,
859 F.2d 255, 258 (2d Cir. 1988).
If supported by substantial evidence, the
Commissioner's finding must be sustained “even where substantial evidence may support
the plaintiff's position and despite that the court's independent analysis of the evidence
may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153
(S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's determination
considerable deference, and may not substitute “its own judgment for that of the
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[Commissioner], even if it might justifiably have reached a different result upon a de novo
review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
6.
The Commissioner has established a five-step sequential evaluation process
to determine whether an individual is disabled as defined under the Social Security Act.
See 20 C.F.R. §§ 404.1520, 416.920. The United States Supreme Court recognized the
validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287, 2291,
96 L. Ed. 2d 119 (1987), and it remains the proper approach for analyzing whether a
claimant is disabled.
7.
This five-step process is detailed below:
First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity. If he is not, the [Commissioner] next
considers whether the claimant has a "severe impairment" which significantly
limits his physical or mental ability to do basic work activities. If the claimant
suffers such an impairment, the third inquiry is whether, based solely on
medical evidence, the claimant has an impairment which is listed in Appendix
1 of the regulations. If the claimant has such an impairment, the
[Commissioner] will consider him disabled without considering vocational
factors such as age, education, and work experience; the [Commissioner]
presumes that a claimant who is afflicted with a "listed" impairment is unable
to perform substantial gainful activity. Assuming the claimant does not have
a listed impairment, the fourth inquiry is whether, despite the claimant's
severe impairment, he has the residual functional capacity to perform his
past work. Finally, if the claimant is unable to perform his past work, the
[Commissioner] then determines whether there is other work which the
claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam); see also Rosa v.
Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. § 404.1520.
8.
The claimant has the burden of proof as to the first four steps, but the
Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S.
at 146 n. 5; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984). The final step of this
inquiry is, in turn, divided into two parts. First, the Commissioner must assess the
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claimant’s job qualifications by considering his physical ability, age, education and work
experience. Second, the Commissioner must determine whether jobs exist in the national
economy that a person having the claimant’s qualifications could perform. See 42 U.S.C.§
423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.
Ct. 1952, 1954, 76 L. Ed. 2d 66 (1983).
9.
In this case, the ALJ made the following findings: (1) Plaintiff has not
engaged in substantial gainful activity since April 2, 2012, his alleged onset date (R. at
37);2 (2) Plaintiff’s diabetes mellitus, degenerative disc disease of the cervical and lumbar
spine, right shoulder pain, and circulation difficulty are “severe” impairments (R. at 37); (3)
Plaintiff does not have an impairment or combination of impairments that meets or
medically equals the criteria necessary for finding a disabling impairment under the
regulations (R. at 38); (4) Plaintiff retains the residual functional capacity (RFC) to perform
sedentary work as defined in 20 C.F.R. § 404.1567(a), subject to a few restrictions (R. at
39); and (5) given Plaintiff’s age, education, work experience, and RFC, there are jobs that
exist in significant numbers in the national economy that he can perform. (R. at 45).
Ultimately, the ALJ concluded that Plaintiff was not under a disability as defined by the Act
from April 2, 2012, through the date of his decision.3 (R. at 24).
10.
Plaintiff advances a number of challenges to the ALJ’s decision, one of which
is persuasive. Plaintiff argues that the ALJ failed to properly consider medical listing
1.04(A) for lumbar spine disc injury. Plaintiff argues that the five-step sequential analysis
2
Citations to the underlying administrative record are designated “R.”
The ALJ found that Plaintiff was not disabled because he gained transferable skills from past
relevant work as a merchandise displayer. (R. at 44).
3
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should have stopped at step three, with a finding that Plaintiff is disabled under medical
listing 1.04(A).
The third step in the sequential analysis requires the ALJ to consider whether
Plaintiff’s symptoms meet the Listing requirements in 1.04(A). Listing 1.04 requires (1)
threshold evidence of a spine disorder, such as osteoarthritis or degenerative disc disease;
(2) compromise of a nerve root or evidence of nerve root compression; (3) characterized
by neuro-anatomic distribution of pain; (4) limitation of motion of the spine; (5) motor loss
(atrophy with associated muscle weakness or muscle weakness); (6) accompanied by
sensory or reflex loss; and (7) if there is involvement of the lower back, positive straight-leg
raising test (sitting and supine). 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04 (numbering not
in original).
The ALJ found that Plaintiff did not meet Listing 1.04 because the record did not
demonstrate the seven required elements of the listing, but he did not explain his
reasoning. (R. at 38). In what is essentially a restatement of the Listing criteria, the ALJ
simply found that
[t]he claimant’s degenerative disc disease of the lumbar and
cervical spine does not meet Listing 1.04 because the record
does not demonstrate compromise of a nerve root (including
the cauda equina) or the spinal cord with additional findings of:
A) evidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine,
motor loss (atrophy with associated muscle weakness)
accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg raising; or
B) spinal arachnoiditis; or C) lumbar spinal stenosis resulting
in pseudoclaudication.
(R. at 38). The ALJ did not explain, however, why Plaintiff’s condition did not meet the
Listing, despite evidence relating to his symptoms.
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Plaintiff’s complaints coupled with supporting medical evidence suggest symptoms
that could meet Listing 1.04(A). Plaintiff reported pain and difficulty with overhead lifting
and reaching to the side due to a tear of the spraspinatus tendon. (R. at 40). Plaintiff also
exhibited tenderness, spasms, and diffuse bulges in muscles. (R. at 41). Plaintiff testified
that he experiences “daily leg pain, daily neck and upper extremity pain, right shoulder pain
with activity, and headaches every other day, . . . daily circulation problems, daily
numbness in hands and legs . . . fatigue and daily leg weakness.” (R. at 43). Plaintiff
described his pain as “pinching, stabbing, and throbbing.” (R. at 43). Plaintiff complained
of this pain and weakness in both legs on several occasions. (R. at 43, 319, 425). Plaintiff
also has circulation problems, which required several surgeries. (R. at 58).
Evidence in the record appears to support Plaintiff’s testimony. A February 18, 2011
lumbar spine MRI shows degenerative disc disease and osteoarthritis, which may meet
element one of Listing 1.04(A). (R. at 271). Dr. Ziarkowski measured significant limitation
of motion of Plaintiff’s lumbar spine, which relates to the fourth element. (R. at 425).
Plaintiff also exhibited a degree of motor loss (element five), as noted by Dr. Shankman’s
statement that Plaintiff “can stand on his toes and his heels, but not walk on them.” (R. at
318). Finally, Dr. Ziarkowski recorded positive straight-leg-raise tests bilaterally, going to
element seven. (R. at 425). The ALJ did not sufficiently analyze these symptoms and
evidence in the context of the Listing criteria.
When a claimant’s symptoms appear to match those described in a listing, “the ALJ
must explain a finding of ineligibility based on the Listings.” Booker v. Heckler, No. 83 Civ.
5300, 1984 WL 622, at *3 (S.D.N.Y. July 19, 1984). The ALJ can use one of two
approaches. First, the ALJ can “compar[e] . . . the symptoms, signs, and laboratory
findings about the impairment, including any functional limitations that result from the
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impairment, with the corresponding criteria shown for the listed impairments.” Easley v.
Colvin, No. 13-CV-923S, 2014 WL 5465411, at *3 (W.D.N.Y. Oct. 28, 2014) (citing
Hamedallah v. Astrue, 876 F. Supp. 2d 133, 142 (W.D.N.Y. 2012)). Second, if the ALJ
chooses not to conduct this comparison, the ALJ must “expressly adopt a medical source
statement that discusses the medical evidence and arrives at express conclusions
concerning the Listings.” Easley v. Colvin, No. 13-CV-923S, 2014 WL 5465411, at *3
(citing Booker, 1984 WL 622, at *3). Here, the ALJ did neither.
Although an ALJ is not obligated to specifically address each piece of evidence in
his or her decision, Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir.1983), the ALJ must
address key issues with sufficient specificity, Davis v. Astrue, No. 6:09–CV–186
(LEK/GHL), 2010 WL 2545961, at *3 (N.D.N.Y. June 3, 2010) (citations omitted) (citing,
inter alia, Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)). To be sure, the Second
Circuit explicitly requires an ALJ to set forth his or her reasoning in such a manner so as
to “enable [reviewing courts] to decide whether the determination is supported by
substantial evidence.” Szarowicz v. Astrue, No. 11-CV-277S, 2012 WL 3095798, at *8-*10
(W.D.N.Y. July 30, 2012) (citing Davis, 2010 WL 2545961, at *3).
Here, the record evidence suggests that Plaintiff’s symptoms could meet the Listing
requirements in 1.04(A). But this Court cannot determine whether the ALJ properly
considered the Listing because his only reference to it is a recitation of the standard. (R.
at 38). If ALJ Harvey did not consider the Listing, the case must be remanded for further
consideration. If he did, the case must still be remanded because his decision lacks a
meaningful discussion of Listing 1.04(A), which leaves this Court unable to assess whether
the ALJ’s decision is supported by substantial evidence. Accordingly, this Court will
remand this case for further consideration and determination of whether Plaintiff meets the
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1.04(A) Listing. See Kovacevic v. Chater, No. 94–CV–600S, 1995 WL 866425, at *8–*9
(W.D.N.Y. Sept. 29, 1995) (requiring explanation when a plaintiff's symptoms appear to
match those of a Listing) (citing Booker, 1984 WL 622, at *3); Szarowicz, 2012 WL
3095798, at *8-*10 (finding that an ALJ must adequately explain his or her decision when
a claimant’s symptoms appear to match Listing 1.04(A)).
11.
In addition to challenging the ALJ’s consideration of Listing 1.04(A), Plaintiff
argues that (1) the ALJ erred in failing to properly evaluate the “other source” opinion of
chiropractor Dr. Ziarkowski, under SSR 06-03; (2) the ALJ did not properly evaluate the
opinion of treating physician Dr. Occhino, under 20 C.F.R. § 404.1527(c); and (3) the ALJ
failed to fully and properly assess Plaintiff’s credibility as required under SSR 96-7P and
20 C.F.R. § 404.1529. The ALJ is directed to consider these additional arguments on
remand.
12.
After carefully examining the administrative record, this Court finds cause to
remand this case to the ALJ for further administrative proceedings consistent with this
decision.
Plaintiff’s Motion for Judgment on the Pleadings is therefore granted.
Defendant’s Motion for Judgment on the Pleadings is denied.
IT HEREBY IS ORDERED, that Plaintiff’s Motion for Judgment on the Pleadings
(Docket No. 7) is GRANTED.
FURTHER, that Defendant’s Motion for Judgment on the Pleadings (Docket No. 11)
is DENIED.
FURTHER, that this case is REMANDED to the Commissioner of Social Security
for further proceedings consistent with this Decision and Order.
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FURTHER, that the Clerk of Court shall CLOSE this case.
SO ORDERED.
Dated: July 30, 2015
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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