Maciejewski v. Colvin

Filing 19

DECISION AND ORDER granting 7 Plaintiff's Motion for Judgment to the extent that the case is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order; denying 10 Commissioner's Motion for Judgment on the Pleadings; adopting in part Report and Recommendations re 13 Report and Recommendations. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 4/27/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SANDRA MACIEJEWSKI,
14-CV-542
DECISION AND
ORDER

Plaintiff,

-vsNANCY A. BERRYHILL, Acting
Commissioner of Social
Security1,
Defendant.

INTRODUCTION
Plaintiff Sandra Maciejewski (“plaintiff”) brings this action
pursuant to 42 U.S.C. § 405(g), claiming that Defendant Nancy A.
Berryhill,

the

Acting

Commissioner

of

Social

Security

(“Commissioner” or “defendant”), improperly denied her applications
for social security disability insurance (“SSDI”) and supplemental
security income (“SSI”).

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.
On December 21, 2016, Magistrate Judge Leslie G. Foschio
issued

a

Report

and

Recommendation

(“R&R”)

(Docket

No.

13)

recommending that plaintiff’s motion be denied and that defendant’s
motion be granted.

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.

For the reasons set forth below, the Court adopts the R&R in
part and rejects the R&R in part.

Specifically, the Court adopts

the portion of the R&R finding that defendant violated the treating
physician rule and rejects the portion of the R&R holding that
plaintiff has the residual functional capacity (“RFC”) to perform
sedentary work and is thus not disabled.

The Court agrees with and

grants plaintiff’s motion remanding this matter to the Commissioner
for

further

administrative

proceedings.

Accordingly,

the

Commissioner’s motion is denied.
PROCEDURAL HISTORY
Plaintiff filed her applications for SSDI and SSI on March 14,
2011 and April 4, 2011, respectively.
(“T.”) 55, 118-128.

Administrative Transcript

Plaintiff alleged that she became disabled on

March 1, 2010, as a result of diabetes, high blood pressure,
anemia, asthma, arthritis, weakness in her hands, leg swelling,
obesity, and depression.
initially

denied.

T.

T. 165
55,

Plaintiff’s applications were

68-75.

At

plaintiff’s

request,

Administrative Law Judge (“ALJ”) William E. Straub conducted a
hearing on June 21, 2012.

T. 31-54.

On November 20, 2012, the ALJ

issued a decision denying plaintiff’s claim for benefits.

T. 12-

26.
In applying the required five-step sequential analysis, as
contained in the administrative regulations promulgated by the
Social Security Administration ("SSA") (see 20 C.F.R. §§ 404.1520,
416.920; Lynch v. Astrue, 2008 WL 3413899, at *2 (W.D.N.Y. 2008)
(detailing the five steps)), the ALJ made the following findings,
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among others: (1) plaintiff met the insured status requirements of
the Social Security Act through March 30, 2015; (2) plaintiff had
not engaged in substantial gainful activity since March 1, 2010;
(3)

plaintiff’s

diabetes

mellitus,

hypertension,

asthma,

and

obesity were severe impairments; (4) plaintiff’s impairments did
not meet or medically equal one of the listed impairments set forth
in 20 C.F.R. § 404, Subpart P, Appendix 1; (5) plaintiff had the
RFC to perform the full range of medium work as defined in 20 CFR
404.157(c); and (6) plaintiff was able to perform her past relevant
work as a supervisor.

T. 17-26.

On June 4, 2014, the Appeals Council denied plaintiff’s
request

for

review,

making

Commissioner’s final decision.

the

ALJ’s

T. 1-4.

determination

the

Plaintiff then commenced

this action.
DISCUSSION
I.

Legal Standard
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 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)

(2007).

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. 42 U.S.C.
-3-

§ 405(g).

“Substantial evidence means more than a mere scintilla.

It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d
108, 112 (2d Cir. 2009) (quotation omitted).
When

determining whether

the

Commissioner’s

findings

are

supported by substantial evidence, the Court’s task is “‘to examine
the entire record, including contradictory evidence and evidence
from which conflicting inferences can be drawn.’” Brown v. Apfel,
174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722
F.2d 1033, 1038 (2d Cir. 1983)).

Section 405(g) limits the scope

of the Court’s review to two inquiries: whether the Commissioner’s
findings were supported by substantial evidence in the record as a
whole and whether the Commissioner’s conclusions were based upon
the correct legal standard. See Green–Younger v. Barnhart, 335 F.3d
99, 105–106 (2d Cir. 2003).
With respect to the Court’s review of the R&R, when specific
objections

are

made

to

a

magistrate

judge’s

report

and

recommendation, the district judge makes a “de novo determination
of those portions of the report or specified proposed findings or
recommendations
§ 636(b)(1)(C).

to

which

objection

is

made.”

28

U.S.C.

When no objections or only general objections are

made, the district judge reviews the report and recommendation for
clear error or manifest injustice. E.g., DiPilato v. 7-Eleven,
Inc., 662 F. Supp. 2d 333, 339 (S.D.N.Y. 2009). After conducting
the appropriate review, the district court may “accept, reject, or

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modify, in whole or in part, the findings or recommendations made
by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
In this case, plaintiff has objected to the portion of the R&R
determining that plaintiff has the RFC to perform sedentary work
and is thus not disabled (Docket No. 14).

Defendant has replied to

plaintiff’s objections (Docket No. 16), but did not file any
objections of her own.
II.

Relevant Medical Evidence
On May 2, 2011, plaintiff was examined by Dr. John Schwab,

D.O., at defendant’s request.

T. 344.

Plaintiff reported a

history of depression, asthma, anemia, hypertension, diabetes, and
low-back pain, and reported having had surgery for carpal tunnel
syndrome in 2002.

Id.

Plaintiff reported her medications as

lantus insulin, metformin, advair, actos, furosemide, doxazosin,
atenolol,

nexium, and

metolazone.

T.

plaintiff was not in acute distress.

Id.

345.

On

examination,

Her gait and stance were

normal, her squat was full, and she had a full range of motion in
her cervical and lumbar spine and all of her joints.

T. 345-46.

On both the left and right, straight leg raising was possible only
to 30 degrees.

T. 346.

Dr.

Schwab assessed plaintiff with mild

restrictions to bending, lifting, and carrying.

T.

347.

Plaintiff was also examined by consultative psychiatrist Renee
Baskin, Ph.D., on May 2, 2011.

T. 339.

suffering from depression and anxiety.

Plaintiff reported

T. 340.

plaintiff was cooperative and related well.
dysthymic and her affect was tearful.
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T.

On examination,

Id.

Her mood was

341.

Plaintiff

exhibited mildly impaired attention, concentration, and memory, and
was

able

to

Plaintiff’s

slowly
insight

count
and

and

do

judgement

simply
were

calculations.

fair

to good

Id.

and

intelligence was estimated to be in the low-average range.

her
Id.

Dr. Baskin opined that plaintiff would have moderate limitations in
being able to deal with stress and mild to no limitations in being
able to follow and understand simple instructions, perform simple
tasks independently, maintain a regular schedule, learn new tasks,
perform complex tasks with supervision, make appropriate decisions,
and relate adequately with others.

T. 342.

Dr. Olivia Smith-Blackwell, M.D., of Meadow Family Medicine
(“MFM”) has been plaintiff’s primary care physician since 2007.
T. 364.

On August 15, 2011, plaintiff was seen by Dr. Smith-

Blackwell at MFM and reported coughing, shortness of breath, and
wheezing.

T. 444.

At that time, plaintiff’s diabetes was “mostly

well-controlled” and her hypertension was well-controlled.

Id.

Plaintiff was taking her medication as instructed. Id. Dr. SmithBlackwell

assessed

plaintiff

with

diabetes

with

renal

manifestations (controlled), goiter, asthma, hypertensive heart and
kidney disease, esophagitis reflux, and obesity.

T. 445.

Bloodwork performed on August 15, 2011, showed impaired renal
function, and plaintiff was referred to nephrologist Dr. Maria
Del Castillo.
diagnosed

T. 361.

plaintiff

with

On September 21, 2011, Dr. Castillo
chronic

kidney

disease.

T.

362.

Dr. Castillo also recommended a sleep study based on plaintiff’s
complaints of snoring and daytime fatigue.
-6-

Id.

Plaintiff underwent a nocturnal poly-somnogram on October 8,
2011 that revealed severe sleep apnea.

T.

390.

advised to use a CPAP machine nightly.

T. 388.

Plaintiff was
At a follow-up

appointment on January 9, 2012, Dr. Eric Ten Brock noted that
plaintiff was compliant and having a positive clinical response to
the CPAP machine.

T.

384-85.

Plaintiff was seen by Dr. Smith-Blackwell on January 16, 2012.
T. 428-31.

Plaintiff continued to experience coughing, wheezing,

and shortness of breath.
were

well-controlled

Plaintiff’s

T. 428.

and

medications

her

Her diabetes and hypertension

GERD

was

uncontrolled.

insulin,

lisinopril.

atenolol,

metformin,

metolazone,

included

advair,

T. 428-29.

attitude were depressed.

April

25,

2012,

furosemide,

pantoprazole,

and

On examination, plaintiff’s affect and
T. 430. Dr. Smith-Blackwell prescribed

plaintiff zoloft and recommended counseling.
On

actos,

Id.

plaintiff

was

Practitioner (“NP”) Elizabeth Zak.

T.

Id.

seen

at

MFM

374-77.

by

Nurse

Plaintiff’s

diabetes was well-controlled, as was her hypertension.

T. 374.

Plaintiff rated her depression as moderate to severe and reported
experiencing
assessed

moderate

plaintiff

hypercholesterolemia,

crying

with

and

diabetes

esophagitis

asthma, and joint pain in the hand.

irritability.
with
reflux,
T.

renal

Id.

NP

Zak

manifestations,

depressive

disorder,

376.

Plaintiff began physical therapy for her left wrist on
June 14, 2012.

T. 395.

Plaintiff attended six physical therapy

-7-

sessions

between

June

14,

2012

and

July

11,

discharged after having met most of her goals.

2012,

and

was

Id.

Plaintiff was seen by Dr. Castillo on June 16, 2012.

T. 370.

Dr. Castillo noted that plaintiff had been successfully losing
weight and encouraged her to continue.

T. 370, 373.

creatine had returned to baseline levels.

T.

Plaintiff’s

372.

Plaintiff treated with Dr. Smith-Blackwell at MFM on August 2,
2012.

T. 405.

Plaintiff reported experiencing pain in her right

leg and was given an orthopedic referral.

T. 408.

On August 13,

2012, plaintiff was seen by Physician’s Assistant (“PA”) Jeffrey
Rassman of the Knee Center WNY.

T. 404.

X-rays revealed bilateral

arthritis, slightly worse on the left. Id. PA Rassman recommended
physical therapy and a steroid injection. Id.

Plaintiff recevied

a left-knee steroid injection on August 31, 2012.

T.

401.

Dr. Smith-Blackwell completed an undated “Diabetes Mellitus
Residual Functional Capacity Questionnaire” in which she noted that
plaintiff suffered from fatigue, extremity pain and numbness,
difficulty walking, muscle weakness, diminished manual dexterity,
leg cramping, difficulty thinking/concentrating, swelling, kidney
problems, frequent urination, and hypoglycemic attacks.
65.

T.

364-

Dr. Smith-Blackwell opined that plaintiff was capable of

performing

low

stress,

sedentary

work,

so

long

as

she

frequently change position between walking and sitting.

could

T. 365.

Dr. Smith-Blackwell further opined that plaintiff would require
unscheduled bathroom breaks every 30 minutes in the morning as a
result of her water pills.

T. 367.
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III. Relevant Non-Medical Evidence
Plaintiff was born in 1959 and was 53 years old on the date of
the ALJ’s decision.

T. 210.

Plaintiff completed high school and

had worked as a supervisor for a printer manufacturer from July
1994 to June 2009.
when

her

job

employment.

was

T. 156, 166.

Plaintiff stopped working in 2009

eliminated

and

was

unable

to

procure

new

T. 37-40.

In a questionnaire completed on March 25, 2011, plaintiff
reported that she had difficulty standing and sitting for long
periods of time and with climbing, kneeling, squatting, and opening
jars.

T. 147-48.

Plaintiff further reported being able to care

for her personal needs and doing chores such as cleaning, laundry,
and pet care.

T. 143-45.

Plaintiff stated that she was able to

drive and shop for up to one hour.

T. 145-46.

Plaintiff testified before the ALJ that her primary ailments
were related to her back and leg conditions.

T. 41.

Plaintiff

told the ALJ that she was not being treated for her back condition,
but that she was receiving physical therapy to strengthen her legs
and

receiving

cortisone

shots

in

her

knees.

T.

41-42,

47.

Plaintiff reported using a CPAP machine to treat sleep apnea and
suffering from numbness in her hands.
IV.

Tr. 52-53.

The ALJ Violated the Treating Physician Rule
Plaintiff argues, and Judge Foschio found in the R&R, that the

ALJ violated the treating physician rule when he afforded less than
controlling weight to Dr. Smith-Blackwell’s medical opinion.
Court agrees.
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The

The

treating

physician

rule

requires

an

ALJ

to

give

controlling weight to a treating physician’s opinion when that
opinion is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the
other

substantial

evidence

in

[the]

record.”

20

C.F.R.

§ 404.1527(c)(2); see also Green-Younger v. Barnhart, 335 F.3d 99,
106 (2d Cir. 2003). An ALJ may give less than controlling weight to
a treating physician's opinion if it does not meet this standard,
but

must “comprehensively set forth [his or her] reasons for the

weight assigned to a treating physician’s opinion.” Halloran v.
Barnhart,

362

F.3d

28,

33

(2d

Cir.

2004);

20

C.F.R.

§ 404.1527(c)(2) (“We will always give good reasons in our notice
of

determination

or

decision

for

the

weight

we

give

[the

claimant's] treating source's opinion.”).

The ALJ is required to

consider

relationship

“the

length

of

the

treatment

and

the

frequency of examination; the nature and extent of the treatment
relationship; the relevant evidence, particularly medical signs and
laboratory findings, supporting the opinion; the consistency of the
opinion with the record as a whole; and whether the physician is a
specialist in the area covering the particular medical issues” in
determining how much weight to afford a treating physician’s
opinion. Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008)
(quotation marks, alterations, and citations omitted); see also 20
C.F.R. §§ 404.1527(c)(1)-(6).
In this case, the ALJ did not specify how much weight he gave
to Dr. Smith-Blackwell’s opinion, stating only that it “[did] not
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carry controlling weight.”

T. 25.

In support of this assessment,

the ALJ stated that “the treatment records from Dr. Smith-Blackwell
note that [plaintiff’s] diabetes was well controlled” and that “the
doctor’s opinion fails to be consistent and supported by the record
as a whole.”

Id.

Judge Foschio found in the R&R that the ALJ’s

conclusion was flawed because the ALJ failed to identify any
evidence of record “undermining Dr. Smith-Blackwell’s opinion that
Plaintiff was capable of performing only sedentary work with
frequent posture changes and unscheduled bathroom breaks in the
morning. . . .” (Docket No. 13 at 17).

Judge Foschio’s conclusion

is well-founded. The sole evidence of record identified by the ALJ
in reaching his conclusion was Dr. Smith-Blackwell’s assessment of
plaintiff’s diabetes as “well-controlled.”

The ALJ provided no

explanation for how this evidence purportedly undermined Dr. SmithBlackwell’s

assessment

of

plaintiff’s

postural

limitations.

Moreover, the record indicates that part of plaintiff’s treatment
for her various conditions (including her kidney issues) is to take
diuretics (water pills). It is apparently the water pills, and not
plaintiff’s diabetes itself, that necessitates frequent bathroom
breaks.

T. 367.

Under these circumstances, Dr. Smith-Blackwell’s

assessment of plaintiff’s diabetes as “well-controlled” is fully
consistent with her opinion that plaintiff would require frequent
bathroom breaks - the phrase “well-controlled” cannot reasonably be
construed as precluding the possibility of side effects from
medication. The Court therefore agrees with Judge Foschio that the
ALJ violated the treating physician rule by affording less than
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controlling weight to the opinion of treating physician Dr. SmithBlackwell without articulating good reasons to do so.
V.

Remand for Further Development of the Record is Necessary
Despite having found that the ALJ violated the treating

physician rule, Judge Foschio nevertheless recommended that the
Court grant defendant’s motion for judgment on the pleadings, based
on his conclusion that plaintiff retained the RFC to perform
sedentary

work

and

was

thus

not

disabled

under

the

Medical

Vocational Guidelines (commonly referred to as the “Grids”) set
forth at 20 C.F.R., Pt. 404, Subpt. P., App. 2, Tables 1-3.
Docket No. 13 at 21.

See

The Court disagrees that the record permits

this conclusion.
In concluding that plaintiff was not disabled, the R&R
repeatedly states that Dr. Smith-Blackwell opined that plaintiff
was capable of “sedentary work.”
22.

See, e.g., Docket No. 13 at 21,

However, as acknowledged elsewhere in the R&R, Dr. Smith-

Blackwell medical opinion imposed additional limitations, including
frequent posture changes and unscheduled bathroom breaks in the
morning.
“Generally
exertional

speaking,

impairments,

if

a

e.g.,

claimant

strength

suffers

limitations,

only
then

from
the

Commissioner may satisfy her burden by resorting to the applicable
grids. . . . Where significant nonexertional impairments are
present at the fifth step in the disability analysis, however,
application

of

the

grids

is

inappropriate.

Instead,

the

Commissioner must introduce the testimony of a vocational expert
-12-

(or other similar evidence) that jobs exist in the economy which
claimant can obtain and perform.”

Rosa v. Callahan, 168 F.3d 72,

82 (2d Cir. 1999) (internal citations and quotations omitted).

A

vocational expert is required where the claimant’s nonexertional
impairments “significantly diminish” her ability to work, and the
need for a vocational expert is assessed on a case-by case basis.
Calabrese v. Astrue, 358 F. App’x 274, 276 (2d Cir. 2009) (citing
Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986)).
Here, Dr. Smith-Blackwell opined that plaintiff had a nonexertional limitation of frequent bathroom breaks in the morning
due to the use of water pills.
bathroom “likely
individual].”

affects

the

The need to frequently use the
scope

of

work

available

to

[an

Martin v. Astrue, 2009 WL 2356118, at *13 (S.D.N.Y.

July 30, 2009).

Under these circumstances, it is not appropriate

for the Court to rely upon the Grids to determine whether plaintiff
is

disabled.

Instead,

the

case

must

be

remanded

to

the

Commissioner to further develop the record and seek the testimony
of a vocational expert.
CONCLUSION
For the reasons set forth above, the undersigned adopts that
portion of the R&R finding that the Commissioner violated the
treating physician rule and rejects that portion of the R&R finding
that plaintiff had the RFC to perform sedentary work and was
therefore not disabled.

The Commissioner’s motion for judgment on

the pleadings (Docket No. 10) is denied and plaintiff’s motion for

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judgment on the pleadings (Docket No. 7) is granted to the extent
that

the

case

is

remanded

to

the

Commissioner

for

further

administrative proceedings consistent with this Decision and Order.
The Clerk of Court is directed to close this case.
IT IS SO ORDERED.
s/Michael A. Telesca
__________________________
MICHAEL A. TELESCA
United States District Judge
Dated:

April 27, 2017
Rochester, New York

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