Kain v. Colvin

Filing 12

DECISION AND ORDER GRANTING Plaintiff's 6 Motion for Judgment on the Pleadings; DENYING Defendant's 10 Motion for Judgment on the Pleadings; REMANDING this case to the Commissioner of Social Security for further proceedings consistent with this decision; DIRECTING the Clerk of Court to close this case. Signed by William M. Skretny, United States District Judge on 5/14/2017. (MEAL)- CLERK TO FOLLOW UP -

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PATRICIA CHRISTINE KAIN,
Plaintiff,
v.

DECISION AND ORDER
14-CV-650S

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

1.

Plaintiff Patricia Christine Kain challenges an Administrative Law Judge’s

(“ALJ”) determination that she was not disabled within the meaning of the Social
Security Act (“the Act”). Plaintiff alleges that she has been disabled since June 3, 2010
due to bulging discs in her neck, osteoarthritis in her knees, chronic migraines, and
hemorrhaging of the right eye.

Plaintiff contends that her impairments render her

unable to work, and thus, entitle her to payment of Supplemental Security Income
(“SSI”) under the Act.
2.

Plaintiff filed an application for disability insurance benefits and

supplemental security income on June 9, 2010, which was denied on October 8, 2010.
On October 14, 2010, Plaintiff requested a hearing before an ALJ. On September 8,
2011, ALJ Timothy M. McGuan conducted a hearing at which Plaintiff appeared and
testified. Plaintiff was represented by counsel. At the time of the hearing, Plaintiff was
32 years old, with an eighth grade education, and limited work experience. The ALJ
considered the case de novo, and on October 12, 2011, issued a decision denying
Plaintiff’s application for benefits. The Appeals Council granted Plaintiff’s request for

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review on March 9, 2012, and remanded the case for further proceedings. On July 24,
2012, ALJ McGuan conducted a supplemental hearing at which Plaintiff and a
vocational expert appeared and testified. Plaintiff was represented by counsel. On
November 9, 2012, the ALJ issued a decision denying Plaintiff’s application for benefits.
The Appeals Council denied Plaintiff’s request for review on June 9, 2014. Plaintiff filed
the current action on August 11, 2014, challenging the Commissioner’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.
6).

On February 26, 2015, the Commissioner filed a Motion for Judgment on the

Pleadings. (Docket No. 10). Plaintiff filed a reply on March 17, 2015 (Docket No. 11),
at which time this Court took the matter under advisement without oral argument. For
the following reasons, Plaintiff’s motion is granted and Defendant’s motion is denied.
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,” and 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

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The November 9, 2012 decision became the Commissioner’s final decision in this case when the
Appeals Council denied Plaintiff’s request for review.

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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 an 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 will not substitute “its own judgment for that
of the [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 under the 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, and it remains the proper approach for analyzing whether
a claimant is disabled. 482 U.S. 137, 140-42, 107 S. Ct. 2287, 2291, 96 L. Ed. 2d 119
(1987).
7.

The 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]
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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) (quotations in
original); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. §
404.1520.
8.

Although the claimant has the burden of proof on the first four steps, 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 is
divided into two parts.

First, the Commissioner must assess the 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 with regard to the five-

step process set forth above: (1) Plaintiff has not engaged in substantial gainful activity
since June 9, 2010, six days after the alleged onset date of June 3, 2010 (R. at 25); 2 (2)

2

Citations to the underlying administrative record are designated as “R.”

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Plaintiff’s extensive facet arthropathy at L4-S1, minimal disc bulges at C4-6 with no
stenosis, disc herniation at L4-5 with no significant stenosis, mild joint effusion and mild
tendonitis of the right knee with no evidence of tear, and depressive disorder were
“severe” impairments within the meaning of the Act (R. at 25); (3) Plaintiff does not have
an impairment or combination of impairments that meet or medically equal any of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (R. at 27); (4) Plaintiff
retains the residual functional capacity to perform light work (which requires lifting no
more than 20 pounds at a time, with frequent lifting or carrying of objects weighing up to
10 pounds, a good deal of walking or standing, or sitting most of the time with some
pushing and pulling of arm or leg controls, 20 C.F.R. § 416.967(b)), except that she
requires the option to sit or stand after one hour (R. at 29); and (5) Plaintiff can perform
jobs that exist in significant numbers in the national economy (R. at 38). Thus, the ALJ
found that Plaintiff was not under a disability, as defined by the Act, at any time from
June 9, 2010, through the date of the decision. (R. at 39).
10.

Plaintiff contends that the ALJ made two errors in his decision. First,

Plaintiff argues that the ALJ’s physical RFC evaluation was not supported by substantial
evidence because the record does not contain a medical opinion addressing Plaintiff’s
exertional limitations, and the ALJ was not qualified to assess Plaintiff’s exertional
capacity himself. She contends that the medical evidence in the record constituted bare
medical findings and required review from a medical expert, therefore, the ALJ had a
duty to develop the record and obtain a medical opinion that addressed Plaintiff’s
exertional limitations.

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The RFC determination is an assessment of the claimant’s ability to do physical
and mental work activities on a sustained basis, despite the presence of limiting
impairments, see 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1), and is at the sole
discretion of the ALJ after weighing all relevant objective and subjective evidence in the
record, including the claimant’s medical records, acceptable medical source opinions,
“other source” opinions, and the claimant’s testimony regarding her alleged limitations.
20 C.F.R. § 404.1545 (noting that a claimant’s RFC must be consistent with the entire
medical record). “Yet, an ALJ’s examination of the medical record is not plenary: ‘An
ALJ is not qualified to assess a claimant’s RFC on the basis of bare medical findings,
and as a result an ALJ’s determination of RFC without a medical advisor’s assessment
is not supported by substantial evidence.’” Englert v. Colvin, 15-CV-564-FPG, 2016 WL
3745854, at *4 (W.D.N.Y. July 8, 2016) (quoting Dailey v. Astrue, No. 09-CV0099(A)(M), 2010 WL 4703599, at *11 (W.D.N.Y. Oct. 26, 2010)). When the record
contains medical findings merely diagnosing the claimant’s impairments without relating
that diagnosis to functional capabilities, “the general rule is that the Commissioner ‘may
not make the connection himself.’” Id. at *4 (quoting Wilson v. Colvin, No. 13-CV6286P, 2015 WL 1003933, at *21 (W.D.N.Y. Mar. 6, 2015).
Here, the administrative record contains extensive records from Plaintiff’s treating
physician, as well as imaging reports but, as the ALJ notes, “no treating source has
submitted an assessment of the claimant’s functional limitations or an opinion as to
whether the claimant is ‘disabled.’” (R. at 37). The records from Plaintiff’s treating
physician, Dr. Michael Calabrese, span from February 13, 2008, through July 11, 2011.
(R. at 424-503, 697-717). Prior to Plaintiff’s alleged onset date of June 3, 2010, Dr.

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Calabrese recorded complaints of continued or increased neck and back pain, as well
as complaints of new pains and a decreased range of motion in her lumbar and cervical
spines. (R. at 433, 437, 440, 442, 445-46, 451-57). While these records do note a
“Plan” for Plaintiff, which included medications, that plan does not relate the complaints
or Dr. Calabrese’s findings to Plaintiff’s ability to sit, stand, walk, or lift. (R. at 437, 442,
445-46, 451-57). The treatment records following Plaintiff’s alleged onset date also
note complaints of neck and back pain along with a decreased range of motion in the
knees, but, again, Dr. Calabrese does not record his opinion of how these injuries and
limitations might impact Plaintiff’s exertional abilities. (R. at 708, 712, 716). The record
also contains reports of MRI scans of Plaintiff’s lumbar and cervical spines (R. at 410,
414, 599-602), the report of an upper extremity electro-diagnostic evaluation (R. at 46166), and multiple x-ray reports (R. at 417-18, 603, 695-96). These evaluations contain
description of Plaintiff’s impairments, but contain no discussion of how the imaging
relates to Plaintiff’s ability to sit, stand, walk, or lift. (R. at 463). In other words, despite
the three years of medical records around Plaintiff’s complaints and diagnoses, and
numerous imaging reports, nothing from Plaintiff’s treating sources relates this data to
her functional capabilities or limitations.
Indeed, there is no opinion on these capabilities from any medical source. The
consultative examining physician, Dr. Kathleen Kelley, opined that “bending or twisting
repetitively of the [cervical ]spine or [lumbosacral] spine [would] require comfort breaks,”
that Plaintiff should refrain from areas where she needs acute vision, and that she
should refrain from “activity requiring balance or working around heights or heavy
equipment.” (R. at 508). Dr. Kelley provided no explanation as to what she meant by

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“comfort breaks,” and made no assessment of Plaintiff’s ability to walk, stand, sit, or lift
and carry objects. (R. at 504-08). The ALJ stated that he gave “significant weight” to
this opinion, and that he “accommodated” for the limitations assessed by Dr. Kelley in
his finding that Plaintiff required the option to sit or stand after one hour. (R. at 38).
Because there is no further explanation as to the meaning of “comfort break”, the ALJ’s
RFC appears to be based on his speculation as to Dr. Kelley’s intention. See Selian v.
Astrue, 708 F.3d 409, 421 (2d Cir. 2013) (holding that the consultative examining
physician’s opinion did not provide substantial evidence to support the ALJ’s finding of
light work where the opinion was vague and its meaning was left to the ALJ’s
speculation). Further, it appears that Dr. Kelley did not review the MRIs of Plaintiff’s
spine prior to offering an opinion and diagnosis. (R. at 504). The failure to review
Plaintiff’s MRIs in making an already incomplete assessment further demonstrates that
Dr. Kelley’s opinion should not have formed the sole source for the ALJ’s RFC. See
Alessi v. Colvin, No. 14 Civ. 7220, 2015 WL 8481883, at *5-6 (E.D.N.Y. Dec. 9, 2015)
(“[T]here is insufficient basis in the record to determine . . . [claimant’s RFC] especially
because . . . the sole medical source whose functional assessment the ALJ gave ‘great
weight’ to did not review the lumbar and cervical MRIs, which showed some
abnormalities . . . . While the ALJ himself considered the MRIs, the ALJ is not a medical
professional who can interpret the MRIs to assess [claimant’s] RFC.”).
When “‘the record contains sufficient evidence from which an ALJ can assess the
[claimant’s RFC],’ a medical source statement or formal medical opinion is not
necessarily required.” Monroe v. Comm’r of Soc. Sec., No. 16-1042, 2017 WL 213363,
at *3 (2d Cir. Jan. 18, 2017) (citation omitted) (quoting Tankisi v. Comm'r of Soc. Sec.,

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521 Fed. App’x 29, 34 (2d Cir. 2013) (summary order)). But Monroe—as well as the
other Second Circuit cases on which it relies—still requires that the administrative
record be sufficiently comprehensive to permit an informed finding by the ALJ.

Id.

(treating source’s notes “provide[d] contemporaneous medical assessments of
[claimant’s] mood, energy, affect, and other characteristics relevant to her ability to
perform sustained gainful activity,” as well as “notes relating to [claimant’s] social
activities relevant to her functional capacity”). There is not sufficient information from
Dr. Calabrese’s notes to indicate Plaintiff’s limitations, and the record contains no other
medical opinion addressing how Plaintiff’s diagnoses relate to her ability to sit, stand,
walk, or carry over 10 pounds. Therefore, this Court finds there was no basis from
which the ALJ could determine Plaintiff to be limited to light work. See Englert, 2016
WL 3745854, at *4 (“Neither this Court nor the ALJ is empowered to make medical
conclusions about a claimant’s physical condition where . . . those medical records are
limited to bare medical findings about a complex physical impairment”); Skupien v.
Colvin, No. 13-CV-403S, 2014 WL 3533425 at *4 (W.D.N.Y. July 16, 2014) (“because
the treating physicians' records provide little evidence concerning [plaintiff’s] ability to
perform work-related functions, there is no sound basis from which the ALJ could made
a common sense judgment about functional capacity.”).
The Second Circuit has long recognized that “where there are deficiencies in the
record, an ALJ is under an affirmative obligation to develop a claimant's medical history
even when the claimant is represented by counsel.” Rosa v. Callahan, 168 F.3d 72, 79
(2d Cir. 1999) (internal quotation marks omitted). Accordingly, this Court concludes that
remand is appropriate to allow the ALJ to properly develop the record. Englert, 2016

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WL 3745854, at *4 (“remand is required to allow the ALJ to obtain a physical RFC
assessment or medical source statement to supplement the gaps in the medical
record.”).
11.

In addition to challenging the ALJ’s RFC finding, Plaintiff argues that the

ALJ failed to resolve a material conflict between the report of the consultative examiner,
Dr. Renee Baskin, and the report of the state agency physician, Dr. D. Mangold, as it
relates to Plaintiff’s ability to make adequate decisions in the workplace.

The ALJ

should also evaluate and, if appropriate, address this point 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 seeking the same relief is denied.
IT HEREBY IS ORDERED, that Plaintiff’s Motion for Judgment on the Pleadings
(Docket No. 6) is GRANTED.
FURTHER, that Defendant’s Motion for Judgment on the Pleadings (Docket No. 10)
is DENIED.
FURTHER, that this case is REMANDED to the Commissioner of Social Security for
further proceedings consistent with this decision.
FURTHER, that the Clerk of Court is directed to close this case.
SO ORDERED.
Dated: May 14, 2017
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

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