Gurney v. Colvin

Filing 13

DECISION AND ORDER DENYING Defendant's 11 Motion for Judgment on the Pleadings; GRANTING Plaintiff's 8 Motion for Judgment on the Pleadings; REMANDING this case to the Commissioner of Social Security for further proceeding consistent with this Decision and Order; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, United States District Judge on 2/23/2016. (MEAL) - CLERK TO FOLLOW UP -

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SCOTT ALBERT GURNEY,
Plaintiff,
v.

DECISION AND ORDER
14-CV-688S

CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.

1.

Plaintiff Scott Albert Gurney challenges an Administrative Law Judge’s

(“ALJ”) decision dated April 24, 2013, wherein the ALJ determined that Plaintiff is not
disabled within the meaning of the Social Security Act (the “Act”).

Plaintiff now

contends that this determination is not based upon substantial evidence, and remand is
warranted.
2.

Plaintiff protectively filed an application for disability insurance benefits

under Title II of the Act on November 23, 2011, alleging a disability beginning on
January 5, 2009.

The claim was initially denied on February 22, 2012.

Plaintiff

thereafter requested a hearing before an ALJ and, on April 10, 2013, Plaintiff appeared
and testified in Buffalo, NY. On April 24, 2013, the ALJ found that Plaintiff was not
disabled within the meaning of the Social Security Act. Plaintiff filed an administrative
appeal, and the Appeals Council denied Plaintiff’s request for review on June 24, 2014,
rendering the ALJ’s determination the Commissioner’s final decision. Plaintiff filed the
instant action on August 22, 2014.

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3.

Plaintiff and the Commissioner each filed a Motion for Judgment on the

Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket Nos.
8, 11). Judgment on the pleadings is appropriate where material facts are undisputed
and where a judgment on the merits is possible merely by considering the contents of
the pleadings. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988).
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) (internal quotation marks and citation omitted).

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), cert denied, 459 U.S. 1212 (1983).
5.

To determine 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

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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].”
1992).

Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y.

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 United States Supreme Court recognized the validity of this analysis

in Bowen v. Yuckert, 482 U.S. 137, 140-42, 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.

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8.

Although the claimant has the burden of proof as to 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 of this
inquiry is, in turn, 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(g); Heckler v. Campbell, 461 U.S. 458,
460-61, 103 S. Ct. 1952, 1954, 76 L. Ed. 2d 66 (1983).
9.

In this case, the ALJ determined that Plaintiff last met the insured status

requirements of the Act on June 30, 2015. (R. 19). 1 He then made the following
findings with regard to the five-step process set forth above: (1) Plaintiff had engaged in
substantial gainful activity during 2010 through his work as a jewelry setter, but that
there had been a continuous 12-month period during which Plaintiff did not engage in
substantial gainful activity since the alleged onset date of January 5, 2009 (id.); (2)
Plaintiff had the following severe impairments:

“mucosa retention cyst in the left

maxillary sinus status postsurgical excision, lumbar spine disc protrusions and bulge
with degenerative disc disease, thoracic spine degenerative disc disease, cervical spine
degenerative

disc

disease,

right

shoulder

partial

thickness

articular

surface

supraspinatus tears with medial subluxation of the biceps tendon and associated
subacromial impingement status post surgical repair (20 CFR 404.1520(c))” (R. 20); (3)
Plaintiff did not have an impairment or combination of impairments that met or medically
equaled a recognized disabling impairment under the regulations (id.); (4) because
1

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

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Plaintiff had the residual functional capacity (“RFC”) to perform a full range of light work,
he was capable of performing past relevant work as a jewelry setter (R. 20-25); and (5)
having found that Plaintiff had the RFC to perform past relevant work, the ALJ did not
examine whether other jobs exist in the national economy that Plaintiff is able to
perform.
10.

Plaintiff advances two challenges to the ALJ’s decision.

First, Plaintiff

contends that the ALJ’s assessment of Plaintiff’s RFC is not supported by substantial
evidence because it fails to take into account the opinion of Dr. Donna Miller, an
examining physician, as to Plaintiff’s moderate limitations on reaching, nor does it take
into account Dr. Belles’ opinion that Plaintiff should avoid noxious odors.

“The

Commissioner defines RFC as a claimant’s ‘maximum remaining ability to do sustained
work activities in an ordinary work setting on a regular and continuing basis . . . 8 hours
a day, for 5 days a week, or [on] an equivalent work schedule.’” Sorensen v. Comm’r of
Soc. Sec., No. 3:06 Civ. 554, 2010 WL 60321, at *8 (N.D.N.Y. Jan. 7, 2010) (quoting
SSR 96-8p, 1996 WL 374184, at *2 (S.S.A. July 2, 1996) (emphasis omitted)).

In

making an RFC assessment, the ALJ “must first identify the individual’s functional
limitations or restrictions and assess his or her work-related abilities on a function-byfunction basis.”

SSR 96-8p, 1996 WL 374184, at *1; see also 20 C.F.R.

§§ 404.1545(b)-(d), 416.945(b)-(d). The ALJ must consider all the relevant evidence in
the record, “including the claimant’s physical abilities, mental abilities, and symptoms,
pain, and other limitations which could interfere with work activities on a regular and
continuing basis.” Sorensen, 2010 WL 60321, at *8 (citing 20 C.F.R. § 404.1545). After
assessing the plaintiff’s functional limitations and abilities, the ALJ then categorizes the

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RFC into exertional levels of work, e.g., “sedentary, light, medium, heavy, and very
heavy.” SSR 96-8p, 1996 WL 374184, at *1.
In the present case, the ALJ determined that Plaintiff was capable of performing
a full range of light work. (R. 20). Light work is defined in the regulations as “lifting no
more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to
10 pounds.” SSR 83-10, 1983 WL 31251, at *5 (S.S.A.1983). Dr. Miller’s January 18,
2012 opinion found Plaintiff to have moderate limitations with respect to “repetitive
heavy lifting, bending, reaching, pushing, pulling, or carrying.”

(R. 400).

Plaintiff

contends that the ALJ’s RFC assessment improperly rejects Dr. Miller’s assessment
because it does not specifically address these limitations. However, there is no error
simply because the ALJ failed to incorporate the moderate limitation by name, provided
that the RFC appropriately reflects that limitation.

Crawford v. Astrue, No. 13-CV-

6068P, 2014 WL 4829544, at *23 (W.D.N.Y. Sept. 29, 2014) (“although the ALJ did not
discuss the moderate limitations assessed by [the non-examining physician], he
incorporated moderate limitations into his RFC by restricting [plaintiff] to jobs that”
reflect that opinion); Wasiewicz v. Colvin, No. 13-CV-1026S, 2014 WL 5465451, at *4-5
(W.D.N.Y. Oct. 28, 2014) (“while the ALJ did not explicitly discuss” every limitation, “he
did incorporate moderate limitations into his RFC”). Indeed, moderate limitations—such
as those assessed by Dr. Miller—are frequently found to be consistent with an RFC for
a full range of light work. See, e.g., Harris v. Comm’r of Soc. Sec., No. 09-CV-1112
NAM/VEB, 2011 WL 3652286, at *5 (N.D.N.Y. July 27, 2011) report and
recommendation adopted, No. 1:09-CV-1112, 2011 WL 3652201 (N.D.N.Y. Aug. 17,
2011) (finding “slight to moderate limitations in activities that require lifting, carrying, and

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reaching . . . consistent with the ALJ’s conclusion that Plaintiff could perform light
work”); Vargas v. Astrue, No. 10 CIV. 6306 PKC, 2011 WL 2946371, at *12 (S.D.N.Y.
July 20, 2011) (finding “moderate limitations for lifting, carrying, handling objects, and
climbing stairs” consistent with RFC for full range of light work); Bass v. Colvin, No.
6:13-CV-01062, 2014 WL 2616190, at *6 (W.D. Ark. June 12, 2014) (doctor’s
assessment that plaintiff had “’moderate’ limitations in walking, standing, lifting, and
carrying . . . do not appear to be inconsistent with the ALJ’s finding that [p]laintiff can
perform light work”); Nelson v. Colvin, No. 12-CV-1810 JS, 2014 WL 1342964, at *12
(E.D.N.Y. Mar. 31, 2014) (“the ALJ’s determination that [p]laintiff could perform ‘light
work’ is supported by [doctor’s] assessment of ‘mild to moderate limitation for sitting,
standing, walking, bending, and lifting weight on a continued basis’”) (citing Lewis v.
Colvin, 548 F. App’x 675, 678 (2d Cir.2013)); Hazlewood v. Comm’r of Soc. Sec., No.
6:12-CV-798, 2013 WL 4039419, at *7 (N.D.N.Y. Aug. 6, 2013) (doctor’s opinion that
plaintiff had “mild to moderate limitations in walking, pushing, and pulling” supported the
“ALJ’s determination that plaintiff could physically perform light work”); Harrington v.
Colvin, No. 14-CV-6044P, 2015 WL 790756, at *14 (W.D.N.Y. Feb. 25, 2015) (gathering
cases). The determination that Plaintiff should do only light work therefore accounts for
the moderate physical limitations identified by Dr. Miller. 2
However, even if the ALJ could be deemed to have rejected Dr. Miller’s opinion
as to reaching, there would be no error because the rest of the record supports a finding
that Plaintiff is capable of performing light work.

2

In the RFC assessment, the ALJ

Social Security Ruling 85-15 addresses the importance of reaching in determining an
appropriate RFC. However, this Ruling specifically applies to “significant,” rather than “moderate,”
limitations on reaching. Social Security Ruling 85-15 (“Significant limitations of reaching or handling,
therefore, may eliminate a large number of occupations a person could otherwise do.”).

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thoroughly discussed and considered Plaintiff’s treatment history, specifically that
Plaintiff did not begin treatment for his shoulder injury until July 2010 (R. 22), he
underwent laparoscopic surgery on his shoulder in January 2011 (R. 23), his physical
therapy records indicate consistent improvement in pain and range of motion (R. 23,
citing R. 356, 359, 362, 364, 367, 373, 376, 379, 384), and in May 2011, Plaintiff
reported that his shoulder was 85-90% better (R. 23, citing R. 293). The ALJ also
considered Plaintiff’s own statements and submissions concerning his broad range of
activities of daily living, including “showering, limited yard work, attending physical
therapy, visiting with neighbors and family, driving neighbors to various medical
appointments, using a computer, texting with his family, walking and caring for pets,
visiting with other fire fighters, preparing some meals.” (R. 143-152). And finally, the
ALJ considered the fact that Plaintiff had engaged in activities as a jewelry setter that
would be consistent with “light work” after the alleged onset date, and during the period
in which Plaintiff stated that his pain was hindering his activities of daily living. (R. 23,
citing R. 293, 315). The ALJ was not required to “recite every piece of evidence that
contributed to the decision, so long as the record ‘permits us to glean the rationale of
[his] decision.’” Cichocki v. Astrue, 729 F.3d 172, 178 n. 3 (2d Cir. 2013) (quoting
Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)).

Accordingly, this Court

concludes that the limitations assessed by the ALJ are both consistent with Dr. Miller 's
opinion and supported by substantial evidence in the record.
This Court disagrees also with Plaintiff’s contention that the ALJ failed to provide
good reasons for rejecting the limitations assessed by Dr. Belles, Plaintiff’s treating
physician.

Under the “treating physician” rule, “the medical opinion of a claimant’s

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treating physician is given controlling weight if it is well supported by medical findings
and not inconsistent with other substantial record evidence.” Shaw v. Chater, 221 F.3d
126, 134 (2d Cir. 2000); see also 20 C.F.R. § 404.1527(d)(2) (“If we find that a treating
source's opinion on the issue(s) of the nature and severity of your impairment(s) is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in your case record, we will give it
controlling weight.”). “The deference accorded to a treating physician’s opinion may,
however, be reduced upon consideration of other factors, including the length and
nature of the treating doctor’s relationship with the patient, the extent to which the
medical evidence supports the doctor’s opinion, whether the doctor is a specialist, the
consistency of the opinion with the rest of the medical record, and any other factors
‘which tend to support or contradict the opinion.’” Michels v. Astrue, 297 F. App’x 74, 76
(2d Cir. 2008) (quoting 20 C.F.R. § 404.1527(d)(2)(i)-(ii) and (d)(3)-(6)).
This Court finds that the ALJ provided “good reasons” for his decision to give little
weight to Dr. Belles’ opinion concerning Plaintiff’s need to avoid noxious fumes. (R. 22).
The ALJ discounted Dr. Belles’ opinion on the grounds that it was “stated in connection
with the claimant’s claim for New York State retirement, whose standards of disability
are different from those of the Social Security Administration.”

(R. 25).

He also

explained, in depth, why he found the limitation regarding noxious odors inconsistent
with other substantial evidence in the record. Specifically, the ALJ noted that Plaintiff
had failed to seek out testing for allergies, despite alleging extreme sensitivity to odors.
(R. 24, 40). Further, the ALJ explained that the limitations imposed by Dr. Belles and
the symptoms described by Plaintiff, including being unable to be around any perfumes,

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were inconsistent with Plaintiff’s statements concerning his activities of daily living
(walking his dogs three times a week, driving neighbors, visiting with colleagues, travel,
and going out to meals every month). (R. 24). Accordingly, this Court concludes that
the ALJ did not violate the treating physician rule by affording “little weight” to Dr. Belles’
opinion as to noxious fumes. See Scitney v. Colvin, 41 F. Supp. 3d 289, 303 (W.D.N.Y.
2014) (ALJ properly discounted opinion of treating physician where the opinion was
inconsistent with the record as a whole); Carvey v. Astrue, 380 F. App’x 50, 52 (2d Cir.
2010) (ALJ properly discounted opinion of treating physician where opinion was
inconsistent with other medical opinions and claimant’s own testimony).
11.

Second, Plaintiff contends that the record does not support the ALJ’s

finding that Plaintiff “is capable of performing past relevant work as a jewelry setter” (R.
25), because those activities do not constitute “past relevant work” under the Act. The
record shows that Plaintiff was the sole proprietor of a jewelry setting business—setting
precious stones into necklaces and other jewelry—before and after the alleged disability
onset date. (R. 105, 107).
“Past relevant work” is defined as “work that you have done within the past 15
years, that was substantial gainful activity, and that lasted long enough for you to learn
to do it.” 20 C.F.R. § 404.1560(b)(1). In determining that Plaintiff’s work as a jewelry
setter was “substantial gainful activity” in step one of the five-step disability analysis, the
ALJ stated only: “The claimant’s tax returns show gross receipts in a diamond cutting
business of $12,865 in 2010. Gross earnings of more than $1,010 a month as of
January 1, 2012, $12,120 for the year, are considered to establish that a claimant has
engaged in substantial gainful activity.”

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This does not follow the test set out by C.F.R. § 404.1575(a), which provides
three tests to determine whether activities performed by self-employed individuals
constitute substantial gainful activity:
(1) Test One: You have engaged in substantial gainful activity if you render
services that are significant to the operation of the business and receive a substantial
income from the business. Paragraphs (b) and (c) of this section explain what we mean
by significant services and substantial income for purposes of this test.
(2) Test Two: You have engaged in substantial gainful activity if your work
activity, in terms of factors such as hours, skills, energy output, efficiency, duties, and
responsibilities, is comparable to that of unimpaired individuals in your community who
are in the same or similar businesses as their means of livelihood.
(3) Test Three: You have engaged in substantial gainful activity if your work
activity, although not comparable to that of unimpaired individuals, is clearly worth the
amount shown in § 404.1574(b)(2) when considered in terms of its value to the
business, or when compared to the salary that an owner would pay to an employee to
do the work you are doing.
Briller v. Barnhart, No. 04 CIV.3649 RWS, 2005 WL 2403857, at *6-7 (S.D.N.Y. Sept.
29, 2005) (quoting C.F.R. § 404.1575(a)). Notably, C.F.R. § 404.1575(b) states that
“substantial income” in Test One is not gross business income—as the ALJ relied on
here—but is instead “net income,” measured by “deduct[ing] your normal business
expenses from your gross income.” Therefore, the ALJ’s determination that Plaintiff’s
jewelry setting income from 2010 was substantial gainful activity was incorrect because
he looked only to the gross income of $12,865, and not to Plaintiff’s net income (a loss
of $72, R. 107). Taking into account Plaintiff’s reported net income from jewelry setting
in the record, he never earned an amount sufficient to qualify as substantial gainful
income. (R. 123-124). According to the record, the most Plaintiff ever earned from his
business was $8,392.00 in 2008. Id. That amount fell below that year’s substantial
gainful activity threshold of $11,280 ($940/month). See 20 C.F.R. §§ 404.1574(b)(2)(i)-

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(ii); see also Social Security Administration Program Operations Manual System
(“POMS”) DI 10501.015, available at https://secure.ssa.gov/poms.nsf/lnx/0410501015).
Nor did the ALJ consider whether Plaintiff’s jewelry setting work met either of the
other substantial gainful activity tests. In his written submission, Plaintiff stated that he
worked only 3-4 hours per day, 2-3 days per week. (R. 155). It is therefore likely that
the activity would fail at Test Two, because Plaintiff’s work was not “comparable to that
of unimpaired individuals in [his] community who are in the same or similar businesses
as their means of livelihood.” See C.F.R. § 404.1575(a). Further, the ALJ did not
determine whether Plaintiff’s work was “clearly worth” a substantially gainful amount
under Test Three (id.), and the record does not appear to contain sufficient evidence to
support such a finding. Daniel v. Astrue, No. 10-CV-5397 NGG, 2012 WL 3537019, at
*4-6 (E.D.N.Y. Aug. 14, 2012) (remanding where the record was unclear as to whether
Plaintiff's self-employment constituted substantial gainful activity).

Because “the

Commissioner did not properly base his decision on any of the three applicable tests
outlined in the regulations,” the determination that Plaintiff’s work as a jewelry setter
was “past relevant work” constitutes error as a matter of law. See Ellis-Clements v.
Comm’r of Soc. Sec., No. 2:10-CV-230, 2011 WL 2884870, at *9 (D. Vt. July 18, 2011).
This case is therefore remanded for a correct analysis under 20 C.F.R. § 404.1575 and,
if Plaintiff cannot perform past relevant work, for a determination under step five as to
whether “there is other work which the claimant could perform” in the national economy.
See Berry, 675 F.2d at 467.
12.

After carefully examining the record, this Court finds cause to remand this

case to the ALJ for further administrative proceedings consistent with this decision.

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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 Defendant’s Motion for Judgment on the
Pleadings (Docket No. 11) is DENIED;
FURTHER, that Plaintiff’s Motion for Judgment on the Pleadings (Docket No. 8)
is GRANTED;
FURTHER, that this case is REMANDED to the Commissioner of Social Security
for further proceeding consistent with this Decision and Order;
FURTHER, that the Clerk of the Court is directed to close this case.
SO ORDERED.
Dated: February 23, 2016
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

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