Oney v. Colvin

Filing 13

DECISION AND ORDER granting 9 Plaintiff's Motion for Judgment on the Pleadings to the extent that this matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order; denying 11 Government's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 3/21/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

TERRILEE ONEY,
Plaintiff,
-vs-

No. 1:14-CV-00720 (MAT)
DECISION AND ORDER

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

I.

Introduction
Represented by counsel, Terrilee Oney (“plaintiff”) brings

this action pursuant to Titles II and XVI of the Social Security
Act (“the Act”), seeking review of the final decision of the
Commissioner of Social Security (“the Commissioner”) denying her
applications

for

disability

insurance

benefits

(“DIB”)

and

supplemental security income (“SSI”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g). Presently before
the Court are the parties’ cross-motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. For the reasons discussed below, plaintiff’s motion is
granted

to

the

extent

that

this

case

is

remanded

to

the

Commissioner for further administrative proceedings consistent with
this Decision and Order.
II.

Procedural History
The record reveals that in March 2011, plaintiff (d/o/b

February 7, 1961) applied for DIB and SSI, alleging disability as
of January 20, 2011. After her applications were denied, plaintiff

requested a hearing, which was held before administrative law judge
David S. Lewandowski (“the ALJ”) on November 7, 2012. The ALJ
issued an unfavorable decision on January 22, 2013. The Appeals
Council denied review of that decision and this timely action
followed.
III. The ALJ’s Decision
Initially, the ALJ found that plaintiff met the insured status
requirements of the Social Security Act through March 31, 2013. At
step one of the five-step sequential evaluation, see 20 C.F.R.
§§ 404.1520, 416.920, the ALJ determined that plaintiff had not
engaged in substantial gainful activity since January 20, 2011, the
alleged onset date. At step two, the ALJ found that plaintiff
suffered from the severe impairments of degenerative disc disease
of the lumbar and cervical spines, degenerative changes of the hip,
and chronic obstructive pulmonary disorder (“COPD”). At step three,
the

ALJ

found

that

plaintiff

did

not

have

an

impairment

or

combination of impairments that met or medically equaled the
severity of any listed impairment.
Before proceeding to step four, the ALJ determined that,
considering all of plaintiff’s impairments, plaintiff retained the
RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b),
416.967(b),

“except

she

[could]

perform

occasional

postural

activities but should not climb ropes, ladders or scaffolds”; she
“should not work with hazards, including dangerous machinery and

2

unprotected

heights”;

she

could

“perform

occasional

flexion,

extension and rotation of the neck”; and she “should avoid exposure
to pulmonary irritants.” T. 17-18.
At step four, the ALJ found that plaintiff could perform past
relevant

work

as

a

cafeteria

aide

and

a

teacher’s

aide.

Accordingly, the ALJ found plaintiff not disabled and did not
proceed to step five.
IV.

Discussion
A

district

court

may

set

aside

the Commissioner’s

determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
Plaintiff

contends

that

the

ALJ’s

RFC

determination

was

unsupported by any medical opinion in the record, and therefore was
a result of the ALJ’s own lay interpretation of the medical
evidence.

Although

the

ALJ

gave

“significant

weight”

to

the

consulting examining opinion of state agency internal medicine
consultant Dr. John Shwab, plaintiff argues that his findings were
not accounted for in the ALJ’s RFC finding. Dr. Schwab’s consulting
examination, performed on June 17, 2011, found that plaintiff had

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significantly restricted range of motion (“ROM”) of the cervical
spine. Specifically, plaintiff demonstrated cervical spine ROM of
10 degrees extension, 10 degrees flexion, and lateral flexion and
rotation of zero degrees. Plaintiff also demonstrated decreased ROM
of the lumbar spine, positive straight leg raise (“SLR”) test
bilaterally, and limitation in ROM of the shoulders. Dr. Schwab
opined that plaintiff had “marked restriction to moving her head in
any direction and a marked restriction to bending, lifting, and
carrying.” T. 326.
The

ALJ

stated

that

he

gave

Dr.

Schwab’s

opinion

“[s]ignificant weight . . . as it [was] consistent with the
residual functional capacity noted [in the ALJ’s decision] with
included light work with occasional flexion, extension and rotation
of the neck and occasional postural activities.” T. 20. Apparently,
therefore, the ALJ interpreted Dr. Schwab’s “marked” restrictions
in

rotation

of

the

head,

bending,

lifting,

and

carrying

as

consistent with the ALJ’s RFC limiting plaintiff to “occasional”
performance of postural activities and flexion, extension, and
rotation of the neck.
Plaintiff argues that Dr. Schwab’s opinion was “too vague to
be reasonably interpreted as being consistent with light work,”
even with the additional “occasional” limitations assigned by the
ALJ. Doc. 9-1 at 16. The Court agrees. Dr. Schwab’s use of the term
“marked” to describe plaintiff’s limitations indicates that he

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found those limitations to be quite restrictive; however, he did
not define his meaning in using the term. The ALJ failed to explain
how he arrived at the conclusion that the “marked” limitations
found by Dr. Schwab were consistent with “occasional” head movement
and “perform[ing] occasional posture activities” as the ALJ found
in his RFC determination.
“Light work” as defined in the regulations “involves lifting
no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds.” 20 C.F.R. §§ 404.1567(b),
416.967(b). SSR 83-14 notes that light work generally involves
occasional stooping (“bending the body downward and forward by
bending the spine at the waist”), and defines “occasional” as “from
very little up to one-third of the time.” Id.; see also SSR 96-6p
(defining “occasionally”).
Applying these definitions to the ALJ’s RFC determination, the
ALJ

found

that

although

Dr.

Schwab

stated

she

had

marked

limitations in moving her head, lifting, carrying, and bending,
pursuant to the RFC plaintiff could perform these functions up to
one-third of the total workday. Dr. Schwab’s functional assessment
was too vague to support this RFC, especially where the term
“marked” indicates that plaintiff would be restricted more often
than one-third of the total workday in moving her head, lifting,
carrying, and bending. See Curry v. Apfel, 209 F.3d 117, 123
(2d Cir. 2000)

(finding

that

consultant’s

5

“use

of

the

terms

‘moderate’ and ‘mild,’ without additional information, does not
permit the ALJ, a layperson notwithstanding her considerable and
constant exposure to medical evidence, to make the necessary
inference

that

[plaintiff

could]

perform

the

exertional

requirements of sedentary work”), superceded by statute on other
grounds as stated in Douglass v. Astrue, 2012 WL 4094881 (2d Cir.
2012); see also Selian v. Astrue, 708 F.3d 409, 421 (2d Cir. 2013)
(finding that ALJ’s reliance on treating physician’s statement that
plaintiff could “lift . . . objects of a mild degree of weight on
an intermittent basis” was too vague to support ALJ’s finding that
plaintiff could perform light work).
The Court therefore agrees with plaintiff that although the
ALJ stated he gave “significant” weight to Dr. Schwab’s opinion,
the opinion did not actually support the RFC finding. As the ALJ
had

no

other

medical

opinion

evidence

on

which

to

base

his

decision, it appears that the ALJ impermissibly relied on his own
medical judgment in formulating the RFC. See Mancuso v. Colvin,
2013 WL 3324006, *3 (W.D.N.Y. 2013) (noting that “an expert’s
opinion that uses vague phrases may not constitute substantial
evidence to support an RFC determination when it is ‘accompanied by
no

additional

information,

so

as

to

prevent

the

ALJ,

as

a

layperson, from being able to make the necessary inference whether
[p]laintiff can perform the particular requirements of a specified
type of work”) (citing Burgess v. Astrue, 537 F.3d 117, 128–29 (2d
Cir.

2008)).

The

Court

notes

that

the

administrative

record

contains ample evidence of medical impairments, and therefore the

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ALJ was not in a position to render a “common sense” judgment
regarding plaintiff’s functional capacity without the benefit of an
expert’s assessment. See Manso-Pizarro v. Sec’y of Health & Human
Servs., 76 F.3d 15, 17 (1st Cir. 1996) (“[W]here the medical
evidence

shows

relatively

little

physical

impairment,

an

ALJ

permissibly can render a commonsense judgment about functional
capacity even without a physician’s assessment. . . . But when, as
now, a claimant has sufficiently put her functional inability to
perform

her

prior

work

in

issue,

the

ALJ

must

measure

the

claimant’s capabilities, and ‘to make that measurement, an expert’s
RFC

evaluation

is

ordinarily

essential

unless

the

extent

of

functional loss, and its effect on job performance, would be
apparent even to a lay person.’”) quoting Santiago v. Sec. of
Health & Human Servs., 944 F.3d 1, 7 (1st Cir. 1991)).
Accordingly, this case is remanded for further administrative
proceedings consistent with this Decision and Order. On remand, the
ALJ

is

directed

to

further

develop

the

opinion

evidence

by

contacting Dr. Schwab to clarify his opinion. If the ALJ deems it
necessary, he should contact a treating physician for an opinion
regarding plaintiff’s physical capabilities. In his decision on
remand, the ALJ must provide a function-by-function assessment of
plaintiff’s limitations, and explain how the substantial evidence
of record supports each limitation included in the RFC finding.
V.

Conclusion
For the foregoing reasons, the Commissioner’s motion for

judgment on the pleadings (Doc. 11) is denied and plaintiff’s

7

motion (Doc. 9) is granted to the extent that this matter is
remanded to the Commissioner for further administrative proceedings
consistent with this Decision and Order.

The Clerk of the Court is

directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

March 21, 2017
Rochester, New York.

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