Brink v. Colvin
DECISION AND ORDER granting 15 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 17 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 6/12/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JAMES R. BRINK,
No. 1:14-CV-00940 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Represented by counsel, plaintiff James R. Brink (“plaintiff”)
brings this action pursuant to the Social Security Act (the “Act”),
seeking review of the final decision of defendant the Acting
Commissioner of Social Security (the “Commissioner” or “defendant”)
denying his application for 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
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, and the Commissioner’s
motion is denied.
December 30, 2008, which was denied.
(“T.”) 84, 117-20, 242-44.
At plaintiff’s request, a hearing was
held before administrative law judge (“ALJ”) Robert T. Harvey on
April 21, 2011. T. 44-82.
In a decision dated May 23, 2011, ALJ
Harvey found that plaintiff was not disabled as defined in the Act
and denied his claim.
The Appeals Council granted
plaintiff’s request for review and, in an order dated October 19,
application filed July 5, 2011.
T. 105-10, 697-702, 778-92.
second administrative hearing was held on December 5, 2012, before
ALJ Robert C. Dorf.
decision on January 3, 2013.
ALJ Dorf issued an unfavorable
On September 9, 2014, the
Appeals Council issued an order denying plaintiff’s request for
review, thereby rendering ALJ Dorf’s decision the Commissioner’s
Plaintiff subsequently filed this
III. The ALJ’s Decision
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 December 30,
2008, the alleged onset date.
At step two, the ALJ found
osteoarthritis and degenerative joint disease of the right knee,
status post multiple surgical procedures to the right knee; chronic
obstructive pulmonary disease; history of one seizure; personality
disorder; and borderline cognitive functioning.
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 sedentary work as defined in 20 C.F.R. § 416.967(a),
accommodated during regularly scheduled breaks in the workday.”
The ALJ went on to state that “more specifically,”
plaintiff had the RFC to sit for up to six hours and stand or walk
for up to two hours in an eight hour workday, with the ability to
alternate sit/stand positions during customary morning, afternoon
and lunch breaks; lift/carry objects weighing a maximum of ten
unprotected heights or dangerous machinery.
The ALJ further
determined that plaintiff had the mental capacity, on a sustained
basis, to understand, remember, and carry out simple instructions;
to make simple work-related decisions; to respond appropriately to
others; and to deal with changes in a routine setting.
At step four, the ALJ found that plaintiff had no past
At step five, the ALJ concluded that,
considering plaintiff’s age, education, work experience, and RFC,
there are jobs that exist in significant numbers in the national
economy that plaintiff can perform.
Accordingly, the ALJ
found plaintiff not disabled.
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).
Failure to Properly Evaluate Medical Opinions of Record
Plaintiff first argues that the ALJ’s RFC determination was
unsupported by substantial evidence because the ALJ purported to
physicians Dr. Balderman and Dr. Ryan, but failed to incorporate
Specifically, plaintiff argues that the ALJ failed to incorporate
(or explain why he did not incorporate) Dr. Balderman’s opinion
that plaintiff had moderate limitations in sitting and Dr. Ryan’s
opinion that plaintiff had moderate limitations in learning new
tasks, relating adequately with others, and dealing with stress.
With respect to Dr. Balderman, the Court finds that the ALJ’s
RFC finding adequately accounted for a moderate limitation in
The ALJ expressly stated that plaintiff would
require customary morning, afternoon, and lunch breaks.
Tompkins v. Colvin, 2015 WL 10382575, at *6 (W.D.N.Y. Dec. 23,
2015), report and recommendation adopted, 2016 WL 792428 (W.D.N.Y.
Mar. 1, 2016) (holding that a “mild to moderate limitation in
limitation to light work as well as normal work breaks”); Burdick
(restriction on prolonged sitting and standing was consistent with
the full range of sedentary work).
Normal work breaks and meal
periods split an eight hour workday into approximately two hour
periods. See SSR 96-9p, 1996 WL 374185 at *6 (“In order to perform
a full range of sedentary work, an individual must be able to
remain in a seated position for approximately 6 hours of an 8-hour
workday, with a morning break, a lunch period, and an afternoon
break at approximately 2-hour intervals.”).
Plaintiff has offered
no support for the proposition that a “moderate limitation” in
“prolonged” sitting is not adequately accommodated by breaks every
However, the Court agrees that the ALJ’s RFC finding is
inconsistent with Dr. Ryan’s opinion that plaintiff has moderate
limitations in relating adequately with others and dealing with
In particular, the ALJ’s conclusion that plaintiff would
be able to respond appropriately to others on a sustained basis
plainly does not comport with the limitations opined by Dr. Ryan.
Additionally, plaintiff is correct that the ALJ failed to even
mention, let alone give appropriate weight to,
the opinion of
State agency psychological consultant Dr. Andrews that plaintiff
required a low contact environment.
These errors necessitate
See Dioguardi v. Comm’r of Soc. Sec., 445 F. Supp. 2d 288,
297 (W.D.N.Y. 2006) (“The plaintiff . . . is entitled to know why
the ALJ chose to disregard the portions of the medical opinions
that were beneficial to [his] application for benefits.”).
Defendant argues that the ALJ’s RFC determination is supported
by the opinion of consultative examiner Dr. Jensen.
Dr. Jensen opined that plaintiff’s ability to relate adequately
with others was impaired, albeit mildly.
The existence of an
impairment, even a mild one, implies the existence of accompanying
The Court also agrees that ALJ erred in failing to address
Dr. Ryan’s opinion that plaintiff’s ability to deal with stress was
“Because stress is highly individualized,
mentally impaired individuals may have difficulty meeting the
Commissioner must therefore make specific findings about the nature
of a claimant’s stress, the circumstances that trigger it, and how
those factors affect his ability to work.”
Stadler v. Barnhart,
464 F. Supp. 2d 183, 189 (W.D.N.Y. 2006).
Accordingly, this case is remanded for further administrative
proceedings consistent with this Decision and Order. On remand, the
ALJ is directed consider the medical opinions of record regarding
plaintiff’s ability to tolerate stress and to relate adequately
with others, and to consider how those limitations affect his
ability to work.
The ALJ shall also consider whether, in light of
plaintiff’s nonexertional limitations, a vocational expert should
be called to testify.
Plaintiff also argues that the ALJ’s credibility determination
was flawed because he improperly penalized plaintiff for being
“noncompliant” without considering the impact of plaintiff’s mental
impairments on his conduct.
The Court need not reach plaintiff’s
arguments regarding the ALJ’s credibility finding, because it has
already determined that remand is necessary.
On remand, the
Commissioner is instructed to reconsider the credibility finding in
light of the record as a whole.
For the foregoing reasons, plaintiff’s motion for judgment on
the pleadings motion (Doc. 15) is granted to the extent that this
matter is remanded to the Commissioner for further administrative
Commissioner’s motion for judgment on the pleadings (Docket No. 17)
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
June 12, 2017
Rochester, New York.
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