Chiles v. Colvin
DECISION AND ORDER granting 6 Plaintiff's Motion for Judgment on the Pleadings to the extent that the matter is remanded for further administrative proceedings consistent with this Decision and Order; denying 11 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 6/23/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TANESHIA Y. CHILES,
DECISION AND ORDER
-vsCAROLYN W. COLVIN, Acting Commissioner
of Social Security,
instituted this action pursuant to Titles II and XVI of the Social
Security Act (“the Act”), seeking review of the final decision of
the Acting Commissioner of Social Security (“the Commissioner”)1
denying her application for Disability Insurance Benefits (“DIB”)
jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
Plaintiff protectively filed for SSI and DIB on January 12,
2011, alleging a disability onset date of September 2, 2010.
Nancy A. Berryhill is now the Acting Commissioner of Social Security.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A.
Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the
defendant in this suit. No further action needs to be taken to continue this suit
by reason of the last sentence of section 205(g) of the Social Security Act, 42
U.S.C. § 405(g).
(T.165-86).2 The claims were initially denied on April 1, 2011.
(T.108-13). On April 27, 2011, Plaintiff filed a timely written
request for hearing, which was held on November 29, 2012, before
Administrative Law Judge Timothy J. Trost (“the ALJ”) in Buffalo,
New York. On that date, Plaintiff’s representative, Robin Friedman,
withdrew on the record. No testimony was taken at this hearing.
decision. (T.58-73). Represented by new counsel, Plaintiff timely
commenced this action.
The parties have cross-moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The
Court adopts and incorporates by reference herein the undisputed
and comprehensive factual summaries contained in the parties’
briefs. The record will be discussed in more detail below as
necessary to the resolution of this appeal. For the reasons that
follow, the Commissioner’s decision is reversed, and the matter is
remanded for further administrative proceedings consistent with
Citations in parentheses to “T.” refer to pages from the certified
transcript of the administrative record.
THE ALJ’S DECISION
The ALJ followed the five-step procedure established by the
§§ 404.1520, 416.920.
At step one, the ALJ found that Plaintiff,
who met the insured status requirements through June 30, 2015, had
not engaged in substantial gainful activity since September 2,
2010, the alleged onset date.
hypertension, diabetes mellitus, and obesity. The ALJ found that
At step three, the ALJ summarily concluded that Plaintiff’s
impairments, considered singly or in combination, do not meet or
medically equal a listed impairment. The ALJ did not identify
which, if any, specific listed impairments were considered.
Prior to proceeding to step four, the ALJ assessed Plaintiff
as having the residual functional capacity (“RFC”) to perform the
full range of light work as defined in 20 C.F.R. §§ 404.1567(b) and
At step four, the ALJ found that Plaintiff is unable to
perform her past relevant work as a certified nursing assistant.
At step five, the ALJ relied on Medical-Vocational Rule 202.21
to find that, based on her age (she is a “younger individual” under
the Regulations), education (she is a high school graduate), work
experience, and RFC, a finding of “not disabled” was warranted.
SCOPE OF REVIEW
A decision that a claimant is not disabled must be affirmed if
it is supported by substantial evidence, and if the ALJ applied the
Commissioner’s decision rests on adequate findings supported by
evidence having rational probative force, [the district court] will
not substitute [its] judgment for that of the Commissioner.” Veino
v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002). This deferential
standard is not applied to the Commissioner’s application of the
law, and the district court must independently determine whether
the Commissioner’s decision applied the correct legal standards in
determining that the claimant was not disabled. Townley v. Heckler,
748 F.2d 109, 112 (2d Cir. 1984). Failure to apply the correct
legal standards is grounds for reversal. Id. Therefore, this Court
first reviews whether the applicable legal standards were correctly
applied, and, if so, then considers the substantiality of the
evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).
Failure to Consider Social Security Ruling 12-2p
Plaintiff argues that although the ALJ found fibromyalgia to
be a severe impairment, he committed legal error by failing to
follow the directive of Social Security Ruling (“SSR”) 12-2p,
Titles II AND XVI: Evaluation of Fibromyalgia, 2012 WL 3104869, at
*2 (S.S.A. July 25, 2012), by considering fibromyalgia at all steps
of the sequential evaluation. In addition, Plaintiff asserts, the
ALJ misrepresented the record regarding her fibromyalgia diagnosis.
The Commissioner does not directly address Plaintiff’s argument
regarding the failure to follow SSR 12-2p.3
The Commissioner recognizes fibromyalgia as a potentially
disabling impairment, and describes it as “a complex medical
condition characterized primarily by widespread pain in the joints,
muscles, tendons, or nearby soft tissues that has persisted for at
least 3 months.” SSR 12–2p, 2012 WL 3104869, at *2. SSR 12-2p
provides guidance on the evidence required “to establish that a
person has a medically determinable impairment of fibromyalgia” and
how to evaluate the impairment’s limiting effects. Id., at *1. SSR
12-2p also recognizes that a diagnosis of fibromyalgia generally is
manifest similar symptoms of musculoskeletal pain, stiffness and
fatigue. Id., at *3 & n. 7.
The Court agrees with Plaintiff that there were several errors
regarding the ALJ’s consideration of her fibromyalgia. At step
three, the ALJ did not mention any listed impairments that he
specifically considered, so it is impossible for this Court to
The effective date of SSR 12-2p was July 25, 2012, which was prior to the
date of the hearing on November 29, 2012, and well before the ALJ issued his
decision on April 17, 2013.
determine if the ALJ considered the impact of fibromyalgia on the
mischaracterized the record when he stated that no treating or
examining medical source has identified any trigger points and used
that fact to discount Plaintiff’s credibility. (T.65). Contrary to
the ALJ’s assertion, when primary care physician Dr. Bhaskara
Reddy4 examined Plaintiff on July 21, 2010, for a follow-up exam
(T.279-81; 514-16), Plaintiff complained of generalized body pain
that began over a year previously and occurred constantly. (T.279).
On examination, Dr. Reddy noted “multiple trigger points upper and
lower half of body,” and diagnosed Plaintiff with fibromyalgia,
diabetes, backache, and hypertension. (T.281). In addition, pain
Plaintiff’s body in 2009, 2010, and 2012, which further supports
the severity of Plaintiff’s fibromyalgia. (T.317, 319, 322, 325,
testimony regarding her symptoms takes on ‘substantially increased’
Wood-Callipari v. Comm’r of Soc. Sec., No. 5:15-CV-743, 2016 WL
3629132, at *6 (N.D.N.Y. June 29, 2016) (quoting Coyle v. Apfel, 66
Plaintiff has regularly treated at the Lifetime Health Medical Group with
Dr. Reddy and other providers for her primary care since the age of fifteen up
until April of 2012. (T.87, 279-315, 366-89, 400-59, 471-580, 706-18).
fibromyalgia cases, this error was not harmless.
Finally, SSR 12-2p specifically cautions that fibromyalgia may
erode the full range of unskilled work and that the application of
the Medical-Vocational Rules is not appropriate. See SSR 12-2p,
associated with [fibromyalgia], such as fatigue, may result in
exertional limitations that prevent a person from doing the full
range of unskilled work in one or more of the exertional categories
in appendix 2 of subpart P of part 404 (appendix 2). People with FM
may also have nonexertional physical or mental limitations because
of their pain or other symptoms. . . . Adjudicators must be alert
to the possibility that there may be exertional or nonexertional
(for example, postural or environmental) limitations that erode a
person’s occupational base sufficiently to preclude the use of a
adjudicators must use the rules in appendix 2 as a framework for
decision-making and may need to consult a vocational resource.”)
(footnotes omitted). Nonetheless, at steps four and five, the ALJ
mechanically relied on Medical-Vocational Rule 202.21 to deny
Plaintiff’s claim. (See T.64, 68). Remand is warranted so that the
ALJ can conduct a proper evaluation of Plaintiff’s symptoms in
light of her fibromyalgia in accordance with SSR 12–2p. Accord,
e.g., Wiley v. Comm’r of Soc. Sec., No. 114CV1447GTSWBC, 2015 WL
9684924, at *7 (N.D.N.Y. Dec. 7, 2015), report and recommendation
adopted, No. 1:14-CV-1447, 2016 WL 109993 (N.D.N.Y. Jan. 8, 2016).
Procedural Errors in the ALJ’s Conduct of the Hearing
Plaintiff argues that the ALJ failed to develop the record by
obtaining an RFC assessment from one of her treating sources. The
Court need not determine whether there was legal error sufficient
to warrant remand, since the Court already is remanding the case on
other grounds. On remand, the ALJ should take the opportunity to
physicians who can provide a “longitudinal” picture of the impact
of her fibromyalgia. See SSR 12-2p, at *3 (“When a person alleges
[fibromyalgia], longitudinal records reflecting ongoing medical
especially helpful in establishing both the existence and severity
of the impairment.”).
In addition, Plaintiff faults the ALJ for failing to follow
HALLEX I-2-6-52(A), applicable to unrepresented claimants. Because
the Court is remanding this case on other grounds, and because
Plaintiff now has an attorney who will represent her during the new
hearing, the Court finds that the claims regarding the alleged
failure to adhere to the HALLEX are moot.
III. Failure by Appeals Council to Properly Evaluate Treating
In connection with her request for review by the Appeals
Council, Plaintiff submitted records from Dr. William J. Owens, Jr.
at Greater Buffalo Spine & Injury Chiropractic, with whom she
treated from March 13, 2013, through July 12, 2013,5 following a
second car accident on February 5, 2013. (T.8-47). Immediately
after the crash, Plaintiff complained of pain in the neck, right
shoulder, and low back radiating into the right lower extremity.
(T.638). Dr. Owens diagnosed Plaintiff with cervicalgia, lumbago,
pain in the thoracic spine, deep and superficial muscle spasm,
cervical disc syndrome, and lumbar disc sciatica. (T.726). He
Plaintiff recognizes that Dr. Owens is an “other source” and
that opinions on disability are not entitled to any particular
weight, but argues that the Appeals Council failed to explain why
it found that Dr. Owens’ records and opinion provided no basis for
changing the ALJ’s decision. See Solsbee v. Astrue, 737 F. Supp.2d
102, 114 (W.D.N.Y. 2010) (finding reversible error where the ALJ
“simply discount [the treating chiropractor’s] opinion without
The Appeals Council only accepted the records up to April 17, 2013 (T.6),
and entered them into the record as Exhibit 22F. (T.719-40). However, all records
from March 13, 2013, through July 12, 2013, are included in the administrative
considering the factors set forth in SSR 06–03p”). Because the
Court has found alternative grounds on which to remand this matter,
the Court need not determine if the Appeals Council erred in its
treatment of Dr. Owens’ records and opinion. This evidence is now
part of the record and, on remand, the ALJ will evaluate Dr. Owens’
records and weigh his opinion in accordance with SSR 06-3p.
Failure to Perform a Function-by-Function Assessment
Plaintiff argues that the ALJ erred in failing to perform a
function-by-function assessment of Plaintiff’s ability to perform
work-related activities. See Cichocki v. Astrue, 729 F.3d 172, 176
(2d Cir. 2013) (“Before an ALJ classifies a claimant’s RFC based on
exertional levels of work . . . , he ‘must first identify the
individual’s functional limitations or restrictions and assess his
or her work-related abilities on a function-by-function basis,
including the functions in paragraphs (b), (c), and (d) of 20 CFR
404.1545 and 416.945.’”) (quoting SSR 96–8p, 1996 WL 374184, at *1
(S.S.A. July 2, 1996)). In Cichocki, the Second Circuit ruled that
because the ALJ’s step four analysis of the claimant’s limitations
and restrictions provided an adequate basis for meaningful judicial
review, the failure explicitly to engage in such a function-byfunction analysis did not constitute error warranting remand.
Id. Here, however, the ALJ simply stated that Plaintiff could
perform the full range of light work. The ALJ took note of
Plaintiff’s allegations of difficulty in lifting, bending, climbing
stairs, sitting, and standing (T.65), but failed to discuss why he
submitted an opinion, vaguely opined merely that Plaintiff had
“minimal physical limitations.” (T.392). The Court thus cannot
discern the ALJ’s rationale based on his assignment of substantial
weight to Dr. Balderman’s consultative report. Remand accordingly
is warranted. See Cichocki, 729 F.3d at 177 (“We have said more
generally (and now repeat) that where we are ‘unable to fathom the
ALJ’s rationale in relation to evidence in the record, . . . ,’ we
will not ‘hesitate to remand for further findings or a clearer
explanation for the decision.’”) (quoting Berry v. Schweiker, 675
F.2d 464, 469 (2d Cir. 1982)).
For the foregoing reasons, Defendant’s motion for judgment on
the pleadings is denied. Plaintiff’s motion for judgment on the
pleadings is granted to the extent that the Commissioner’s decision
is reversed, and the matter is remanded for further administrative
proceedings consistent with this Decision and Order. The Clerk of
Court is directed to close this case.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
June 23, 2017
Rochester, New York.
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