Sampel v. Colvin

Filing 16

DECISION AND ORDER granting 7 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 12 Commissioner's Motion for Judgment on the Pleadings. The Clerk of the Court is directed to close this 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

RICARDO SAMPEL,
Plaintiff,
-vs-

No. 1:14-CV-01008 (MAT)
DECISION AND ORDER

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

I.

Introduction
Represented by counsel, plaintiff Ricardo Sampel(“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
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, and the Commissioner’s
motion is denied.
II.

Procedural History
Plaintiff

protectively

filed

April 7, 2011, which was denied.

an

application

for

SSI

on

Administrative Transcript (“T.”)

112, 161-68.

At plaintiff’s request, a hearing was held before

administrative law judge (“ALJ”) Connor O’Brien on October 22,
2012.

T. 30-112.

In a decision dated April 3, 2013, ALJ O’Brien

found that plaintiff was not disabled as defined in the Act and
denied his claim.

T. 10-29.

On August 19, 2013, the Appeals

Council issued an order denying plaintiff’s request for review,
thereby rendering ALJ O’Brien’s decision the Commissioner’s final
determination.

T. 1-5.

Plaintiff subsequently filed this action.

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 April 7,
2011, the alleged onset date.

T. 15.

At step two, the ALJ found

that plaintiff suffered from the severe impairments of chronic pain
syndrome of the left shoulder; adjustment disorder with depression
and anxiety; and learning disability, NOS.

Id.

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.

T. 16.

Before proceeding to step four, the ALJ determined that,
considering all of plaintiff’s impairments, plaintiff retained the
RFC to perform a range of light work as defined in 20 C.F.R.
§ 416.967(b).
was

capable

T. 17.
of

Specifically, the ALJ found that plaintiff

lifting

10

pounds

2

frequently

and

20

pounds

occasionally with his right arm; lifting no more than 10 pounds
with the left arm; occasionally pushing and pulling with the upper
extremities within the designated lifting limitations; occasionally
reaching

overhead

bilaterally;

occasionally

reaching

in

all

directions with the left upper extremity; occasionally handling
with the left upper extremity.

Id.

The ALJ also found that

plaintiff was capable of performing unskilled work with only
occasional changes in the work setting and occasional interaction
with the public.

Id.

At step four, the ALJ found that plaintiff was unable to
perform any past relevant work.
concluded

that,

considering

T. 21.

plaintiff’s

At step five, the ALJ
age,

education,

work

experience, and RFC, there are jobs that exist in significant
numbers in the national economy that plaintiff can perform. T. 22.
Accordingly, the ALJ found plaintiff not disabled.
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).
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A.

Violation of treating physician rule

Plaintiff
portions

of

first

the

argues

that

uncontradicted

the

ALJ

medical

orthopedic surgeon Dr. Terrance M. Daino.

improperly

opinions

of

rejected
treating

The Court agrees.

Dr. Daino first began treating plaintiff in 2004, performing
a left shoulder arthroscopy with arthroscopically assisted labral
repair and arthroscopically assisted subacromial decompression on
plaintiff.

T.

301-310.

shoulder surgery in 2000.

Plaintiff had previously undergone
T. 304.

Dr. Daino continued to treat

plaintiff for his shoulder condition throughout the relevant time
period,

including

performing

an

additional

surgery

in

2006.

T. 295. On January 28, 2011, Dr. Daino completed a Progress Record
for plaintiff in which he opined that plaintiff should not lift
more than 10 to 15 pounds, should not lift or reach above shoulder
level, and should avoid repetitive activities.

T. 342.

On

October 19, 2012, Dr. Daino completed a “medical source statement
regarding shoulders for Social Security disability claim” regarding
plaintiff’s

limitations.

T.

485-86.

Dr.

Daino

opined

that

plaintiff suffered from impingement syndrome and pain in his left
shoulder, could work for 8 hours per day, was capable of sitting
for 8 hours per day, could lift no more than 5 pounds either
occasionally or frequently, could occasionally use his left arm
below shoulder lever, could occasionally raise his left arm over
shoulder lever, suffered from moderate pain that would occasionally

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interfere with the attention and concentration needed to perform
even simple work tasks, was likely to experience good days and bad
days, and would likely miss about two days of work per month as a
result of his impairments.

Id.

On October 25, 2012, Dr. Daino

completed an addendum to his statement, in which he clarified that
plaintiff could lift no more than 5 pounds with his left arm and no
more than 15 pounds with his right arm.
The

treating

physician

rule

T.

535.

requires

an

ALJ

to

give

controlling weight to a treating physician’s opinion when that
opinion is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the
other

substantial

evidence

in

[the]

record.”

20

C.F.R.

§ 404.1527(c)(2); see also Green-Younger v. Barnhart, 335 F.3d 99,
106 (2d Cir. 2003).
to

a

treating

standard,

so

determination.

An ALJ may give less than controlling weight

physician's
long

as

he

opinion
sets

if

forth

it

does

the

not

meet

reasons

for

this
his

See Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir.

2004); 20 C.F.R. § 404.1527(c)(2) (“We will always give good
reasons in our notice of determination or decision for the weight
we give [the claimant’s] treating source's opinion.”).
treating physician’s opinion is uncontradicted,
overwhelmingly

compelling

evidence

in

order

to

Where a

there “must be
overcome

it.”

Giddings v. Astrue, 333 F. App’x 649, 652 (2d Cir. 2009); see also
Wilson v. Colvin, 213 F. Supp. 3d 478, 483 (W.D.N.Y. 2016) (same).

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In this case, Dr. Daino opined without contradiction that
plaintiff was capable of lifting only 5 pounds with his left arm
and only 15 pounds with his right arm.

However, in his RFC

determination, the ALJ found that plaintiff could lift up to
10 pounds with his left arm and could occasionally lift/carry up to
20 pounds with his right arm.

T. 17. The explanation provided by

the ALJ for rejecting this portion of Dr. Daino’s opinion is that
“the opinion reflects more significant limitations than the record
supports.”

T.

19.

This falls far short of the “overwhelmingly

compelling evidence” required to reject the uncontradicted opinion
of a treating physician.

See, e.g., Cabassa v. Astrue, 2012 WL

2202951, at *8 (E.D.N.Y. June 13, 2012) (conclusory statements
about consistency with the record are insufficient to justify
rejecting treating physician’s opinion).
The Commissioner argues that the ALJ’s determination was
supported by substantial evidence because plaintiff testified that
he could lift up to 30 pounds with his right arm.
unavailing.

This argument is

First, plaintiff’s testimony was far less clear than

the Commissioner suggests. While he did at one point indicate that
he could lift up to 30 pounds with his right arm, at other times he
testified that he could lift no more than 10 pounds and that he
generally

lifted

only

light

items.

Taken

as

a

testimony does not contradict Dr. Daino’s opinion.

whole,

this

See Vlado v.

Berryhill,, 2017 WL 1194348, at *11 (E.D.N.Y. Mar. 29, 2017).
is

also worth

noting

that

plaintiff

suffers

from

a

It

learning

disability, did not complete high school, and attended special

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education classes, and that his ability to estimate weights is not
necessarily particularly accurate. Second, nowhere in his decision
did the ALJ reference plaintiff’s testimony as a reason to reject
Dr. Daino’s opinion.

“A reviewing court may not accept . . .

counsel’s post hoc rationalizations for agency action.”

Snell v.

Apfel, 177 F.3d 128, 134 (2d Cir. 1999).
Plaintiff also argues that the ALJ’s RFC determination failed
to account for Dr. Daino’s opinion that plaintiff needed to avoid
repetitive activities.

Again, the Court agrees.

Although the ALJ

found that plaintiff was limited to only occasional pushing,
pulling, reaching, and handling with his left arm, “occasionally”
in this context means for up to one-third of the work day, which
does not rule out the possibility of repetitive action.

The ALJ

failed to provide any explanation for failing to incorporate a
restriction on repetitive activities into his RFC determination, in
violation of the treating physician rule.
The Court also agrees with plaintiff that these errors are not
harmless.

An error is harmless in the context of a denial of

Social Security benefits only if “application of the correct legal
standard could lead to only one conclusion.” Zabala v. Astrue, 595
F.3d 402, 409 (2d Cir. 2010).

The Court cannot conclude on the

current record that the flaws in the ALJ’s RFC determination had no
impact on the his ultimate conclusion that plaintiff was not
disabled.

Accordingly, remand is required.

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B.

Assessment of plaintiff’s mental RFC

Plaintiff’s

second

argument

is

that

the

ALJ

improperly

rejected the conclusions of a 2009 neuropsychological assessment of
plaintiff. Because the Court has already determined that remand is
necessary, it need not and does not reach this issue. On remand,
the

ALJ

shall

consider

all

medical

opinions

of

record

and

appropriately state the weight given thereto and the reasons for
that determination.
V.

Conclusion
For the foregoing reasons, plaintiff’s motion for judgment on

the pleadings motion (Doc. 7) is granted to the extent that this
matter is remanded to the Commissioner for further administrative
proceedings

consistent

with

this

Decision

and

Order.

The

Commissioner’s motion for judgment on the pleadings (Docket No. 12)
is denied.

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:

June 23, 2017
Rochester, New York.

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