Fioretti v. Colvin
DECISION AND ORDER granting 9 Plaintiff's Motion for Judgment on the Pleadings to the extent that the Commissioners decision is reversed, and 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 9/13/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHERYL MARIE FIORETTI,
DECISION AND ORDER
-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Represented by counsel, Cheryl Marie Fioretti (“Plaintiff”)
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 applications for DIB and SSI on
July 27, 2011, alleging a disability onset date of September 2,
2009. After the claims were denied initially on December 7, 2011,
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).
administrative law judge Eric L. Glazer (“the ALJ”) on March 28,
2013. Plaintiff appeared with her attorney and testified. At the
hearing, Plaintiff amended her alleged onset date to June 28, 2010,
the date on which she had been in a motor vehicle accident and
sustained injuries to the cervical and thoracolumbar areas. (T.20913).2 On May 13, 2013, the ALJ issued an unfavorable decision.
(T.22-34). Plaintiff submitted new evidence to the Appeals Council,
which denied her request for review on December 17, 2014, making
Plaintiff then timely commenced this action.
The parties have filed cross-motions 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 Court will discuss the record evidence further
below, as necessary to the resolution of the parties’ contentions.
For the reasons discussed below, the Commissioner’s decision
is reversed, and the matter is remanded for further administrative
Citations to “T.” in parentheses refer to pages from the transcript of the
certified administrative record.
III. The ALJ’s Decision
established by the Commissioner for adjudicating disability claims.
See 20 C.F.R. §§ 404.1520, 416.920.
At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity (“SGA”) since her alleged disability
onset date; although she had worked,3 it did not rise to SGA
At step two, the ALJ found that Plaintiff had the following
osteoarthritis; and obesity. (T.24).
At step three, the ALJ determined that Plaintiff does not have
an impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments in 20 C.F.R.,
Pt. 404, Subpt. P, App. 1 (T.25).
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. §§ 404.1527,
At step four, the ALJ determined that Plaintiff could perform
her past relevant work as a payroll representative. (T.30).
Plaintiff had past work experience as a cashier, a home health aide, an
office clerk, and a payroll representative. (T.163). Her earnings record revealed
SGA earnings in 1999 to 2004, and in most other years since 1995, she reported
positive but sub-SGA earnings. (T.158).
(equivalency diploma), work experience, and RFC, there are jobs
existing in significant numbers in the national economy that she
can perform. (T.31). Accordingly, a finding of “not disabled” was
Scope of Review
When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Act, the district court is
limited to determining whether the Commissioner’s findings were
Commissioner employed the proper legal standards. Green-Younger v.
Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). The district court
must accept the Commissioner’s findings of fact, provided that such
findings are supported by “substantial evidence” in the record.
See 42 U.S.C. § 405(g) (the Commissioner’s findings “as to any
fact, if supported by substantial evidence, shall be conclusive”).
The reviewing court nevertheless must scrutinize the whole record
and examine evidence that supports or detracts from both sides.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation
omitted). “The deferential standard of review for substantial
evidence does not apply to the Commissioner’s conclusions of law.”
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley
v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
Plaintiff’s Point I: The RFC is Legally Erroneous and
Unsupported by Substantial Evidence.
The ALJ Erroneously Gave Controlling Weight to the
On November 15, 2012, Dr. Michael Lacivita, a podiatrist,
completed a “check the box” form opining that Plaintiff had no
pushing, and pulling. (T.241). No supporting documentation was
attached, and no explanations were given for this opinion. The ALJ
gave “controlling weight” to Dr. Lacivita’s opinion. (T.30). This
was error as a matter of law, and moreover, substantial evidence
does not support this finding.
Although Dr. Lacivita treated Plaintiff for a period of time,
he is a podiatrist and, as such, is not considered an “acceptable
medical source” who can provide medical opinions. See, e.g., Diaz
regulations do not classify chiropractors as either physicians or
‘other acceptable medical sources,’ chiropractors cannot provide
medical opinions.”) (footnote omitted). Only “acceptable medical
sources” are “treating sources” whose opinions may be entitled to
§ 404.1527(a)(2); Social Security Ruling (“SSR”) 06–03p, TITLES II
AND XVI: CONSIDERING OPINIONS AND OTHER EVIDENCE FROM SOURCES WHO
ARE NOT “ACCEPTABLE MEDICAL SOURCES” IN DISABILITY CLAIMS, 2006 WL
2329939 (S.S.A. Aug. 9, 2006); see also Diaz, 59 F.3d at 313-14
chiropractor’s opinion had “binding effect . . . in the absence of
appropriate weight to accord the chiropractor’s opinion based on
regulations be read to require the ALJ to give controlling weight
to a chiropractor’s opinion”) (emphasis in original; footnote
Thus, in Diaz, 59 F.3d at 313, the Second Circuit made it
clear that only the types of health care professionals identified
as “acceptable medical sources” in the Commissioner’s Regulations
are qualified to provide medical opinions. Podiatrists are not
listed as acceptable medical sources. See 20 C.F.R. §§ 404.1513(a),
416.913(a) (treating sources are limited to licensed physicians,
licensed optometrists). Consequently, the opinion from podiatrist
Dr. Lacivita “is properly treated merely as a non-medical opinion
that may aid in understanding how [P]laintiff’s impairments affect
her ability to work.” Sobolewski v. Apfel, 985 F. Supp. 300, 312
chiropractor’s opinion to be non-medical source of information that
may aid in understanding claimant’s impairments); Hernandez v.
Comm’r of Soc. Sec., 96–CV–1585, 1997 WL 566119, at *4 (S.D.N.Y.
Sept. 10, 1997) (podiatrist, like chiropractor, is non-treating
source)); see also 20 C.F.R. §§ 404.1513(e), 416.913(e) (discussing
non-medical opinions from health care professionals).
Here, Dr. Lacivita did not treat Plaintiff for any impairments
aside from her foot pain caused by flexible pes cavus (hollow foot)
bilaterally; hallux limitus, on the right side; and arthritis,
bilaterally. (See T.230-31 (8/12/11); T.232-33 (8/26/11; 9/27/11);
T.234 (10/25/11)). Although the ALJ has the discretion to determine
the appropriate weight to accord a podiatrist’s opinion based on
all the evidence in the record, see Diaz, 59 F.3d at 313–14, there
Dr. Lacivita as anything other than an acceptable medical source
who could render a medical opinion or, indeed, a treating physician
whose opinion could be afforded controlling weight. “Because the
ALJ applied an incorrect legal standard to the evidence before him,
his decision denying benefits may be reversed on this ground
alone.” Sobolewski, 985 F. Supp. at 312 (holding that ALJ committed
legal error when he “treated the RFC assessment of Dr. Coombs, the
podiatrist, as a treating source’s medical opinion on a par with
Broomfield”). Furthermore, Dr. Lacivita’s opinion was provided over
a year after he last treated Plaintiff, and was inconsistent with
his most recent treatment notes, from October 25, 2011, indicating
that Plaintiff was having throbbing pain in her right toes; limited
range of motion in the first metatarsophalangeal joint of the right
foot upon loading; and pain with end-stage dorsiflexion. (T.234).
Moreover, the form was one on which Dr. Lacivita merely “checked
off” various boxes, and did not provide any narrative explanation
supporting detail and/or objective findings provides a further
reason for affording the opinion less weight. “ Wright v. Colvin,
July 17, 2013) (citing 20 C.F.R. §§ 404.1527(d)(3), 416.927(d)(3)
(“The more a medical source presents relevant evidence to support
an opinion, particularly medical signs and laboratory findings, the
more weight we will give that opinion.
The better an explanation
a source provides for an opinion, the more weight we will give that
opinion.”); Halloran v. Barnhart, 362 F.3d 28, 31 n. 2 (2d Cir.
2004) (describing standardized form checklist as “only marginally
useful for purposes of creating a meaningful and reviewable factual
record”); Llorens–Feliciano v. Astrue, No. 11–CV–924, 2012 WL
6681772, at *3 (N.D.N.Y. Dec. 21, 2012) (“‘Form reports in which a
physician’s obligation is only to check a box or fill in a blank
are weak evidence at best.’”) (quoting Mason v. Shalala, 994 F.2d
1058, 1065 (3d Cir. 1993)).
The RFC Is Not supported by Substantial Evidence.
Without the opinion of podiatrist Dr. Lacivita, the only other
Dr. Michael Calabrese and Dr. Graham Huckell.
pertained to Plaintiff’s right knee. (T.274). Dr. Huckell simply
noted that Plaintiff was “disabled” with regard to that knee. As
the Commissioner argues the ALJ did not err in declining to adopt
the statements by Dr. Huckell on the ultimate issue of Plaintiff’s
disability. See, e.g., SSR 96-5p, 1996 WL 362206, 61 FR at 34472;
see also id. at 34473 (“[T]he [ALJ] is precluded from giving any
source’s opinion controlling weight, when weighing these opinions
on issues reserved to the Commissioner.”); id. at 34474 (“Medical
sources often offer opinions about whether an individual . . . is
‘disabled’ or ‘unable to work,’ or make similar statements of
opinions. . . . Because these are administrative findings that may
determine whether an individual is disabled, they are reserved to
the Commissioner. . . . [E]ven when offered by a treating source,
they can never be entitled to controlling weight or given special
October 19, 2009 (T.286, 288-91), was a treating source able to
give a detailed, longitudinal picture of Plaintiff’s impairments.
See, e.g., Genier v. Astrue, 298 F. App’x 105, 108 (2d Cir. 2008)
(“Pursuant to the regulations governing the Social Security scheme,
an opinion from a treating physician is given more weight ‘since
these sources are likely to be the medical professionals most able
to provide a detailed, longitudinal picture of . . . medical
impairment’. 20 C.F.R. § 416.927(d)(2). If the treating physician’s
opinion is well-supported by other medical evidence, then it is
given controlling weight. Id.”). Dr. Calabrese also provided his
opinion on Plaintiff’s specific functional limitations rather than
simply statements on the ultimate issue of disability. Beginning in
June of 2010, immediately after Plaintiff’s automobile accident,
Dr. Calabrese indicated that she was totally disabled. (T.206,
213). However, beginning in September of 2010, and extending
through January fo 2011, Dr. Calabrese’s treatment notes reflect
examination findings showed less severe abnormalities. (Compare
T.206-13 with T.186-99). Dr. Calabrese consistently opined that
Plaintiff could return to work as long as she avoided any “heavy
lifting.” (T.186, 194, 199). For instance, Dr. Calabrese returned
Plaintiff to work on September 24, 2010, and her pain level was at
a 3 to 4 out of 10. (T.200-02). On January 25, 2011, Dr. Calabrese
stated that Plaintiff could return to work without “heavy lifting,”
and was, in his opinion, “mildly temporarily partially disabled.”
(T.188-89). Plaintiff concedes that Dr. Calabrese’s statements from
September 2010, through January 2011, were arguably consistent with
a light RFC.
statement, opining that Plaintiff could only lift up to 10 pounds;
must alternative standing, walking, and sitting hourly; must avoid
stooping. (T.258). These restrictions are not consistent with light
Appendix 2, SSR 83-10, 1983 WL 31251, at *6 (S.S.A. 1983) (“The
regulations define light work as lifting no more than 20 pounds at
a time with frequent lifting or carrying of objects weighing up to
10 pounds. Even though the weight lifted in a particular light job
may be very little, a job is in this category when it requires a
good deal of walking or standing—the primary difference between
sedentary and most light jobs. A job is also in this category when
it involves sitting most of the time but with some pushing and
pulling of arm-hand or leg-foot controls, which require greater
exertion than in sedentary work. . . .”).
Subsequent treatment notes from Dr. Calabrese, Dr. Huckell,
assessment. On March 21, 2012, Plaintiff returned to Dr. Calabrese
noting that she had to quit a nutrition class because her neck and
back pain prevented her from completing the physical requirements.
cervical and lumbar ranges of motion remained reduced by 20 to
50 percent. (T.255). In July 23, 2012, Dr. Calabrese noted that
Plaintiff’s cervical and lumbar ranges of motion were roughly
50 percent of full. (T.252). On September 11, 2012, Plaintiff saw
Dr. Huckell and reported a history of right knee pain for the past
week that necessitated a trip to immediate care. (T.271). She had
improvement of 80 percent but had residual swelling, stiffness,
limited range of motion, and pain around the knee joint, worsened
by weight bearing and ameliorated with rest and anti-inflammatory
medications. (T.271). An x-ray revealed early degenerative joint
disease and a possible meniscal tear. (T.273). On October 15, 2012,
Plaintiff saw Dr. Calabrese for continued swelling in her knees;
cervical and lumbar ranges of motion were decreased by 50 percent
and grip strength was decreased to 4/5 bilaterally; and she walked
with an antalgic gait. (T.251). On April 10, 2013, Dr. Calabrese
noted that Plaintiff had multiple herniated discs and required
continued physical therapy. (T.279). After the hearing, updated
cervical and lumbar MRIs were taken on June 28, 2013 (T.280-83),4
“[N]ew evidence submitted to the Appeals Council following the ALJ’s
decision becomes part of the administrative record for judicial review when the
Appeals Council denies review of the ALJ’s decision.” Perez v. Chater, 77 F.3d
and revealed no interval change in the lumbar area, but a slight
stenosis at C5-6. The stenosis was mild to moderate, worse on the
bilaterally. (T.283). On June 27, 2013, Plaintiff was taking
Hydrocodone, Flexeril, ibuprofen, and Zegerid (T.284) for her pain,
although she previously had tried to avoid any narcotic medications
due to concerns about becoming overly reliant on them.
objective findings worsened over time, and provide support for
Dr. Calabrese’s more restrictive RFC opinion in January 2012, which
is inconsistent with the ALJ’s RFC assessment of light work.
Although the ALJ stated that Plaintiff’s subjective complaints
impermissibly cherry-picks from the record. See, e.g., Beck v.
Colvin, No. 6:13–CV–6014(MAT), 2014 WL 1837611, at *13 (W.D.N.Y.
May 8, 2014) (“The ALJ ignored the portions of [the doctor’s]
reports in which he strongly opines that if [claimant] were placed
in a full-time competitive work-environment, her depression and
anxiety symptoms would worsen and she likely would decompensate.
The ALJ improperly cherry-picked from [that doctor’s] opinions only
41, 45 (2d Cir. 1996). When the Appeals Council denies review after considering
new evidence, the court is to “simply review the entire administrative record,
which includes the new evidence, and determine, as in every case, whether there
is substantial evidence to support the decision of the [Commissioner].” Id. at
disability.”). At the hearing, Plaintiff testified that she could
sit for 10 minutes and stand for 10 minutes, was really limited in
walking, needed to elevate her legs, used a cane to walk, had to
lie down every afternoon for a couple of hours, and could lift, at
most, a loaf of bread. (T.75-78). This is consistent with her
statements on February 6, 2013, when she returned to Physical
Therapist Mandell reporting that she had been bedridden for the
past week due to “constant” back pain ranging from a 7 to 10 out of
10. (T.276). She could not sit for more than 15 minutes, stand for
more than 10 minutes, or walk for more than 10 minutes at a time.
Lumbar lordosis was abnormal, and ranges of motion in the lumbar,
cervical, and thoracic areas were diminished. Strength was reduced
to 3/5 throughout, and her balance was abnormal.
The ALJ also purported to rely on “clinical findings” and
“diagnostic imaging” to support his RFC assessment. As a lay
person, “‘an ALJ is not qualified to assess a claimant’s RFC on the
determination of RFC without a medical advisor’s assessment is not
No. 08-CV-0828(A)(M), 2010 WL 2629832, at *6 (W.D.N.Y. June 11,
2010) (quoting Deskin v. Comm’r of Soc. Sec., 605 F. Supp.2d 908,
912 (N.D. Ohio 2008); citations omitted), rep. and rec. adopted,
No. 08-CV-828A, 2010 WL 2629821 (W.D.N.Y. June 28, 2010). “Where
claimant's exertional impairments and do not relate these diagnoses
to specific residual functional capabilities such as those set out
in 20 C.F.R. § 404.1567(a) . . . [the Commissioner may not] make
the connection himself.’” Id. (quoting Deskin, 605 F. Supp.2d at
912; brackets and ellipsis in original).
Here, the only competent
medical expert opinions are from Dr. Huckell and Dr. Calabrese, who
are acceptable medical sources and who qualify as Plaintiff’s
treating physicians. Dr. Huckell’s treatment notes and opinion,
while it does opine on the ultimate issue of disability and thus
cannot be given controlling weight, nevertheless is not consistent
with the total lack of physical limitations indicated by nonacceptable source Dr. Lacivita. Dr. Calabrese’s opinions prior to
January 11, 2012, are arguably consistent with the RFC assessment
of light work, but certainly are not consistent with, and do not
provide substantial evidence to support, the ALJ’s finding that
Plaintiff, throughout the relevant period, could perform light
work. The Court finds that from January 11, 2012, onward, the ALJ’s
RFC finding for light work is unsupported by any competent medical
expert opinion. Accordingly, the Court finds that it is unsupported
by substantial evidence. See, e.g., Walker, 2010 WL 2629832, at *6
(citing Isaacs v. Astrue, No. 1:08–CV–00828, 2009 WL 3672060, at
*11 (S.D. Ohio Nov. 4, 2009) (“The ALJ rendered her RFC finding for
medium work without reference to any medically determined RFC
opinion bridging the raw medical data to specific functional
limitations. Because there is no medical source opinion supporting
the ALJ’s finding that the plaintiff can perform ‘medium’ work, the
Court concludes the ALJ’s RFC determination is without substantial
support in the record”)).
For the foregoing reasons, the Court finds that from January
11, 2012, onward, the RFC assessment formulated by the ALJ is
legally erroneous and not supported by substantial evidence. As
Plaintiff notes, a period of disability is not limited to the date
of onset but may consist of any continuous period of not less than
12 months. See 42 U.S.C. § 423(d)(1)(A). More than 12 months
elapsed between January 11, 2012, and the ALJ’s decision on May 13,
2013. The Court agrees that this matter should be remanded for
further consideration of Plaintiff’s condition as of January 11,
Plaintiff’s Point II: Error by Appeals Council
Because the Court has found multiple alternative grounds on
which to remand this matter, the Court need not determine if the
Appeals Council erred in its treatment of the records and opinions
submitted by Plaintiff after the hearing. This evidence is now part
of the record and, on remand, the ALJ will evaluate these records
and opinions in accordance with the pertinent Regulations and
policy ruliings. E.g., Chiles v. Colvin, No. 1:14-CV-00943-MAT,
2017 WL 2703654, at *4 (W.D.N.Y. June 23, 2017).
For the foregoing reasons, Defendant’s Motion for Judgment on
the Pleadings is denied, and 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. In particular,
the Commissioner is directed to consider whether Plaintiff has been
under a disability as defined by the Act as of January 11, 2012.
The Commissioner should take the opportunity to obtain physical RFC
assessments regarding the relevant period from one or more of
Plaintiff’s treating physicians, such as Dr. Calabrese or Dr.
The Clerk of Court is directed to close this case.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
September 13, 2017
Rochester, New York.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?