Post v. Colvin

Filing 12

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 5 Plaintiff's Motion for Judgment on the Pleadings; denying 9 Motion for Judgment on the Pleadings; and remanding this matter for further administrative proceedings consistent with this Decision and Order. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 1/13/16. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JAYNE S. POST,
Plaintiff,
DECISION and ORDER
No. 1:15-cv-00257(MAT)

-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

I.

Introduction
Represented by counsel, Jayne S. Post (“Plaintiff”) brings

this action pursuant to Title II of the Social Security Act (“the
Act”),

seeking

review

of

the

final

decision

of

the

Acting

Commissioner of Social Security (“the Commissioner”) denying her
application for Disability Insurance Benefits (“DIB”). The Court
has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g).
II.

Procedural Status
Plaintiff, a former reading teacher, protectively filed for

DIB on January 23, 2012, alleging disability as of September 1,
2010, due to atrial fibrillation, hypertension, hyperlipidemia,
diabetes, thyroid disease, obesity, narrow sphincter and anal
fissure. T.61, 106-09. After her claim was denied, Plaintiff
requested

a

hearing

which

was

held

on

June

6,

2013,

before

administrative law judge William Straub (“the ALJ”). T.28-54;
66-67. Plaintiff appeared with her attorney and testified. The ALJ

issued an unfavorable decision on August 22, 2013, T.10-24, and
Plaintiff requested review by the Appeals Council. T.7-9. On
January 27, 2015, the Appeals Council denied Plaintiff’s request,
making the ALJ’s decision the final decision of the Commissioner.
T.1-6. This timely action followed.
Plaintiff filed a motion for judgment on the pleading pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure (Dkt #5). The
Commissioner

cross-moved

for

judgment

on

the

pleadings

and

responded to Plaintiff’s motion (Dkt #9). Plaintiff filed a notice
that she did not intend to file a reply (Dkt #10). For the reasons
discussed below, the Commissioner’s decision is reversed, and the
matters is remanded for further administrative proceedings.
III. 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
supported

by

substantial

record

evidence

and

whether

the

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
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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)).
IV.

The ALJ’s Decision
The ALJ followed the well-established five-step sequential

evaluation

promulgated

by

the

Commissioner

for

adjudicating

disability claims. See 20 C.F.R. § 404.1520(a).
At step one, the ALJ found that Plaintiff meets the insured
status requirements of the Act through December 31, 2015, and had
not engaged in substantial gainful activity since September 1,
2010, when she retired as a reading teacher.
At

step

two,

the

ALJ

determined

that

Plaintiff

has

the

“severe” impairment of obesity. Although Plaintiff has numerous
other medically determinable impairments, i.e., diabetes mellitus,
hyperthyroidism,

hypertension,

vision

problems,

and

atrial

fibrillation, the ALJ found that the evidence of record established
that these impairments “cause only a slight abnormality that would
have no more than a minimal effect on her ability to work.” In
particular, the ALJ noted that Plaintiff’s diabetes was being
managed medically and should be amenable to proper control by
adherence

to

recommended

medical

-3-

management

and

medication

compliance, and there was no evidence Plaintiff has suffered any
“end organ damage.” Moreover, the ALJ found, the evidence shows
that Plaintiff has no significant problems with her kidneys, hands,
or feet. Although Plaintiff testified at the hearing that her
vision problems had worsened, she denied vision problems in April
2011, and she drives to Gowanda to visit her elderly mother. In
addition, the ALJ cited Plaintiff’s cardiologist’s observation that
her

test

results

were

unremarkable.

The

ALJ

noted

that

endocrinologist Dr. Joseph Torre, who started treating Plaintiff
for hyperthyroidism in 2008, found that Plaintiff had adequate
control of her blood pressure and that her thyroid function was
stable.

The

ALJ

hyperthyroidism,
fibrillation

therefore

found

hypertension,

that

vision

her

diabetes

problems,

mellitus,

and

atrial

are not “severe” for purposes of step two of the

sequential evaluation.1
At step three, the ALJ determined that “[n]o reasonable
argument can be made” that Plaintiff’s

“severe impairment” meets

or equals the specified criteria of any impairment listed at 20
C.F.R. Part 404, Subpart P, Appendix I.2 The ALJ proceeded to

1

Plaintiff does not challenge the ALJ’s step two “severity” determination.
2

The ALJ noted that there are no Listing criteria in Appendix l “specific
to the evaluation of obesity impairments[,]” but Social Security Ruling (“SSR”)
02-1p requires consideration of obesity in determining whether a claimant has
medically determinable impairments that are severe, whether those impairments
meet or equal any listing, and finally in determining the claimant’s residual
functional capacity (“RFC”).

-4-

assess 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).

Plaintiff’s

The

ALJ,

work-related

however,
abilities

did
on

not
a

explicitly

analyze

function-by-function

basis.3
At step four, the ALJ found that Plaintiff has the RFC to
perform her past work as a teacher because that work does not
require

the

performance

of

activities

precluded

by

her

RFC.

Accordingly, the ALJ found, Plaintiff is not disabled. Because the
ALJ found Plaintiff not disabled at step four, he did not proceed
to step five of the sequential evaluation.
V.

Discussion
A.

RFC Not Supported by Substantial Evidence

“RFC” is defined as “what an individual can still do despite
his or her limitations.” Melville v. Apfel, 198 F.3d 45, 52
(2d Cir. 1999). “Ordinarily, RFC is the individual’s maximum
remaining ability to do sustained work activities in an ordinary
work setting on a regular and continuing basis, and the RFC
assessment must include a discussion of the individual’s abilities
on that basis. A ‘regular and continuing basis’ means 8 hours a
day, for 5 days a week, or an equivalent work schedule.” SSR 96-8p,
3

SSR 96–8p provides that an assessment of the claimant’s RFC “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.” SSR
96–8p, 1996 WL 374184, at *1 (S.S.A. July 2, 1996) (emphasis added).

-5-

1996 WL 374184, at *2 (S.S.A. July 2, 1996). As noted above, the
ALJ found Plaintiff capable of performing the full range of “light
work.” According to the Commissioner’s regulation, “[l]ight work
involves 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 may be very little, a job is in this
category when it requires a good deal of walking or standing, or
when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the
ability to do substantially all of these activities. . . .”
20 C.F.R. § 404.1567(b). Plaintiff argues that the ALJ’s RFC
assessment

is

inconsistent

with

the

report

of

consultative

physician Nikita Dave, M.D., to which the ALJ assigned “great
weight.”
Dr. Dave examined Plaintiff at the Commissioner’s request on
April 18, 2012, and noted that Plaintiff’s height was 5'2" and her
weight was 297 pounds. T.258. The results of Dr. Dave’s clinical
examination of Plaintiff were unremarkable. Dr. Dave diagnosed
Plaintiff

with

obesity,

hyperthyroidism,

atrial

fibrillation,

dyslipidemia, anti-coagulation status, dyspnea on exertion, lightheadedness,

diabetes

cholecystectomy,

type

urgency

and

2,
poor

-6-

hypertension,
control

of

status
bowel

post-

movements

(likely multi-factorial). Dr. Dave’s medical source statement was
as follows:
Due to moderate to severe obesity, the claimant may not
be able to tolerate continuous activity or activities
requiring sustained exertion and endurance. Due to
anticoagulation status, she should not climb ladders or
sharp, heavy, dangerous equipment and machinery due to
risk of bleeding and cerebral hemorrhage with [a] fall.
T.260 (emphases supplied).
As an initial matter, Dr. Dave’s opinion that Plaintiff’s
obesity is “moderate to severe” is contrary to the most recent
Social Security Ruling on obesity, SSR 02-1p.4
Commissioner

observes

that

the

National

In this ruling, the

Institutes

of

Health

(“NIH”) have established medical criteria for the diagnosis of
obesity and have promulgated guidelines5 classifying overweight and
obesity in adults according to Body Mass Index (“BMI”). The NIH’s
guidelines

recognize

three

levels

of

obesity

based

on

an

individual’s BMI. “Level III, termed “extreme” obesity, includes
BMIs greater than or equal to 40.”

SSR 02-01p, 67 Fed. Reg. at

57860. “These levels describe the extent of obesity, but they do
not correlate with any specific degree of functional loss.” Id.
Based on Plaintiff’s height (62 inches) and weight (297 pounds) at

4

SSR 02-1p, TITLES II AND XVI: EVALUATION OF OBESITY, 2002 WL 31026506,
67 Fed. Reg. 57859 (S.S.A. Sept. 12, 2002).
5

NHLBI OBESITY EDUCATION INITIATIVE EXPERT PANEL ON THE IDENTIFICATION, EVALUATION, AND
TREATMENT OF OBESITY IN ADULTS (US), CLINICAL GUIDELINES ON THE IDENTIFICATION, EVALUATION, AND
TREATMENT OF OVERWEIGHT AND OBESITY IN ADULTS: THE EVIDENCE REPORT (Nat’l Heart, Lung, and
Blood Inst., Sept. 1998), available at http://www.ncbi.nlm.nih.gov/books/NBK2003/
(last accessed Jan. 8, 2016).

-7-

the time of Dr. Dave’s examination, her BMI was greater than 54,
the highest BMI listed for that height/weight combination in the
NIH guidelines.6 Plaintiff’s BMI thus squarely placed her in the
category of “extreme[ly]” obese. See SSR 02-01p, 67 Fed. Reg. at
57860. Dr. Dave’s mischaracterization of Plaintiff’s obesity, which
the ALJ accepted, is especially problematic because “obesity” was
the only severe impairment found by the AlJ at step two.
There also is an apparent conflict between the ALJ’s RFC
assessment and Dr. Dave’s opinion. SSR 96–8p provides that an
individual’s RFC “is an assessment of an individual’s ability to do
sustained work-related physical and mental activities in a work
setting on a regular and continuing basis.” SSR 96–8p, 1996 WL
374184, at *1 (S.S.A. July 2, 1996). Dr. Dave opined that Plaintiff
“may not be able to tolerate continuous activity or activities
requiring sustained exertion and endurance.” Thus, at a minimum,
Dr. Dave’s opinion suggests that Plaintiff would have difficulty
being on her feet for 6 hours out of an 8-hour day, or lifting
20 pounds for up to one-third (2.7 hours) of an 8-hour workday, as
is required to perform work at the “light” exertional level. See 20

6

See http://www.ncbi.nlm.nih.gov/books/NBK1997/ (last accessed Jan. 8,
2016).

-8-

C.F.R. § 404.1567(b); SSR 83-10, 1983 WL 31251, at *5 (S.S.A. 1983)
(defining light work).7
The ALJ’s RFC assessment also is deficient in that omits a
function-by-function analysis relating to Plaintiff’s ability to
perform

the

necessary

physical,

mental,

sensory,

and

other

requirements of light work. See SSR 96–8p, 1996 WL 374184, at *1
(S.S.A. July 2, 1996); see also 20 C.F.R. § 404.1569a(b), (c)
(restrictions caused by impairments that are relevant to the
ability

to

perform

job

demands

include

limitations

that

are

exertional, non-exertional and a combination of both). SSR 96–8p
cautions that “a failure to first make a function-by-function
assessment of the individual’s limitations or restrictions could
result in the [ALJ] overlooking some of an individual’s limitations
or restrictions,” which “could lead to an incorrect use of an
exertional category to find that the individual is able to do past
relevant work” and “an erroneous finding that the individual is not
disabled.” 1996 WL 374184, at *4. Only when there is substantial
evidence of each physical requirement listed in the regulations can
a claimant’s RFC be expressed in terms of the exertional levels of

7

SSR 83-10 states that “[t]he 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. . . . 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; e.g.,
mattress sewing machine operator, motor-grader operator, and road-roller operator
(skilled and semiskilled jobs in these particular instances). Relatively few
unskilled light jobs are performed in a seated position.” 1983 WL 31251, at *5.

-9-

work (sedentary, light, medium, heavy, and very heavy). Hogan v.
Astrue, 491 F. Supp.2d 347, 354 (W.D.N.Y. 2007); see also LaPorta
v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y. 1990). The ALJ did not
provide any rationale for his implicit finding that Plaintiff could
fulfill all of the exertional and non-exertional requirements of a
full range of light work. The basis this determination is not
discernible from the record, given that there is no medical opinion
in the record—either from a treating source or the consultative
physician—regarding Plaintiff’s ability to perform the work-related
activities relevant to making a determination of disability. Dr.
Dave’s opinion, the only medical source statement in the record,
does not address the particular limitations caused by Plaintiff’s
obesity and other impairments on her ability to perform necessary
work-related

functions

“such

as

sitting,

standing,

walking,

lifting, carrying, pushing, pulling, . . . reaching, handling,
stooping

or

crouching[.]”

20

C.F.R.

§

404.1567(b).

Remand

accordingly is necessary to obtain a medical source statement that
addresses Plaintiff’s physical RFC in terms of her abilities to
perform work-related activities and to re-evaluate Plaintiff’s RFC.
B.

Erroneous Credibility Assessment

In “determining a claimant’s RFC, the ALJ is required to take
the claimant’s reports of pain and other limitations into account
. . . but is not required to accept the claimant’s subjective
complaints without question; he may exercise discretion in weighing

-10-

the credibility of the claimant’s testimony in light of the other
evidence in the record.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir.
2010) (citations omitted). The Commissioner’s regulations set forth
a two-step process for evaluating a claimant’s testimony regarding
her

pain

and

other

limitations.

Id.

(citing

20

C.F.R.

§ 404.1529(b), (c)). Once an ALJ determines that a claimant suffers
from a medically determinable impairment that could reasonably be
expected to produce the symptoms alleged, 20 C.F.R. § 404.1529(b),
the ALJ must consider the “extent to which [the claimant’s] alleged
functional limitations and restrictions due to pain or other
symptoms can reasonably be accepted as consistent with the medical
signs and laboratory findings and other evidence to decide how
[her]

symptoms

affect

[her]

ability

to

work.”

20

C.F.R.

§ 404.1529(a). The ALJ must consider “[s]tatements [the claimant]
or others make about [her] impairment(s), [her] restrictions, [her]
daily activities, [her] efforts to work, or any other relevant
statements [she] make[s] to medical sources during the course of
examination

or

treatment,

or

to

[the

Commissioner]

during

interviews, on applications, in letters, and in testimony in [its]
administrative proceedings.” 20 C.F.R. § 404.1512(b)(3); see also
20 C.F.R. § 404.1529(a); SSR 96–7p. If a claimant’s testimony about
her subjective complaints is rejected, the ALJ must state the basis
for doing so “with sufficient particularity to enable the Court to
decide whether there are legitimate reasons for the ALJ’s disbelief

-11-

and

whether

his

determination

is

supported

by

substantial

evidence.” Brandon v. Bowen, 666 F. Supp. 604, 608 (S.D.N.Y. 1987)
(citing, inter alia, Valente v. Sec’y of Health and Human Servs.,
733 F.2d 1037, 1045 (2d Cir. 1984); footnote omitted)). Notably,
“because a claimant’s symptoms, such as pain, ‘sometimes suggest a
greater severity of impairment than can be shown by objective
medical evidence alone,’ once a claimant has been found to have a
pain-producing impairment, the Commissioner may not reject the
claimant’s statements about [her] pain solely because objective
medical evidence does not substantiate those statements.” Hilsdorf
v. Comm’r of Soc. Sec., 724 F. Supp.2d 330, 349–50 (E.D.N.Y. 2010)
(citing § 404.1529(c)(2)-(3)); accord Henningsen v. Comm’r of Soc.
Sec. Admin., ___ F. Supp.3d ___, 2015 WL 3604912, at *14 (E.D.N.Y.
June 8, 2015).
At the hearing, Plaintiff testified that she retired at the
end of 2010 after a 21-year career as a reading teacher because of
her medical problems. Plaintiff explained that her thyroid problems
cause difficulty with stamina and that her thyroid medications
cause side effects, including fatigue. She said that she does not
sleep through the night and requires a one-hour nap during the day.
When she is under stress or anxiety, Plaintiff said she “can feel
afib kicking in.” While she does not have chest pain, she can feel
“an unevenness of heart beat on a daily basis.” T.34. Plaintiff’s
position as a reading specialist required a lot of walking during

-12-

the day; she did not have a permanent classroom and she had to go
to the students. T.35. Plaintiff stated that her diabetes was under
control, “so to speak,” but she did report frequent diarrhea and
urinary problems, which were caused by a combination of colon
symptoms, gall bladder symptoms, and side effects from her heart
medication. T.39-40. Plaintiff indicated that there were days when
she was going to the bathroom 5 to 8 times in the morning. T.40.
Plaintiff also had glaucoma, which caused blurred vision; she could
read big signs, but she could not read street signs until she was
“right up on them.” T.40. Plaintiff testified that she could walk
a block before she felt a little winded, and began having heart
palpitations. T.43. She could cook for herself, but had been forced
to modify how she did certain activities such as laundry. T.45. She
had friends who helped her keep her house maintained, and who also
helped her look after her dog. T.45. She estimated she could carry
1, but not 2, gallons of milk, and that she could stand for 10 to
15 minutes before she started experiencing pain. T.46, 50.
The ALJ analyzed Plaintiff’s credibility as follows:
[Her] specific allegations are not credible when compared
with the record. For example, although the claimant
testified that her medications cause side effects, she
did not mention this to her treating physician. Moreover,
the claimant’s activities of daily living are not
consistent with total disability. As noted above, the
claimant testified that she lives alone and does her own
cooking and laundry; visits her elderly mother in Gowanda
and “helps out”; visits with friends and plays cards and
watches movies; reads a little and does “a lot of
knitting”.

-13-

T.19.

The

ALJ’s

credibility

analysis

was

legally

deficient,

misrepresented the record, and was not supported by substantial
evidence.
As Plaintiff argues, simply because a physician does not
record a complaint of side effects in the treatment notes does not
mean that such side effects are not occurring. Moreover, the record
indicates that Plaintiff did report side effects of her medication
to treating and examining sources. For example, on September 24,
2010, Plaintiff noted she was experiencing diarrhea, which she
attributed to her Metformin. T.245. On August 5, 2011, primary care
physician Dr. Bastible noted that Plaintiff had been on Pravastin
but stopped because it had been bothering her. T.227. At the
consultative

examination

with

Dr.

Dave,

Plaintiff

reported

dizziness and light-headedness for the past three years, which she
attributed to her medications. T.256.
Moreover, none of the activities of daily living recited by
the ALJ contradict Plaintiff’s subjective complaints or establish
that she would be able to meet the exertional and nonexertional
demands of light work on a “regular and continuing basis,” i.e., “8
hours a day, for 5 days a week, or an equivalent work schedule[,]”
SSR 96–8p, 1996 WL 374184, at *2. See, e.g., Polidoro v. Apfel, No.
98

CIV.2071(RPP),

1999

WL

203350,

at

*8

(S.D.N.Y.

1999)

(“A

claimant’s participation in the activities of daily living will not
rebut his or her subjective statements of pain or impairment unless

-14-

there is proof that the claimant engaged in those activities for
sustained periods of time comparable to those required to hold a
sedentary job.”) (citing Carroll v. Sec’y of Health and Human
Servs., 705 F.2d 638, 643 (2d Cir. 1983) (finding that Secretary
failed to sustain burden of showing that claimant could perform
sedentary work on the basis of (1) testimony that he sometimes
reads, watches television, listens to the radio, rides buses and
subways, and (2) ALJ’s observation that claimant “‘sat still for
the

duration

of

the

hearing

and

was

in

no

evident

pain

or

distress’”; circuit found “[t]here was no proof that [claimant]
engaged in any of these activities for sustained periods comparable
to those required to hold a sedentary job”)).
Furthermore, the ALJ failed to give any credit for Plaintiff’s
favorable work record. The Commissioner’s regulations provide that
the ALJ “will consider all of the evidence presented, including
information about [the claimant’s] prior work record.” 20 C.F.R.
§ 404.1529(c)(3); see also SSR 96-7p, 1996 WL 374186, at *5 (S.S.A.
July 2, 1996) (instructing that credibility determinations should
take account of “prior work record”). Importantly, the Second
Circuit has observed that “a good work history may be deemed
probative of credibility.” Schaal v. Apfel, 134 F.3d 496, 502
(2d Cir. 1998). Here, Plaintiff had enough earnings to provide full
quarters of coverage beginning in 1989, and ending when she could
no longer work due to her impairments in September 2010.

-15-

Plaintiff argues that if her testimony is credited fully, it
supports a finding that she can perform, at most, sedentary work.
See SSR 83-10, 1983 WL 31251, at *5; 20 C.F.R. § 404.1567(a)
(defining

sedentary

work).

On

the

disability

onset

date

of

September 1, 2010, Plaintiff was 56 years-old, and thus has been in
the “advanced age” category at all relevant times. See 20 C.F.R.
§ 404.1563(e) (A person aged 55 years-old or older is of “advanced
age,” and the Commissioner will consider that “age significantly
affects a person’s ability to adjust to other work.”). If Plaintiff
only

were

found

to

have

the

RFC

for

sedentary

work,

the

Commissioner would bear the burden of showing that her education
provides for direct entry into skilled work, or that she has
transferable skills. See 20 C.F.R. Pt. 404, Subpt. P, App. 2,
§ 201.00(f) (“In order to find transferability of skills to skilled
sedentary work for individuals who are of advanced age . . . there
must be very little, if any, vocational adjustment required. . .
.”); ;see also 20 C.F.R. § 404.1568(d)(4) (Under the regulation,
skills are transferable only if “the sedentary work is so similar
to [the claimant’s] previous work that [the claimant] would need to
make very little, if any, vocational adjustment in terms of tools,
work processes, work settings, or the industry.”). Plaintiff,
citing generally to Rules 201.00 to 201.08, asserts that because
her past work as an elementary school reading teacher was performed

-16-

at the light exertional level,8 the Medical-Vocational Guidelines
would have directed a finding of disabled, unless she was shown to
have transferable skills, or recently completed education. See Pl’s
Mem. at 14. The Court notes that under Rule 201.06, if Plaintiff’s
education is determined to be “high school graduate or more–does
not provide for direct entry into skilled work” and her previous
work

is

found

to

be

“skilled

or

semiskilled–skills

not

transferable,” a finding of “disabled” would be required. However,
under Rule 201.07, with the same education and with previous work
providing transferable skills, a contrary finding is required. In
short, Plaintiff’s argument cannot be accepted or rejected at this
juncture, because there have been no explicit findings by the ALJ
as to Plaintiff’s educational level, any skills involved in her
past work, and the transferability of those skills to possible jobs
she can perform. See 20 C.F.R. §§ 404.1565–404.1568; Burton v.
Sec’y of Health and Human Servs., 893 F.2d 821, 823 (6th Cir. 1990)
(“By imposing upon claimants unable to perform their past work the
requirement that they possess transferable skills, the regulations
avoid unduly burdening the unskilled and the elderly, both of whom
are unlikely to succeed in finding a new line of work on the job
market. . . . [T]he [Commissioner]’s determination of disability
includes an assessment of the skills (if any) involved in the
8

Dictionary of Occupational Titles, DOT #092.227-010, Teacher, Elementary
School, available at http://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOT01C.HTM)
(last visited Jan. 8, 2016).

-17-

claimant’s past work, and whether those skills are transferable to
a significant number of existing jobs which the claimant can
perform.”) (internal and other citations omitted). Depending on the
outcome of the ALJ’s re-evaluation of Plaintiff’s RFC and her
credibility, such findings must be made on remand.
VI.

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

judgment

on

the

pleadings

is

denied.

Plaintiff’s

motion

for

judgment on the pleadings is granted. The Commissioner’s decision
is reversed, and the matter is remanded for further administrative
proceedings consistent with this Decision and Order. In particular,
the ALJ is directed to contact Dr. Dave for clarification of the
medical source statement in her consultative report; to re-assess
Plaintiff’s

RFC

and

perform

the

required

function-by-function

assessment; to re-evaluate Plaintiff’s credibility in accordance
with the

required

regulatory

factors

and

SSR

96-7p;

and,

if

necessary, perform a step five analysis. In addition, the ALJ
should endeavor to obtain a medical source statement from one of
Plaintiff’s treating physicians.
SO ORDERED.
S/Michael A. Telesca

HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:

January 13, 2016
Rochester, New York
-18-