Moe v. Colvin
Filing
17
DECISION AND ORDER granting 7 Plaintiff's Motion for Judgment on the Pleadings to the extent that the Commissioners decision is reversed, and Plaintiffs claim is remanded for further administrative proceedings consistent with this Decision and Order. Defendants motion for judgment on the pleadings is denied. (The Clerk of Court is directed to close this case.) Signed by Hon. Michael A. Telesca on 12/14/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KEVIN EDWIN MOE,
Plaintiff,
No. 1:15-cv-00347(MAT)
DECISION AND ORDER
-vsCAROLYN W. COLVIN, ACTING COMMISSIONER
OF SOCIAL SECURITY,
Defendant.
I.
Introduction
Represented
by
counsel,
Kevin
Edwin
Moe
(“Plaintiff”)
instituted 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”)1 denying his
application for Disability Insurance Benefits (“DIB”). The Court
has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c).
II.
Procedural Status
On
December
5,
2011,
Plaintiff
protectively
filed
an
application for DIB, alleging an onset date of November 14, 2011,
and a date last insured of December 31, 2016. The claim was denied
at the initial level on March 9, 2012, and Plaintiff requested a
1
Nancy A. Berryhill became the Acting Commissioner of Social Security on
January 20, 2017. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil
Procedure, Nancy A. Berryhill should be substituted, therefore, for Acting
Commissioner Carolyn W. Colvin as Defendant in this suit. No further action need
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).
hearing. Administrative Law Judge David S. Lewandowski (“the ALJ”)
conducted a hearing on September 9, 2013, in Buffalo, New York.
Plaintiff appeared with his attorney and testified. The ALJ issued
an unfavorable decision on October 9, 2013. (T.14-35).2 Plaintiff’s
request
for
review
by
the
Appeals
Council
was
denied
on
February 20, 2015, making the ALJ decision’s the final decision of
the Commissioner. Plaintiff then timely filed this action.
Plaintiff and Defendant have cross-moved for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. The Court will discuss the record evidence further
below, as necessary to the resolution of the parties’ contentions.
For the reasons set forth herein, the Commissioner’s decision is
reversed, and the matter is remanded for further administrative
proceedings.
III. The ALJ’s Decision
The
ALJ
followed
the
five-step
sequential
evaluation
promulgated by the Commissioner for adjudicating disability claims.
At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since the application date.
At
step
following
two,
“severe”
the
ALJ
determined
impairments:
Human
that
Plaintiff
had
Immunodeficiency
the
Virus
(“HIV”), peripheral neuropathy and lumbar spine osteopenia. The ALJ
2
Citations to “T.” in parentheses refer to pages from the certified
administrative transcript.
-2-
found that Plaintiff’s
diagnosed conditions of hepatitis type B,
hepatitis type C, and anxiety disorder with substance abuse in
early remission do not cause significant work-related limitations
and therefore are not “severe.”
At step three, the ALJ compared Plaintiff’s In particular, the
ALJ found that Plaintiff’s HIV does not meet or equal Listing 14.08
because his HIV is “stable . . . with use of medication and care.”
Further, the ALJ found, there is no indication that Plaintiff’s
peripheral neuropathy that meets or equals Listings 11.14 or 4.11.
Finally, the ALJ found no indication that Plaintiff’s lumbar spine
osteopenia meets or equals Listings 1.02, 1.03 or 14.09.
The
ALJ
then
assessed
Plaintiff
as
having
the
residual
functional capacity (“RFC”) to perform light work as defined in
20 C.F.R. § 404.1567(b), with these limitations: he is “frequently
able to climb stairs; frequently able to engage in handling and
fingering; should avoid hazards; and requires unscheduled breaks
once per week [sic] for five minute duration.”
At step four, the ALJ found that Plaintiff has past relevant
work as a post office mail handler, Dictionary of Occupational
Titles (“DOT”) No. 209.687-014, which is semi-skilled (SVP-4) work,
and which is performed at the light exertional level. (T.59). The
VE noted that Plaintiff testified that he lifted up to 40 pounds in
his job as a mail handler, which is consistent with medium work. In
addition, the VE stated that information in the file indicated that
-3-
Plaintiff lifted between 30 and 70 pounds, which suggests Plaintiff
at
times
performed
his
job
at
the
heavy
exertional
level.
Therefore, the ALJ found, in light of the RFC assessment, Plaintiff
is unable to perform his past relevant work.3
At step five, the ALJ found that Plaintiff was 51 years-old,
defined as an individual closely approachh1g advanced age, on the
onset date; he has a high school degree and two years of college;
and he can communicate in English. Based on the VE’s testimony, the
ALJ found that in light of Plaintiff’s age, education, vocational
experience,
and
RFC,
he
can
perform
the
requirements
of
semi-skilled and light exertional jobs such as file clerk, DOT
No. 206.387-034, light exertion and semi-skilled (SVP-3) work;
Host, DOT No. 352.667- 010, light exe1tion and semi-skilled (SVP-3)
work; and hotel clerks, DOT No. 238.376-038, light exertion and
semi-skilled (SVP-4) work, all of which exist in significant
numbers in the national and regional economies. The ALJ further
found that Plaintiff can perform a significant number of other jobs
in the national economy that are light and unskilled jobs when
considering his age, education, work experience and RFC for a
limited
range
of
light
work,
such
as
packer,
assembler,
surveillance system monitor, and ticket taker.
3
Consultative psychologist Dr. Sandra Jensen, in her report dated
January 26, 2012, indicated that Plaintiff had been employed full-time as a mail
handler at the U.S. Postal Service since 1985, and was currently on medical leave
due to his neuropathy. (T.300).
-4-
Accordingly, the ALJ entered a finding of not disabled.
IV.
Scope of Review
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.
Commissioner’s
findings
“as
to
any
42 U.S.C. § 405(g). The
fact,
if
supported
by
substantial evidence, shall be conclusive[.]” Id. “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) (quotation omitted). 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) (citation omitted).
V.
Discussion
A.
Error
in
Applying
(Plaintiff’s Point I)
the
Treating
Physician Rule
Plaintiff contends that the ALJ erred in failing to accord
controlling weight to the Physical Residual Functional Capacity
Questionnaire (“RFC Questionnaire” provided by his primary care
physician Plaintiff’s treating physician, Dr. Fatai Gbadamosi, with
Evergreen Health Services, on August 10, 2013. (See T.763-66).
-5-
Dr. Gbadamosi noted that Plaintiff’s diagnoses included AIDS;4
anxiety; paranoid
state,
episodic;
and
peripheral
neuropathy.
(T.763). Plaintiff’s symptoms included migraine headaches without
aura,
peripheral
vision
loss,
scoliosis,
hearing
voices,
hallucinations, sleep disturbance, and poly-neuropathy that causes
intermittent numbness and at times severe pain in both upper and
lower extremities. (T.763). Dr. Gbadamosi checked a box indicating
that Plaintiff’s symptoms “frequently” interfere with the attention
and concentration needed to perform “even simple work tasks,” and
that he was “incapable of even ‘low stress’ jobs,” because he
“often loses touch [with] reality and suffers from anxiety.”
(T.764).
Dr.
Gbadamosi
stated
that
Plaintiff
could
sit
for
30 minutes at a time and for less than 2 hours total; stand for
30 minutes at a time and for less than 2 hours total; and needed to
walk around every 30 minutes for 10 minutes at a time during an
8–hour workday. (T.764-65).
Dr. Gbadamosi estimated that Plaintiff could lift 10 to
20
pounds
“occasionally,”
could
lift
less
than
10
pounds
“frequently,” could “occasionally” twist and stoop (bend), could
“rarely” crouch/squat and climb stairs,
could “never” climb
ladders, and could use his hands, fingers, and arms to twist,
manipulate objects, reach (overhead) for 50 percent of an 8-hour
4
Plaintiff concedes that testing showed “his t-cell count and viral loads
were stabilized in the sense that his HIV was not progressing. . . .”
(Plaintiff’s Memorandum of Law (“Pl.’s Mem.”) (Dkt #7-1) at 17).
-6-
workday. (T.765-66). Dr. Gbadamosi also opined that Plaintiff’s
fatigue would interfere with his ability to sustain full-time
employment, and that his symptoms would cause him to miss more than
4 days of work per month. (T.766).
Under the Commissioner’s Regulations in effect at the time of
the ALJ’s decision, a treating physician’s opinion is generally
entitled to “controlling weight” when it is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in
[the] case record.” 20 C.F.R. § 404.1527(c)(2). Before an ALJ “may
elect
to
discredit”
a
treating
physician’s
opinion,
“must
explicitly consider (1) the frequency of examination and length,
nature, and extent of the treatment relationship, (2) the evidence
in support of the physician’s opinion, (3) the consistency of the
opinion with the record as a whole, (4) whether the opinion is from
a specialist, and (5) whatever other factors tend to support or
contradict the opinion.” Gunter v. Comm’r of Soc. Sec., 361 F.
App’x 197, 199 (2d Cir. 2010) (unpublished opn.) (citing Halloran
v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004); other citations
omitted). The Second Circuit has stated on many occasions that it
does “not hesitate to remand when the Commissioner has not given
good reasons
for
the weight
given to a
treating
physician’s
opinion.” Gunter, 361 F. App’x at 199 (citing Halloran, 362 F.3d at
32).
-7-
Here, the Commissioner does not dispute that Dr. Gbadamosi
qualifies as “treating physician” given the length of his treatment
relationship with Plaintiff and the frequency with which he treated
Plaintiff for his HIV and related conditions, including peripheral
neuropathy. In his decision, the ALJ gave “little weight to the
extreme
assessment
dated
August
10,
2013,
of
[Plaintiff]’s
condition and disabling restrictions provided by Dr. Gbadamosi[,]”
because “[t]he evidence as a whole in accordance with the analysis
herein does not indicate [Plaintiff] has significant difficulty
walking or standing, muscle weakness, problems using his hands or
problems reaching due to AIDS as asserted by Dr. Gbadamosi on
August 10, 2013.” (T.27). The ALJ observed that Dr. Gbadamosi’s
“treatment notes are inconsistent with this disabling assessment of
[Plaintiff]’s condition as well.” (Id.). The ALJ also noted that
“EMG studies indicate that [Plaintiff] only has mild neuropathy[,]”
and
his
“examinations
Regulations
are
specifically
generally
contemplate
negative.”
that
(Id.).
when
a
The
treating
physician’s opinion is not “well-supported by medically acceptable
clinical
and
laboratory
diagnostic
techniques[,]”
20
C.F.R.
§ 1527(d)(2), an ALJ is not bound to give it “controlling,” id.,
weight.
Therefore,
inconsistences
it
between
was
Dr.
not
improper
Gbadamosi’s
for
the
opinion
ALJ
and
to
his
cite
own
treatment notes (clinical techniques) and EMG studies (laboratory
diagnostic techniques).
-8-
Plaintiff argues that the ALJ “attempt[ed] to downplay the
significance of the EMG findings.” Plaintiff is referring to an EMG
study (T.580-81) performed on November 23, 2011, which was ordered
by Plaintiff’s neurologist, Michael Battaglia, D.O. Interpreting
the results of the study, Dr. Battaglia stated that the EMG of the
lower extremities was “[a]bnormal” in that there was “electrical
evidence of peripheral polyneuropathy.” (T.582-83). Dr. Battaglia
continued, “[t]here is neuropathy as a demyelinating component, and
[sic] is mild in degree electrically.” (T.583). Plaintiff contends
that the ALJ’s description of the EMG results as “mild” “is an
improper attempt by him to assert his lay interpretation of the
significance of the EMG study.” (Pl’s Mem. at 15). However, the
neurologist,
Dr.
Battaglia,
specifically
characterized
the
electrical degree of Plaintiff’s neuropathy as “mild.” The Court is
thus unable to discern how the ALJ mischaracterized the record. The
Court surmises that Plaintiff is contending that even though the
EMG results may have been electrically mild in degree, Plaintiff’s
actual symptoms were more than “mild.”
argument,
it
is
not
supported
by
If that is Plaintiff’s
substantial
evidence,
in
particular, neurologist Dr. Battaglia’s reports. For instance,
Plaintiff saw Dr. Battaglia in follow-up on August 22, 2012, and
reported that he had been taking his gabapentin, and that his pain
had been relatively stable since his last visit, with no definitive
exacerbation in his leg numbness, tingling, or pain. (T.720). On
-9-
examination, Plaintiff had normal limb strength, readily stood from
a chair, could climb onto the examination table without difficulty,
and heel- and toe-walked with only subtle collapse on occasion.
(Id.). His reflexes were 2/4 (normal) and symmetric; he had no
dysmetria, dysarthria, or gait ataxia; his plantar response was
flexor; and he had a normal stance, stride, and arm swing when
ambulating. (Id.). Dr. Battaglia noted that Plaintiff’s neurologic
examination was “baseline” and his neuropathy was “stable.” (Id.).
Dr. Battaglia did not recommend further neurodiagnostic testing.
(Id.). When Plaintiff saw Dr. Battaglia again for follow-up on
February 13, 2013, he had no pain in his feet or toes, but he did
have a persistent loss of sensation. (T.708). On examination,
Dr. Battaglia noted that Plaintiff had good limb strength; no
significant atrophy of the intrinsic muscles in his feet; his
reflexes
were
2/4
(normal)
and
symmetric;
he
had
diminished
vibratory sensation in his toes and pinprick to the lower calf
bilaterally but unimpaired joint position sense. (Id.). Plaintiff
walked with a steady gait and a normal stance, stride, and arm
swing. He was able to walk on his heels and toes, stand from a
chair, and climb onto the examination table without difficulty.
Dr. Battaglia stated that he was“pleased to report” that Plaintiff
was “status quo in regard to his neuropathy.” (Id.). Plaintiff’s
medications remained the same, and no further neurodiagnostic
testing was ordered.
-10-
The ALJ discounted Dr. Gbadamosi’s comments on Plaintiff’s
psychological impairments because they were “outside of his field
of expertise” and inconsistent with his treatment notes which
indicated that Plaintiff “has appropriate demeanor and has intact
attention, concentration, memory.” (T.27). The ALJ also noted that
Plaintiff
consistently
“denie[d]
the
need
for
mental
health
treatment and is able to self-manage his mental problems.” (T.27).
These
statements
do
not
mischaracterize
the
record
and
are
supported by substantial evidence. The Commissioner points out that
the sole record Plaintiff cites documenting complaints of anxiety
is from September 6, 2011, which was 2 months prior to the onset
date. (See Pl.’s Mem. at 18 (citing T.225)). Moreover, this record
does not unambiguously document that Plaintiff was experiencing
anxiety.
While
Plaintiff’s
Dr.
“[c]urrent
Gbadamosi
listed
[p]roblems,”
“anxiety”
under
“ROS”
as
one
of
(review
of
symptoms), “psychiatric,” Dr. Gbadomosi wrote “[p]ositive for sleep
disturbance.
Negative
for
anxiety,
depression
or
suicidal
thoughts.” (T.225) (emphasis supplied). Plaintiff further neglects
to mention the numerous treatment records during the relevant
period documenting that he did not have anxiety or depression and
had an appropriate affect and demeanor. (See, e.g., T.626-27
(12/5/11, “negative for anxiety, depression or suicidal thoughts”),
T.628-29 (12/13/11, was hearing voices saying profanities but was
able to tune them out; he had appropriate affect and demeanor),
-11-
T.631-32 (2/17/12, only psychiatric issue was insomnia; he had
appropriate affect and demeanor), T.640-41 (4/10/12, negative for
anxiety, depression and sleep disturbance), T.643-44 (4/26/12,
“reports anxiety, self-manages, denies history or need for psych
meds”), T.646-47 (5/22/12, negative for anxiety, depression and
sleep
disturbance),
T.648-49
(7/10/12,
negative
for
anxiety,
depression and sleep disturbance), T.723-24 (7/25/12, negative for
anxiety,
depression
negative
for
and
anxiety,
sleep
crying
disturbance),
spells,
T.757
depression,
(5/13/13,
anhedonia,
personality changes, difficulty concentrating, sadness, or suicidal
thoughts), T.782 (7/10/13, negative for anxiety, depression and
sleep disturbance).
Similarly,
consultative
psychologist
Dr.
Sandra
Jensen’s
January 26, 2012 report (T.300-03) does not support Dr. Gbadamosi’s
assignment of extremely restrictive limitations due to Plaintiff’s
alleged mental impairments. Dr. Jensen noted that Plaintiff had no
history of psychiatric issues, hospitalizations, or outpatient
treatment. On examination, his demeanor and responsiveness to
questions were cooperative; his manner of relating, social skills,
and overall presentation likewise were adequate. Plaintiff had
normal speech; appropriate eye contact; coherent, goal-directed
thought processes with no evidence of hallucinations, delusions, or
paranoia; a flat affect but a neutral mood; a clear sensorium; and
intact orientation to person, place, and time. Based on testing
-12-
administered during the examination, Plaintiff had intact attention
and concentration, and intact recent and remote memory skills.
Dr. Jensen estimated that his intellectual functioning was average,
with a general fund of information that was appropriate to his
experience. He displayed good insight and judgment. Dr. Jensen
noted
living
that Plaintiff was able to perform all activities of daily
without
difficulty.
For
her
medical
source
statement,
Dr. Jensen opined that Plaintiff could follow and understand simple
directions and instructions, perform simple tasks independently,
maintain attention and concentration, maintain a regular schedule,
learn
new
appropriate
tasks,
perform
decisions,
complex
relate
tasks
adequately
independently,
with
others,
make
and
appropriately deal with stress without any difficulty. (T.302). She
commented that her evaluation did not evidence any psychiatric
issues that would significantly interfere with Plaintiff’s ability
to function on a daily basis. (T.303).
The ALJ also rejected Dr. Gbadomosi’s opinion that Plaintiff
his antiretroviral medications “may cause n/v/d [i.e., nausea,
vomiting,
and
diarrhea],
[and]
fatigue,”
because
Plaintiff
“testified that he does not have significant side effects from his
medication.” (T.27; T.51-52 (testimony)). The ALJ “emphasized that
[Plaintiff] even reported in treatment records that he has no side
effects from use of his medication.” (T.27). Again, these reasons
do
not
misstate
the
record
and
-13-
are
supported
by
substantial
evidence.
Dr.
For
Gbadomosi
instance,
and
was
on
July
10,
“[n]egative”
for
2013,
any
Plaintiff
saw
gastrointestinal
symptoms such as nausea and vomiting, abdominal pain, acid reflex
symptoms, and heartburn. (T.782). On February 22, 2012, Plaintiff
denied
side
effects
due
to
his
neuropathy
medication
to
Dr. Battaglia. (T.585).
In sum, the Court finds that the ALJ did not incorrectly apply
the principles underlying the treating physician rule in analyzing
Dr. Gbadamosi’s RFC Questionnaire, and that the ALJ’s decision to
decline
to
accord
it
controlling
weight
was
supported
by
substantial evidence.
B.
RFC Assessment Unsupported
(Plaintiff’s Point II)
by
Substantial
Evidence
Plaintiff notes that the ALJ gave “significant weight” to the
opinion
of
consultative
physician
Samuel
Balderman,
M.D.
in
determining Plaintiff’s physical RFC (T.27), but argues that the
ALJ’s RFC assessment is not consistent with Dr. Balderman’s report
which opined that Plaintiff had a “moderate” limitation with
respect to “prolonged walking or [sic] climbing.” (T.307). In
addition, Dr. Balderman opined that Plaintiff had a “mild to
moderate” limitation with respect to using his hands for repetitive
motor function. (Id.). In the RFC assessment, the ALJ found that
Plaintiff
was
able
to
“frequently”
handling. Plaintiff argues that.
-14-
engage
in
fingering
and
As Plaintiff points out, the Second Circuit, as well as some
district courts within it, have issued decisions finding that
doctors’ opinions assigning “mild” or “moderate” limitations in
work-related activities can be too vague to support RFC assessments
for sedentary or light work. See, e.g., Selian v. Astrue, 708 F.3d
409, 421 (2d Cir. 2013) (per curiam) (The ALJ stated that she based
this
conclusion [that Selian could perform light work] on the
reports of Dr. Naughten and Dr. Noia. Dr. Noia, a psychiatrist, did
not discuss Selian’s ability to lift. Dr. Naughten opined that
Selian ‘should be able to lift . . . objects of a mild degree of
weight
on
an
intermittent
basis.’
Dr.
Naughten’s
opinion
is
remarkably vague. What Dr. Naughten means by ‘mild degree’ and
‘intermittent’ is left to the ALJ’s sheer speculation. . . .
Dr. Naughten’s opinion does not provide substantial evidence to
support
the
ALJ’s
finding
that
Selian
could
lift
20
pounds
occasionally and 10 pounds frequently.”) (citing Carrube v. Astrue,
No. 3:08–CV–0830(FJS), 2009 WL 6527504, at *8 (N.D.N.Y. Dec. 2,
2009) (reversing denial of benefits where Dr. Naughten offered
identical opinion on claimant’s ability to lift weight, noting that
court “cannot fathom what might support the ALJ’s conclusion that
[the claimant] could lift and carry twenty-five to fifty pounds”),
report
and
recommendation
adopted,
2010
WL
2178499
(N.D.N.Y.
May 28, 2010); other citations omitted); Curry v. Apfel, 209 F.3d
117, 123–24 (2d Cir. 2000) (“Dr. Mancheno’s use of the terms
-15-
‘moderate’ and ‘mild,’ without additional information, does not
permit the ALJ, a layperson notwithstanding her considerable and
constant exposure to medical evidence, to make the necessary
inference that Curry can perform the exertional requirements of
sedentary work.”), superseded by statute on other grounds, as
recognized in Douglass v. Astrue, No. 11–3325–cv, 2012 WL 4094881,
at *1 (2d Cir. Sept. 19, 2012) (summary order); Malone v. Comm’r of
Soc.
Sec.,
No.
08–CV–1249(GLS/VEB),
2011
WL
817448,
at
*10
(N.D.N.Y. Jan. 18, 2011) (consultative examiner’s assessment that
claimant had moderate limitation with respect to prolonged standing
and sitting “suggests a possibility that prolonged standing might
pose a problem;” ALJ’s assessment that claimant could perform light
work
thus
was
not
supported
by
the
record),
report
and
recommendation adopted, 2011 WL 808378 (N.D.N.Y. Mar. 2, 2011). The
caselaw in this Circuit is not uniform, however, and “several
courts have upheld an ALJ’s decision that the claimant could
perform light or sedentary work even when there is evidence that
the claimant had moderate difficulties in prolonged sitting or
standing.” Carroll v. Colvin, No. 13–CV–456S, 2014 WL 2945797, at
*4
(W.D.N.Y.
June
30,
2014)
(citing
Hammond
v.
Colvin,
No.
12–cv–965, 2013 WL 4542701, at *6 (N.D.N.Y. Aug. 26, 2013); Stacey
v. Comm’r of Soc. Sec., No. 09–cv–0638, 2011 WL 2357665, at *6
(N.D.N.Y. May 20, 2011)).
The Regulations define light work as involving
-16-
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. If someone can
do light work, we determine that he or she can also do
sedentary work, unless there are additional limiting
factors such as loss of fine dexterity or inability to
sit for long periods of time.
20 C.F.R. § 404.1567(b) (emphases supplied); see also S.S.R. 83–10,
1983 WL 31251, at *6 (S.S.A. 1983). As noted above, Dr. Balderman
assigned “moderate” limitations with respect to “prolonged walking
or [sic] climbing.” (T.307). Under the circumstances of this case,
the Court
finds
that
Dr.
Balderman’s
opinion,
which
the
ALJ
accorded “significant” weight, is not consistent, on its face, with
the ALJ’s RFC assessment that Plaintiff can perform light work with
certain non-exertional limitations. See Carroll, 2014 WL 2945797,
at *4 (“Dr. Balderman’s report is not the clean bill of health that
the ALJ suggests it is. Indeed, even Dr. Balderman, whose opinion
received greater weight, found that Carroll suffered from moderate
limitations in prolonged sitting and standing. This not necessarily
compatible with an ability to perform light work.”); see also
Malone, 2011 WL 817448, at *10 (“A job in ‘the full range of light
work requires standing or walking, off and on, for a total of
approximately 6 hours of an 8–hour workday.’ SSR 83–10. The only
direct evidence in the record of [the claimant]’s abilities in this
-17-
regard
is
Dr.
Wahl’s
non-specific
indication
of
‘moderate’
limitation. At a minimum, an assessment of moderate limitation
suggests
a
possibility
that
prolonged
standing
might
pose
a
problem.”)).5
The ALJ also found that, notwithstanding his assignment of
“significant weight” to Dr. Balderman’s opinion, that Plaintiff was
“frequently able to climb stairs[.]” As noted above, Dr. Balderman
imposed “moderate” limitations with respect to “prolonged walking
or [sic] climbing.” (T.307). The Court notes that Dr. Balderman’s
opinion is ambiguous as to whether “prolonged” also modifies
“climbing” or if it simply modifies “walking.” In any event,
“moderate” limitations in “climbing,” whether prolonged or not,
appear to
be
inconsistent
with
a
finding
that
Plaintiff can
“frequently” climb stairs. Clarification on these points also is
required on remand.
Finally, the ALJ stated that Plaintiff was
“frequently able
to engage in handling and fingering,”6 while Dr. Balderman opined
5
In Carroll, the district court suggested that if the RFC had included
accommodations for breaks or changing positions, it might have ameliorated the
problem. Carroll, 2014 WL 2945797, at *4. Here, the ALJ did include the
opportunity for an unscheduled break, but oddly enough he permitted only one
break per week for five minutes at a time. This may simply be a typographical
error but, as written, it does not make sense.
6
“‘Handling’ involves ‘[s]eizing, holding, grasping, turning or otherwise
working with hand or hands.’” Olmeda v. Barnhart, No. 04 Civ. 5456(PAC), 2006 WL
2255003, at *5, n. 11 (S.D.N.Y. Aug. 1, 2006) (quoting Appendix C, Physical
Demands (“App. C”), Selected Characteristics of Occupations Defined in the
Revised Dictionary of Occupational Titles (“SCO”); citation to record omitted;
brackets in original)). In “handling,” “[f]ingers are involved only to the extent
that they are an extension of the hand, such as to turn a switch. . . .” Id.
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that Plaintiff had a “mild to moderate” limitation with respect to
using his hands for repetitive motor function. Again, the ALJ gave
Dr. Balderman’s opinion “significant weight,” but his limitation
regarding
Plaintiff’s
use
of
his
hands
repetitively
is
not
necessarily compatible with the ALJ’s finding that Plaintiff can
frequently7 handle and finger, i.e., do such activities for up to
one-third to two-thirds of an 8-hour day (up to 2.64 to 5.36
hours).
Accordingly, this case is remanded to obtain clarification
from Dr. Balderman regarding the ambiguous phrase, “prolonged
walking or [sic] climbing” (T.307), and clarification regarding
Dr. Balderman’s “mild to moderate” limitation on Plaintiff’s use of
his
hands
for
repetitive
motor
functions.
Based
on
this
information, the ALJ may need to reformulate the RFC assessment so
as to include unscheduled breaks more than once per week.
VI.
Conclusion
For
the
foregoing
reasons,
the
Court
finds
that
the
Commissioner’s decision is not based on substantial evidence and
contains legal errors. Accordingly, Plaintiff’s motion for judgment
on the pleadings is granted to the extent that the Commissioner’s
(quoting App. C, SCO; ellipsis in original). “‘Fingering’ means ‘[p]icking,
pinching, or otherwise working primarily with fingers rather than with the whole
hand or arm as in handling.’” Id. (quoting App. C, SCO; brackets in original).
7
“‘Frequent’ means occurring from one-third to two-thirds of the time.”
TITLES II & XVI: DETERMINING CAPABILITY TO DO OTHER WORK-THE MED.-VOCATIONAL RULES OF APPENDIX
2, SSR 83-10, 1983 WL 31251, at *6 (S.S.A. 1983).
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decision is reversed, and Plaintiff’s claim is remanded for further
administrative proceedings consistent with this Decision and Order.
Defendant’s motion for judgment on the pleadings is denied.
The Clerk of Court is directed to close this case.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
December 14, 2017
Rochester, New York
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