Davis-Payne v. Social Security Administration

Filing 20

DECISION AND ORDER granting 11 Plaintiff's Motion for Judgment on the Pleadings to the extent that the matter is remanded for further administrative proceedings consistent with this decision and order; denying 16 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 1/5/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHANIKKA M. DAVIS-PAYNE,
Plaintiff,

No. 1:15-cv-00379(MAT)
DECISION AND ORDER

-vsCAROLYN W. COLVIN, ACTING COMMISSIONER
OF SOCIAL SECURITY,
Defendant.
INTRODUCTION
Represented by counsel, Chanikka M. Davis-Payne (“Plaintiff”)
instituted this action pursuant to Title 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 Supplemental Security Income (“SSI”). The Court has
jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c).
PROCEDURAL STATUS
On May 15, 2012, Plaintiff filed an application for SSI, which
was denied at the initial level. At Plaintiff’s request, a hearing
was conducted by administrative law judge Robert T. Harvey (“the
ALJ”) on February 11, 2014. Plaintiff appeared with her attorney
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).

testified at the hearing, as did vocational expert Jennifer Dizon
(“the VE”). The ALJ considered the claim de novo and issued an
unfavorable decision on March 20, 2014. (T.46-64).2 The Appeals
Council denied Plaintiff’s request for review on March 31, 2015,
making the ALJ’s decision the final decision of the Commissioner.
This action followed.
Before the Court are the parties’ cross-motions for judgment
on the pleadings. 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 proceedings.
THE ALJ’S DECISION
The ALJ followed the five-step sequential evaluation

for

determining whether an individual is disabled, see 20 C.F.R.
§ 416.920(a). At step one, the ALJ found that Plaintiff has not
engaged

in

substantial

gainful

activity

(“SGA”)

since

the

application date (May 15, 2012), which is also her amended onset
date. (T.51).
At

step

following
discectomy

two,

severe
and

the

ALJ

determined

impairments:

fusion

status

(“ACDF”)

at

that

Plaintiff

has

post

anterior

cervical

C3-5,

migraine

the

headaches,

2

Citations to “T.” in parentheses refer to pages from the certified
administrative transcript.

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cervical radiculopathy, and discogenic lumbar spine. (T.51). The
ALJ found that Plaintiff’s bilateral hip pain and obesity do not
cause significant work-related functional limitations and therefore
are not severe. (T.52).
At step three, the ALJ found 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.
Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925,
416.926). (T.52). The ALJ gave particular consideration to Listings
1.03 (Reconstructive surgery or surgical arthrodesis of a major
weight-bearing joint, with inability to ambulate effectively),
1.04A (Disorders of the spine with evidence of, e.g., nerve root
compression), and 11.00 (Neurological disorders).
The ALJ proceeded to assess Plaintiff as having the residual
functional capacity (“RFC”) to perform light work as defined in
20 C.F.R. § 416.967(b), except that she has occasional limitations
in

climbing,

stooping,

squatting,

kneeling,

and

balancing;

occasional limitation in the ability to reach in all directions;
occasional limitation in pushing and/or pulling with the upper
extremities; no ability to climb ropes, ladders, or scaffolds; and
no ability to crawl. In addition, she cannot work in areas where
she would be exposed to cold. (T.52).
At step four, the ALJ noted that Plaintiff was 34 years-old on
the application date. She obtained her general equivalency degree

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(“GED”) in 1997 (T.217), and thus had at least a high school
education.

She

previously

worked

sporadically

in

an

assembly

position factory, a representative in a teletech call center, a
hairdresser, and a housekeeper in a hotel (T.217), but her earnings
were below SGA during the 15 years prior to her SSI application.
(T.51). The ALJ accordingly found that she did not did not have any
past relevant work. (T.59).
At step five, the ALJ relied on the VE’s testimony (T.94-95)
that a person of Plaintiff’s age, and with her education, work
experience, and RFC, can perform representative occupations that
exist in significant numbers in the national economy, including
mail

room

clerk

(Dictionary

of

Occupational

Titles

(“DOT”)

No. 209.687-026, light, unskilled, of which there are 102,410
positions

in

the

national

economy)

and

ticket

seller

(DOT

No. 211.467-030, light, unskilled, of which there are 106,860 jobs
in the national economy). (T.59-60). Accordingly, the ALJ found
that Plaintiff has not been under a disability as defined in the
act since the application date. (T.60).
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.

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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)).
DISCUSSION
I.

RFC Unsupported by Substantial Evidence Due to ALJ’s Failure
to Account for Plaintiff’s Migraine Headaches
Plaintiff testified at the hearing that she takes Sumatriptan

and Topamax when she gets a migraine, and then goes to lie down in
a “dark” place. (T.87). She stated that the headaches generally
last about five hours and occur “[l]ike twice a week.” (T.88). They
do not occur at any particular time of day. (Id.). The ALJ, in
assessing her credibility, stated that she “only has two headaches
a week, which is not indicative of disability.” (T.58). Plaintiff
assigns error to the ALJ’s treatment of her migraine headaches,
arguing

that

the

ALJ’s

statement

“totally

misinterprets

the

severity of migraine headaches, which, even at one or two per week,

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lasting for up to five hours as [Plaintiff] testified to (or even
half that long) would certainly be indicative of disability.”
(Pl’s Mem. at 4 (citing T.98)). Plaintiff notes that, according to
the VE’s testimony, experiencing a 5-hour migraine headache once a
week

was

“definitely

going

to

impact

[the

hypothetical

individual’s] ability to maintain any position[,]” unless the
employer made an accommodation, such as an alternate work schedule.
(T.98). The VE stated that if the employer could not or would not
make such an accommodation, the individual would not be able to
maintain

employment.

(Id.).

Plaintiff

argues

that

the

ALJ’s

assertion that her twice-weekly migraines were not indicative of
disability cannot be reconciled with the VE’s testimony about the
employment-precluding effects of such headaches. (See Pl’s Mem. at
4).
The Court finds that the ALJ “seems to have succumbed to the
temptation to play doctor[,]” Blakes ex rel. Wolfe v. Barnhart, 331
F.3d 565, 570 (7th Cir. 2003), when he concluded that “only . . .
two headaches a week . . . is not indicative of disability[,]”
(T.58). See Primes v. Colvin, No. 6:15-CV-06431(MAT), 2016 WL
446521, at *4 (W.D.N.Y. Feb. 5, 2016) (ALJ impermissibly “played
doctor” and relied on his own lay opinion to fill perceived gaps in
the evidentiary record by opining that the claimant “has not
generally received the type of medical treatment one would expect
from a totally disabled individual” and that it was “unusual” for

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consultative physician to have found no muscle atrophy, “given the
limitations the claimant alleges”; the ALJ identified no medical
expert who opined that claimant’s

medical treatment was atypical

for a person who is disabled) (citing Blakes, 331 F.3d at 570;
other citation omitted).
Furthermore, as Plaintiff points out, the ALJ did not cite any
evidence to refute her testimony as to the existence of her
migraines, and appears to have accepted her testimony that she
experiences

twice-weekly

migraines.

Notably,

the

ALJ

did

not

attempt to discredit her testimony as to the duration of her
migraines; in fact, he did not address, at all, her statements as
to how long her migraines lasted.
As noted above, the VE testified that a person who experiences
one five-hour migraine headache weekly would be precluded from
competitive

full-time

employment.

(See

T.98).

Here,

the

ALJ

apparently accepted that Plaintiff experienced two migraines a
week, although he did not explicitly accept or reject Plaintiff’s
testimony as to the duration of her headaches. If her testimony
regarding the five-hour duration of her headaches is accepted, it
creates a material discrepancy between the ALJ’s decision and the
VE’s testimony, which the ALJ accepted in its entirety. At the very
least, there is a significant ambiguity that must be resolved by
the fact-finder in the first instance.

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The Commissioner ignores the inconsistency pointed out by
Plaintiff, and instead argues for affirmance on the basis that the
remainder of the ALJ’s credibility analysis is reasonable and
legally correct. This, however, is one of those situations where
the Court is “unable to fathom the ALJ’s rationale in relation to
evidence in the record, especially where credibility determinations
and inference drawing is [sic] required of the ALJ.” Berry v.
Schweiker, 675 F.2d 464, 469 (2d Cir. 1982) (per curiam). Such
cases, the Second Circuit has stated, are particularly well-suited
for remand for “further findings” and a “clearer explanation” by
the ALJ. See id.
II.

Erroneous Weighing of Opinion Evidence
Because

the

Court

has

identified

a

separate

error

in

connection with the RFC assessment, the Court need not address
Plaintiff’s

argument

regarding

assessments

offered

Chiropractor

Cardamone,

by

the

ALJ’s

Physician’s
and

an

opinion

weighing

Assistant
by

of

RFC

Brimmer

and

orthopedic

surgeon

Dr. Melvin Brothmann that Plaintiff had a 40 percent scheduled loss
of

use, for

Workers Compensation

purposes, due

to

her

right

shoulder pathology.
CONCLUSION
For the foregoing reasons, the Court finds that Commissioner’s
decision must be reversed. Defendant’s motion for judgment on the
pleadings is denied, and Plaintiff’s motion for judgment on the

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pleadings is granted to the extent that the matter is remanded for
further administrative proceedings consistent with this decision
and order.
The Clerk of Court is directed to close this case.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

January 5, 2018
Rochester, New York.

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