Shine v. Colvin

Filing 19

DECISION AND ORDER granting 12 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 15 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 2/8/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RANDY SHINE,
Plaintiff,

No. 1:15-cv-00864(MAT)
DECISION AND ORDER

-vsCAROLYN W. COLVIN, ACTING COMMISSIONER
OF SOCIAL SECURITY,
Defendant.
INTRODUCTION
Represented by counsel, Randy Shine (“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 his
application

for

Disability

Insurance

Benefits

(“DIB”)

and

Supplemental Security Income (“SSI”). The Court has jurisdiction
over the matter pursuant to 42 U.S.C. §§ 405(g), 1383(c).
PROCEDURAL STATUS
Plaintiff protectively filed applications for DIB and SSI on
September 17, 2012, alleged disability beginning December 31, 2010,
due to major depression, foot deformity, diabetes, arthritis in the
feet

and

knees,

high

blood

pressure,

high

cholesterol,

and

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).

neuropathy.

The

Commissioner

denied

these

applications,

and

Plaintiff requested a hearing. On March 19, 2014, Administrative
Law Judge Robert Harvey (“the ALJ”) conducted a hearing at which
Plaintiff

appeared

with

his

attorney

and

testified,

as

did

impartial vocational expert Esperanza DiStefano (“the VE”). On
May 7, 2014, the ALJ issued a decision finding Plaintiff not
disabled within the meaning of the Act. (T.10-26). The Appeals
Council denied Plaintiff’s request for review on September 2, 2015,
making the ALJ’s decision the final decision of the Commissioner.
Plaintiff timely commenced this action.
THE ALJ’S DECISION
At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since December 31, 2010, his alleged
disability onset date. At step two, the ALJ then found that
Plaintiff’s diabetes mellitus, diabetic neuropathy, depression, and
obesity were severe impairments. At step three, the ALJ determined
that Plaintiff’s impairments, alone or in combination, did not
satisfy the criteria of any listed impairments. The ALJ gave
particular consideration to Listing 9.08 (Diabetes mellitus) and
Listing 12.04 (Affective disorders).
The

ALJ

then

assessed

Plaintiff

as

having

the

residual

functional capacity (“RFC”) to RFC to perform sedentary work except
he could not work in areas with unprotected heights; could not work
around

heavy,

moving

or

dangerous
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machinery;

had

occasional

limitations in bending, climbing, stooping, squatting, kneeling,
balancing or crawling; could not climb ropes, ladders or scaffolds;
had

occasional

limitations

in

the

ability

to

reach

in

all

directions dominant/non-dominant hand; had occasional limits in the
ability in handling (gross manipulations) dominant/non-dominant;
had occasional limitations in the ability in fingering (fine
manipulations) dominant/non-dominant; had occasional limitations in
the ability in feeling (skin receptors) dominant/non-dominant; had
occasional limitations in pushing and pulling with the upper
extremities; had occasional limitations in the ability to interact
appropriately with the general public; had occasional limitations
in dealing with stress; and could not work in areas where he would
be exposed to cold or dampness. (T.17).
Plaintiff,

who

was

57

years-old

on

the

onset

date

of

December 31, 2010, was a high school graduate with at least four
years of college. He had past relevant work as a house manager and
shipping and receiving clerk. At step four, the ALJ relied on the
VE’s testimony to find that Plaintiff could perform his past
relevant work as a shipping and receiving clerk as he actually
performed it. (T.22). Although the Dictionary of Occupational
Titles (“DOT”) classifies shipping clerk as a medium exertional
level job, the ALJ found that Plaintiff’s testimony established
that he actually performed it at the sedentary level. Accordingly,

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the ALJ did not proceed to step five, and entered a finding of “not
disabled.”
DISCUSSION
I.

Failure to Weigh the Opinion of the State Agency Review
Psychiatrist (Plaintiff’s Point I)

Plaintiff asserts that the ALJ committed legal error in
failing to mention the opinion evidence provided by State Agency
Review Psychiatrist Juan C. Echevarria, M.D. As Plaintiff points
out, 20 C.F.R. § 404.1527(e)(2)(ii) provides in relevant part that
“[u]nless a treating source’s opinion is given controlling weight,”
which did not occur here,
the [ALJ] must explain in the decision the weight given
to the opinions of a State agency medical or
psychological consultant or other program physician,
psychologist, or other medical specialist, as the [ALJ]
must do for any opinions from treating sources,
nontreating sources, and other nonexamining sources who
do not work for [the Social Security Administration].
20 C.F.R. § 404.1527(e)(2)(ii).
Dr. Echeverria, the State agency medical consultant, reviewed
the

record

and

noted,

among

other

things,

the

opinion

of

consultative psychologist Dr. Thomas Ryan that Plaintiff could
perform simple and some complex tasks (T.67, 251). Dr. Echeverria
then concluded that Plaintiff “appears capable of performing at
least

simple

work-related

tasks.”

(T.67)

(emphasis

added).

Plaintiff contends the ALJ committed reversible error because he
did not discuss Dr. Echeverria’s opinion.
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Plaintiff, however, has mischaracterized Dr. Echeverria’s
opinion, claiming that Dr. Echeverria found that Plaintiff was
“only capable of simple work with simple tasks.” (Plaintiff’s
Memorandum of Law (“Pl’s Mem.”) at 17 (emphasis added)). His
argument, that the VE erred by finding that Plaintiff could perform
skilled work, is based on a mistaken premise—that Dr. Echevarria
opined that Plaintiff was limited to performing only perform simple
work.
The Court agrees with the Commissioner that the more accurate
interpretation of the statement that Plaintiff appears capable of
performing

“at

least”

simple

work-related

tasks

is

that,

in

Dr. Echeverria’s opinion, simple work was the minimum, not the
maximum, skill-level that Plaintiff could perform. The ability to
perform “at least” simple work-related tasks does not rule out the
ability

to

perform

detailed

or

complex

tasks.2

Because

Dr. Echeverria’s opinion is not consistent with the ALJ’s RFC
assessment, the Court finds that the ALJ’s failure to specifically
discuss it was harmless error. See, e.g., Christina v. Colvin, 594
F. App’x 32, 33-34 (2d Cir. 2015) (summary order) (rejecting
claimant’s

argument

that

ALJ

committed

reversible

error

by

dismissing a portion of an opinion by a consultative examiner and

2

In this context, “at least” is defined as “1. [a]ccording to the
lowest possible assessment; not less than[.]” See American Heritage Dictionary
of the English Language (5th ed. 2011), available at
https://www.thefreedictionary.com/at+leastat least (last accessed Feb. 6,
2018).

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failing to discuss portions of State agency psychologist’s opinion
where RFC assessment was consistent with both source’s opinions).
II.

Failure to Weigh Statements Offered by Treating Physician That
Plaintiff Is Disabled (Plaintiff’s Point II)
Plaintiff contends that the ALJ erred by not weighing two

disability forms issued by his primary care physician, Dr. Frank A.
Ferraro. (T.218, 484). On December 27, 2010, Dr. Ferraro completed
a claim form for New York State disability benefits, stating that
he had first treated Plaintiff for his disability on December 13,
2010; that

Plaintiff

became

“unable

to

work because

of

this

disability” on December 13, 2010; and that Plaintiff “will be able
to perform usual work” on June 30, 2011. (T.218).
On October 15, 2013, Dr. Ferraro completed the physician
certification

on

Plaintiff’s

application

to

have

his

Federal

student loans discharged based on a permanent and total disability.
(T.484). The form states that in order to qualify for a discharge,
the applicant “must be unable to engage in any substantial gainful
activity (as defined in Section 5) by reason of a medically
determinable physical or mental impairment that (1) can be expected
to result in death; (2) has lasted for a continuous period of not
less than

60

months;

or

(3)

can

be

expected

to

last

for a

continuous period of not less than 60 months.” (T.484). Dr. Ferraro
signed the certification at the bottom of the form, and stated that
Plaintiff “ambulates with great difficulty” but did not indicate

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any other functional limitations. (T.484). The diagnoses listed
were rheumatoid arthritis, diabetes, hypertension, and depression.
At the time the ALJ decided Plaintiff’s claim, the Social
Security Administration “recognize[d] a ‘treating physician’ rule
of deference to the views of the physician who has engaged in the
primary treatment of the claimant.” Green-Younger v. Barnhart, 335
F.3d 99, 106 (2d Cir. 2003). The regulations in effect at the
relevant
opinion

time
on

“advise[d]

the

issue(s)

claimants
of

the

that

nature

‘a

treating

source’s

and

severity

of

your

impairment(s)’ will be given ‘controlling weight’ if the opinion is
‘well supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in your case record.’” Id. (quoting 20 C.F.R.
§

404.1527(d)(2)

(emphasis

in

Green-Younger)).

However,

“‘[a]

treating physician’s statement that the claimant is disabled cannot
itself be determinative.’” Id. (quoting Snell v. Apfel, 177 F.3d
128, 133 (2d Cir. 1999)).
The 2010 form completed by Dr. Ferraro simply provided an
opinion by Dr. Ferraro that Plaintiff is disabled from working. A
treating source’s statement that a claimant “‘is disabled’ . . . is
not considered a ‘medical opinion’ under the treating physician’s
rule,

and

is

not

entitled

to

controlling

weight

because

it

represents an opinion on an issue reserved to the Commissioner.”
Adamski v. Barnhart, 404 F. Supp.2d 488, 492 (W.D.N.Y. 2005)

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(citing 20 C.F.R. §§ 404.1527(e); 416.927(e) (“A statement by a
medical source that you are disabled or unable to work does not
mean that we will determine that you are disabled.”)); see also
Earl-Buck v. Barnhart, 414 F. Supp.2d 288, 293 (W.D.N.Y. 2006)
(“Because the opinions of Drs. Landfried and Kelly that plaintiff
was ‘totally disabled’ are not ‘medical opinions’ under 20 C.F.R.
§ 404.1527(a)(2), the ALJ was not required to accord them any
significant weight under the treating physician’s rule. Nor was the
ALJ required to state reasons on the record for not doing so.”). In
the 2010 form, Dr. Ferraro offered no assessment regarding the
“nature and severity” of Plaintiff’s impairments and thus offered
the ALJ nothing to weigh. The Court finds that there was no legal
error by the ALJ in regard to Dr. Ferraro’s 2010 form.
With

regard

to

the

2013

form,

again,

Dr.

Ferraro’s

certification that Plaintiff is disabled—as defined by an entity
other than the Social Security Administration—is not entitled to
any significant weight. See, e.g., Taylor v. Barnhart, 83 F. App'x
347, 349 (2d Cir. 2003) (unpublished opn.) (“[Treating physician]
Dr. Desai’s opinion that Taylor was ‘temporarily totally disabled’
is

not

entitled

to

any

weight,

since

the

ultimate

issue

of

disability is reserved for the Commissioner.”) (citing 20 C.F.R.
§ 404.1527(e)(1); Snell, 177 F.3d at 133); Crowe v. Comm’r of Soc.
Sec., No. 6:01-CV-1579(GLS), 2004 WL 1689758, at *3 (N.D.N.Y.
July 20, 2004) (rejecting “treating physician” argument based on

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Workers’ Compensation forms filed by claimant’s doctor in which he
indicated (by way of checking a box) that she was “totally”
disabled; noting that the opinions were rendered in the context of
claimant’s Workers’ Compensation claim, “which is governed by
standards different from the disability standards” under the Act)
(citation and footnote omitted). In his decision, the ALJ did not
explicitly

weigh

the

2013

form,

but

mentioned

Dr.

Ferraro’s

statement therein to the effect that Plaintiff “ambulate[d] with
great difficulty.” (T.21). Absent from this form are any specific
limitations on Plaintiff’s ability to walk, e.g., how long he could
walk at a time and how long he could walk, in total, in a day.
Dr. Ferraro thus offered little information for the ALJ to consider
in rendering his RFC assessment. In and of itself, Dr. Ferraro’s
notation that Plaintiff “ambulates with great difficulty” does not
warrant

a

finding

that

Plaintiff

cannot

perform

any

gainful

employment, and the ALJ limited Plaintiff to the lowest exertional
category of work, which requires the least amount of walking.
Therefore,
specifically

the

Court

weigh

the

finds

that

2013

form

any

error

issued

by

in
Dr.

failing
Ferraro

to
was

harmless.
III. Failure to Develop the Record (Plaintiff’s Point IV)
Plaintiff contends that the ALJ abdicated his duty to develop
the record by failing to seek another opinion from Dr. Ferraro,

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since Dr. Ferraro “did not provide any functional limitations” in
either the 2010 or 2013 forms he completed on Plaintiff’s behalf.
“[W]here there are deficiencies in the record, an ALJ is under
an affirmative obligation to develop a claimant’s medical history
‘even when the claimant is represented by counsel or . . . by a
paralegal.’” Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999)
(quoting Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996); emphasis
added; ellipsis in original). On the other hand, where the ALJ has
“before him a complete medical history, and the evidence received
from the treating physicians [is] adequate for him to make a
determination as to disability[,]” Perez, 77 F.3d at 48, courts
will conclude that “the ALJ satisfied his duty to develop the
record[,]” id. (2d Cir. 1996).
“Although the Social Security regulations express a clear
preference for evidence from the claimant's own treating physicians
over the opinion rendered by a consultative examiner,” Swiantek v.
Comm'r

of

Soc.

Sec.,

588

F.

App’x

82,

84

(2d

Cir.

2015)

(unpublished opn.) (citation omitted), the Second Circuit has
stated that it “does not always treat the absence of a medical
source statement from claimant’s treating physicians as fatal to
the ALJ’s determination,: Id. (citing Tankisi v. Comm’r of Soc.
Sec., 521 F. App’x 29, 33–34 (2d Cir. 2013) (unpublished opn.)).
This is one of those cases. Given the extensive medical record
before the ALJ in this case, the Court finds that “there were no

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‘obvious gaps’ that necessitate remand solely on the ground that
the ALJ failed to obtain a formal opinion[,]” id., from Dr. Ferraro
detailing Plaintiff’s functional limitations.

See id. (holding

that where there were no “obvious gaps” in the “extensive record,”
remand of ALJ’s decision solely to obtain a formal opinion from one
of claimant’s treating physicians regarding the extent of her
impairments in the functional domain of caring for oneself was
unwarranted); Tankisi, 521 F. App’x at 34 (“The medical record in
this case is quite extensive. Indeed, although it does not contain
formal opinions on Tankisi’s RFC from her treating physicians, it
does include an assessment of Tankisi’s limitations from a treating
physician, Dr. Gerwig. Given the specific facts of this case,
including a voluminous medical record assembled by the claimant’s
counsel that was adequate to permit an informed finding by the ALJ,
we hold that it would be inappropriate to remand solely on the
ground that the ALJ failed to request medical opinions in assessing
residual functional capacity.”).
IV.

Failure to Fully Establish the Exertional Demands
Plaintiff’s Past Relevant Work (Plaintiff’s Point III)

of

Plaintiff contends that the ALJ erred at step four by failing
to fully establish the exertional demands of Plaintiff’s past
relevant work as a shipping clerk. “‘Pursuant to both case law and
Social Security Ruling 82–62, in order to determine at step four
whether a claimant is able to perform [his] past work, the ALJ must
make a specific and substantial inquiry into the relevant physical
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and mental demands associated with the claimant’s past work, and
compare

these

demands

to

the

claimant’s

[RFC].’”

Matejka

v.

Barnhart, 386 F. Supp. 2d 198, 204–05 (W.D.N.Y. 2005) (quoting
Kerulo v. Apfel, No. 98 CIV. 7315 MBM, 1999 WL 813350, at *8
(S.D.N.Y. Oct. 7, 1999) (citations omitted in original)). Once the
demands of the claimant’s past relevant work are ascertained, the
ALJ “must. . .identify the [claimant’s] ability to perform the
specific work-related abilities on a function-by-function basis.”
Social Security Ruling 96–8p, 1996 WL 374184, at *1 (S.S.A. July 2,
1996). Specifically, “the adjudicator must discuss the individual’s
ability to perform sustained work activities in an ordinary work
setting on a regular and continuing basis (i.e., 8 hours a day, for
5 days a week, or an equivalent work schedule), and describe the
maximum amount of each work-related activity the individual can
perform based on the evidence available in the case record.” Id. at
*7.
In

a

Work

History

Report

submitted

with

his

initial

application, Plaintiff was asked to “[e]xplain what you lifted, how
far you carried it, and how often you did this.” (T.196). In
connection with the shipping clerk job, he wrote that described
what he did “all day” as “packag[ing] materials to be shipped” and
“[r]eceiv[ing] incoming materials.” (Id.). He “lifted various parts
weighing between 1 lb to 25 lbs” and “inserted parts in shipping
crates[.]” (Id.) He did not explain how often he did this task. The

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form asked

him

to

“[c]heck the

heaviest

weight

lifted,”

and

Plaintiff checked the box for “20 lbs.” (Id.). The form also asked
him to “[c]heck the weight you frequently lifted,” i.e., “from 1/3
to 2/3 of the workday.” (Id.). Plaintiff checked the box for
“[l]ess than 10 lbs.” (Id.). He indicated that he stood for 3 hours
and sat for 2 hours at that job.
At the hearing, the ALJ engaged Plaintiff in the following
colloquy:
[ALJ] . . . And how much weight did you lift, on the
average, on the [shipping and receiving clerk] job, and
not the heaviest, and not the lightest, and just the
average weight?
[Plaintiff] I’m going to say between 5 to 10. I really
didn’t do nothing there –
[ALJ] Five to 10 pounds.
[Plaintiff] — but paperwork.
[ALJ] Would you say you were on your feet at least six
hours in an eight hour day?
[Plaintiff] No.
[ALJ] Was it more of a — a sitting down, sitting down and
sedentary?
[Plaintiff] I sat down. The — the supervisor of that
facility brought me over. Him and I had got a report at
a previous place that I worked for him. He brought me
there, and instructed me on what to do. I told him my
limitation. He worked around me.
[ALJ] So you would say you were — it was more of a
sedentary type of job, is that correct? Do you know what
I mean by sedentary?
[Plaintiff] Sitting.

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[ALJ] All right. So it was sedentary. . . .
(T.41; emphases supplied).
Then, in connection with his application to the Appeals
Council, Plaintiff submitted a November 14, 2014 letter from his
former

employer,

Gary

Sheedy,

Vice

President

of

Techmotiv

Corporation, who indicated that Plaintiff’s duties as a shipping
clerk included “working on our loading dock, operating fork trucks,
loading and unloading tractor trailers[.]” (T.503). According to
his former employer, Plaintiff’s “duties required him to be on his
feet for long periods of time and have the ability to lift manually
up to 75 lbs. routinely. . . .” (Id.). This letter is completely at
odds with Plaintiff’s own Work History Report and testimony about
what he did during the day and the job’s exertional requirements.
Acceptance of it essentially means that Plaintiff’s memory is
either very faulty or he testified incorrectly at the hearing;
either way, the Court would have to discount his testimony. The
Court agrees with the Commissioner that the letter should not be
given any weight since it appears to describe a different job than
Plaintiff testified that he had.
The Court therefore turns to consideration of Plaintiff’s
testimony and Work History Report. According to Plaintiff, he
“testified that he lifted on average 5-10 pounds and did nothing
but paperwork[.]” (Plaintiff’s Reply (“Reply”) at 8 (citing T.41;
emphasis in original)). However, it does not make sense to say that

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Plaintiff “did nothing but paperwork” and also lifted five to ten
pounds on average. If someone does “nothing but” paperwork, that
implies that they did not do anything else. The Commissioner
asserts that Plaintiff “did nothing but paperwork.” Likewise, this
is not an accurate reading of Plaintiff’s testimony.
These competing interpretation point to a conclusion that
Plaintiff’s testimony is ambiguous. When read in tandem with the
Work History Report, his testimony creates a question as to whether
his past relevant work as he performed it is congruent with the
exertional

requirements

of

sedentary

work.

As

noted

above,

Plaintiff in fact stated, “I really didn’t do nothing there . . .
but paperwork.” (T.41). While he said he lifted on average between
five to ten pounds, his testimony does not indicate that he lifted
five to ten pounds frequently; rather, since he explained that he
mostly did paperwork, the reasonable inference is that any lifting
was infrequent. On the Work History Form, he stated that he
frequently lifted less than ten pounds, which is consistent with
sedentary work. However, he also wrote that the heaviest weight he
lifted was twenty pounds, which is not consistent with sedentary
work. In addition, Plaintiff stated on the form that he lifted
parts

weighing

between

one

and

twenty-five

pounds,

which

is

inconsistent with his previous statement, and also inconsistent
with sedentary work.

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While SSR 82-62 does not dictate that an ALJ, in assessing a
claimant’s past relevant work, must question the claimant about the
maximum and minimum weights lifted and how frequently those amounts
were lifted, it does state that “[d]etailed information about
strength, endurance, manipulative ability, mental demands and other
job requirements must be obtained as appropriate.” Titles II & XVI:
A Disability Claimant’s Capacity to Do Past Relevant Work, in Gen.,
SSR 82-62, 1982 WL 31386, at *3 (S.S.A. 1982) (emphasis supplied).
This information was not obtained in the present case.
also

notes

vocational

that

“[t]he

documentation.

claimant
.

.

.”

is

the

Id.

primary

Here,

the

SSR 82-62
source

ALJ

did

for
not

thoroughly question Plaintiff about the exertional demands of his
past relevant work or attempt to reconcile the ambiguities in
Plaintiff’s statements, which resulted in a step four finding that
the

Court

cannot

say

is

supported

by

substantial

evidence.3

Accordingly, the Court finds that remand is warranted for the

3

As courts have recognized, “[t]here is a tension created when the mandate
of S.S.R. 82–62 is transposed on claimant’s step four burden of proof.” Kerulo,
1999 WL 813350, at *8, n. 5 (quoting Henrie v. United States Dep’t of Health and
Human Servs., 13 F.3d 359, 361 (10th Cir. 1993)). However, the case law indicates
that “this tension must be resolved in favor of the Social Security Ruling.” Id.
(collecting cases). “Rulings by the Social Security Administration are ‘binding
on all components of the Social Security Administration.’” Selmo v. Barnhart, No.
01 CIV. 7374 (SHS), 2002 WL 31445020, at *9, n. 2 (S.D.N.Y. Oct. 31, 2002)
(quoting 20 C.F.R. § 402.35(b)(1),(2); citing Heckler v. Edwards, 465 U.S. 870,
873 n. 3 (1984)).

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performance of a new step four determination. See, e.g., Matejka v.
Barnhart, 386 F. Supp.2d 198, 205 (W.D.N.Y. 2005); Selmo, 2002 WL
31445020, at *9.
CONCLUSION
For the foregoing reasons, the Commissioner’s decision is
reversed. Defendant’s motion for judgment on the pleadings is
denied, and Plaintiff’s motion for judgment on the pleadings is
reversed 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:

February 8, 2018
Rochester, New York.

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