Rice v. Colvin

Filing 15

DECISION AND ORDER granting 10 Plaintiff's Motion for Judgment on the Pleadings to the extent that this matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order; and denying 12 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 12/20/16. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

PETER RICE,
Plaintiff,
-vs-

No. 1:15-CV-00959 (MAT)
DECISION AND ORDER

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

I.

Introduction
Represented by counsel, Peter Rice (“plaintiff”) brings this

action pursuant to Title II of the Social Security Act (“the Act”),
seeking review of the final decision of the Commissioner of Social
Security

(“the

Commissioner”)

denying

his

application

for

disability insurance benefits (“DIB”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g). Presently before
the Court are the parties’ cross-motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure.
granted

to

For the reasons discussed below, plaintiff’s motion is
the

extent

that

this

matter

is

remanded

to

the

Commissioner for further administrative proceedings consistent with
this Decision and Order.
II.

Procedural History
The record reveals that in March 2010, plaintiff (d/o/b

November 2, 1960) applied for DIB, alleging disability beginning
August 22, 2005. After his application was denied, plaintiff
requested a hearing, which was held before administrative law judge

William Weir (“the ALJ”) on January 18, 2012. On May 24, 2012, the
ALJ issued an unfavorable decision. The Appeals Council reversed
and remanded that decision, ordering the ALJ to conduct a functionby-function assessment of plaintiff’s limitations, specifically
nonexertional limitations, and to obtain vocational expert (“VE”)
testimony. Plaintiff appeared and testified at a second hearing on
November 8, 2013. On January 22, 2014, the ALJ issued a second
unfavorable decision. The Appeals Council denied review of that
decision and this timely action followed.
III. Summary of the Evidence
The record reveals that plaintiff suffered a work-related back
injury in August 2005. Approximately a year later, plaintiff
underwent L-1S1 transforaminal interbody fusion surgery, after
which

he

continued

to

complain

of

pain.

Plaintiff

received

continuing treatment for back pain in the form of prescription
medication, pain management, and intermittent physical therapy.
Physical

examinations

throughout

the

relevant

time

period

demonstrated decreased ranges of motion (“ROM”) of the lumbar spine
and

limitations

in

squatting.

Treating

physician

Dr.

Andrew

Matteliano did not provide a formal functional assessment, but
opined in 2008 that plaintiff had a likely permanent lifting
limitation of 20 pounds.

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IV.

ALJ’s Decision
In its May 30, 2013 order remanding the case to ALJ Weir for

a second decision, the Appeals Council noted that plaintiff’s
medical records and the consulting examination of Dr. Samuel
Balderman indicated various postural limitations. Specifically, the
Appeals Council noted that Dr. Balderman found plaintiff could
squat only 80 percent of normal and found moderate limitations in
bending, lifting, prolonged standing and prolonged sitting due to
lumbar

spine

disease.

The

Appeals

Council

also

noted

Dr. Matteliano’s findings which “consistently reference[d] limited
forward flexion and decreased [ROM], suggesting the possibility of
postural limitations not considered in the residual functional
capacity assessment.” T. 148. Accordingly, the Appeals Council
directed the ALJ to further consider plaintiff’s “non-exertional,
postural limitations [as] needed.” Id.
On remand, the ALJ found that plaintiff met the insured status
requirements of the Act through December 31, 2010. At step one of
the five-step sequential evaluation, see 20 C.F.R. § 404.1520, the
ALJ determined that plaintiff had not engaged in substantial
gainful activity since his alleged onset date, August 22, 2005. At
step two, the ALJ found that plaintiff suffered from “degenerative
disc disease status post workplace accident and status post lumbar
spine surgery,” which constituted severe impairments. T. 21. At
step three, the ALJ found that plaintiff did not have an impairment

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or combination of impairments that met or medically equaled the
severity of any listed impairment.
Before proceeding to step four, the ALJ determined that
plaintiff retained the residual functional capacity (“RFC”) to
perform light work as defined in 20 C.F.R. 404.1567(b) “with the
option to sit or stand hourly, no squatting and stooping less than
frequently.” T. 21. At step four, the ALJ found that plaintiff was
incapable of performing past relevant work. At step five, the ALJ
found that considering plaintiff’s age, education, work experience,
and RFC, he had acquired work skills from past relevant work that
were transferable to other occupations with jobs existing in
significant numbers in the national economy. Accordingly, the ALJ
found that plaintiff was not disabled.
V.

Discussion
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. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
“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).

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A.

RFC Finding

Plaintiff argues that the ALJ’s RFC finding is unsupported by
substantial evidence, contending specifically that the sit/stand
option included in the RFC was arbitrary and not supported by
competent medical evidence or expert testimony. The Court agrees.
At issue when this case was first remanded by the Appeals Council
were the nonexertional impairments suggested by the consulting
examination

of

Dr.

Balderman

and

the

treatment

notes

from

Dr. Matteliano. As the Appeals Council noted, Dr. Balderman’s
consulting

examination

found

that

plaintiff

had

“[m]oderate

limitation in bending, lifting, prolonged standing and prolonged
sitting due to lumbar spine disease.” T. 565. Dr. Matteliano’s
treatment notes consistently referenced limited forward flexion and
decreased ROM, suggesting the possibility of postural limitations
not considered in the residual functional capacity assessment.
The ALJ’s decision, however, merely summarizes the medical
record – in essentially identical summaries to the ALJ’s original
decision that was remanded – and goes on to find that plaintiff
could perform light work “with the option to sit or stand hourly.”
T. 21. The ALJ’s decision does not explain what evidence supports
this particular sit/stand option, and the Court can find no support
for such a specific restriction in the record. The ALJ’s decision
thus once again fails to “provide appropriate rationale with
specific references

to

evidence

5

of

record

in

support

of

the

assessed limitations.” Cruz v. Astrue, 941 F. Supp. 2d 483, 487
(S.D.N.Y. 2013) (citing 20 CFR § 416.945; SSR 96–8p). This case is
therefore remanded to the Commissioner with a recommendation that
the case be assigned to a different ALJ, in order to “fully comply
with the Appeals Council’s original order in this case.” Perry v.
Colvin, 2016 WL 241364, *3 (W.D.N.Y. Jan. 21, 2016).
B.

Credibility

Plaintiff

contends

that

the

ALJ

improperly

assessed

his

credibility, arguing that the ALJ selectively read the evidence to
support a finding that plaintiff was not credible. After a review
of the ALJ’s decision and the medical record, the Court agrees with
plaintiff that the ALJ’s credibility finding unduly focused on
evidence

supporting

inconsistent

with

it.

his

finding,

For

example,

while
at

the

ignoring
hearing

evidence
the

ALJ

questioned plaintiff with regard to a single physical therapy note
indicating that he could perform a “full deep knee bend” some six
years prior to the hearing, but ignored evidence in that same note
that plaintiff suffered pain in association with the physical
therapy

session.

See

T.

63-64;

T.

413

(treatment

note

that

“[l]umbar [ROM] [was] markedly limited due to discomfort during
motion testing”). The ALJ also cited various activities of daily
living as supporting a finding that plaintiff was not credible,
while ignoring evidence in the record indicating that plaintiff was
unable to perform these activities on a regular and continuing

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basis. See

Reinard

v.

Astrue,

2010

WL

2758571,

*8

(W.D.N.Y.

July 13, 2010). Accordingly, on remand the ALJ is instructed to
reconsider

plaintiff’s

credibility

with

reference

to

the

appropriate legal standards set forth in the regulations. See
20 C.F.R. § 404.1529; see also SSR 96-7p. On remand the Court
recommends to the Commissioner that a different ALJ be assigned to
this case.
VII. Conclusion
For the foregoing reasons, the Commissioner’s cross-motion for
judgment on the pleadings (Doc. 12) is denied and plaintiff’s
motion (Doc. 10) is granted to the extent that this matter is
remanded to the Commissioner for further administrative proceedings
consistent with this Decision and Order. The Clerk of the Court is
directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

December 20, 2016
Rochester, New York.

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