Vega v. Colvin

Filing 20

DECISION AND ORDER granting 12 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 15 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 4/8/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

LILLIAN VEGA,
Plaintiff,
-vs-

No. 1:15-CV-01014 (MAT)
DECISION AND ORDER

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

I.

Introduction
Represented by counsel, Lillian Vega (“plaintiff”) brings this

action pursuant to Title XVI of the Social Security Act (“the
Act”), seeking review of the final decision of the Commissioner of
Social Security (“the Commissioner”) denying her application for
supplemental security income (“SSI”). 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. For the reasons discussed below, plaintiff’s motion is
granted

to

the

extent

that

this

case

is

remanded

to

the

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

Procedural History
The record reveals that in September 2012, plaintiff (d/o/b

January 3,

1959)

applied for

SSI,

alleging disability

as

of

January 1, 2002. After her application was denied, plaintiff
requested a hearing, which was held before administrative law judge

Eric L. Glazer (“the ALJ”) on March 4, 2014. The ALJ issued an
unfavorable decision on May 27, 2014. The Appeals Council denied
review of that decision and this timely action followed.
III. The ALJ’s Decision
At step one of the five-step sequential evaluation, see
20 C.F.R. § 416.920, the ALJ found that plaintiff had not engaged
in substantial gainful activity since September 10, 2012, the
application date. At step two, the ALJ found that plaintiff had the
following medically determinable impairments: “mood disorder, not
otherwise specified [“NOS”]; cannabis dependence/abuse, current;
cocaine

dependence/abuse,

in

sustained

remission;

opioid

dependence/abuse, in sustained remission; backache; joint pain;
vertigo; and headaches.” T. 19. However, the ALJ found that these
impairments were not severe for purposes of the step two analysis,
and therefore denied plaintiff’s disability application.
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).

2

Findings at step two function “to screen out de minimis
claims.” Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995). “A
finding of not severe should be made if the medical evidence
establishes only a slight abnormality which would have no more than
a minimal effect on an individual's ability to work.” Zenzel v.
Astrue,

993

F.

Supp.

2d

146,

152

(N.D.N.Y.

2012)

(internal

quotation marks omitted).
Plaintiff contends that the ALJ erred in rejecting her claim
at step two, arguing specifically that the finding was inconsistent
with the only medical opinion in the record, which came from state
agency consulting physician Dr. Nikita Dave. Plaintiff argues that
the ALJ improperly substituted his own judgment for the medical
opinion of Dr. Dave, without providing an adequate explanation for
rejecting the opinion. The Court agrees.
On December 3, 2012, Dr. Dave performed an internal medicine
examination on plaintiff at the request of the state agency. On
physical examination, Dr. Dave found that plaintiff was “[u]nable
to walk and step onto the left toes”; she could squat only threefourths of full; she carried an assistive device that she had
borrowed from a relative; lumbar flexion was limited to 45 degrees
(normal

is

60

degrees);

and

plaintiff

demonstrated

slight

tenderness in the left lateral hip area on deep palpation. Dr. Dave
noted that plaintiff was five feet three inches tall and weighed
172 pounds. He diagnosed plaintiff with “[m]ental health issues,”

3

which

he

did

not

specify;

vertigo

which

he

noted

to

be

questionable; headaches; and low back pain. T. 223-24. He opined
that plaintiff “[s]hould avoid ladders, heights, sharp instruments,
and operating machinery due to vertigo and loss of consciousness or
other diagnosis”; and that she had “[m]ild to moderate limitations
for repetitive bending/twisting through the lumbar spine, prolonged
sitting, standing, leaning, lifting, carrying, pushing, and pulling
of greater than moderately weighted objects.” T. 224.
The ALJ gave Dr. Dave’s opinion “little weight because the
limitations assessed [were] clearly based on [plaintiff’s] selfreported

symptoms

rather

than

any

objective

evidence

of

limitations. Significantly, . . . the physical examination was
essentially normal other than some subjective tenderness in the
left hip on deep palpation.” T. 22. In summarizing the findings of
Dr. Dave’s examination, the ALJ failed to note that plaintiff’s
lumbar flexion was limited to 45 degrees.
The ALJ’s reasoning for rejecting Dr. Dave’s opinion was
legally insufficient. As the only medical opinion evidence in the
record, Dr. Dave’s opinion stood uncontradicted. In Giddings v.
Astrue, 333 F. App’x 649, 652 (2d Cir. 2009), the Second Circuit
explained that where an ALJ rejects a consulting opinion without
reference to conflicting medical opinion evidence, the ALJ must
give

an

“overwhelmingly

compelling”

reason

for

rejecting

the

opinion. Id. (citing McBrayer v. Sec. of Health and Human Servs.,

4

712 F.2d 795, 799 (2d Cir. 1983) (stating that “the ALJ cannot
arbitrarily substitute his own judgment for competent medical
opinion” and that “[w]hile an administrative law judge is free to
resolve issues of credibility as to lay testimony or to choose
between properly submitted medical opinions, he is not free to set
his own expertise against that of a physician who testified before
him” (citation and internal quotation marks omitted)); Lester v.
Chater, 81 F.3d 821, 830 (9th Cir. 1995) (“As is the case with the
opinion of a treating physician, the Commissioner must provide
‘clear and convincing’ reasons for rejecting the uncontradicted
opinion of an examining physician.”).
In Giddings, the Second Circuit held that the ALJ improperly
rejected a consulting opinion where the ALJ “reasoned that [the]
opinion, ‘based upon a single examination, [was] not well supported
by medical evidence, and [was] inconsistent with the claimant's
reports of her daily activities.’” Giddings, 333 F. App’x at 652.
Here, the ALJ provided similar reasoning, and additionally rejected
the opinion because it was based on plaintiff’s self-reports.
However, his decision does not provide the “compelling critique
needed to overcome the uncontradicted medical opinion of” Dr. Dave,
especially

considering

the

result

was

to

deny

plaintiff’s

application at step two. See Mahon v. Colvin, 2016 WL 3681466, *4
(W.D.N.Y. July 6, 2016) (“[R]eliance on [p]laintiff’s subjective
complaints is not a valid reason for rejecting [the consulting]

5

medical opinion.”) (citing Green-Younger, 335 F.3d at 107 (holding
that a doctor’s reliance on the plaintiff’s subjective complaints
‘hardly undermines his opinion as to her functional limitations’
because ‘a patient’s report of complaints, or history, is an
essential diagnostic tool’”); McCarty v. Astrue, 2008 WL 3884357,
*6

(N.D.N.Y.

Aug.

18,

2008)

(“[The

doctor’s]

reliance

on

[p]laintiff’s subjective complaints is not a valid basis for
rejecting his opinion.”).
Instead, in rejecting Dr. Dave’s medical opinion, the ALJ
relied on his own lay interpretation of the medical evidence, which
is impermissible. See Giddings, 333 F. App’x at 652 (collecting
cases). As noted above, step two is merely a tool for screening out
de minimis claims; here, the only physician to examine plaintiff
opined that her medical impairments resulted in various limitations
including

“[m]ild

bending/twisting

to

through

moderate

limitations

the lumbar

spine,

for

repetitive

prolonged sitting,

standing, leaning, lifting, carrying, pushing, and pulling of
greater than moderately weighted objects.” T. 224. Dr. Dave’s
opinion indicated that plaintiff, at the very least, suffered from
medically determinable impairments which were more than de minimis.
Accordingly, this matter is reversed and remanded for further
proceedings consistent with this Decision and Order. On remand, the
ALJ

is

reminded

that

he

must

consider

all

of

plaintiff’s

impairments in combination, whether severe or nonsevere, including
obesity. See 20 C.F.R. § 416.945(a)(2); SSR 96-8p. The ALJ is
directed to reconsider Dr. Dave’s opinion, and if the opinion is

6

rejected,

the

ALJ

must

provide

an

overwhelmingly

compelling

explanation for doing so in the absence of conflicting medical
opinion evidence.

The

ALJ is

free

to obtain

further

opinion

evidence to the extent he deems it necessary.
VI.

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

judgment on the pleadings (Doc. 15) is denied and plaintiff’s
motion (Doc. 12) 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:

April 8, 2017
Rochester, New York.

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