Dueno v. Colvin

Filing 17

DECISION AND ORDER granting 10 Plaintiff's Motion for Judgment on the Pleadings; denying 12 Commissioner's Motion for Judgment on the Pleadings. The case is remanded solely for the calculation and payment of benefits consistent with this Decision and Order. The Clerk of Court is directed to close this case. Signed by Hon. Michael A. Telesca on 3/7/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ROSALIA DUENO,
Plaintiff,
DECISION and ORDER
No. 1:15-cv-01042(MAT)

-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

INTRODUCTION
Represented by counsel, Rosalia Dueno (“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 her
applications

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
I.

Administrative Proceedings Prior Appeals Council Remand
Plaintiff protectively filed applications for DIB and SSI on

December 16, 2009, alleging a disability onset date of January 20,

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).

2008. Her claim was initially denied April 9, 2010. On May 7, 2010,
Plaintiff filed a timely written request for hearing, and on
July 21, 2011, the first hearing was conducted via videoconference
by Administrative Law Judge MaryJoan McNamara (“ALJ McNamara”).
Plaintiff appeared with her attorney in Buffalo, New York, and
testified via videoconference. (T.150-87).2 ALJ McNamara indicated
at

the

start

supplemental

of

the

hearing

hearing
because

that

she

Plaintiff

would
had

like

to

have a

recently undergone

surgery on June 24, 2011, and, ALJ McNamara explained, “[a]t this
point we really don’t know if she’s permanently disabled or not
because of the surgery.” (T.154). ALJ McNamara determined that she
would give Plaintiff three months to recuperate before holding the
next hearing. (T.183-85).
During the interim, Plaintiff hired a new attorney, who is
currently representing her on this appeal. ALJ McNamara conducted
the second hearing via videoconference on March 26, 2012, at which
Plaintiff appeared with her representative in Buffalo, New York,
and testified. Impartial vocational expert George J. Starosta (“the
VE”) also testified at the hearing. On May 10, 2012, ALJ McNamara
rendered a partially favorable decision, awarding DIB and SSI
benefits to Plaintiff for a closed period from January 20, 2008,
through September 12, 2011. (T.223-47). ALJ McNamara found that

2

Citations to “T.” in
administrative transcript.

parentheses

-2-

refer

to

pages

in

the

certified

Plaintiff’s

RFC

for

this

period

to

be

light

work

with

only

occasional climbing of ramps and stairs; occasional balancing,
stooping, crouching, pushing and pulling; frequent kneeling and
crawling; a sit/stand at will option; and allowance for being offtask more than two or more days per month, “most likely due to
interfering pain or other reasons.” (T.231). However, ALJ McNamara
found that beginning on September 13, 2011, Plaintiff was no longer
disabled. Confusingly, the ALJ repeated the exact same RFC for the
non-disability period. (T.237-38).3
Plaintiff then timely filed a request for review of the ALJ’s
decision with the Appeals Council on May 21, 2012. (T.383-86).
Plaintiff

asserted

that

ALJ

McNamara’s

decision

contained

“significant errors of law regarding the period of September 12,
2011, and ongoing” which required “outright revers[al]” or remand
for a new hearing. (T.384).
II.

The Appeals Council’s Remand Order
The Appeals Council granted Plaintiff’s request review and

issued a remand order on December 12, 2013, vacating ALJ McNamara’s
May

10,

2012

decision

and

remanding

the

claim

for

further

3

It appears that ALJ McNamara may have made a scrivener’s error in composing
the decision. The Court has reviewed the hearing transcript and ALJ McNamara
posed three hypotheticals to the VE. The third hypothetical reflects the RFC
contained in her decision, to which the VE responded that such a person could not
perform Plaintiff’s past relevant work or any other work. The second
hypothetical, however, omits only the element of being off-task more than two
days per month due to pain. The VE responded that the second hypothetical person
could perform Plaintiff’s past relevant work of clothing sorter, as well as
various other jobs previously identified in response to the first hypothetical.
(See T.132-44).

-3-

proceedings. (T.249-52). The Appeals Council found the first ALJ’s
RFC assessment on which she based a finding of disability to be
unsupported by substantial evidence. The remand order directed the
ALJ

to

(1)

obtain

additional

evidence,

which

may

include

consultative examinations and medical source statements, concerning
Plaintiff’s

impairments

of

degenerative

disc

disease

and

any

impairments resulting from the past motor vehicle accident (“MVA”)
to complete the administrative record; (2) “if necessary, obtain
evidence from a medical expert regarding medical improvement” of
Plaintiff’s

impairments

of

degenerative

disc

disease

and

any

impairments resulting from the past MVA, including “clarification
regarding any inconsistencies in the medical record”; (3) give
further consideration to Plaintiff’s maximum residual functional
capacity (“RFC”) and provide an appropriate rationale with specific
references

to

evidence

of

record

in support

of

the

assessed

limitations; and, (4) if warranted by the expanded record, obtain
supplemental evidence from a VE to clarify the effect of the
assessed

limitations

on

the

occupational

base

by

posing

hypothetical questions which reflect the specific capacity and
limitations established by the record as a whole. (T.251).
III. Administrative Proceedings on Remand
On

July

15,

2014,

a

third

hearing

was

conducted

by

Administrative Law Judge Donald T. McDougall (“ALJ McDougall”) in
Buffalo, New York, at which Plaintiff appeared with her attorney

-4-

and testified.

(T.188-214).

ALJ

McDougall did

not

call any

witnesses.
On July 23, 2014, ALJ McDougall rendered an unfavorable
decision (T.44-71), finding that Plaintiff has not been under a
disability, as defined in the Act, from January 20, 2008, through
the date of the decision. (T.64). In particular, the second ALJ
found that Plaintiff had the RFC to perform the full range of light
work, without any non-exertional limitations.
Plaintiff filed a request for review of the ALJ’s decision
with the Appeals Council on July 23, 2014. Plaintiff also submitted
records from two of her treatment providers. On November 27, 2015,
the Appeals Council denied her request for review, making the ALJ’s
decision the final determination of the Commissioner. Plaintiff
timely commenced this action.
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.

42 U.S.C. § 405(g); see also

Green-Younger v. 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

-5-

conclusive”). “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

Commissioner’s conclusions of law.”

does

not

apply

to

the

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.

Denial of a Fundamentally Fair Hearing on Remand Due to ALJ
McDougall’s Bias
Plaintiff argues that, on remand from the Appeals Council, ALJ

McDougall demonstrated bias against her by failing to keep the
record open for the full period of time he said he would at the
hearing

and

by

taking

actions

inconsistent

with

the

Appeals

Council’s remand order.4 The Commissioner argues that the failure
to hold the record open was harmless because the records in
4

Plaintiff also argues that the second ALJ adversely judged Plaintiff’s
credibility for proceeding with back surgery with Dr. Andrew Cappuccino in June
2011, based on his erroneous assignment of greater weight to a radiologist’s
interpretation of imaging studies versus Dr. Cappuccino’s assessment of the same
studies and consequent decision to proceed to surgery. This argument, in sum and
substance, is also made in support of Plaintiff’s second contention that the
second ALJ improperly substituted his lay judgment for competent medical opinion.
The Court will consider it in the discussion of the second contention, as it is
more properly made in that context.

-6-

question ultimately were not submitted until well after issuance of
the second decision. The Commissioner further argues that the
remainder of actions with which Plaintiff takes issue are legal
rulings that generally do not give rise to an inference of bias.
“It cannot be disputed that litigants seeking Social Security
benefits are entitled to have a fair and impartial decision-maker.
Indeed, a basic element of due process is the right to an impartial
and unbiased adjudication of a claim.” Pronti v. Barnhart, 339 F.
Supp.2d 480, 491–92 (W.D.N.Y. 2004) (citing Johnson v. Mississippi,
403 U.S. 212, 216 (1971)). “This aspect of due process applies
equally in an administrative setting as it does in a judicial
forum.” Kendrick v. Sullivan, 784 F. Supp. 94, 102 (S.D.N.Y. 1992)
(citing Schweiker v. McClure, 456 U.S. 188, 195 (1982)). “When an
ALJ

confronts

a

claimant

with

a

negative

bias

and

without

impartiality, he undermines the essentially judicial nature of an
ALJ’s duties.” Poles v. Colvin, No. 14-CV-06622 MAT, 2015 WL
6024400, at *2 (W.D.N.Y. Oct. 15, 2015) (citing Peed, 778 F. Supp.
at 1245). More broadly, “a ALJ does not face a claimant such as
[Plaintiff] in an adversarial posture[,]” Peed v. Sullivan, 778 F.
Supp. 1241, 1245 (E.D.N.Y. 1991), but “has a duty to ensure that
the claimant receives ‘a full hearing under the [Commissioner]’s
regulations and in accordance with the beneficent purpose of the
Act.’” Id. (quoting Gold v. Sec’y of Health, Educ., and Welfare,
463 F.2d 38, 43 (2d Cir. 1972); citation omitted).

-7-

1.

Premature Closure of the Record

At the remand hearing on July 15, 2014, ALJ McDougall stated
that he would leave the record open for 14 days in order for
Plaintiff’s attorney to obtain the office notes from treating pain
management specialist Dr. Amrit Singh. However, the ALJ closed the
record after 7 days and issued his fully unfavorable decision on
July 23, 2014, (T.47), and offered no explanation as to why he
closed the record prior to 14 days.
However, the Court cannot deem this procedural irregularity to
be harmless, since in weighing Dr. Singh’s opinions, the ALJ
discounted them as being unsupported by “objective evidence.” The
office treatment notes from Dr. Singh that are in the record
contain detailed clinical findings, which suggests that any missing
records would be similarly supported.
2.

Exceeding Scope of Appeals Council’s Remand Order

Plaintiff contends that ALJ McDougall impermissibly exceeded
the scope of the Appeals Council’s remand order. The Commissioner’s
regulations provide that, upon remand, an ALJ “shall take any
action that is ordered by the Appeals Council and may take any
additional

action

that

is

not

inconsistent

with

the

Appeals

Council’s remand order.” 20 C.F.R. §§ 404.977(b), 416.1477(b).
“Accordingly, reviewing courts have found that failure to comply
with the Appeals Council’s remand order may be grounds for remand.”
Dommes v. Colvin, 225 F. Supp.3d 113, 118 (N.D.N.Y. 2016) (citing

-8-

Mortise v. Astrue, 08–CV–0990, 713 F. Supp.2d 111, 120–24 (N.D.N.Y.
2010) (remanding based on the ALJ’s failure to comply with the
Appeals Council’s remand order to follow the treating physician
rule); other citation omitted)).
Plaintiff characterizes the Appeals Council’s directive as
remanding the claim because ALJ McNamara, the first ALJ, did not
adequately address the issue of Plaintiff’s medical improvement
after

September

12,

2011.

Plaintiff

asserts

the

second

ALJ

overstepped his authority by focusing on the period prior to
September 13, 2011, and rejecting the first ALJ’s RFC assessment
for

the

closed

period

of

disability.

However,

contrary

to

Plaintiff’s contention, the Appeals Council did dispute the first
ALJ’s

RFC

for

light

exertion

work

with

several

additional

limitations, stating that
the decision does not contain sufficient rationale with
specific references to evidence of record in support of
the assessed limitations. Specifically, the [first ALJ]
uses x-ray and MRI findings that reveal essentially
normal to mild abnormalities and refers to medical source
opinions that the claimant can return to work to support
a very restrictive RFC . . . .
(T.250). Thus, the Appeals Council found the first ALJ’s RFC
assessment on which she based a finding of disability to be
unsupported by substantial evidence. (See id. (“grant[ing] request
for review under the substantial evidence provision of the Social
Security Administration regulations”)). The Appeals Council vacated
the entire first decision, and instructed the second ALJ to “[g]ive

-9-

further consideration to the claimant’s maximum residual functional
capacity and provide appropriate rationale with specific references
to evidence of record in support of the assessed limitations. . .
.” (T.251). In other words, the manner in which the Appeals
Council’s order is worded does not indicate that any part of the
first ALJ’s decision remained as the “law of the case.” Therefore,
the Court cannot find that the second ALJ exceeded the scope of
remand order.
II.

Erroneous Substitution of Lay Opinion for Competent Medical
Expert Opinion (Plaintiff’s Point II)
Plaintiff contends that the second ALJ arbitrarily substituted

his own judgment as a lay person for the competent opinions
submitted by multiple medical experts. As Plaintiff notes, “while
an [ALJ] 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 [submitted an opinion to or] testified before him.” Balsamo v.
Chater, 142 F.3d 75, 81 (2d Cir. 1998) (quoting McBrayer v. Sec’y
of Health and Human Servs., 712 F.2d 795, 799 (2d Cir. 1983)
(internal quotation marks and citations omitted in original)).
Plaintiff’s brief cites foregoing line of cases, but her
argument appears to be focused on the lack of medical expert
opinion supporting the second ALJ’s RFC assessment for light work
without any non-exertional limitations. Specifically, Plaintiff
contends that the second ALJ’s RFC assessment does not align with
-10-

any of the competent opinions from medical experts in the record.
The Commissioner counters that an ALJ’s RFC finding need not need
track any single medical opinion. See, e.g., Matta v. Astrue, 508
F. App’x 53, 56 (2d Cir. 2013) (unpublished opn.) (although ALJ’s
conclusion did not perfectly correspond with any of the opinions of
medical sources,

the

ALJ

was

entitled

to

weigh

all

evidence

available to make an RFC finding that was consistent with the
record as a whole, which included four medical opinions).
The Commissioner argues that the second ALJ’s RFC assessment
for

light

work

with

no

non-exertional

limitations

is

not

inconsistent with the report issued by consultative physician Donna
Miller, D.O. on February 26, 2010. This is the opinion to which the
second ALJ assigned the most weight. At that time, Dr. Miller
observed that Plaintiff could squat 30 percent of normal out of
fear of back pain; could heel-toe walk without difficulty; had
limited lumbar spine range of motion (“ROM”) (extension to 5
degrees, flexion to 45 degrees, lateral flexion to 20 degrees
bilaterally, and lateral rotation to 20 degrees bilaterally); had
limited cervical spine ROM (extension to 30 degrees, flexion to
45 degrees, lateral flexion to 30 degrees bilaterally, rotation to
40

degrees

bilaterally);

and

limited

ROM

in

the

shoulders

bilaterally due to neck pain. (T.824). For her medical source
statement,

Dr.

Miller

opined

that

Plaintiff

had

only

“mild”

limitations in bending, turning, twisting, lifting, and carrying.

-11-

(T.825).

Dr.

Miller

did

not

mention

any

of

the

other

major

exertional demands, including sitting, standing, and walking. See
SSR 96-9p, 1996 WL 374185, at *5 (S.S.A. July 2, 1996) (“Exertional
capacity addresses an individual’s limitations and restrictions of
physical strength and defines the individual’s remaining ability to
perform each of seven strength demands: Sitting, standing, walking,
lifting, carrying, pushing, and pulling.”).
Dr. Miller examined Plaintiff a second time, after the Appeals
Council remand. In her report dated March 19, 2014 (T.926-29),
Dr. Miller’s clinical observations and opinion diverged from her
first report. On examination, Dr. Miller observed that Plaintiff
could only squat to 25 percent of normal and had trouble walking on
her heels; this represented a worsening from the prior examination.
Plaintiff’s lumbar spine ROM measurements were the same except her
flexion was decreased to 35 degrees. Two of her cervical spine ROM
measurements were the same but her flexion and rotation had both
decreased to 30 degrees. Dr. Miller wrote that it was “questionable
if [Plaintiff] was putting full effort” into the examination.
(T.928).

Nonetheless,

Dr.

Miller

opined

that

Plaintiff

has

“moderate limitation for heavy lifting, carrying/bending, pushing,
and pulling.” (T.929). Dr. Miller expanded upon this opinion in a
“Medical

Assessment

of

Ability

to

Do

Work-Related

Activities

(Physical)” issued the same date. (T.930-35). In pertinent part,
Dr. Miller indicated that Plaintiff can sit for 6 hours, stand for

-12-

4

hours,

and

walk

for

4

hours

in

an

8-hour

workday;

can

occasionally lift and/or carry up to 10 pounds, can never stoop,
kneel,

climb

ladders

or

scaffolds,

crouch,

or

crawl;

can

occasionally balance and climb stairs and ramps; can never operate
foot controls with both feet; and can never push or pull with her
hands. (T.930-33). Thus, in contrast to her 2010 medical source
statement which was not inconsistent with the lifting and carrying
demands of light work,5 most of Dr. Miller’s 2014 opinion did not
support more than a sedentary RFC.
Even though the 2014 opinion included a detailed function-byfunction physical RFC assessment, the ALJ discounted it in favor of
the more remote 2010 opinion which was unaccompanied by a detailed
function-by-function physical RFC assessment. Specifically, the ALJ
determined that Dr. Miller’s 2010 opinion should be given “great
weight”

because

it

was

“consistent

Plaintiff and consistent with

with

her

examination”

of

Plaintiff’s reported activities of

cooking daily, cleaning twice a week, shopping twice a month,
providing childcare daily, and performing personal care daily.
(T.62). In contrast, the ALJ found that Dr. Miller’s 2014 opinion
should be “given some, but not great weight.” (T.63). As reasons
for discounting Dr. Miller’s more recent opinion, the ALJ noted
that Dr. Miller “questioned whether or not the claimant put forth

5

Dr. Miller’s 2010 report is silent on, and thus ambiguous as to, the
strength demands of sitting, standing, walking, pushing, and pulling.

-13-

full effort,” which was “very significant to [him].” (T.63).
However, Dr. Miller also noted, during the 2010 examination, that
Plaintiff’s ability to squat and her cervical ROM were decreased
out of fear of back and neck pain. It is unclear why Dr. Miller
attributed different motives to Plaintiff, but it is entirely
plausible that what Dr. Miller perceived as “questionable effort”
during the 2014 examination was due to Plaintiff’s apprehension
about exacerbating her pain. The ALJ made no attempt to obtain
clarification on this point from Dr. Miller, which suggests that he
was cherry-picking the evidence. “[W]hile administrative law judges
are entitled to resolve conflicts in the evidentiary record, they
cannot pick and choose only evidence that supports their particular
conclusions.” Tim v. Colvin, No. 6:12-CV-1761 GLS/ESH, 2014 WL
838080, at *7 (N.D.N.Y. Mar. 4, 2014) (citing Smith v. Bowen, 687
F. Supp. 902, 904 (S.D.N.Y. 1988) (citing Fiorello v. Heckler, 725
F.2d 174, 175–76 (2d Cir. 1983))).
The second ALJ also cited the purportedly “normal physical
examinations since January 2012” as a reason for discrediting
Dr. Miller’s 2014 opinion. (T.63). This is a wholly inaccurate
characterization of the record. For instance, on January 12, 2012,
Plaintiff reported to her surgeon, Dr. Cappuccino, that over the
past couple of months, her back pain “has been escalating in
severity,” especially when trying to return to neutral from a
forward flexed position. (T.874). She was also having “difficult

-14-

time procuring restorative sleep” due to her pain. While there was
no superficial tenderness on palpation, Dr. Cappuccino noted that
her pain “does reside at the pelvic brim line in the center of the
back” and she had “discomfort higher up in her mid back.” (Id.). On
February 10, 2012, Dr. Cappuccino completed a Medical Examination
for

Employability

Assessment;

he

diagnosed

“low

back

pain

syndrome,” recommended physical therapy and conservative care, and
opined she was “moderately limited” in sitting, standing, walking,
lifting, carrying, bending, pushing, pulling, and climbing stairs.
(T.893-94). On February 13, 2012, nurse practitioner Veronica V.
Mason, MSN-FNP-C examined Plaintiff and noted “straight-leg raises
were positive with low back,” there was paraspinal tenderness in
the lower lumbar spine as well as mid-thoracic area tenderness, and
tenderness with significantly decreased ROM in the cervical spine.
(T.911). On July 26, 2012, Plaintiff returned to Dr. Cappuccino
complaining of persistent mechanical back pain. The doctor believed
Plaintiff’s pain was secondary to incomplete incorporation of the
prosthesis; he noted that it did not appear to have fully ingrown
in the expected manner. (T.940). Dr. Cappuccino discerned “evidence
of facet [joint] overload on plain radiographs” of her spine. On
examination,

Dr.

Cappuccino

noted

multiple

abnormal findings,

including a “dense sensory parethesia,” visual and palpable spasms
in the lumbar spine, point tenderness over the midline lumbar spine
and across the transiliac region, lumbar flexion that was “markedly

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limited,” and lumbar extension that was “even more [limited].”
(T.940). Dr. Cappuccino commented that her EMGs were “positive for
bilateral L5 radiculopathy.” (Id.). X-rays of the lumbar spine
taken on July 26, 2012, revealed incomplete fixation on both
endplates and evidence of trace subsidence on the inferior endplate
globally. (T.943).
Plaintiff returned to Dr. Cappuccino on May 9, 2013, with
continuing mechanical back pain, though she had some improvement in
her

left

lower

extremity

discomfort.

Findings

on

clinical

examination were improved over the July 2012 appointment. (T.937).
Plain x-rays taken that day showed evidence of a “possible gap
between the inferior and superior endplates where the bone/metal
interface is located,” but “gross failure” of the prosthesis was
not identified. (T.939).
On May 28, 2014, Plaintiff’s car was sideswiped by another
car, which caused a subsequent increase in her lower back pain.
(T.10). At her visit on June 3, 2014, Dr. Singh observed many
abnormal clinical findings, including positive straight-leg raises
in the supine position bilaterally (low back pain at 60 degrees on
the right and at 65 degrees on the left), markedly limited lumbar
extension, marked pain with straightening from a flexed position,
mild unsteadiness with a positive Trendelenburg’s sign on the
right, increased pain in the lower back with the FABER test and hip
rotation bilaterally, and tenderness at the mid- and lower-lumbar

-16-

spinous processes, the sacroiliac joints, and greater trochanters
bilaterally. (T.987).
The records from Dr. Singh and Dr. Lewis submitted to the
Appeals Council in 2015 likewise show continued complaints of back
pain and abnormal examinations. Plaintiff returned to Dr. Singh on
September 5, 2014, reporting that her pain had returned to the
previous level. (T.10). She again had multiple abnormal clinical
findings, as at the previous appointment. Dr. Singh recommended
that she be evaluated by a neurosurgeon.
On

October

5,

2014,

Plaintiff

saw

Dr.

Lewis

for

a

neurosurgical consult, as Dr. Cappuccino no longer accepted her
insurance.

She

reported

significant

lower

back

pain

and

intermittent leg pain. (T.12). Dr. Lewis observed “severe[ly]
restricted” ROM of the lumbar spine on flexion and extension.
(T.13). A lumbar spine MRI and a reconstruction CT scan of the
lumbar spine were ordered; according to the radiologist, these
showed mild reduction of the disc space at L5-S1 without evidence
of central canal stenosis or foraminal narrowing. (T.15). On
November 5, 2014, Dr. Lewis personally reviewed the CT and MRI
scans, and he determined that there was a disc herniation at L4-L5,
and that the posterior portion of the disc herniation had not been
fully removed during the prior surgery. (T.17). Dr. Lewis concluded
that the 2011 surgery had failed. (T.17). On examination, Plaintiff
walked with a slow and caution gait, had some trouble getting up

-17-

from a seated position, and had diffuse low back pain. Dr. Lewis
recommended corrective surgery to remove the artificial disc and to
perform a fusion at L4-L5. (T.18).
Plaintiff returned to Dr. Singh on December 5, 2014, with
complaints

of

bilaterally.

sharp

(T.8).

lower
Dr.

back

Singh

pain

again

radiating
noted

to

multiple

her

legs

abnormal

clinical findings on examination, unchanged from the previous
appointments. He noted that Plaintiff’s insurance company had
denied Dr. Lewis’ request for surgical authorization.
On April 30, 2015, Plaintiff underwent corrective back surgery
with Dr. Lewis and Dr. Timothy R. Rasmusson. The procedure entailed
explantation of the artificial disc at L4-L5 placed by the previous
surgeon, Dr. Cappuccino, and performance of a lateral lumbar
interbody fusion (“LLIF”) at L4-L5. (T.23-25). On May 12, 2015, at
a follow-up with Dr. Lewis, Plaintiff was doing “fairly well” but
was still having back pain, muscle spasms, right psoas muscle
weakness, and right lower extremity radiculopathy. (T.29). At
another follow-up on July 7, 2015,6 Dr. Lewis indicated that
Plaintiff’s pain level was “much less than it was before the
surgery” although she had “some residual proximal thigh numbness
and tingling,” and some “tolerable” tenderness to palpation over
the pedicle screw at L4 on the right. (T.33).

6

This is the most recent treatment note in the record.

-18-

Contrary to ALJ McDougall’s assertion, the record up until the
date of his decision on July 23, 2014, does not show “normal
physical

examinations

exacerbations”

in

since

January

Plaintiff’s

2012”

symptoms.

with
These

“only

a

few

reasons

for

discounting Dr. Miller’s 2014 opinion rely on a mischaracterization
of the record and therefore are not supported by substantial
evidence. The ALJ’s further assertion that there is “little to no
objective evidence to support the claimant’s complaints,” (T.53),
also is a blatant mischaracterization of the record.
Relatedly, the Court finds that the ALJ erred in weighing the
opinions from treating pain management specialist Dr. Singh and
treating

orthopedic

surgeon

Dr.

Cappuccino.

According

to

the

treating physician rule of deference, the medical opinion of a
claimant’s

treating

“controlling”

weight

physician
if

that

or

psychiatrist

opinion

“is

will

be

given

well-supported

by

medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in
[the] record.” 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). The
rationale

for

according

well-supported

treating

physicians’

opinions controlling weight is that they “[a]re likely to be [from]
the medical professionals most able to provide a detailed [and]
longitudinal picture of [the claimant’s] medical impairment(s). .
. .” 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). Unless an ALJ
gives controlling weight to a treating source opinion, he is

-19-

required to consider a number of factors in deciding the weight to
be accorded to the treating source. 20 C.F.R. §§ 404.1527(c),
416.927(c). Failure to provide “good reasons” for not crediting the
opinion of a claimant’s treating physician is a ground for remand.
Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). Furthermore,
“[a]n ALJ cannot reject a treating physician’s diagnosis without
first attempting to fill any clear gaps in the administrative
record.” Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008)
(citation omitted).
Here, the ALJ determined that he should not give Dr. Singh’s
opinions “controlling weight since [the doctor] did not provide any
objective evidence as to the basis of his opinion.” (T.60). The
ALJ’s

requirement

of

“objective

evidence”

misapplies

the

regulations regarding the types of evidence with which a medical
opinion should be supported. “‘[M]edically acceptable clinical and
laboratory diagnostic techniques’ include consideration of ‘[a]
patient’s report of complaints, or history, [a]s an essential
diagnostic tool.’” Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir.
2008) (alterations in original) (quoting Green–Younger, 335 F.3d at
107 (further quotation omitted)). The Court finds that the second
ALJ

did

not

Dr. Singh’s

provide

“good

controlling

reasons”

weight,

which

for

declining

alone is a

to

ground

give
for

reversal. See Beck v. Colvin, No. 6:13–CV–6014(MAT), 2014 WL
1837611, at *9 (W.D.N.Y. May 8, 2014) (“Because the ‘good reasons’

-20-

rule exists to ‘ensur[e] that each denied claimant receives fair
process,’ Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 243 (6th Cir.
2007), an ALJ’s ‘“failure to follow the procedural requirement of
identifying the reasons for discounting the opinions and for
explaining precisely how those reasons affected the weight” given
“denotes a lack of substantial evidence, even where the conclusion
of the ALJ may be justified based upon the record.”’”) (quoting
Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 407 (6th Cir. 2009)
(quoting

Rogers,

486

F.3d

at

243;

emphasis

in

Blakely)).

Furthermore, the ALJ ignored the treatment notes from Dr. Singh
consistently reporting abnormal clinical findings, such as lumbar
ROM

that

is

“decreased

and

painful,”

“marked

pain

with

straightening from a flexed position,” and positive straight-leg
raise tests bilaterally. (E.g., T.987). The Court cannot conclude
that the error was harmless, because Dr. Singh limited Plaintiff to
no bending, no twisting, and no lifting more than 10 pounds.7
However, the ALJ’s RFC for light work without any non-exertional
limitations ignores all of Dr. Singh’s limitations.

7

Both light and sedentary jobs require a claimant to bend or stoop
occasionally. See SSR 83–14, 1983 WL 31254, at *4 (S.S.A. 1983) (“[T]he frequent
lifting or carrying of objects weighing up to 10 pounds (which is required for
the full range of light work) implies that the worker is able to do occasional
bending of the stooping type; i.e., for no more than one-third of the workday to
bend the body downward and forward by bending the spine at the waist.”); SSR
96–9p, 1996 WL 374185, at *8 (S.S.A. July 2, 1996) (“A complete inability to
stoop would significantly erode the unskilled sedentary occupation base and a
finding that the individual is disabled would usually apply . . . .”) (emphasis
in original).

-21-

The ALJ likewise erred in weighing Dr. Cappuccino’s opinions
and statements. Dr. Cappucinno began treating Plaintiff on November
8, 2010, for complaints of severe, intractable back pain. (T.835).
Upon review of her lumbar x-rays, he noted significant lumbar list,
paralumbar spasm, facet changes at L5-S1, and narrowing at L4-L5
and L5-S1. (T.835, 839). On examination, Dr. Cappuccino observed
painful loss of motion on cervical flexion to 30 degrees, a
positive Spurling’s sign bilaterally, visual and palpable spasms on
the trapezius bilaterally, point tenderness over the cervical
prominence, proximal grade weakness of 4/5 in the deltoids and
biceps, worse on the right; paraspinal discomfort with percussion
over mid-thoracic spine, pain with protraction and retraction of
the scapula, and lumbar flexion markedly limited to 45 degrees.
(T.835-36). Dr. Cappuccino opined that Plaintiff was temporarily
totally disabled from all work. (T.836). When Dr. Cappuccino saw
Plaintiff on April 25, 2011, for complaints of worsening and near
intractable axial lower back pain, he noted that the MRI showed
evidence of disc dessication and decreased joint space height
predominantly

at

L4-L5.

(T.832).

Based

on

his

findings,

Dr. Cappuccino indicated that Plaintiff was a “good candidate for
lateral-based total disc replacement at L4-L5.” (T.832). Throughout
the treatment period, Dr. Cappuccino opined that Plaintiff remained
temporarily and totally disabled from all forms of work. (E.g.,
T.836).

On February 1, 2012, Dr. Cappuccino prepared a Medical

-22-

Examination for Employability Assessment indicating that Plaintiff
was “moderately limited” in walking, standing, sitting, lifting,
carrying, pushing, pulling, bending, and climbing stairs. As noted
above, Dr. Cappuccino examined Plaintiff in July of 2012, and
discerned “evidence of facet [joint] overload on plain radiographs”
of her spine and, on examination, noted multiple abnormal clinical
findings. He continued to opine that she was disabled. On May 9,
2013, Dr. Cappuccino stated that Plaintiff had an “ongoing marked
degree of disability” and “would benefit from [a] bone scan with
special attention applied to the [lumbar spine] to rule out loss of
fixation pertaining to her prosthesis.” (T.937). Dr. Cappuccino
commented that there were “not great options for her aside from
ongoing pain management and living with her discomfort versus
surgical
Dr.

revision/fusion.”

Cappuccino’s

opinions

(T.937-38).
and

According

statements

were

to

the

“not

ALJ,

giving

controlling weight because they failed to show any change despite
the improvement noted in her subjective complaints and physical
examinations since the alleged onset date.” (T.59). While there was
some degree of improvement in her subjective complaints of pain
after the first back surgery in June 2011, they were short-lived.
On July 25, 2011, Plaintiff reported her pain was “significantly
better” (T.864), but by September 12, 2011, she had complaints of
back discomfort that had “not significantly changed in severity” as
well

as

intermittent

bilateral

-23-

lower

extremity

paresthesia.

(T.877). Although she was ambulatory, she reported that “standing
for long periods of time does seem to exacerbate her lower back
complaints.” (Id.). By the time of her January 12, 2012 visit with
Dr. Cappuccino, Plaintiff reported that over the last couple of
months, her back pain has been escalating in severity. (T.874).
Dr.

Cappuccino

indicated

that

she

remained

totally

disabled.

Ultimately, as discussed above, Plaintiff underwent corrective back
surgery because the 2011 surgery failed. The Court recognizes that
a statement that a claimant is disabled, even if offered by a
treating physician, is not entitled to special deference because it
is an opinion on an issue reserved to the Commissioner. However,
Dr. Cappuccino also delineated specific restrictions in his Medical
Examination for Employability Assessment, namely, that Plaintiff
“moderately

limited”

in

walking,

standing,

sitting,

lifting,

carrying, pushing, pulling, bending, and climbing stairs. The
second ALJ opined that this was consistent with her allegedly
“relatively normal” physical examinations and her “ability to cook,
clean, shop, provide childcare, perform personal care activities,
and drive.” (T.59). At the outset, as the Court has already
discussed, the ALJ’s assertion that Plaintiff’s examinations were
“relatively normal” is unsupported by the longitudinal treatment
notes from all of Plaintiff’s providers. Moreover, the remainder of
the ALJ’s reasoning is circular and glosses over two critical
issues. First, it is unclear whether being “moderately limited” in

-24-

walking, standing, sitting, lifting, carrying, pushing, pulling,
bending, and climbing stairs” supports an RFC for the full range of
light work with no additional limitations, as the ALJ found. As
discussed elsewhere in this decision, the ALJ erroneously failed to
perform a function-by-function assessment prior to arriving at his
RFC assessment. Second, it is not self-evident that the activities
of daily living listed by the ALJ translate to the ability to
perform the functional activities required for a full range of
light work,8 for 8 hours a day, 5 days a week, or an equivalent
full-time schedule.
During the time period Plaintiff was seeing Dr. Cappuccino,
she was also treating with chiropractor Dr. William M. Brierley.
(T.883-92,

897).

On

December

11,

2009;

February

10,

2010;

December 18, 2011; and March 25, 2012, Dr. Brierley completed
Medical Examination for Employability Assessments (T.550-51, 882-

8

“The regulations define light work as 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 in a particular light job may be very little, a job is
in this category when it requires a good deal of walking or standing--the primary
difference between sedentary and most light jobs.” SSR 83-10, 1983 WL 31251, at
*5 (S.S.A. 1983). “Since frequent lifting or carrying requires being on one’s
feet up to two-thirds of a workday, 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. Sitting may occur intermittently during the remaining time. The
lifting requirement for the majority of light jobs can be accomplished with
occasional, rather than frequent, stooping.” Id. at *6. “[T]he frequent lifting
or carrying of objects weighing up to 10 pounds (which is required for the full
range of light work) implies that the worker is able to do occasional bending of
the stooping type; i.e., for no more than one-third of the workday to bend the
body downward and forward by bending the spine at the waist.” SSR 83-14, at *4
(S.S.A. 1983).

-25-

83, 826-27, 895-99). In December 2009, and February 2010, he opined
that Plaintiff was “very limited” in sitting, standing, lifting,
bending, pushing, and pulling, and “moderately limited” in walking
and climbing stairs. (T.550, 881). On March 25, 2010, Dr. Brierley
stated that Plaintiff cannot tolerate prolonged sitting due to
pain.

(T.828).

In

the

December

2011

Medical

Examination

for

Employability Assessment, Dr. Brierley indicated that Plaintiff was
“very limited” in sitting, standing, lifting, bending, pushing, and
pulling, as well as climbing stairs and “moderately limited” in
walking. (T.826). On March 25, 2012, Dr. Brierley opined that
Plaintiff cannot work a light or sedentary job, even if she were
allowed to alternate sitting and standing. Dr. Brierley set forth
functional limitations to support his opinion in the Physical
Capacities

Evaluation,

namely,

that

Plaintiff

was

limited

to

2 hours of sitting, 2 hours standing, and 2 hours of walking in an
8-hour

workday,9

and

could

never

stoop.10

Dr.

Brierley

also

indicated that Plaintiff “could not tolerate prolonged postures
(i.e.,

sitting).”

The

restriction

against

stooping

is

very

significant since a complete inability to stoop would erode the
9

“In order to perform a full range of sedentary work, an individual must be
able to remain in a seated position for approximately 6 hours of an 8-hour
workday, with a morning break, a lunch period, and an afternoon break at
approximately 2-hour intervals. If an individual is unable to sit for a total of
6 hours in an 8-hour work day, the unskilled sedentary occupational base will be
eroded.” SSR 96-9p, 1996 WL 374185, at *6 (S.S.A. July 2, 1996) .
10

“An ability to stoop occasionally; i.e., from very little up to one-third
of the time, is required in most unskilled sedentary occupations.” SSR 96-9p,
1996 WL 374185, at *8.

-26-

occupational base of all sedentary work, which ALJ McDougall
recognized at the hearing. (T.211). As SSR 96-9p explains, “[a]
complete inability to stoop would significantly erode the unskilled
sedentary occupational base and a finding that the individual is
disabled would usually apply. . . .” SSR 96-9p, 1996 WL 374185, at
*8 (emphasis in original).
The Court recognizes that Dr. Brierley’s opinions are not
entitled to the presumption of deference accorded to treating
physician opinions, since chiropractors are not acceptable medical
sources. Nevertheless, the Commissioner’s policy ruling, SSR 0603p, recognizes that information “other sources” “may be based on
special knowledge of the individual and may provide insight into
the

severity

of

the

impairment(s)

and

how

it

affects

the

individual’s ability to function.” SSR 06-03p, 2006 WL 2329939, at
*2 (S.S.A. Aug. 9, 2006). Indeed, “[d]epending on the particular
facts in a case, and after applying the factors for weighing
opinion evidence, an opinion from a medical source who is not an
‘acceptable

medical

source’

may

outweigh

the

opinion

of

an

‘acceptable medical source’ . . . .” Id. Regardless of the source,
the appropriate amount of weight to be afforded such evidence is
determined by applying the same general criteria: (1) length of the
treatment relationship and the frequency of examination; (2) nature
and extent of the treatment relationship; (3) evidence supporting
the opinion; (4) consistency with the record as a whole; (5) the

-27-

source's specialization in the area of treatment; and (6) other
significant factors. 20 C.F.R. §§ 404.1527(c), 416.927(c); see also
SSR 06–03p (“Although the[se] factors [ ] explicitly apply only to
the

evaluation

of

medical

opinions

from

‘acceptable

medical

sources,’ these same factors can be applied to opinion evidence
from ‘other sources.’”). Dr. Brierley had a fairly lengthy treating
relationship

with

Plaintiff,

and,

as

a

chiropractor,

had

specialized knowledge of the back impairments on which Plaintiff
premises her

disability

claim.

The

length

and

nature

of

the

treatment relationship and specialization are two important factors
in assessing the weight of all opinion evidence. Furthermore,
Dr. Brierley’s opinion was consistent with the opinion evidence
provided by treating surgeon Dr. Cappuccino and treating pain
management specialist Dr. Singh, as well as Dr. Miller’s 2014
report, to the extent that Dr. Miller limited Plaintiff to lessthan-light work and precluded her from stooping.
In sum, because ALJ McDougall’s RFC of a full range of light
work with no limitations throughout the entire period commencing
January 20, 2008, relies on various mischaracterizations of the
record, the Court cannot find it to be supported by substantial
evidence.
III. Failure by the Appeals Council to Consider the Newly Submitted
Records (Plaintiff’s Point III)
In her request for review to the Appeals Council following the
second ALJ’s decision, Plaintiff’s attorney submitted records from
-28-

Dr. Singh (T.8-11) covering the period from September 5, 2014, to
December 5, 2014; and records from Dr. Lewis (T.12-34) covering the
period from October 5, 2014, to July 8, 2015. The Appeals Council
rejected review, stating that these records were “new information
. . . about a later time” and “does not affect the decision about
whether you were disabled beginning on or before July 23, 2014.”
(T.2). Since the Court has found alternative bases for remanding
Plaintiff’s case, it need not resolve whether the Appeals Council
erred in declining to consider the additional evidence. These
treatment notes are now part of the record and have been considered
by this Court.
IV.

Failure to Perform a Function-by-Function Analysis of
Plaintiff’s Limitations (Plaintiff’s Point IV)
Plaintiff contends that the ALJ failed to perform a function-

by-function

assessment

of

her

functional

limitations

before

formulating the RFC. As Plaintiff notes, SSR 96-8p directs that an
“RFC assessment must first identify the individual’s functional
limitations or restrictions and assess his or her work-related
abilities on a function-by-function basis;” it is “[o]nly after
that may RFC be expressed in terms of the exertional levels of work
. . . .” SSR 96–8p, 1996 WL 374184, at *1 (S.S.A. July 2, 1996).
This analysis requires assessing a claimant’s ability “to perform
each of seven strength demands: [s]itting, standing, walking,
lifting, carrying, pushing, and pulling. Each function must be
considered separately[.]” Id. (quoting SSR 96–8p, 1996 WL 374184,
-29-

at *5). Here, the ALJ failed to make such a function-by-function
finding. Nor did he mention any of the exertional requirements of
light work.

Cf.

Ferguson v. Colvin, No. 1:12-CV-0033 MAT, 2014 WL

3894487, at *8 (W.D.N.Y. Aug. 8, 2014) (reversing based on failure
to follow SSR 96-8p’s instruction to perform a function-by-function
analysis; even though the ALJ mentioned the lifting requirements of
light work, and acknowledged that a job is in the light category
when it requires a good deal of walking and standing, the ALJ did
not discuss claimant’s documented limitations in these exertional
areas). “Because a failure to separately assess a claimant’s
capacity to perform the relevant strength demands can ‘result in
the adjudicator overlooking some of an individual’s limitations or
restrictions[,]’ which can in turn ‘lead to an incorrect use of an
exertional category . . . and an erroneous finding that the
individual is not disabled,’ SSR 96–8p, 1996 WL 374184, at *4, this
error is a further basis for remand.” Ferguson, 2014 WL 3894487, at
*8 (citing McClaney v. Astrue, No. 10–CV–5421(JG)(JO), 2012 WL
3777413, at *11 (E.D.N.Y. Aug. 10, 2012)).
V.

Failure to Develop the Record (Plaintiff’s Point V)
Plaintiff contends that the second ALJ failed to develop the

record in accordance with the Appeals Council’s order inasmuch as
he found that a “medical expert [was] not ‘necessary’ for a proper
adjudication of the claim following remand.” (T.48). As noted
above, the Appeals Council had instructed the ALJ to obtain, “if

-30-

necessary, . . . evidence from a medical expert regarding medical
improvement”

of

Plaintiff’s

impairments

of

degenerative

disc

disease and any impairments resulting from the 2008 MVA. Instead,
the second ALJ ordered Plaintiff to undergo a second consultative
examination by family practitioner Dr. Miller, who did not find
medical improvement but noted some worsened clinical findings and
issued a more restrictive RFC as compared to her 2010 report.
However, as discussed above, the second ALJ rejected Dr. Miller’s
2014 report in favor of her 2010 report for reasons that the Court
found were unsupported by substantial evidence.
The phrasing of the Appeals Council’s order appears to grant
discretion to the ALJ as to whether or not to retain a medical
expert. However, since the Court has found alternative bases for
reversing the Commissioner’s decision, it need not resolve whether
the ALJ’s decision not to retain a medical expert such as a
neurosurgeon was reversible error.
Likewise, the Court need not consider whether the second ALJ’s
failure to subpoena the medical records from Plaintiff’s no-fault
insurance carrier (which the first ALJ had identified as relevant)
was reversible error.
REMEDY
Under 42 U.S.C. § 405(g), the district court has the power to
affirm, modify, or reverse the ALJ’s decision with or without
remanding for a rehearing. As discussed above, ALJ McDougall

-31-

committed multiple factual and legal errors in weighing the record
evidence

and

the

opinions

provided

by

Plaintiff’s

treating

physicians and the consultative physician, and cherry-picked the
record in order to justify assigning the greatest weight to the
least

restrictive

opinion,

that

is,

consultative

physician

Dr. Miller’s 2010 report. In the present case, the record is
complete,

and

contains

multiple

functional

assessments

by

individuals who have actually treated or examined Plaintiff.
The

standard

for

directing

a

remand

for

calculation

of

benefits is met where the record persuasively demonstrates the
claimant’s disability, Parker v. Harris, 626 F.2d 225, 235 (2d Cir.
1980), and there is no reason to conclude that the additional
evidence might support the Commissioner’s claim that the claimant
is not disabled, Butts v. Barnhart, 388 F.3d 377, 385–86 (2d Cir.
2004). Upon reviewing the record in its entirety, the Court finds
that had the opinions of Plaintiff’s treating sources were accorded
their proper weight, and if Dr. Miller’s consultative opinions had
been

properly

selective

weighed

parsing of

rather
the

than

record,

being

based

a finding

of

on

the

ALJ’s

disability is

compelled. Properly weighed, the opinions of Plaintiff’s treating
sources establish that Plaintiff cannot stoop, which erodes the
sedentary

occupational

base;

and

cannot

lift

greater

than

10 pounds, which precludes light work. Accordingly, the Court finds

-32-

that the matter should be remanded for calculation and payment of
benefits.
CONCLUSION
For

the

foregoing

reasons,

the

Court

finds

that

the

Commissioner’s decision was legally erroneous and is not supported
by substantial evidence. It therefore is reversed. Accordingly,
Defendant’s motion for judgment on the pleadings is denied, and
Plaintiff’s motion for judgment on the pleadings is granted, and
the case is remanded solely for the calculation and payment of
benefits. 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:

March 7, 2018
Rochester, New York.

-33-