Warcholak v. Colvin

Filing 14

DECISION AND ORDER granting 8 Plaintiff's Motion for Judgment on the Pleadings to the extent that the Commissioners decision is reversed, and the matter is remanded for further administrative proceedings consistent with this Decision and Order; denying 10 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 2/14/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ROBERT JOSEPH WARCHLOK,
Plaintiff,
DECISION and ORDER
No. 1:16-cv-00129(MAT)

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

INTRODUCTION
Robert Joseph Warchlok (“Plaintiff”), represented by counsel,
brings 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 (“Defendant” or “the
Commissioner”), denying his applications for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”).
PROCEDURAL STATUS
On April 20, 2012, Plaintiff filed concurrent applications for
DIB and SSI, alleging disability beginning December 1, 2003, later
amended to June 10, 2010. These applications were denied on initial
review and upon reconsideration. Plaintiff requested a hearing on
August 2, 2012, and, on October 28, 2013, appeared with counsel
before administrative law judge Stanley A. Moskal, Jr. (“the ALJ”)
in Buffalo, New York. Plaintiff testified at the hearing, as did

Linda N. At the hearing, Plaintiff he withdrew his DIB application
and amended his SSI onset date to June 10, 2010. (T.29).1
The ALJ considered the applications de novo and issued an
unfavorable

decision

on

April

4,

2014.

(T.13-22).

Plaintiff

appealed the decision to the Appeals Council, which granted review
on December 18, 2015. The Appeals Council subsequently issued a new
decision (T.4-7). The Appeals Council rejected the ALJ’s step four
finding, but accepted the ALJ’s alternative step five finding that
there was other work Plaintiff could perform. Accordingly, the
Appeals Council found Plaintiff not disabled during the period from
April 20, 2012, the date of his SSI application, through April 4,
2014,2 the date of the ALJ’s decision.3 The Appeals Council’s
decision subsequently became the decision of the Commissioner, and
Plaintiff timely commenced this action.
The parties have cross-moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The
Court adopts and incorporates by reference herein the undisputed
and comprehensive factual summaries contained in the parties’
1

Citations in parentheses to “T.” refer to pages from the certified
transcript of the administrative record.
2

Even though the Appeals Council issued its final decision on December 18,
2015, the relevant time period only runs through the date of the ALJ’s decision.
See 20 C.F.R. 416.1476(b).
3

Since Plaintiff had withdrawn his DIB claim at the hearing, the Appeals
Council dismissed the DIB claim. (T.5). In this appeal, Plaintiff does not
contest that dismissal.

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briefs. The record will be discussed in more detail below as
necessary to the resolution of this appeal.
For the reasons that follow, the Commissioner’s decision is
reversed, and the matter is remanded for further administrative
proceedings.
THE ALJ’S DECISION AS MODIFIED BY THE APPEALS COUNCIL
As noted above, the Appeals Council granted review of the
ALJ’s decision and ultimately issued the final decision of the
Commissioner, in which it adopted all of the ALJ’s findings except
for the ALJ’s step four finding that Plaintiff had past relevant
work as a waiter, and still could perform that work. (T.4-7).
References

to

the

Appeals

Council’s

decision

necessarily

incorporate the ALJ’s decision except for the step four finding.
At step one of the sequential evaluation, the Appeals Council
found

that

Plaintiff

had

not

engaged

in

substantial

gainful

activity since June 10, 2010, Plaintiff’s amended disability onset
date. At step two, the Appeals Council found that Plaintiff had the
following
fusion.

“severe” impairment:

At

step

three,

the

status-post ankle
Appeals

Council

fracture

determined

and
that

Plaintiff’s impairments, alone or in combination, did not meet or
equal a listed impairment. Next, the Appeals Council assessed
Plaintiff’s subjective complaints and agreed with the ALJ that
Plaintiff retained the residual functional capacity (“RFC”) to
perform light work as defined in 20 C.F.R. § 416.967(b),

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except [he] can lift and carry twenty pounds occasionally
and ten pounds frequently with normal breaks. [He] can
stand or walk up to six hours in an eight-hour workday,
and he can sit up to six hours in an eight hour workday.
[He] can push or pull ten pounds frequently and twenty
pounds occasionally with the upper extremities, but
cannot push or pull with the lower left extremity. [He]
can perform postural movements occasionally, but he
cannot climb ladders, ropes, or scaffolds. [He] ha[s] no
manipulative, visual, or communicative limitations, but
he should have no exposure to hazards, dangerous moving
machinery and unprotected heights.
(T.18).
At step four, the ALJ had found Plaintiff was able to perform
his past relevant work as a waiter. (T.21). The ALJ also continued
to step five and, relying on the VE’s testimony, found there were
other jobs that existed in significant numbers in the national
economy that Plaintiff could perform. (T.21). Specifically, the ALJ
found Plaintiff was able to perform the job requirements of an
information clerk, DOT 237-367.018. (T.21-22).
The Appeals Council determined that Plaintiff’s past work as
a waiter was performed outside the 15-year regulatory periods in
20 C.F.R. §§ 404.1565 and 416.965, and therefore, contrary to the
ALJ’s finding, could not constitute “past relevant work.” (T.5).
The Appeals Council concluded that Plaintiff had no past relevant
work. It subsequently adopted the ALJ’s alternative step five
finding that Plaintiff could perform the job of an information
clerk. (T.6-7). Accordingly, a finding of not disabled was entered.

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SCOPE OF REVIEW
A decision that a claimant is not disabled must be affirmed if
it is supported by substantial evidence, and if the ALJ applied the
correct

legal

standards.

42

U.S.C.

§

405(g).

“Where

the

Commissioner’s decision rests on adequate findings supported by
evidence having rational probative force, [the district court] will
not substitute [its] judgment for that of the Commissioner.” Veino
v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002). This deferential
standard is not applied to the Commissioner’s application of the
law, and the district court must independently determine whether
the Commissioner’s decision applied the correct legal standards in
determining that the claimant was not disabled. Townley v. Heckler,
748 F.2d 109, 112 (2d Cir. 1984). Failure to apply the correct
legal standards is grounds for reversal. Id. Therefore, this Court
first reviews whether the applicable legal standards were correctly
applied, and, if so, then considers the substantiality of the
evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). The
Commissioner’s determination will not be upheld if it is based on
an

erroneous

view

of

the

law

that

fails

to

consider

highly

probative evidence. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir.
1999). In such cases, the reviewing court has the authority to
reverse with or without remand. See 42 U.S.C. § 405(g).

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DISCUSSION
I.

RFC Unsupported by Substantial Evidence Due to Lack of Any
Medical Expert Opinion in the Record
Plaintiff’s main contention on appeal is that the Appeals

Council’s decision is not supported by substantial evidence because
the

record

contains

no

medical

opinion

evidence

whatsoever

regarding Plaintiff’s functional limitations. As Plaintiff notes,
the

administrative

record

is

devoid

of

any

medical

opinion

whatsoever. Moreover, the record contains a fair amount of evidence
of impairment, and no function-by-function assessment was conducted
by source. The ALJ’s RFC determination, which was adopted without
discussion or analysis by the Appeals Council, therefore was based
solely on the ALJ’s lay opinion.
Defendant counters by arguing the ALJ was permitted to make
the RFC determination without a medical opinion because he “has the
sole responsibility to determine a claimant’s RFC.” (Dkt #10-1,
p. 18-21) (citing Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29,
32-33, 2013 WL 1296489, at *3–4 (2d Cir. Apr. 2, 2013) (unpublished
opn.); Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013)
(unpublished

opn.).

Defendant

is

unsuccessfully

attempting to

stretch Tankisi and Matta beyond the limits of their fact-bound
holdings.
In

Tankisi,

the

Second

Circuit

rejected

a

claimant’s

contention that an ALJ’s failure to request an RFC assessment from
a

treating

physician

automatically
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always

requires

a

remand.

See 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.”) (citations omitted). Tankisi is
easily distinguishable because, in that case, there was at least
one expert medical opinion in the record, namely, an assessment of
the claimant’s limitations from a treating physician. Id.
Matta is also readily distinguishable from the present case.
There,

the

record

contained

expert

opinions

of

four

medical

sources, which the ALJ had “expressly referenced” in the decision.
Matta, 508 F. App’x at 56-57. Here, as noted above, and in contrast
to Tankisi and Matta, the record does not contain any medical
expert opinions from a treating source or a consultative examiner.
The Commissioner’s attempt, in the context of this appeal, to
rely on various medical records as support for the ALJ’s finding is
unavailing, because the ALJ never cited these records himself. The
Court

rejects

the

Commissioner’s

post

hoc

rationalizations.

See Michigan v. E.P.A., 135 S. Ct. 2699, 2710 (2015) (“This line of

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reasoning contradicts the foundational principle of administrative
law that a court may uphold agency action only on the grounds that
the agency invoked when it took the action.”) (citation omitted));
Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999) (a reviewing court
“may not accept appellate counsel’s post hoc rationalizations for
agency action”).
The ALJ impermissibly relied solely on his lay interpretation
of bare medical findings to make his RFC determination. Walker v.
Astrue, 2010 WL 2629832, at *6 (W.D.N.Y.2010) (citing Deskin v.
Commissioner of Social Security, 605 F.Supp.2d 908, 912 (N.D. Ohio
2008) (holding an ALJ is not qualified to assess a claimant’s RFC
“on the basis of bare medical findings,” and also holding where the
medical findings in the record merely “diagnose” a claimant’s
impairments and do not relate those diagnoses to a specific RFC, an
ALJ’s determination of RFC without a medical advisor’s assessment
is not supported by substantial evidence). “Given Plaintiff’s
multiple physical and mental impairments, this is not a case where
the medical evidence shows ‘relatively little physical impairment’
such that the ALJ ‘can render a common sense judgment about
functional capacity.’” Palascak v. Colvin, No. 1:11-CV-0592 MAT,
2014

WL

1920510,

at

*9

(W.D.N.Y.

May

14,

2014)

(quoting

Manso–Pizarro v. Secretary of Health & Human Servs., 76 F.3d 15, 17
(1st Cir. 1996)). Here, Plaintiff suffers from persistent left
ankle pain, status post-ankle fracture, and has undergone five

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ankle surgeries since the alleged onset date. He was diagnosed with
rheumatoid arthritis in November 2010, by which time he had already
undergone two ankle surgeries and had contracted osteomyelitis4 in
that

ankle.

On

June

20,

2011,

for

instance,

Plaintiff

was

ambulating on crutches because on he could not bear weight on his
left foot. He had tenderness at his right knee and left knee,
swelling of his ankle medially and laterally, and moderate pain on
passive ankle range of motion. (T.727). Dr. Bermudez assessed him
with persistent rheumatoid arthritis, closed ankle fracture not
otherwise specified (“NOS”, improved tobacco use disorder, and
persistent anxiety disorder NOS. X-rays of Plaintiff’s hands and
feet on July 26, 2011 revealed at the right hand, a cystic density
in the second and, to a lesser degree, third and fourth metacarpal
heads as well as the first metacarpal and in the triquetral bone;
some mild to moderate degenerative changes between the distal
radius and carpal bones in in the left hand; diffuse osteopenia5
and soft tissue swelling throughout the entire left foot; and
erosive changes in the lateral malleolus medially with deformity to
4

“Osteomyelitis is an infection in a bone. Infections can reach a
bone by traveling through the bloodstream or spreading from nearby tissue.
Infections can also begin in the bone itself if an injury exposes the bone to
germs.”
http://www.mayoclinic.org/diseases-conditions/osteomyelitis/basics/definition/
con-20025518 (last accessed Feb. 13, 2017).
5
“Osteopenia develops when a person’s bone density is below normal.
This condition raises the risk of bone fractures. Osteoporosis occurs when the
body’s creation of new bone can no longer keep up with the breakdown of old
bone. This leads to bones becoming weak, brittle and easily broken.”
http://newsnetwork.mayoclinic.org/discussion/tuesday-q-a-treatment-for-bone-di
sorders-focuses-on-strengthening-bones-slowing-bone-loss/ (last accessed Feb.
13, 2017).

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the distal fibula, and osteopenia throughout the entire left ankle
and apparent widening and irregularity of the ankle mortise with
cystic

changes

Plaintiff’s

in

the

healthcare

distal

tibia.

providers

(T.922-23).

consistently

Clinically,

noted

swelling,

decreased range of motion, and tenderness in multiple joints, and
especially the left ankle. (T.675, 714, 717-718, 721, 724, 727,
730, 735, 743, 794, 933, 948, 973, 982, 986, 990). The record also
contains

evidence

of

significant

non-exertional

impairments

(alcohol abuse, anxiety disorder, and depressive disorder), for
which Plaintiff received outpatient, inpatient, and residential
treatment. (T.41, 785, 789, 802, 842, 984).
II.

Other Errors
The Court notes that the ALJ made a number of other errors

which Plaintiff has not raised, but which deserve mention here in
order to avoid repetition of them on remand. Palascak v. Colvin,
No. 1:11-CV-0592 MAT, 2014 WL 1920510, at *10 (W.D.N.Y. May 14,
2014).
First, the Court finds that the ALJ’s step two analysis is
inadequate insofar as it did not consider, at all, Plaintiff’s
separately diagnosed mental impairments, including alcohol abuse,
anxiety disorder, and depressive disorder. The ALJ did not account
for any of the limitations caused by impairments in the RFC
assessment. Nor did the ALJ provide any explanation as to why
Plaintiff’s separately diagnosed rheumatoid arthritis and migraine

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headaches are not severe. These omissions were not harmless, as the
medical

records

indicate

that

his

rheumatoid

arthritis

and

migraines caused significant symptoms in multiple bodily systems
apart from just Plaintiff’s left ankle. Remand on this basis alone
is required. See, e.g., Hernandez v. Astrue, 814 F. Supp. 2d 168,
185 (E.D.N.Y. 2011) (“Ample evidence in the administrative record
here demonstrated that plaintiff had received multiple separate
medical diagnoses. . . . The ALJ’s failure to consider the effects
of plaintiff’s combined impairments in every step of the five-step
sequential

process

thus

requires

remand.”)

(citing

Burgin

v.

Astrue, 348 F. App’x 646, 648 (2d Cir. 2009) (unpublished opn.)
(“We are unpersuaded by the Commissioner’s argument that the ALJ’s
consideration

of

Burgin’s

bipolar

disorder

encompassed

her

depression-related symptoms, because the medical evidence in the
administrative record shows that Burgin’s major depression and
bipolar

disorder

diagnoses,

and

finding.”).

were

considered

because

The

step

the

two

ALJ’s

finding

professionally
decision
also

as

includes

contains

separate
no

such

inapplicable

boilerplate to the extent it recites that the ALJ considered
“opinion evidence,” but there is no such evidence in the record.
Second,

the

ALJ

erred

by

failing

to

make

a

function-by-function assessment of Plaintiff’s ability to perform
the physical and mental requirements of light-duty work. Palascak,
2014 WL 1920510, at *10. The Act’s regulations require that an RFC

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assessment

contain

a

“function-by-function

analysis

of

the

claimant’s functional limitations or restrictions and an assessment
of the claimant’s work-related abilities on a function-by-function
basis.”

Zurenda

v.

Astrue,

No.

11–CV–1114(MAD/VEB),

2013

WL

1183035, at *4 (N.D.N.Y. Mar. 1, 2013), rep. and rec. adopted, 2013
WL 1182998 (N.D.N.Y. Mar. 21, 2013). “In other words, the ALJ ‘must
make a function-by-function assessment of the claimant’s ability to
sit, stand, walk, lift, carry, push, pull, reach, handle, stoop, or
crouch.’” Palascak, 2014 WL 1920510, at *10 (citing 20 C.F.R. §§
404.1513(c)(1),

404.1569a

(a),

416.969a(a);

other

citations

omitted); see also id. (finding error where “[t]he ALJ's RFC
assessment

simply

recite[d]

[the]

[p]laintiff’s

testimony and

summarizes the medical record without tying this evidence to the
physical and mental functional demands of light work”).
III. Remedy
Where “there are gaps in the administrative record or the ALJ
has applied an improper legal standard, [the Second Circuit] [has],
on numerous occasions, remanded to the [Commissioner] for further
development of the evidence.” Parker v. Harris, 626 F.2d 225, 235
(2d Cir. 1980). Here, the ALJ and the Appeals Council misapplied
the relevant legal standards, and failed to properly develop the
record

by

obtaining

a

function-by-function

assessment

from

a

medical expert, thereby making further administrative proceedings
before the Commissioner necessary. Pratts v. Chater, 94 F.3d 34, 39

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(2d Cir.1996) (quotation omitted). Although remand is not required
“[w]here application of the correct legal standard could lead to
only one conclusion,” Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir.
1998) (citation omitted), the ALJ must further develop the record
in the present case by requesting a medical source statement or RFC
assessment from a medical source, be it a treating physician or
consultative physician, and re-perform the sequential evaluation.
See, e.g., Quinones v. Colvin, No. 6:13-CV-06603 MAT, 2014 WL
6885908, at *8 (W.D.N.Y. Dec. 8, 2014) (citing Azeez v. Astrue,
No. 09–CV–3976(SLT), 2012 WL 959401, at *9 (E.D.N.Y. Mar.21, 2012)
(declining to reverse for calculation of benefits because the ALJ
first “must properly weigh the treating physicians’ opinions before
a clear conclusion can emerge”); other citation omitted).
CONCLUSION
For the foregoing reasons, Defendant’s motion for judgment on
the pleadings is denied, and Plaintiff’s motion for judgment on the
pleadings is granted to the extent that the Commissioner’s decision
is reversed, and the matter is remanded for further administrative
proceedings consistent with this Decision and Order. In particular,
the ALJ is directed to properly develop the record by obtaining a
function-by-function

assessment

from

a

medical

expert

and

conducting a new five-step sequential evaluation of Plaintiff’s SSI
claim, which should include a function-by-function analysis of his

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functional limitations or restrictions and an assessment of his
work-related abilities on a function-by-function basis.
SO ORDERED.
S/Michael A. Telesca
________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

February 14, 2017
Rochester, New York

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