Riley-Tull v. Colvin
DECISION AND ORDER. Plaintiff's Motion for Judgment on the Pleadings 11 is GRANTED, the Commissioner's Motion for Judgment on the Pleadings 12 is DENIED, and this matter is REMANDED to the Commissioner for further administrative proceedings. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 6/30/2017. (AFM)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CASSANDRA D. RILEY-TULL,
Case # 16-CV-151-FPG
DECISION AND ORDER
NANCY A. BERRYHILL,1 ACTING
COMMISSIONER OF SOCIAL SECURITY,
Cassandra D. Riley-Tull (“Riley-Tull” or “Plaintiff”) brings this action pursuant to the
Social Security Act (“the Act”) seeking review of the final decision of the Acting Commissioner
of Social Security (“the Commissioner”) that denied her applications for disability insurance
benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Act.
ECF No. 1. The Court has jurisdiction over this action under 42 U.S.C. §§ 405(g), 1383(c)(3).
Both parties have moved for judgment on the pleadings pursuant to Federal Rule of Civil
ECF Nos. 11, 12.
For the reasons that follow, Plaintiff’s motion is
GRANTED, the Commissioner’s motion is DENIED, and this matter is REMANDED to the
Commissioner for further administrative proceedings.
On April 30, 2013, Riley-Tull protectively applied for DIB and SSI with the Social
Security Administration (“the SSA”). Tr. 187-97.2 She alleged that she had been disabled since
March 12, 2011, due to irritable bowel syndrome (“IBS”), lower back pain, and asthma. Tr. 211.
On March 10, 2015, Riley-Tull and a vocational expert (“VE”) testified at a hearing before
Nancy A. Berryhill is now the Acting Commissioner of Social Security and is therefore substituted for
Carolyn W. Colvin as the defendant in this suit pursuant to Federal Rule of Civil Procedure 25(d).
References to “Tr.” are to the administrative record in this matter.
Administrative Law Judge Robert T. Harvey (“the ALJ”). Tr. 31-60. On May 19, 2015, the ALJ
issued a decision finding that Riley-Tull was not disabled within the meaning of the Act. Tr. 1323. On January 27, 2016, the Appeals Council denied Riley-Tull’s request for review. Tr. 1-6.
Thereafter, Riley-Tull commenced this action seeking review of the Commissioner’s final
decision. ECF No. 1.
District Court Review
“In reviewing a final decision of the SSA, this Court is limited to determining whether
the SSA’s conclusions were supported by substantial evidence in the record and were based on a
correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quotation marks
omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner is
“conclusive” if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial
evidence means more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d
Cir. 2009) (quotation marks omitted). It is not the Court’s function to “determine de novo
whether [the claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quotation
marks omitted); see also Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.
1990) (holding that review of the Secretary’s decision is not de novo and that the Secretary’s
findings are conclusive if supported by substantial evidence).
An ALJ must follow a five-step sequential evaluation to determine whether a claimant is
disabled within the meaning of the Act. See Parker v. City of New York, 476 U.S. 467, 470-71
(1986). At step one, the ALJ must determine whether the claimant is engaged in substantial
gainful work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not,
the ALJ proceeds to step two and determines whether the claimant has an impairment, or
combination of impairments, that is “severe” within the meaning of the Act, meaning that it
imposes significant restrictions on the claimant’s ability to perform basic work activities. 20
C.F.R. § 404.1520(c). If the claimant does not have a severe impairment or combination of
impairments, the analysis concludes with a finding of “not disabled.” If the claimant does, the
ALJ continues to step three.
At step three, the ALJ examines whether a claimant’s impairment meets or medically
equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the
“Listings”). 20 C.F.R. § 404.1520(d). If the impairment meets or medically equals the criteria
of a Listing and meets the durational requirement (20 C.F.R. § 404.1509), the claimant is
disabled. If not, the ALJ determines the claimant’s residual functional capacity (“RFC”), which
is the ability to perform physical or mental work activities on a sustained basis, notwithstanding
limitations for the collective impairments. See 20 C.F.R. § 404.1520(e)-(f).
The ALJ then proceeds to step four and determines whether the claimant’s RFC permits
him or her to perform the requirements of his or her past relevant work. 20 C.F.R. § 404.1520(f).
If the claimant can perform such requirements, then he or she is not disabled. If he or she
cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the
Commissioner to show that the claimant is not disabled. To do so, the Commissioner must
present evidence to demonstrate that the claimant “retains a residual functional capacity to
perform alternative substantial gainful work which exists in the national economy” in light of his
or her age, education, and work experience. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.
1999) (quotation marks omitted); see also 20 C.F.R. § 404.1560(c).
The ALJ’s Decision
The ALJ’s decision analyzed Riley-Tull’s claim for benefits under the process described
above. At step one, the ALJ found that Riley-Tull had not engaged in substantial gainful activity
since the alleged onset date. Tr. 16. At step two, the ALJ found that Riley-Tull has the
following severe impairments: asthma, IBS, migraines, and Crohn’s disease. Tr. 16-17. At step
three, the ALJ found that these impairments, alone or in combination, did not meet or medically
equal an impairment in the Listings. Tr. 17.
Next, the ALJ determined that Riley-Tull retained the RFC to perform light work3 with
additional limitations. Tr. 17-22. Specifically, the ALJ found that Riley-Tull can sit for two
hours and stand or walk for six hours in an eight hour workday; cannot work around unprotected
heights or heavy, moving, or dangerous machinery; cannot climb ropes, ladders, or scaffolds;
must avoid exposure to excessive heat and cold and to excessive pulmonary irritants; and can
occasionally bend, stoop, kneel, and crawl. Tr. 17-18.
At step four, the ALJ relied on the VE’s testimony and found that this RFC allows RileyTull to perform her past relevant work as a housekeeper/cleaner and cashier.
Accordingly, the ALJ concluded that Riley-Tull was not “disabled” under the Act. Tr. 23.
“Light work involves 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 may be very little, a job is in this category when it requires
a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of
arm or leg controls. To be considered capable of performing a full or wide range of light work, [the claimant] must
have the ability to do substantially all of these activities. If someone can do light work, [the SSA] determine[s] that
he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time.” 20 C.F.R. §§ 404.1567(b), 416.967(b).
Riley-Tull argues that remand is required because the ALJ failed to develop the record.4
ECF No. 11-1, at 12-16; ECF No. 13, at 3-7. Specifically, Riley-Tull asserts that the ALJ erred
when he failed to obtain an RFC opinion from her treating physicians Heather Pleskow, M.D.
(“Dr. Pleskow”) and Norman O. Fiorica, M.D. (“Dr. Fiorica”). The Court agrees.
The ALJ has an affirmative duty to develop the administrative record due to the
“essentially non-adversarial nature of a benefits proceeding.” Pratts v. Chater, 94 F.3d 34, 37
(2d Cir. 1996). Specifically, the ALJ must develop a claimant’s “complete medical history” for
at least the 12 months preceding the month in which the claimant filed his or her application. 20
C.F.R. §§ 404.1512(b), 416.912(b). The ALJ must “make every reasonable effort” to help the
claimant get medical reports from his or her medical sources as long as the claimant has
permitted the ALJ to do so. Id. Remand is warranted if the ALJ fails to fulfill his or her duty to
develop the record. Pratts, 94 F.3d at 39. On the other hand, where there are no “obvious gaps”
in the record and a “complete medical history” exists, the ALJ is not obligated to seek additional
evidence. Rosa, 168 F.3d at 79 n.5.
The SSA’s regulations provide that “[a]lthough [the SSA] will request a medical source
statement about what [the claimant] can still do despite [his or her] impairment(s), the lack of the
medical source statement will not make the report incomplete.” 20 C.F.R. §§ 404.1513(b)(6),
416.913(b)(6) (effective June 13, 2011 to Sept. 2, 2013). The regulations further explain that
medical reports should include a statement about what the claimant can still do despite his or her
Riley-Tull advances other arguments that she believes warrant reversal of the Commissioner’s decision.
ECF No. 11-1, at 16-22; ECF No. 13, at 7-9. However, the Court will not address those arguments because it
disposes of this matter based on the ALJ’s failure to develop the record.
Here, the record contains two medical opinions. Riley-Tull’s former treating physician
Pravin V. Mehta, M.D (“Dr. Mehta”) opined that she could work up to four hours a day and
needed bathroom access at all times. Tr. 439. The ALJ afforded only “little weight” to that
opinion because it was rendered before Riley-Tull’s alleged disability onset date and the ALJ
found that it was not well explained or supported by the record. Tr. 22 (citing Tr. 437-39).
Additionally, consultative examiner Hongbiao Liu, M.D. (“Dr. Liu”) opined that RileyTull is mildly limited in prolonged walking, bending, and kneeling, and that she should avoid
dust and other irritating factors to limit asthma attacks. Tr. 362. The ALJ gave this opinion
“partial weight” because although he found it “generally consistent with the results of the
consultative examination, and [Riley-Tull]’s medical records,” the ALJ concluded that “Dr. Liu’s
notation of ‘mild limitations’ is vague, and does not give out specific functional limitations.” Tr.
22 (citing Tr. 359-62).
Regardless of whether the ALJ properly discounted these opinions, his rejection of the
only medical opinions as to Riley-Tull’s physical capabilities left a significant gap in the record.
See Covey v. Colvin, 204 F. Supp. 3d 497, 507 (W.D.N.Y. 2016) (noting that the ALJ’s rejection
of the only medical opinion created a “significant and obvious gap in the evidentiary record”
because “the record contained no competent medical opinion regarding Plaintiff’s RFC during
the relevant time period”) (emphasis in original).
Moreover, the ALJ was not entitled to
formulate the RFC assessment based on the medical records alone because “[a]n ALJ is not
qualified to assess a claimant’s RFC on the basis of bare medical findings, and as a result an
ALJ’s determination of RFC without a medical advisor’s assessment is not supported by
Wilson v. Colvin, No. 13-CV-6286P, 2015 WL 1003933, at *21
(W.D.N.Y. Mar. 6, 2015) (citation omitted).
Riley-Tull argues that the rejection of these opinions, without further developing the
record or obtaining an RFC assessment from a treating physician, is especially problematic
because the RFC does not adequately account for her asthma. Specifically, Riley-Tull asserts
that the ALJ’s finding that she needs to avoid only excessive pulmonary irritants is not supported
by substantial evidence. The Court agrees.
Dr. Liu opined that Riley-Tull “should avoid dust and other irritating factors.” Tr. 362.
Riley-Tull argues that this means complete avoidance of pulmonary irritants, yet the ALJ found
that she needed to avoid only excessive pulmonary irritants. Although the ALJ found that Dr.
Liu’s opinion was entitled to only “partial weight,” he did not explain why the environmental
limitation included in the RFC differed from Dr. Liu’s finding. See Dioguardi v. Comm’r of Soc.
Sec., 445 F. Supp. 2d 288, 297 (W.D.N.Y. 2006) (noting that if the ALJ’s “RFC assessment
conflicts with an opinion from a medical source, the [ALJ] must explain why the opinion was not
adopted”) (quoting S.S.R. 96-8p, Policy Interpretation Ruling Titles II & XVI: Assessing
Residual Functional Capacity in Initial Claims, 1996 WL 374184, at *7 (S.S.A. July 2, 1996)).
This unexplained inconsistency is particularly harmful because the degree to which
Riley-Tull can tolerate pulmonary irritants directly impacts her employability.
Security Ruling (“S.S.R.”) 85-15 explains, “[w]here a person has a medical restriction to avoid
excessive amounts of noise, dust, etc., the impact on the broad world of work would be minimal
because most job environments do not involve great noise, amounts of dust, etc.” S.S.R. 85-15,
Titles II & XVI: Capability to do Other Work—The Medical-Vocational Rules as a Framework
for Evaluating Solely Nonexertional Impairments, 1985 WL 56857, at *8 (S.S.A. Jan. 1, 1985)
(emphasis added). On the other hand, however, “[w]here an individual can tolerate very little
noise, dust, etc., the impact on the ability to work would be considerable because very few job
environments are entirely free of irritants, pollutants, and other potentially damaging conditions.”
Id. (emphasis added). Thus, Riley-Tull might be rendered disabled if she must avoid pulmonary
irritants altogether. As a result of this conflict, the Court cannot conclude that the ALJ’s
environmental limitation is supported by substantial evidence.
S.S.R. 85-15 also explains that “[w]here the environmental restriction falls between very
little and excessive, resolution of the issue will generally require consultation of occupational
reference materials or the services of a [VE].” Id. When the ALJ questioned the VE at RileyTull’s hearing, however, he only inquired as to the jobs an individual could perform if he or she
“could not work in areas where [he or she] would be exposed to excessive pulmonary irritants.”
Tr. 57 (emphasis added). The ALJ did not ask what jobs, if any, would be available to an
individual who could tolerate very little pulmonary irritants or could tolerate some amount of
exposure in between very little and excessive. As mentioned previously, the ALJ’s finding that
Riley-Tull must avoid only excessive exposure to pulmonary irritants is not supported by
substantial evidence. Thus, the VE’s answer to the ALJ’s hypothetical question does not provide
substantial evidence for the ALJ’s step four finding that Riley-Tull can perform her past relevant
work. See McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014) (“An ALJ may rely on a
vocational expert’s testimony regarding a hypothetical as long as there is substantial record
evidence to support the assumption[s] upon which the vocational expert based his opinion, and
accurately reflect the limitations and capabilities of the claimant involved[.]”) (quotation marks
and citations omitted).
The Commissioner asserts that the record is adequately developed and that the ALJ’s
failure to obtain treating source opinions does not require remand. ECF No. 12-1, at 16-20. The
Commissioner relies on Tankisi v. Commissioner of Social Security, 521 F. App’x 29 (2d Cir.
2013) (summary order), wherein the Second Circuit rejected the plaintiff’s contention that the
ALJ’s failure to request an RFC statement from a treating physician automatically requires
remand. The Second Circuit reasoned that the SSA’s regulations suggest that “remand is not
always required when an ALJ fails in his duty to request opinions, particularly where . . . the
record contains sufficient evidence from which an ALJ can assess the petitioner’s residual
functional capacity.” Tankisi, 521 F. App’x at 34 (citations omitted).
This case, however, is distinguishable from the circumstances in Tankisi.
although the administrative record did not contain “formal opinions” from the plaintiff’s treating
physicians, a treating source had otherwise assessed the plaintiff’s limitations. Id. Here, remand
is required because Drs. Pleskow and Fiorica did not provide any type of assessment as to RileyTull’s ability to work. See, e.g., Swanson v. Colvin, No. 12-CV-645S, 2013 WL 5676028, at *5
(W.D.N.Y. Oct. 17, 2013) (distinguishing Tankisi and concluding that the ALJ failed to develop
the record where it lacked a formal or informal RFC assessment by a treating source). Moreover,
the ALJ rejected the opinion of Riley-Tull’s former treating physician Dr. Mehta. Tr. 22 (citing
Finally, neither the ALJ’s decision nor the record as a whole indicates that the ALJ
requested RFC assessments from Riley-Tull’s treating physicians or that those requests went
unanswered. Under these circumstances, and for the reasons stated above, remand is required.
See Gee v. Colvin, No. 13-CV-6396 EAW, 2014 WL 4924102, at *10 (W.D.N.Y. Sept. 30, 2014)
Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 11) is GRANTED, the
Commissioner’s Motion for Judgment on the Pleadings (ECF No. 12) is DENIED, and this
matter is REMANDED to the Commissioner for further administrative proceedings consistent
with this opinion, pursuant to sentence four of 42 U.S.C. § 405(g). See Curry v. Apfel, 209 F.3d
117, 124 (2d Cir. 2000); 42 U.S.C. § 1383(c)(3). The Clerk of Court is directed to enter
judgment and close this case.
IT IS SO ORDERED.
Dated: June 30, 2017
Rochester, New York
HON. FRANK P. GERACI, JR.
United States District Court
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