Gray v. Colvin
Filing
14
ORDER granting 9 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; denying 11 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 2/10/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MARGARET MARIE GRAY,
Plaintiff,
-vs-
No. 1:16-CV-00231 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
I.
Introduction
Represented by counsel, Margaret Marie Gray (“plaintiff”)
brings this action pursuant to Title II of the Social Security Act
(“the
Act”),
seeking
review
of
the
final
decision
of
the
Commissioner of Social Security (“the Commissioner”) denying her
application for disability insurance benefits (“DIB”). The Court
has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g).
Presently before the Court are the parties’ cross-motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules
of
Civil
Procedure.
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 July 2011, plaintiff (d/o/b August
17, 1974) applied for DIB, alleging disability as of May 11, 2007.
After her application was denied, plaintiff requested a hearing,
which was held before administrative law judge Donald T. McDougall
(“the ALJ”) on October 3, 2014.1 The ALJ issued an unfavorable
decision on October 16, 2014. The Appeals Council denied review of
that decision and this timely action followed.
III. The ALJ’s Decision
Initially, the ALJ found that plaintiff met the insured status
requirements of the Social Security Act through December 31, 2012.
At step one of the five-step sequential evaluation, see 20 C.F.R.
§ 404.1520, the ALJ determined that plaintiff had not engaged in
substantial gainful activity since May 11, 2007, the alleged onset
date. At step two, the ALJ found that plaintiff suffered from the
severe
impairments
of
right
shoulder/arm
workplace
injury;
rheumatoid arthritis and osteoarthritis; asthma; fibromyalgia; and
obesity. At step three, the ALJ found that plaintiff did not have
an impairment or combination of impairments that met or medically
equaled the severity of any listed impairment.
Before proceeding to step four, the ALJ determined that,
considering all of plaintiff’s impairments, plaintiff retained the
RFC to perform light work as defined in 20 C.F.R. § 404.1567(b)
“except she
should
be
able
to
change
positions
briefly
(1-2
minutes) from sit to stand or vice versa at least every [half]
hour; no exposure to extremes of heat, cold, wetness or humidity;
no exposure to extremes of fumes, dusts, gases or other respiratory
irritants; no more than occasional use of right arm/hand and
1
Plaintiff’s case was initially assigned to ALJ Nancy L.
Pasiecznik, who held a previous hearing on February 5, 2013.
2
shoulder; no lifting more than 10 pounds on the right; no kneeling
or crawling; no more than occasional balancing, crouching or
stooping; no ladders, ropes or scaffolds; no heights or dangerous
moving machinery and no more than occasional stairs or ramps.”
T. 20.
At step four, the ALJ found that plaintiff could not perform
any
past
relevant
work.
At
step
five,
the
ALJ
found
that
considering plaintiff’s age, education, work experience, and RFC,
jobs existed in the national economy which plaintiff could perform.
Accordingly, he found that plaintiff was not disabled.
IV.
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).
Plaintiff contends that the ALJ failed to properly weigh the
consulting state agency opinion of Dr. John Schwab, and that Dr.
Schwab’s opinion was rendered stale by the time of the ALJ’s
decision due to intervening changes in the plaintiff’s medical
condition.
Dr.
Schwab’s
consulting
examination,
performed
on
September 23, 2011, found that plaintiff had a positive straight
3
leg raise (“SLR”) test, squatted to only half of normal “because
she said her right knee hurt[],” and demonstrated trigger point
tenderness.2 T. 458. Dr. Schwab diagnosed plaintiff with obesity
(plaintiff was five feet five inches tall and weighed 327 pounds),
polymyostitis, rheumatoid arthritis, osteoarthritis, fibromyalgia,
asthma, right shoulder pain, and left ankle pain. Despite his
findings
on
examination
and
his
diagnoses
of
these
several
conditions, Dr. Schwab opined that plaintiff “should avoid any
activity
that
triggers
her
asthma,
[but]
otherwise
[had]
no
restrictions based on the findings of [his] examination.” T. 459.
Plaintiff cites the case of Skupien v. Colvin, 2014 WL 3533425
(W.D.N.Y. July 16, 2014), in which the Court found that the same
consulting
examiner’s
opinion
was
internally
inconsistent.
In
Skupien, the Court held that “Dr. Schwab’s ‘no restrictions’
opinion [was] inconsistent with his examination findings and the
ALJ was required to reconcile the inconsistency or, if he could not
do
so,
seek
clarification
from
Dr.
Schwab.”
Id.
at
*4.
The
Commissioner argues that Skupien is distinguishable, contending
that in comparison to Skupien, the abnormal findings in the instant
consulting examination were “few . . . [and did] not suggest
limitations beyond those assessed by the ALJ.” Doc. 11-1 at 20.
Upon a thorough review of the administrative record, the Court
disagrees and, for the reasons discussed below, finds that the ALJ
2
Fibromyalgia pain is often associated with tenderness in at
least 11 of the 18 “tender” or “trigger” points. See SSR 12-2p,
Titles II & XVI: Evaluation of Fibromyalgia (S.S.A. July 25, 2012).
4
failed to adequately explain reconcile the inconsistencies or, in
the alternative, seek clarification from Dr. Schwab.
The ALJ gave “significant” weight to Dr. Schwab’s opinion,
finding that “it was based on personal observations, examination
findings and [was] consistent with the medical record as a whole.”
T. 25. The ALJ additionally accorded “little” weight to the opinion
of two physicians who examined plaintiff for purposes of workers
compensation.
A
February
2010
independent
medical
examination
(“IME”) performed by Dr. Michael Grant found that she had loss of
use of the right upper extremity, due to a work-related shoulder
injury, of 70 percent. An April 9, 2010 IME performed by Dr. Paul
Mason
found
that
plaintiff
“may
return
to
a
light
duty
position . . . with work restrictions in place to include no
repetitive overhead activities with respect to the right upper
extremity.” T. 302. Plaintiff contends that because the ALJ gave
little weight to these IME opinions, and great weight to the
opinion of Dr. Schwab which actually opined no restrictions, the
ALJ’s RFC finding which included various work-related limitations
was thus based on the ALJ’s improper lay interpretation of the
medical
evidence
without
support
from
any
competent
medical
opinion.
Here, like in Skupien, Dr. Schwab found certain limitations on
physical examination which were not accounted for in his ultimate
functional opinion. The Court finds this inconsistency significant
because both Dr. Schwab’s own findings on examination, as well as
5
the medical record as a whole, suggest that plaintiff would have
more
restrictions
than
simply
those
associated
with
asthma.
Plaintiff’s medical record reveals a history of treatment for right
shoulder
and
right
knee
impairments,
both
of
which
required
surgery; a history of rheumatoid arthritis and osteoarthritis; a
history of fibromyalgia with trigger point tenderness; significant
obesity; and asthma.
Given the record evidence of plaintiff’s medical conditions,
the inconsistencies between Dr. Schwab’s findings on examination
and his ultimate opinion were such that the ALJ was “required to
reconcile the inconsistency or, if he could not do so, seek
clarification from Dr. Schwab.” Skupien, 2014 WL 3533425, at *4.
This is especially so since the ALJ gave little weight to the only
other opinions in the record which spoke to plaintiff’s functional
abilities. Given the weight accorded to these opinions, the ALJ’s
detailed RFC finding is unsupported by any competent medical
opinion and appears to have been based on the ALJ’s interpretation
of the raw medical evidence, which constituted reversible error.
See Lowe v. Colvin, 2016 WL 624922, at *7 (W.D.N.Y. Feb. 17, 2016)
(“Because Dr. Sheehan is the only medical opinion in the record to
assess Plaintiff’s ability to lift and carry with specificity, and
because the ALJ ultimately gave little evidentiary weight to that
opinion, the Court is left with the circumstance of the ALJ
interpreting raw medical data to arrive at a residual functional
capacity determination, without the benefit of an expert medical
opinion.”) (internal quotation marks omitted); Staggers v. Colvin,
6
2015 WL 4751123, *2 (D. Conn. Aug. 11, 2015) (“[A]n ALJ who makes
an RFC determination in the absence of supporting expert medical
opinion has improperly substituted his own opinion for that of a
physician, and has committed legal error.”) (quoting Hilsdorf v.
Comm’r of Soc. Sec., 724 F. Supp. 2d 330, 347 (E.D.N.Y. 2010)).
The Court also finds that, as plaintiff argues, Dr. Schwab’s
September 23, 2011 opinion was “stale” by the time the ALJ rendered
his
decision
subsequent
on
to
October
Dr.
16,
Schwab’s
2014.
As
plaintiff
examination
but
points
before
the
out,
ALJ’s
decision, plaintiff suffered a further right knee injury; underwent
a second knee surgery in December 2012, after which she continued
to
suffer
from
“chronic
ACL
deficient
knee
and
significant
osteoarthritis”; and was told she would likely need a total knee
replacement. T. 811. Under the facts presented by this record,
therefore, Dr. Schwab did not have the ability to fully assess
plaintiff’s functional limitations and his opinion was outdated.
See Hawkins v. Colvin, 2016 WL 6246424, *3 (W.D.N.Y. Oct. 26, 2016)
(remanding
because,
inter
alia,
“the
consultative
medical
examination report was ‘stale’ at the time of the ALJ’s decision,
insofar as the report was issued prior to Plaintiff’s degenerative
disc disease becoming symptomatic”).
Accordingly, this case is remanded for further administrative
proceedings consistent with this Decision and Order. On remand, the
ALJ
is
directed
contacting
Dr.
to
further
Schwab
to
develop
clarify
the
his
opinion
opinion
evidence
and
by
obtaining
additional medical opinion evidence. The opinion evidence should
7
address plaintiff’s work-related limitations during the entire
relevant time period, up to and including her second knee surgery
in December 2012. On remand, the ALJ must provide a function-byfunction assessment of plaintiff’s limitations, and explain how the
substantial evidence of record supports each limitation included in
the RFC finding.
V.
Conclusion
For the foregoing reasons, the Commissioner’s motion for
judgment on the pleadings (Doc. 11) is denied and plaintiff’s
motion (Doc. 9) 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:
February 10, 2017
Rochester, New York.
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