Wolf v. Colvin

Filing 13

DECISION AND 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 10 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 11/8/2017. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MARGARET K. WOLF,
Plaintiff,
-vs-

No. 1:16-cv-00327-MAT
DECISION AND ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

I.

Introduction
Represented by counsel, Margaret K. Wolf (“Plaintiff”) brings

this action pursuant to Title II of the Social Security Act (“the
Act”),

seeking

Commissioner

review
of

of

the

final

decision

Security1

Social

of

the

(“Defendant”

Acting

or

“the

Commissioner”) denying her application for disability insurance
benefits (“DIB”).

Presently before the Court are the parties’

competing

for

motions

judgment

on

the

pleadings

pursuant

Rule 12(c) of the Federal Rules of Civil Procedure.
reasons

set

forth

below,

Plaintiff’s

motion

is

to

For the

granted

and

Defendant’s motion is denied.
II.

Procedural History
On March 27, 2014, Plaintiff filed for a period of disability

and disability insurance benefits, alleging disability beginning

1

Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of
Social Security on January 23, 2017. The Clerk of the Court is instructed to
amend the caption of this case pursuant to Federal Rule of Civil Procedure 25(d)
to reflect the substitution of Acting Commissioner Berryhill as the defendant in
this matter.

November 1, 2013 due to back disorder (discogenic and degenerative)
and affective disorder (T. 110, 217-23).2

Plaintiff’s application

was denied on June 3, 2014 (T. 154-61), and she timely requested a
hearing before an administrative law judge (“ALJ”).

ALJ Robert T.

Harvey held a hearing on October 14, 2015 (T. 43-78), and, on
October 26th, issued a decision in which he found Plaintiff was not
disabled as defined in the Act (T. 22-40).

On April 7, 2016, the

Appeals Council denied review leaving the ALJ’s decision as the
final agency decision (T. 1-7).

This action followed.

The Court

assumes the parties’ familiarity with the facts of this case, which
will not be repeated here.

The Court will discuss the record

further below as necessary to the resolution of the parties’
contentions.
III.

The ALJ’s Decision
Initially, the ALJ found that Plaintiff met the insured status

requirements of the Act through December 31, 2016 (T. 27).
one

of

the

five-step

sequential

evaluation,

see

20

At step
C.F.R.

§ 404.1520, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since November 1, 2013, the alleged
onset date (Id.).

At step two, the ALJ found that Plaintiff had

the severe impairments of discogenic cervical and lumbar spine,
cervical

and

lumbar

radiculopathy,

headaches

and

depressive

2

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

in

the

disorder with anxious mood (Id.).
that Plaintiff

did

not

have

At step three, the ALJ found

an impairment

or

combination

of

impairments that met or medically equaled the severity of a listed
impairment (T. 28-30).

Before proceeding to step four, the ALJ

found that Plaintiff retained the residual functional capacity
(“RFC”) to perform light work as defined in 20 C.F.R. 404.1567(b)
except that Plaintiff: (1) could not work in areas with unprotected
heights, or around heavy, moving or dangerous machinery; (2) should
never climb ropes, ladders, or scaffolds; (3) could not work in
areas where she would be exposed to cold or dampness, (4) has
occasional

limitations

in

the

ability

to

handle

(gross

manipulation), bend, climb, stoop, squat, kneel, balance, crawl;
and (5) has occasional limitations in the ability to respond
appropriately to changes in the work setting and deal with stress
(T. 30-34).

At step four, the ALJ found that Plaintiff was unable

to perform any past relevant work (T. 34).

At step five, the ALJ

found, considering Plaintiff’s age, education, work experience, and
RFC, that jobs exist in significant numbers in the national economy
that Plaintiff can perform (T. 35).

Accordingly, the ALJ found

that Plaintiff was not disabled (T. 36).
IV.

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.
3

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.’”
Chater, 221 F.3d 126, 131 (2d Cir. 2000).

Shaw v.

“The deferential

standard of review for substantial evidence does not apply to the
Commissioner’s conclusions of law.”

Byam v. Barnhart, 336 F.3d

172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109,
112 (2d Cir. 1984)).
V.

Discussion
Plaintiff makes the following arguments in support of her

motion for judgment on the pleadings: (1) the ALJ’s RFC assessment
is unsupported by substantial evidence because the ALJ failed to
develop the record by obtaining a treating medical opinion as to
Plaintiff’s physical limitations and (2) the ALJ erred in failing
to do a full and proper credibility assessment of Plaintiff as
required under SSR 96-7p and 20 C.F.R. § 404.1529.
A.

Duty to Develop the Record and Bare Medical Findings

Plaintiff argues that the ALJ’s RFC assessment is unsupported
by substantial evidence because the ALJ had no competent medical
source opinion from which to draw his conclusion that Plaintiff was
limited as delineated in the RFC finding (Docket 9 at 16-17).
Plaintiff requests that this matter be remanded to the ALJ for a
new hearing to address this error (Id. at 21).

In response, the

Commissioner contends that the ALJ was under no obligation to recontact a treating physician to obtain a specific RFC assessment,
4

particularly where the record contains sufficient evidence for the
ALJ to assess a claimant’s RFC and where Plaintiff has the burden
of proof as to disability (Docket 10 at 10-13).
The regulations provide that although a claimant is generally
responsible for furnishing evidence upon which to base an RFC
assessment,

before

determination,

the

the
ALJ

Administration
is

“responsible

makes
for

a

disability

developing

[the

claimant’s] complete medical history, including arranging for a
consultative

examination(s)

if

necessary,

and

making

every

reasonable effort to help [the claimant] get medical reports from
[the claimant’s] own medical sources.”

20 C.F.R. § 404.1545

(citing 20 C.F.R. §§ 404.1512(d) through (f)).

Although the RFC

determination is an issue reserved for the Commissioner, “an 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

substantial evidence.” Dailey v. Astrue, 2010 WL 4703599, at *11
(W.D.N.Y. Oct. 26, 2010) (quoting Deskin v. Comm’r of Soc. Sec.,
605 F. Supp. 2d 908, 912 (N.D. Ohio 2008)).
Despite the extensive record in this case, remand is required
because the ALJ failed to properly develop the record by obtaining
a

medical

source

opinion

concerning

Plaintiff’s

physical

limitations, relying instead on an informal and ambiguous statement
in treatment notes. The medical record shows that Plaintiff sought
treatment for her back beginning in 2012 after her pain became
5

progressively worse while caring for her father who suffered a hip
injury

(T.

93).

In

mid-2013,

Plaintiff

began

seeing

pain

management specialist Dr. Eugene Gosy of Gosy & Associates Pain
Treatment & Neurology, LLP.

Dr. Gosy, who treated Plaintiff

through 2015, included the following ambiguous statement regarding
Plaintiff’s

limitations

in

the

treatment

notes:

“Functional

Inquiry: Mild using proper body mechanics” (Docket 10 at 11).
Dr. Gosy does not offer some measure of what was meant by “mild”
use of “proper body mechanics,”3 and it is inadequate, without
more, to be considered as an informal opinion of Plaintiff’s
physical limitations.

Compare Tankisi v. Comm’r of Soc. Sec., 521

F. App’x 29, 34 (2d Cir. 2013) (concluding informal opinions not
incomplete or vague where description of Plaintiff’s limitations
was

not

simply

“mild

to

moderate”

but

“provided

additional

clarifying information: ‘[m]ild to moderate limitation for sitting
for a long time, standing for a long time, walking for a long
distance,

pushing,

pulling,

or

heavy

lifting,’”

and

informal

opinions accompanied by other medical evidence of record).
Moreover, Dr. Gosy’s treatment notes appear to be divided
between

“Subjective”

and

“Objective”

sections.

The

characterization of “mild” use of “proper body mechanics” falls
under the Subjective section which includes, among other things,
Plaintiff’s description of the history of her present illness.

3

Particularly, what is meant by “proper body mechanics,”
i.e., body “functions”?
6

Under the Objective section are subsections for “assessment,” “care
plan” and “comments.”

If Dr. Gosy intended to include an informal

opinion regarding Plaintiff’s physical limitations in his treatment
notes, it is reasonable to assume he would have included it in the
Objective section.

In any event, clarification is needed and

remand is warranted.
Nor did Dr. Gosy’s treatment notes even suggest any other
opinion concerning Plaintiff’s physical limitations.

Instead,

“mild” use of “proper body mechanics” is repeated multiple times
without alteration of explanation in the treatment notes from 2013
to 2015, along with other characterizations (“Employment Status:
She is currently not working.”) (E.g., T. 413, 416, 419, 425, 541,
544, 547, 550, 553, 556, 559, 562, 565, 568, 571, 574, 577, 581,
584, 586, 589, 592, 595, 598, 601, 727).
This case is therefore distinguishable from the oft-cited
Tankisi v. Comm’r of Soc. Sec., 521 F. App’x. 29, 34 (2d Cir.
2013), which the Commissioner also references here in support of
the ALJ’s decision (Docket 10 at 13).

In Tankisi, the Second

Circuit concluded that because the record was otherwise complete,
and

included

an

informal

treating

physician

opinion

and

a

consulting opinion from an examining source, the ALJ did not err by
failing to request a treating source opinion. However, the absence
of any medical source opinion here left a clear gap in the record,
which triggered the ALJ’s duty to further develop it by obtaining
an

opinion

regarding

Plaintiff’s
7

physical

limitations.

See

Crawford v. Astrue, 2014 WL 4829544, at *20 (W.D.N.Y. Sept. 29,
2014) (“[W]here the medical findings in the record merely diagnose
[the] claimant’s exertional impairments and do not relate those
diagnoses to specific residual functional capabilities . . . [, the
Commissioner] may not make the connection himself.” (alterations in
original) (quoting Deskin v. Comm’r of Soc. Sec., 605 F. Supp. 2d
908, 912 (N.D. Ohio 2008)).
Thus, the ALJ’s conclusion that Plaintiff could perform light
work with certain limitations (T. 30-34) is left unsupported by
substantial evidence in the record. See Guarino v. Colvin, 2016 WL
690818, at *2 (W.D.N.Y. Feb. 22, 2016) (“[T]he ALJ had no medical
source opinions on which to rely in formulating his RFC finding.
As

such,

his

RFC

determination

constituted

an

impermissible

interpretation of bare medical findings.” (citing Cyman v. Colvin,
2015 WL 5254275, at *7 (W.D.N.Y. Sept. 9, 2015)).
Remand is therefore required.

See, e.g., Cyman, 2015 WL

5254275, at *7 (W.D.N.Y. Sept. 9, 2015) (remanding where ALJ came
to

RFC

determination

without

statement as to impairments).

benefit

of

any

medical

source

On remand, the ALJ is directed to

obtain statements from Plaintiff’s treating sources regarding her
functional capacity as the result of her physical impairments.

If

necessary, the ALJ may also obtain consulting examining opinions
regarding plaintiff’s functional limitations. The Court emphasizes
that in order to make a proper determination of Plaintiff’s RFC in
this case, it is incumbent upon the ALJ to obtain medical source
8

opinions from sources who have treated, or at the very least
personally examined, Plaintiff.
B.

Credibility Determination

Plaintiff also argues that the ALJ failed to properly assess
her credibility under the factors set forth in SSR 96-7p,4 20
C.F.R. § 404.1529, and Meadors v. Astrue, 370 F. App’x. 179, 183,
184

n.1

(2d

Cir.

2010)

(Docket

9

at

19-21).

Specifically,

Plaintiff contends that the ALJ merely provided a broad, sweeping
statement concluding that Plaintiff was not fully credible, without
otherwise setting forth his reasons with any specificity (Id.).
The

Commissioner

argues

that

the

ALJ

properly

considered

Plaintiff’s credibility and found that Plaintiff’s reports of pain
and other limitations were not consistent with the objective
medical evidence (Docket 10 at 14-15).
A claimant’s statements of pain or other subjective symptoms
cannot alone serve as conclusive evidence of disability.

See

Genier v. Astrue, 606 F.3d 46, 49 (2d. Cir. 2010) (citing 20 C.F.R.
§ 404.1529(a)). In evaluating a claimant’s assertions of her
subjective symptoms, the ALJ must follow a two-step analysis.
First,

the

determinable
produce

the

ALJ

determines

impairment
symptoms

that

if

a

could

alleged.”

4

claimant

has

reasonably
Id.

be

(citing

a

Id.

“medically
expected
20

to

C.F.R.

On March 28, 2016, SSR 16-3p superseded SSR 96-7p.
However, the parties do not dispute the application of SSR 96-7p
at the time of the October 2015 hearing and decision by the ALJ
in this case.
9

§ 404.1529(b)).

Second, if an impairment of that nature is

present, the ALJ must then determine “the extent to which [the
claimant’s] symptoms can reasonably be accepted as consistent with
the

objective

medical

evidence

administrative record.

and

other

evidence”

in

the

Id. (alteration in original) (quoting

20 C.F.R. § 404.1529(a)).
If a claimant offers statements about pain or other symptoms
that are not substantiated by the objective medical evidence, “the
ALJ must engage in a credibility inquiry.” Meadors, 370 F. App’x at
183

(citing

20

C.F.R.

§

404.1529(c)(3)).

In

making

this

credibility determination, the ALJ must consider seven factors:
(1) the claimant’s daily activities; (2) the location, duration,
frequency,

and

precipitating

intensity
and

of

pain

aggravating

or other

factors;

(4)

symptoms;
the

type,

(3)

any

dosage,

effectiveness, and side effects of any medications taken; (5) other
treatment received; (6) other measures taken to relieve symptoms;
and (7) any other factors concerning the individual’s functional
limitations and restrictions due to pain or other symptoms.

20

C.F.R. § 404.1529(c)(3) (i)-(vii); see also Meadors, 370 F. App’x
at 184 n.1.
The

ALJ’s

credibility

findings

“must

be

set

forth

with

sufficient specificity to permit intelligible plenary review of the
record.” Phelps v. Colvin, 20 F. Supp. 3d 392, 403 (W.D.N.Y. 2014)
(internal quotation marks and citation omitted).

Social Security

Ruling 96-7p notes that an ALJ may not simply “make a single,
10

conclusory statement that ‘the individual’s allegations have been
considered’ or that ‘the allegations are (or are not) credible.’”
The Ruling further explains that the ALJ’s decision “must contain
specific reasons for the finding on credibility, supported by the
evidence in the case record, and must be sufficiently specific to
make clear to the individual and to any subsequent reviewers the
weight the [ALJ] gave to the individual’s statements and the
reasons for that weight.”

SSR 96-7p(5).

Here, the ALJ’s credibility determination is conclusory and
insufficient.

After summarizing Plaintiff’s testimony and finding

Plaintiff had the severe impairments of discogenic cervical and
lumbar spine and cervical and lumbar radiculopathy noted at step
two, the ALJ found that Plaintiff was not “fully credible” because
“the symptoms do not cause the degree of limitation alleged” based
on the medical evidence in the record (T. 31).

The ALJ repeats

this two other times, but does not otherwise offer any specific
record evidence in support of his finding concerning Plaintiff’s
credibility (T. 31-34).
The Commissioner attempts to support the ALJ’s finding that
Plaintiff was not fully credible by referring to the ALJ’s summary
elsewhere in the decision of Plaintiff’s statements regarding her
daily activities (Docket 10 at 15-16). However, the ALJ offered no
basis

whatsoever

to

suggest

why

Plaintiff’s

daily

activities

undermined her credibility. It is well-settled that “[a] reviewing
court may not accept appellate counsel’s post hoc rationalizations
11

for agency action.”

Snell v. Apfel, 177 F.3d 128, 134 (2d Cir.

1999) (internal quotation marks omitted).
The

Commissioner

attempts

to

further

support

the

ALJ’s

decision by referring to the statement discussed above regarding a
“mild use” of “proper body mechanics” in Dr. Gosy’s treatment notes
(Docket 10 at 15).

As explained above, the vague characterization

is insufficient in explaining Plaintiff’s physical limitations at
issue here or otherwise identifying whether the characterization is
made by Dr. Gosy about Plaintiff’s limitations or made by Plaintiff
to Dr. Gosy.

Nor does the ALJ offer any reason in his decision as

to why the statement in Dr. Gosy’s treatment notes detracts from
Plaintiff’s credibility.

Moreover, as the medical record shows,

Dr. Gosy repeatedly found a limited ROM to neck due to pain,
trigger points in the lumbar territory, an absence of lumbar
retroflexion

(extension

of

0

degrees),

and

a

limitation

to

anteflexion of forty-five degrees (E.g., Tr. 414, 417, 420, 425-26,
542, 544).
Although the ALJ is not required to discuss all seven factors,
his decision must include precise reasoning supported by record
evidence

and

clearly

indicate

the

weight

the

ALJ

claimant’s statements and the reasons for that weight.

gave

to

a

See Snyder

v. Barnhart, 323 F. Supp. 2d 542, 546–47 & n.5 (S.D.N.Y. 2004)
(upholding ALJ’s credibility assessment where ALJ incorporated
internal

consistency

of

plaintiff’s

symptom

statements

and

consistency with his treatment history into his decision, even
12

though

ALJ

did

not

explicitly

discuss

all

seven

credibility

assess

Plaintiff’s

factors).
On

remand,

credibility

the

pursuant

ALJ
to

is
the

directed
factors

to

set

forth

in

SSR

96-7p,

20 C.F.R. § 404.1529, and Meadors v. Astrue, 370 F. App’x. 179,
183, 184 n.1 (2d Cir. 2010) offering precise reasoning supported by
evidence in the record in order to permit intelligible, plenary
review.
VI.

Conclusion
For the foregoing reasons, Plaintiff’s motion for judgment on

the pleadings (Docket No. 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

Commissioner’s motion for judgment on the pleadings (Docket No. 10)
is denied.

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:

November 8, 2017
Rochester, New York.

13