Labonte v. Colvin
DECISION AND ORDER. Plaintiff's Motion for Judgment on the Pleadings 9 is GRANTED, the Commissioner's Motion for Judgment on the Pleadings 10 is DENIED, and this matter is REMANDED to the Commissioner for further administrative proceedings. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 5/1/2017. (AFM)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KELLY ANN LABONTE,
Case # 16-CV-518-FPG
DECISION AND ORDER
NANCY A. BERRYHILL,1 ACTING COMMISSIONER
OF SOCIAL SECURITY,
Kelly Ann Labonte (“Labonte” 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 application for disability insurance benefits
(“DIB”) under Title II of the Act. ECF No. 1. The Court has jurisdiction over this action under
42 U.S.C. § 405(g).
Both parties have moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). ECF Nos. 9, 10. 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 December 3, 2012, Labonte protectively applied for DIB with the Social Security
Administration (“the SSA”). Tr.2 139-40. She alleged that she had been disabled since June 11,
2010 due to fibromyalgia, chronic migraines, spondylolisthesis, anxiety, and dpression. Tr. 154.
On June 25, 2014, Labonte and a vocational expert (“VE”) appeared and testified at a hearing
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.
before Administrative Law Judge David S. Lewandowski (“the ALJ”). Tr. 31-78. On January
20, 2015, the ALJ issued a decision finding that Labonte was not disabled within the meaning of
the Act. Tr. 10-20. On May 20, 2016, the Appeals Council denied Labonte’s request for review.
Tr. 1-6. Thereafter, Labonte 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 Labonte’s claim for benefits under the process described
above. At step one, the ALJ found that Labonte had not engaged in substantial gainful activity
since the alleged onset date. Tr. 12. At step two, the ALJ found that Labonte has the following
severe impairments: fibromyalgia, headaches, degenerative joint disease of the hips, and lumbar
degenerative changes. Tr. 12-13. 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. 14.
Next, the ALJ determined that Labonte retained the RFC to perform sedentary work3 with
additional limitations. Tr. 14-19. Specifically, the ALJ found that Labonte can sit for two hours
and stand for 30 minutes at a time; can sit, stand, and walk up to four hours in an eight hour
workday; needs three to four unscheduled breaks for five to ten minutes; can frequently lift less
than 10 pounds, occasionally lift up to 10 pounds, and rarely lift up to 20 pounds; can
occasionally flex, extend, and rotate her neck, and climb; and can rarely twist, stoop, and crouch.
At step four, the ALJ found that this RFC prevents Labonte from performing her past
relevant work as a substitute high school teacher. Tr. 19. At step five, the ALJ relied on the
VE’s testimony and found that Labonte can adjust to other work that exists in significant
numbers in the national economy given her RFC, age, education, and work experience. Tr. 1920. Specifically, the VE testified that Labonte could work as an information clerk, phone
“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying
articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting,
a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking
and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. § 404.1567(a).
solicitor, and order clerk. Tr. 20. Accordingly, the ALJ concluded that Labonte was not
“disabled” under the Act. Id.
Labonte argues that remand is required because the ALJ afforded “significant weight” to
the opinion of her treating chiropractor Paul Bluestein, D.C. (“Dr. Bluestein”) but failed to adopt
all of his recommended limitations into the RFC assessment or explain why certain limitations
were rejected. ECF No. 9-1, at 16-21; ECF No. 11, at 1-4. Specifically, Labonte asserts that the
ALJ improperly rejected Dr. Bluestein’s opinion that (1) she would be absent from work about
four days per month, and (2) she would frequently be off task during an eight hour workday. Id.
The SSA’s regulations require the Commissioner to “evaluate every medical opinion it
receives, regardless of its source.” Pena v. Chater, 968 F. Supp. 930, 937 (S.D.N.Y. 1997)
(citing 20 C.F.R. § 404.1527(c)), aff’d, 141 F.3d 1152 (2d Cir. 1998); see also S.S.R. 06-03p,
2006 WL 2329939, at *2-3 (S.S.A. Aug. 9, 2006) (noting that chiropractors are considered
“other sources” pursuant to the SSA’s regulations and that their opinions “are important and
should be evaluated on key issues such as impairment severity and functional effect”). The ALJ
must consider the following factors when he or she weighs a medical opinion: (1) whether the
source examined the claimant; (2) whether a treating source provided the opinion; (3) whether
the source presented relevant evidence to support the opinion; (4) whether the opinion is
consistent with the record as a whole; (5) whether a specialist rendered the opinion in his or her
area of expertise; and (6) other factors that tend to support or contradict the opinion. 20 C.F.R. §
In general, an ALJ is not required to “reconcile explicitly every conflicting shred of
medical testimony,” Dioguardi v. Comm’r of Soc. Sec., 445 F. Supp. 2d 288, 297 (W.D.N.Y.
2006) (citation omitted), and “[t]here is no absolute bar to crediting only portions of medical
source opinions.” Younes v. Colvin, No. 1:14-CV-170 (DNH/ESH), 2015 WL 1524417, at *8
(N.D.N.Y. Apr. 2, 2015). However, where the ALJ’s “RFC assessment conflicts with an opinion
from a medical source, the adjudicator must explain why the opinion was not adopted.”
Dioguardi, 445 F. Supp. 2d at 297 (quoting S.S.R. 96-8p, 1996 WL 374184, at *7 (S.S.A. July 2,
1996)). Accordingly, when an ALJ adopts only portions of a medical opinion he or she must
explain why the remaining portions were rejected. Raymer v. Colvin, No. 14-CV-6009P, 2015
WL 5032669, at *5 (W.D.N.Y. Aug. 25, 2015) (citing Younes, 2015 WL 1524417 at *8
(although an ALJ is free to credit only a portion of a medical opinion, “when doing so smacks of
‘cherry picking’ of evidence supporting a finding while rejecting contrary evidence from the
same source, an [ALJ] must have a sound reason for weighting portions of the same-source
Absences from Work
Labonte argues that the ALJ erred by rejecting Dr. Bluestein’s opinion that she would be
absent from work about four days each month. ECF No. 9-1, at 19-20; Tr. 545. The ALJ
summarized Dr. Bluestein’s opinion and afforded it “significant weight” because Dr. Bluestein
“is a treating provider and takes into consideration [Labonte’s] condition and treatment, except
for his opinion that she would be absent more than four day[s] per month as that part of the
opinion takes into consideration [Labonte]’s condition and treatment.” Tr. 18 (citing Tr. 545).
While the Court agrees with Labonte that this statement is confusing, it seems apparent that the
ALJ intended to discount Dr. Bluestein’s opinion as to absences because that part of his opinion
did not consider Labonte’s condition and treatment. See Mongeur v. Heckler, 722 F.2d 1033,
1040 (2d Cir. 1983) (“When . . . the evidence of record permits us to glean the rationale of an
ALJ’s decision, we do not require that he have mentioned every item of testimony presented to
him or have explained why he considered particular evidence unpersuasive or insufficient to lead
him to a conclusion of disability.”).
The Court can further glean the rationale behind the ALJ’s rejection of Dr. Bluestein’s
opinion as to absences based on a separate portion of the ALJ’s decision. The ALJ specifically
recognized Labonte’s testimony that “she has good days and bad days” and that she “has about
four bad days a week where she stays in the house and lies in bed.” Tr. 18. Although these
assertions would certainly make it difficult for Labonte to maintain appropriate work attendance,
the ALJ cited to medical records indicating that her migraines were well-managed with pain
medications and Botox treatments. Tr. 18 (citing Tr. 394-407, 433). It seems that the ALJ used
this evidence to discount Labonte’s statements and Dr. Bluestein’s opinion that she would be
absent from work several days each month. It was proper for the ALJ to do this, because he is
entitled to discount a medical opinion that he finds inconsistent with the record as a whole. 20
C.F.R. § 404.1527(c)(4).
Based on the ALJ’s discussion of Dr. Bluestein’s opinion (although it seems to be
misworded), acknowledgement of Labonte’s statements, and citation to medical evidence, the
Court can glean the rationale behind the ALJ’s decision. It is apparent that the ALJ rejected the
limitation that Labonte would be absent from work four times each month as unsupported and
not entitled to deference or inclusion in the RFC assessment.
Frequently Off Task
Labonte also argues that the ALJ erred by rejecting—without any explanation
whatsoever—Dr. Bluestein’s opinion that she would frequently be off task. ECF no. 9-1, at 18-
19. Labonte asserts that this error is particularly harmful because VE testimony established that
this limitation would render her unemployable. Id. The Court agrees.
Dr. Bluestein opined that Labonte’s pain and other symptoms would frequently interfere
with the attention and concentration needed to perform work tasks. Tr. 543. “Frequently” means
34 to 66% of an eight hour workday. Id. The ALJ did not mention this limitation when he
summarized Dr. Bluestein’s findings. Tr. 18. The ALJ then afforded “significant weight” to Dr.
Bluestein’s opinion except for the portion that opined that Labonte would be absent from work
about four days per month. Id. Despite the fact that it seems like the ALJ credited Dr.
Bluestein’s entire opinion, except the portion regarding absences, the RFC assessment lacks any
limitation relating to Labonte being off task during the workday. Tr. 14. The ALJ did not
explain why this portion of Dr. Bluestein’s opinion was unpersuasive, and the ALJ’s reasoning
on this issue is not apparent from any other part of his decision.
The ALJ’s failure to explain why he rejected this portion of Dr. Bluestein’s opinion is
especially harmful because the VE specifically testified that if an individual was occasionally off
task due to pain or other symptoms, with “occasionally” being defined as up to 33% of the time,
then he or should would be unable to maintain employment. Tr. 75-76; see Dioguardi, 445 F.
Supp. 2d at 298 (noting that the ALJ’s “failure to reconcile the RFC assessment with medical
source statements was error, and based upon the testimony given by the vocational expert, the
failure was not harmless”). Dr. Bluestein opined that Labonte would be off task “frequently,” or
34 to 66% of the time, which would likely preclude her ability to maintain employment. The
ALJ erred when he rejected this opinion, which is very favorable to Labonte’s claim for
disability, without any explanation. Therefore, remand is required. See Raymer, 2015 WL
5032669, at *6 (“Remand is especially appropriate where, as here, the ALJ gave [the doctor]’s
opinion ‘considerable weight,’ but failed to provide an explanation for not incorporating into the
RFC some of the limitations identified in that opinion—particularly those that would lead to a
finding of disability.”); Searles v. Astrue, No. 09-CV-6117, 2010 WL 2998676, at *4 (W.D.N.Y.
July 27, 2010) (remanding where “the ALJ failed to explain why he ignored portions of an
opinion for which he granted ‘significant weight.’”).
Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 9) is GRANTED, the
Commissioner’s Motion for Judgment on the Pleadings (ECF No. 10) 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: May 1, 2017
Rochester, New York
HON. FRANK P. GERACI, JR.
United States District Court
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