Grabowski v. Colvin
Filing
21
DECISION AND ORDER granting 9 Plaintiff's Motion for Judgment on the Pleadings and the matter is remanded for further proceedings; denying 16 Defendant's Motion for Judgment on the Pleadings. Clerk of Court directed to close the case. Signed by Hon. Leslie G. Foschio on 10/17/2018. (SDW)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
DIANE R. GRABOWSKI,
v.
DECISION
and
ORDER
NANCY A. BERRYHILL,1 Commissioner of
Social Security,
16-CV-00592F
(consent)
Plaintiff,
Defendant.
______________________________________
APPEARANCES:
LEWIS L. SCHWARTZ, PLLC
LEWIS L. SCHWARTZ, of Counsel
Attorney for Plaintiff
1231 Delaware Avenue
Suite 103
Buffalo, New York 14209
JAMES P. KENNEDY, JR.
UNITED STATES ATTORNEY
Attorney for Defendant
Federal Centre
138 Delaware Avenue
Buffalo, New York 14202
and
DANIELLA M. CALENZO and
SUSAN JANE REISS,
Special Assistant United States Attorneys, of Counsel
United States Attorney’s Office
c/o Social Security Administration
Office of General Counsel
26 Federal Plaza – Room 3904
New York, New York 10278
1
Nancy A. Berryhill became Acting Commissioner of the Social Security Administration on January 23,
2017. Pursuant to Fed.R.Civ.P. 25(d), Berryhill is substituted for Carolyn W. Colvin as Defendant in this
case. No further action is required to continue this suit by reason of sentence one of 42 U.S.C. § 405(g).
JURISDICTION
On June 19, 2018, the parties to this action, consented pursuant to 28 U.S.C. §
636(c) to proceed before the undersigned. (Dkt. 20). The matter is presently before the
court on motions for judgment on the pleadings filed by Plaintiff on January 13, 2017
(Dkt. 9), and by Defendant on May 30, 2017 (Dkt. 16).
BACKGROUND
Plaintiff Diane R. Grabowski (“Plaintiff”), brings this action under Title II of the
Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking judicial review of the
Commissioner of Social Security’s final decision denying Plaintiff’s application filed with
the Social Security Administration (“SSA”), on January 2, 2013, for Disability Insurance
Benefits under Title II of the Act (“SSDI” or “disability benefits”). Plaintiff alleges she
became disabled on September 13, 2009, based on rheumatoid arthritis, degenerated
discs, and vascular disease. AR2 at 194. Plaintiff’s application was denied May 13,
2013, AR at 96-99, and at Plaintiff’s timely request, on February 2, 2015, a hearing was
held before administrative law judge Stephen Cordovani (“ALJ Cordovani”). AR at 3986, 102-03. Appearing and testifying at the hearing were Plaintiff, with legal
representation, and vocational expert (“VE”) Gerard Alberigi (“VE Alberigi”).
On April 13, 2015, the ALJ issued a decision denying Plaintiff’s claim, AR at 8-24,
which Plaintiff appealed to the Appeals Council, AR at 30-31, 33-34, with Lewis L.
Schwartz, Esq. appointed to represent Plaintiff on her administrative appeal. AR at 3235. On July 6, 2016, the Appeals Council issued a decision denying Plaintiff’s request
2
References to “AR” are to the page of the Administrative Record electronically filed by Defendant on
October 4, 2016 (Dkt. 6).
2
for review, rendering the ALJ’s decision the Commissioner’s final decision. AR at 1-7.
On July 19, 2016, Plaintiff commenced the instant action seeking judicial review of the
ALJ’s April 13, 2015 decision (“the ALJ’s decision”).
On January 13, 2017, Plaintiff filed a motion for judgment on the pleadings (Dkt.
9) (“Plaintiffs’ Motion”), attaching the Memorandum of Law in Support of Plaintiff’s
Motion for Judgment on the Pleadings (Dkt. 9-1) (“Plaintiff’s Memorandum”), and
Plaintiff’s Appendix of Missing Evidence (Dkt. 9-2) (“Plaintiff’s Appendix”). On May 30,
2017, Defendant filed a motion for judgment on the pleadings (Dkt. 16) (“Defendant’s
Motion”), attaching the Commissioner’s Brief in Support of the Commissioner’s Motion
for Judgment on the Pleadings and in Response to Plaintiff’s Brief Pursuant to the Local
Standing Order on Social Security Cases (Dkt. 16-1) (“Defendant’s Memorandum”). In
further support of Plaintiff’s Motion, Plaintiff filed on July 20, 2017, Plaintiff’s Reply (Dkt.
19) (“Plaintiff’s Reply”). Oral argument was deemed unnecessary.
Based on the foregoing, Plaintiff’s Motion is GRANTED and the matter is
REMANDED for further proceedings in accordance with this Decision and Order;
Defendant’s Motion is DENIED.
FACTS3
Plaintiff Diane R. Grabowski (“Plaintiff” or “Grabowski”), born February 12, 1954,
was 55 years old as of September 13, 2009, her alleged disability onset date (“DOD”),
and 59 years old as of September 30, 2013, her date last insured for purposes of
obtaining SSDI benefits. Plaintiff, who lives in a house with her husband, AR at 45,
3
In the interest of judicial economy, recitation of the Facts is limited to only those facts necessary for
determining the pending motions for judgment on the pleadings.
3
graduated from high school, AR at 195, and has past relevant work experience working
for Office Depot first as a cashier and then a bookkeeper, and most recently as an office
clerk at a real estate company, AR at 45-46, 71-72, work which, as performed by
Plaintiff, qualifies as unskilled to semi-skilled, and sedentary to medium exertion. AR at
71-76.
The ALJ found Plaintiff has the severe impairments of discogenic (damaged
vertebral discs) and degenerative disc disease of the lumbar spine, vascular disease,
and rheumatoid arthritis, AR at 13-15, but that none of these impairments, either alone
or in combination with the others, posed more than a minimal effect on Plaintiff’s ability
to work, AR at 15-16, and that Plaintiff retains the residual functional capacity (“RFC”) to
perform sedentary work except for working arounds such hazards as unprotected
heights, moving mechanical parts, and flammable liquids, and further limited to
occasional stair climbing and balancing, no kneeling, crouching, crawling, or climbing of
ladders, ropes or scaffolds, no exposure to extreme heat, extreme cold, or vibration,
and the ability to sit and stand at will, AR at 16-23, which restrictions would not prevent
Plaintiff from performing her past relevant work (“PRW”), as a bookkeeper, AR at 23-24,
such that Plaintiff is not disabled. AR at 24. While Plaintiff’s administrative case was
pending before the Appeals Council, Plaintiff submitted additional medical exhibits
including opinions from Drs. Mallela and Anain, which have yet to be added to the
exhibits within Plaintiff’s Administrative Record. See Dkt. 9-2.
Lumbar Disease and Rheumatoid Arthritis
As relevant to the pending motions, in 1999, Plaintiff underwent right-side carpal
tunnel release surgery, AR at 276, and was diagnosed with degenerative joint disease
4
after injuring her back, id. at 271, 358, 366, for which Plaintiff has had several courses
of physical therapy, massage therapy, and chiropractic care, id. at 343-63, 404-07, 73545, 748-62, as well as aqua therapy, id. at 366, receiving regular medical treatment for
her back from Frederick B. McAdam, M.D. (“Dr. McAdam”), and physician assistant
Paul R. Olizarowicz (“PA Olizarowicz”). Id. at 379-544, 650-610. Numerous lumbar
facet joint injections by Dr. McAdam and PA Olizarowicz provided significant, but
temporary relief of Plaintiff’s back pain. Id. at 360, 516, 523, 527-28, 529, 533-34, 535,
539-40, 541, 610. Magnetic resonance imaging (“MRI”) taken November 29, 2007, and
May 26, 2009, showed degenerative changes of Plaintiff’s lumbar spine, including mild
retrolisthesis at L1-2, disc bulging at L1-2, L3-4, and L4-5, and disc herniation and mild
central canal stenosis at L3-4. AR at 408-09, 562. April 26, 2010 EMG and nerve
conduction studies of Plaintiff’s lower extremities performed by Michael S. Cicchetti,
M.D. (“Dr. Cicchetti”), were negative. AR at 423. On October 14, 2010, diagnostic
musculoskeletal ultrasound-guided injection for left shoulder pain revealed a bursalsided partial thickness tear of the left supraspinatus tendon, and left subacromial
bursitis. AR at 438-39. On November 11, 2010, an MRI of Plaintiff’s left shoulder on
showed AC joint degenerative changes, but no rotator cuff tear. Left knee X-rays taken
September 17, 2012, showed mild soft tissue swelling anterior to the patella,
nonspecific but possibly caused by soft tissue contusion. AR at 335. On October 10,
2012, Rajitha Mallela, M.D. (“Dr. Mallela”), diagnosed rheumatoid arthritis based on
blood work showing significant positive rheumatoid factor and CCP antibody, a
condition for which Dr. Mallela has regularly treated Plaintiff. AR at 625-67. Bilateral
hand, foot and shoulder X-rays taken October 16, 2012, revealed degenerative
5
changes. AR at 336-39. On October 17, November 5, December 12, and 27, 2017,
January 14, March 18, and June 19, 2013, Dr. Mallela’s subsequent neurological
examinations were normal and examinations of Plaintiff’s joints were largely
unremarkable except for some mild ulnar deviation of the hands. On August 19, 2015,
Dr. Mallela completed a Manipulative Limitations Medical Source Statement, reporting
that as of September 30, 2013, Plaintiff exhibited tenderness, pain, redness, soft tissue
swelling, limitation of motion, joint warmth, joint deformity, and reduced grip strength in
her upper extremities, had pain/paresthesia in her left hand attributed to carpal tunnel,
was limited to lifting one pound with either arm, and during an 8-hour work day, and
additional limits to the percentage of time performing certain functions including 40 %
for grasping, turning, and twisting objects, 30 % for fine finger manipulations, 50 % for
reaching in front of her body, and 100 % for reaching overhead. 4
Vascular Disease
On February 1, 2008, Plaintiff commenced endovascular treatment for varicose
veins in her lower extremities with Paul M. Anain, M.D. (“Dr. Anain”), a vascular
surgeon, who diagnosed severe greater saphenous reflux on both lower extremities, for
which he performed greater saphenous vein radiofrequency ablation surgery on the left
on March 26, 2008, and on the right on May 21, 2008, subsequent to which Plaintiff
commenced regular sclerotherapy. AR at 704-28. On October 17, 2008, Dr. Anain
reported Plaintiff “is doing very well and is pleased with her left lower extremity
sclerotherapy,” and commenced similar treatment on Plaintiff’s right lower extremity.
AR at 725. On February 27, 2009, Dr. Anain reported that Plaintiff was “doing well with
4
Although Dr. Mallela’s opinion has yet to be made part of the Administrative Record, Plaintiff’s filed a
copy for the court’s review. See Dkt. 9-2 at 2-3.
6
a history of variscosities in the right leg and the old sites are well healed. . . . No
significant variscosities remain.” AR at 726-28.
On January 11, 2013, Plaintiff returned to Dr. Anain with complaints of gradually
worsening bilateral swelling of her lower extremities, and a venous Doppler study was
positive for venous insufficiency. AR at 689-90. On May 31, 2013, Plaintiff reported
despite daily use of knee-high compression stockings, Plaintiff’s feet were swollen and
purple with severe leg pains, and only elevating her legs provided relief. Id. at 691. Dr.
Anain’s examination showed edema of bilateral ankles, and diffuse, prominent varicose
veins in the bilateral calves. Id. Dr. Anain noted bulging, tender varicose veins on
Plaintiff’s left leg on December 16, 2013, id. at 695, and on Plaintiff’s right leg on
October 10, 2014. Id. at 699. In a letter dated August 3, 2015, Dr. Anain reported
treating Plaintiff for seven years for leg pain and severe varicose veins with swelling,
opining Plaintiff can stand or sit for no longer than 30-60 minutes.5
DISCUSSION
1.
Standard and Scope of Judicial Review
A claimant is “disabled” within the meaning of the Act and entitled to disability
benefits when she is unable “to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which . . . has lasted or can
be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§
416(i)(1); 1382c(a)(3)(A). A district court may set aside the Commissioner’s
determination that a claimant is not disabled if the factual findings are not supported by
5
Plaintiff filed a copy of Dr. Anain’s opinion, see Dkt. 9-2 at 4, which has yet to be made part of the
Administrative Record.
7
substantial evidence, or if the decision is based on legal error. 42 U.S.C. §§ 405(g),
1383(c)(3); Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). In
reviewing a final decision of the SSA, a district 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) (internal quotation marks and citation omitted). “Substantial evidence is more
than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. It is not, however, the district court’s
function to make a de novo determination as to whether the claimant is disabled; rather,
“the reviewing court is required to examine the entire record, including contradictory
evidence and evidence from which conflicting inferences can be drawn” to determine
whether the SSA’s findings are supported by substantial evidence. Id. “Congress has
instructed . . . that the factual findings of the Secretary,6 if supported by substantial
evidence, shall be conclusive.” Rutherford v. Schweiker, 685 F.2d60, 62 (2d Cir. 1982).
2.
Disability Determination
The applicable regulations set forth a five-step analysis the Commissioner must
follow in determining eligibility for disability benefits. 20 C.F.R. §§ 404.1520 and
416.920. See Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986); Berry v. Schweiker,
675 F.2d 464 (2d Cir. 1982). If the claimant meets the criteria at any of the five steps,
the inquiry ceases and the claimant is not eligible for disability benefits. 20 C.F.R. §§
404.1520 and 416.920. The first step is to determine whether the applicant is engaged
6
Pursuant to the Social Security Independence and Program Improvements Act of 1994, the function of
the Secretary of Health and Human Services in Social Security cases was transferred to the
Commissioner of Social Security, effective March 31, 1995.
8
in substantial gainful activity during the period for which the benefits are claimed. 20
C.F.R. §§ 404.1520(b) and 416.920(b). The second step is whether the applicant has a
severe impairment which significantly limits the physical or mental ability to do basic
work activities, as defined in the relevant regulations. 20 C.F.R. §§ 404.1520(c) and
416.920(c). Third, if there is an impairment and the impairment, or its equivalent, is
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the regulations (“Appendix 1” or
“the Listings”), and meets the duration requirement,7 there is a presumption of inability
to perform substantial gainful activity, and the claimant is deemed disabled, regardless
of age, education, or work experience. 42 U.S.C. §§ 423(d)(1)(A) and 1382a(c)(3)(A);
20 C.F.R. §§ 404.1520(d) and 416.920(d). As a fourth step, however, if the impairment
or its equivalent is not listed in Appendix 1, the Commissioner must then consider the
applicant’s “residual functional capacity,” which is the ability to perform physical or
mental work activities on a sustained basis, notwithstanding the limitations posed by the
applicant’s collective impairments, see 20 C.F.R. 404.1520(e)-(f), and 416.920(e)-(f),
and the demands of any past relevant work (“PRW”). 20 C.F.R. §§ 404.1520(e) and
416.920(e). If the applicant remains capable of performing PRW, disability benefits will
be denied, id., but if the applicant is unable to perform PRW relevant work, the
Commissioner, at the fifth step, must consider whether, given the applicant’s age,
education, and past work experience, the applicant “retains a residual functional
capacity to perform alternative substantial gainful work which exists in the national
economy.” Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation marks and
citation omitted); 20 C.F.R. §§ 404.1560(c) and 416.960(c). The burden of proof is on
7
The duration requirement mandates the impairment must last or be expected to last for at least a
continuous twelve-month period. 20 C.F.R. §§ 404.1509 and 416.909.
9
the applicant for the first four steps, with the Commissioner bearing the burden of proof
on the final step. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4); Burgess v. Astrue,
537 F.3d 117, 128 (2d Cir. 2008).
In the instant case, the ALJ found Plaintiff meets the Act’s insured status
requirement through September 30, 2013, AR at 13, Plaintiff did not engage in
substantial gainful activity since September 13, 2009, her alleged disability onset date,
id., Plaintiff suffers from the severe impairment of discogenic and degenerative disease
of the lumbar spine, vascular disease, and rheumatoid arthritis, id., at 13-15, that
Plaintiff’s medically determinable impairments of hypertension, diabetes mellitus,
headaches, anxiety and depression do not have more than a minimal impact on
Plaintiff’s ability to do work activities, id., at 15-16, that Plaintiff does not have an
impairment or combination of impairments meeting or medically equal to the severity of
any listed impairment in Appendix 1, id. at 17, and that Plaintiff retains the RFC to
perform sedentary work, including her PRW as a bookkeeper, id. at 23-24, such that
Plaintiff is not disabled as defined under the Act. Id. at 24. Plaintiff does not contest the
ALJ’s findings with regard to the first, second and third steps of the five-step analysis,
but argues the record is devoid of substantial evidence supporting the ALJ’s
determination that Plaintiff, despite numerous physical and mental impairments, retains
the RFC for a limited range of sedentary work, including her PRW as a bookkeeper.
Plaintiff’s Memorandum at 17-27.
Because no challenge is raised to the first three steps of the five-part analysis,
and the ALJ did not reach the fifth step, the court does not address them, but limits its
review to only the fourth step, i.e., whether substantial evidence in the record supports
10
the ALJ’s determinations that Plaintiff retains the RFC to perform sedentary work, as
limited by her need to alternate between standing and sitting at will, avoid working at
unprotected heights, around moving machinery, and around flammable liquids, only
occasional stair climbing and balancing, no kneeling, crouching, crawling, or climbing of
ladders, ropes, or scaffolds, and no exposure to extreme heat or cold, or vibration, as
well as that Plaintiff’s RFC does not prevent her from performing her PRW as a
bookkeeper.
The fourth step of the five-part analysis is to consider the applicant’s RFC, i.e.,
the ability to perform physical or mental work activities on a sustained basis despite
limitations posed by the applicant’s collective impairments, see 20 C.F.R. §§
404.1520(e)-(f), and 416.920(e)-(f), and the demands of any PRW, defined as work as
the claimant actually performed it or as it generally is performed in the national
economy, within the last 15 years or within 15 years prior to the date disability must be
established. 20 C.F.R. §§ 404.1560(b)(1), and 416.960(b)(1). In the instant case,
Plaintiff argues the ALJ’s determination regarding her RFC is not supported by
substantial evidence because the opinion of Plaintiff’s treating rheumatologist, Dr.
Mallela, submitted to the Appeals Council, was not evaluated, Plaintiff’s Memorandum
at 17-20; Plaintiff’s Reply at 4-7, the ALJ failed to develop the record by obtaining an
RFC opinion from a treating physician, Plaintiff’s Memorandum at 20-24; Plaintiff’s
Reply at 7-9, records from another individual are included in Plaintiff’s medical records,
Plaintiff’s Memorandum at 24; Plaintiff’s Reply at 9-10, and Plaintiff’s PRW as a
bookkeeper should have been evaluated as a composite job. Plaintiff’s Memorandum
at 25-27; Plaintiff’s Reply at 10-11. In opposition, Defendant argues Dr. Mallela’s
11
opinion need not be considered because it is neither material nor new, Defendant’s
Memorandum at 18-26, the ALJ was not required to develop the record by obtaining an
RFC from a treating source, id. at 26-29, and the ALJ properly found Plaintiff could
perform her PRW as a bookkeeper. Id. at 29-30. A review of the Administrative
Record establishes the matter must be remanded because the ALJ improperly
assessed Plaintiff’s RFC based on bare medical findings and failed to develop the
record in assessing that Plaintiff retained the RFC to perform her PRW, as well as failed
to properly evaluate Plaintiff’s PRW as a composite job.
It is undisputed that the Administrative Record is without any RFC assessment
by any treating or consultative medical source. In such situations, the ALJ is not
permitted to substitute his lay evaluation as to a claimant’s RFC, but has an affirmative
duty to develop the record, unless the record “contains sufficient evidence from which
an ALJ can assess the petitioner’s residual functional capacity.” Tankisi v.
Commissioner of Social Security, 521 Fed.Appx. 29, at * 4 (2d Cir. Apr. 2, 2013) (citing
20 C.F.R. §§ 404.1513(b)(6), 416.913(b)(6) (providing the Commissioner “will request a
medical source statement” containing an opinion regarding the claimant’s residual
capacity)). Significantly, in Tankisi, the Second Circuit held the ALJ did not err in
assessing a claimant’s RFC despite the absence of an RFC in the record because,
unlike in the instant case, the extensive medical record did include an assessment of
the claimant’s limitations from a treating physician, which supported the ALJ’s RFC
assessment. Id. at ** 4-5. In particular, “[a]lthough residual functional capacity
determinations are reserved for the Commissioner, the administrative law judges are
unqualified to assess residual functional capacity on the basis of bare medical findings
12
in instances where there is a relatively high degree of impairment.” Palascak v. Colvin,
2014 WL 1920510, at * 8 (W.D.N.Y. May 14, 2014) (internal citations and quotation
marks omitted).
In the instant case, the Administrative Record contains voluminous medical
records, yet is devoid of any assessment of Plaintiff’s limitations posed by her various
impairments. Further, it is undisputed that Plaintiff suffers from discogenic and
degenerative disease of the lumbar spine, vascular disease, and rheumatoid arthritis,
impairments the ALJ found are severe. AR at 13-15. Further, that the ALJ considered
Plaintiff capable of sedentary work, the further restrictions, including the ability to
alternate between standing and sitting at will, avoid working at unprotected heights,
moving machinery, and flammable liquids, only occasional stair climbing and balancing,
no kneeling, crouching, crawling, or climbing of ladders, ropes, or scaffolds, and no
exposure to extreme heat or cold, or vibration, establishes the ALJ found Plaintiff has “a
relatively high degree of impairment.” Palascak, 2014 WL 1920510, at * 8. Because
the ALJ’s RFC assessment is without evidentiary support, despite Plaintiff’s “relatively
high degree of impairment,” the matter should be remanded to the ALJ to obtain an
assessment from a medical source of the limitations to Plaintiff’s ability to work based
on her impairments.
With regard to Plaintiff’s challenge that Defendant erred in failing to address the
opinion of Dr. Mallela, Plaintiff’s treating rheumatologist, that was submitted to the
Appeals Council, Plaintiff’s Memorandum at 17-20; Plaintiff’s Reply at 4-7, the Appeals
Council stated the opinion did not provide any basis for changing the ALJ’s decision
because it pertained to a period of time after September 30, 2013, Plaintiff’s date last
13
insured. AR at 2. Defendant maintains the Appeals Council was correct because Dr.
Mallela’s opinion was neither new nor material, and does not relate to the period before
the date of the ALJ’s decision. Defendant’s Memorandum at 18-26. This is erroneous.
The relevant regulations provide that the Appeals Council must consider
evidence submitted after the ALJ’s decision, while the appeal is pending, so long as the
evidence is new, material, and related to the period on or before the ALJ’s decision. 20
C.F.R. § 404.970(a)(5). Here, although Dr. Mallela’s opinion is dated August 19, 2015,
almost two years after Plaintiff’s date last insured of September 30, 2013, the opinion
specifically states that Dr. Mallela found Plaintiff limited as provided within the opinion
“as of at least September 30, 2013,” Dkt. 9-2 at 3 (underlining added), which time period
is prior to the ALJ’s April 13, 2015 decision. Accordingly, Dr. Mallela’s opinion pertains
to the relevant time period. Dr. Mallela’s opinion is new insofar as there is no other
evidence in the record addressing the degree to which Plaintiff’s impairments limit use
of her upper extremities, specifically, Plaintiff’s shoulders and hands. Further, the
opinion evidence is material because it places more than minimal limitations on
Plaintiff’s use of her upper extremities. Defendant’s argument that Dr. Mallela attributes
such limitations to recently diagnosed carpal tunnel syndrome, Defendant’s
Memorandum at 21, ignores that the reference to carpal tunnel syndrome is to the
cause of Plaintiff’s “pain/paresthesia” in her left hand, Dkt, 9-2 at 2, and not to the other
signs and symptoms bearing on Plaintiff’s RFC noted by Dr. Mallela, including
tenderness, redness, soft tissue swelling, limitation of motion, joint warmth, joint
deformity, and reduced grip strength. Id. It is also possible Dr. Mallela, after treating
Plaintiff for rheumatoid arthritis since 2012, later amended her diagnosis to reflect left-
14
side carpal tunnel syndrome, which was not previously diagnosed. Such confusion
creates a gap in the record which the ALJ is obligated to close by seeking additional
information, especially regarding how Plaintiff’s impairments limit her ability to work.
Rosa, 168 F.3d at 79 (“where there are deficiencies in the record, an ALJ is under an
affirmative obligation to develop a claimant’s medical history ‘even when the claimant is
represented by counsel’” (quoting Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996))).
Moreover, Dr. Mallela has been Plaintiff’s treating rheumatologist since 2012,
and the Act requires ALJs to grant significant weight to treating physicians’ opinions
supported by medical evidence in the record and requires that a treating physician
opinion be granted “controlling weight” when the opinion is “well supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
other substantial evidence in the case record.” 20 C.F.R. § 404.1527(c)(2). “An ALJ
who refuses to accord controlling weight to the medical opinion of a treating physician
must consider various ‘factors’ to determine how much weight to give the opinion,”
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004), including the frequency of
examination, length, nature, and extent of the treating relationship, evidence supporting
and contrasting the opinion, whether the opinion is consistent with the record as a
whole, whether the opinion is from a specialist, and any other factors supporting or
contradicting the opinion. Gunter v. Commissioner of Social Security, 361 Fed.Appx.
197, 199 (2d Cir. Jan. 15, 2010). The ALJ also should “give good reasons” for the
weight given a treating physician’s opinion. Halloran, 362 F.3d at 32 (quoting 20 C.F.R.
§ 404.1527(c)(2)). Further, the Appeals Council is obligated for apply the same rules in
considering treating physician opinion evidence. Beck v. Colvin, 2013 WL 5533571, at *
15
8 (W.D.N.Y. Oct. 7, 2013) (citing 20 C.F.R. § 416.927(e)(3)). Significantly, here, in light
of Plaintiff’s age, education, and work experience, accepting Dr. Mallela’s limitations,
i.e., limiting Plaintiff’s use of her upper extremities, would render Plaintiff unable to
perform her PRW as a bookkeeper, as well as any similar job to which Plaintiff’s
bookkeeper job skills are transferrable, and require a finding that Plaintiff is disabled.
See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 201.06 (providing a claimant of advanced
age (over 55 years of age), with a high school education, whose previous semi-skilled
work skills are not transferrable is disabled). Accordingly, upon remand, the ALJ is to
consider Dr. Mallela’s opinion and explain what weight it is accorded and the reasons
for such weight.
The ALJ also erred in determining Plaintiff was capable of a limited range of
sedentary work and, thus, could perform her PRW as a bookkeeper because, as
described by Plaintiff, the job was a composite of a bookkeeper and cashier. AR at 73
(explaining that when Plaintiff worked at Office Depot, she originally was hired as a
cashier, later promoted to the bookkeeper job, but still called on to work as a cashier
when needed). Pursuant to Social Security Ruling (“SSR”) 82-61, jobs with “significant
elements of two or more occupations . . . have no counterpart in the DOT,”8 and, as
such, the VE should have been asked whether Plaintiff could have performed all
elements of the bookkeeper job as Plaintiff performed it, which did not occur here.
Should it be determined, upon remand, that Plaintiff did not, as of September 30, 2013,
have the RFC to perform her PRW as a bookkeeper, then the ALJ must, at the fifth step
of the analysis, determine whether, given Plaintiff’s age, education, and past work
8
DOT is an acronym for the United States Department of Labor’s publication “Dictionary of Occupational
Titles.”
16
experience, she retains the RFC to “perform alternative substantial gainful work which
exists in the national economy.” Rosa, 168 F.3d at 77 (quotation marks and citation
omitted); 20 C.F.R. §§ 404.1560(c) and 416.960(c).
Insofar as Plaintiff asserts that Dr. Mallela’s opinion, despite being submitted to
the Appeals Council following the ALJ’s decision, but prior to the Appeals’ Council’s
decision, has not been made part of the Administrative Record as required by 20 C.F.R.
§ 404.1527(c), Plaintiff’s Memorandum at 18-19, Defendant does not deny Dr. Mallela’s
opinion is missing from the Administrative Record, but maintains a corrected certified
Administrative Record will be filed as soon as it can be assembled. Defendant’s
Memorandum at 18 n. 5. Nevertheless, because Dr. Mallela’s opinion remains missing
from the Administrative Record, upon remand the Defendant is ORDERED to assemble
a corrected certified copy of the Administrative Record containing Dr. Mallela’s opinion.
The court further addresses Plaintiff’s argument that the inclusion in the
Administrative Record of medical reports relating to another individual’s claim may have
improperly factored in Defendant’s decision denying her claim. Plaintiff’s Memorandum
at 24; Plaintiff’s Reply at 9-10. Defendant does not deny the Administrative Record
includes some medical records pertaining to an individual other than Plaintiff, but
maintains it is implausible that such medical reports, particularly a chest X-ray that predates Plaintiff’s alleged onset date by six years,9 would have influenced Defendant’s
determination that Plaintiff is not disabled, especially given the ALJ does not reference
such reports. Defendant’s Memorandum at 28-29. Defendant is ORDERED, upon
9
The court notes that other than the chest X-ray findings, these records, albeit erroneously filed in the
Administrative Record, are largely illegible.
17
remand, to remove from the Administrative Record all medical reports that do not
pertain to Plaintiff, including those found at AR 259-63, 269-70.
Mindful of the often painfully slow process by which disability determinations are
made, the Second Circuit instructs that some evaluation of relative hardship to a
claimant of further delay should be considered, Butts v. Barnhart, 388 F.3d 377, 387 (2d
Cir. 2004), district courts may therefore “when appropriate set a time limit for action by
the administrative tribunal, and this is often done.” Zambrano v. Califano, 651 F.2d 842,
844 (2d Cir. 1981) (citing cases). See also Michaels v. Colvin, 621 Fed.Appx. 35, 41
(2d Cir. Aug. 14, 2015) (directing upon remand for further fact-finding at step five that
given eight years had elapsed since the plaintiff filed for disability benefits, the further
administrative proceedings were to be completed within 120 days, with the
Commissioner’s final decision to be rendered within 60 days of any appeal by the
plaintiff from the ALJ’s decision, and citing Butts v. Barnhart, 388 F.3d 377, 387 (2d Cir.
2004) (imposing time limit on remand where “the past delay is of such magnitude –
years – that a time limit is imperative”) as amended on reh’g in part, 416 F.3d 101, 106
(2d Cir. 2005) (providing that if deadlines for further administrative proceedings at the
fifth step, on which the Commissioner bears the burden of proof, are not met, “a
calculation of benefits owed [plaintiff] must be made immediately)). In this case, Plaintiff
filed her application for disability on January 2, 2013, AR at 172-78, testified at the
administrative hearing on February 2, 2015, AR at 39-86, and received a final decision
of not disabled on April 13, 2015. Id. at 8-29. Upon reviewing the ALJ’s determination,
the Appeals Council denied Plaintiff's request for review on July 6, 2016. AR at 1-7. As
it has been more than five years since Plaintiff first filed her application for disability,
18
further delay for remand is a hardship this Plaintiff should not bear. Remand should
therefore also require the ALJ to complete all administrative proceedings at the fourth
and, if necessary, fifth steps related to Plaintiff's claim within 120 days of this Decision
and Order, with a final decision to be rendered by the Commissioner within 60 days of
any appeal of the ALJ’s decision filed by Plaintiff. Michaels, 621 Fed.Appx. at 41. If,
upon remand, it is determined Plaintiff is unable to perform her PRW, requiring
proceeding to the fifth step, should these deadlines not be met, “‘a calculation of
benefits owed [Plaintiff] must be made immediately.’” Michaels, 621 Fed.Appx. at 41
(quoting Butts, 416 F.3d at 106).
CONCLUSION
Based on the foregoing, Plaintiff’s Motion (Dkt. 9) is GRANTED and the matter is
REMANDED for further proceedings in accordance with this Decision and Order;
Defendant’s Motion (Dkt. 16) is DENIED.
SO ORDERED.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:
October 17, 2018
Buffalo, New York
19
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