Abramaitys v. Colvin

Filing 20

DECISION AND ORDER granting 8 Motion for Judgment on the Pleadings; granting 14 Motion to Strike; denying 16 Motion for Judgment on the Pleadings. Signed by Hon. Michael A. Telesca on 10/06/2017.(CDH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JANE M. ABRAMAITYS,
Plaintiff,

1:16-cv-00660 (MAT)
DECISION AND
ORDER

-vsNANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

I.

Introduction
Represented

by

counsel,

Jane M. Abramaitys (“plaintiff”)

brings this action pursuant to Title II of the Social Security Act
(“the Act”), seeking review of the final decision of the Acting
Commissioner

of

Social

Security1

(“defendant”

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.

to

For the

reasons set forth below, plaintiff’s motion is granted to the
extent that the matter is remanded for further administrative
proceedings and defendant’s motion is denied.

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.

II.

Procedural History
Plaintiff filed an application for DIB in April 2013, alleging

disability
anxiety

due

to

disorder,

major

depressive

fibromyalgia,

disorder,

xanax

panic

dependency,

disorder,

and

thyroid

disorder, with an alleged onset date of December 31, 2008. Amended
Administrative Transcript (“T.”) 60-61.2

Plaintiff’s application

was denied on August 9, 2013, T. 71-74, and she timely requested a
hearing before an administrative law judge (“ALJ”). T. 77-78. ALJ
Donald T. McDougall held a hearing On February 10, 2015.
40.

T. 411-

On March 31, 2015, ALJ McDougall issued a decision in which he

found plaintiff was not disabled as defined in the Act.

T. 10-28.

The Appeals Council denied plaintiff’s request for review on May
24, 2016.

T. 1-6.

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, 2013.
one

of

the

five-step

sequential

evaluation,

T. 15.
see

20

At step
C.F.R.

§ 404.1520, the ALJ found that plaintiff had not engaged in
2

As discussed below, the initially filed Administrative Transcript in this
matter inadvertently contained materials not related to plaintiff, and is to be
stricken from the docket. Accordingly, the Court’s references are to the Amended
Administrative Transcript (Docket Nos. 15, 15-1).

2

substantial gainful activity since December 31, 2008, the alleged
onset date.

Id.

At step two, the ALJ found that plaintiff had the

severe impairments of degenerative disc disease, depression, and
anxiety.

T. 15-17.

At step three, the ALJ found that plaintiff

did not have an impairment or combination of impairments that met
or medically equaled a listed impairment.

T. 17-18. Before

proceeding to step four, the ALJ found that plaintiff retained the
residual functional capacity (“RFC”) to perform light work as
defined in 20 CFR 404.1567(b).
following

limitations:

1)

T. 18-23.

plaintiff

had

The ALJ added the
to

change

positions

briefly, for one to two minutes, at least every one-half hour; 2)
plaintiff could not do any overhead work; 3) plaintiff should not
be

required

to

bend

more

than

45

degrees

and

no

more

than

occasional bending to that level; 4) plaintiff could not kneel or
crawl; 5) plaintiff should have no more than frequent contact with
the general public, co-workers, or supervisors (in person or by
phone); 6) plaintiff should not be in a fast-paced, assembly line,
or other quota work; 7) plaintiff can balance, stoop, crouch, and
climb stairs or ramps no more than occasionally; and 8) plaintiff
should not work near heights or dangerous, moving machinery.

Id.

At step four, the ALJ found that plaintiff was unable to perform
any past relevant work.

T. 23.

At step five, the ALJ found,

considering plaintiff’s age, education, work experience, and RFC,
there are jobs that exist in significant numbers in the national

3

economy that plaintiff can perform.

T. 23-25.

ALJ found that plaintiff was not disabled.
IV.

Accordingly, the

T. 25.

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.

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
Here, plaintiff makes the following arguments in support of

her motion for judgment on the pleadings: 1) the ALJ failed to
properly consider medical listing 1.04A at step three, 2) the ALJ
failed to develop the record by obtaining an RFC opinion from a
treating physician, and 3) the ALJ’s step five finding is not based
on

substantial

evidence.3

For

the

reasons

set

forth

below,

3

In her reply memorandum of law, plaintiff conceded her argument, based on
the corrected hearing transcript, that the hypotheticals given at the hearing to
the vocational expert did not match the limitations contained in the RFC. Docket
No. 19 at 4.

4

plaintiff’s motion is granted to the extent that the matter is
remanded for further administrative proceedings and defendant’s
motion is denied.
A.

The ALJ’s Step Three Finding as to Listing 1.04A

Plaintiff argues that her spinal impairments met or medically
equaled the criteria for Listing 1.04A, and therefore a finding of
disabled

was

evaluation.

appropriate
Docket

No.

at
8

step

at

12.

three

of

the

Defendants

sequential

contend

that

plaintiff’s physical examinations did not establish many of the
elements required to evidence nerve root compression and therefore
the ALJ’s decision was supported by substantial evidence.

Docket

No. 16 at 18.
“The Social Security regulations list certain impairments, any
of which is sufficient, at step three, to create an irrebuttable
presumption of disability.”

DeChirico v. Callahan, 134 F.3d 1177,

1180 (2d Cir. 1998) (citing 20 C.F.R. §§ 404.1520(d), 416.920(d)).
“The regulations also provide for a finding of such a disability
per se if an individual has an impairment that is ‘equal to’ a
listed impairment.”

Id. (citing 20 C.F.R. 404.1520(d) (“If you

have an impairment(s) which . . . is listed in appendix 1 or is
equal to a listed impairment(s), we will find you disabled without
considering your age, education, and work experience.”)).
Individuals suffering a disorder of the spine are disabled per
se if they meet the criteria specified in the regulations. The
specific listing plaintiff claims the ALJ should have considered is
5

Listing 1.04(A), which provides that an individual is presumptively
disabled

if

he

or

she

suffers

from

“degenerative

disc

disease . . . resulting in compromise of a nerve root,” with
“[e]vidence

of

nerve

root

compression

characterized

by

neuro-anatomic distribution of pain, limitation of motion of the
spine, motor loss (atrophy with associated muscle weakness or
muscle weakness) accompanied by sensory or reflex loss and, if
there is involvement of the lower back, positive straight-leg
raising test (sitting and supine).”
App. 1, § 1.04(A).
that

[her]

20 C.F.R. Pt. 404, Subpt. P,

It is the plaintiff’s burden to “demonstrate

disability

[meets]

‘all

criteria’ of a spinal disorder.”

of

the

specified

medical

Otts v. Comm’r, 249 Fed. Appx.

887, 888 (2d Cir. 2007) (emphasis in original) (quoting Sullivan v.
Zebley, 493 U.S. 521, 531 (1990)).

“An impairment that manifests

only some of those criteria, no matter how severely, does not
qualify.”

Sullivan, 493 U.S. at 530 (citation omitted).

At step three, the ALJ found:
The objective record . . . does not demonstrate evidence
of a disorder of the spine resulting in compromise of a
nerve root or the spinal cord with evidence of nerve root
compression characterized by neuro-anatomic distribution
of pain, limitation of motion of the spine, or motor loss
accompanied by sensory or reflex loss and positive
straight leg raising test; spinal arachnoiditis; or
lumbar spinal stenosis, as required by Listing 1.04.
T. 17.

6

“When a claimant’s symptoms appear to match those described in
a listing, the ALJ must explain a finding of ineligibility based on
the

Listings.”

Cardillo

(N.D.N.Y. Mar. 24, 2017).

v.

Colvin,

2017

WL

1274181,

at

*4

“Mere assertions that a claimant’s

impairments do not meet the severity of specific listings, without
more, do not constitute the ‘specific factual findings’ necessary
for denying a disability claim.”

Gentry v. Colvin, 2015 WL

3823740, at *5 (W.D.N.Y. June 19, 2015) (quoting Wood v. Colvin,
987 F.Supp.2d 180, 192–93 (N.D.N.Y. 2013)).

Based on the ALJ’s

conclusory finding here (basically paraphrasing the requirements of
Listing 1.04A), the Court cannot determine whether the ALJ applied
the correct legal standards in evaluating plaintiff’s limitations
and whether the ALJ’s finding is supported by substantial evidence.
Wood, 987 F.Supp.2d at 192–93 (remanding where ALJ explained that
medical evidence did not document that claimant had lost gait and
station or motor functioning without specific reference to anything
in record). The Court acknowledges that the evidence as to whether
plaintiff’s impairment meets or equals the requirements of Listing
1.04(A) appears to be susceptible to multiple interpretations.
However, it is not the function of this Court to weigh the medical
evidence and determine if plaintiff meets the listing requirements.
It is the Commissioner’s function to make that determination and,
in this case, the ALJ failed to do so in a manner that allows for
meaningful review.
“Remand is appropriate where a[n] [ALJ] fails sufficiently to
7

articulate the basis for his denial of disability benefits such
that the reviewing court ‘cannot determine whether the ALJ’s
conclusion was based on a correct application of the law and
whether there is substantial evidence in the record to support
it.’” See Wood, 987 F.Supp.2d at 193 (quoting Aponte v. Secretary,
Dep’t of Health and Human Servs., 728 F.2d 588, 593 (2d Cir.1984));
accord Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir.1987) (“Because
of

the

lack

of

specificity

of

the

ALJ’s

decision

and

the

inconclusiveness of the record, it is appropriate to remand the
case . . . to ensure that the correct legal principles are
applied.”). On remand, the ALJ should evaluate whether plaintiff’s
degenerative disc disease, as evidenced in the record, matches or
medically equals the criteria shown for disorders of the spine in
section 1.04 and 1.04A of Appendix 1, as well as the criteria of
any other applicable listed impairment that the record reasonably
suggests plaintiff’s impairment may match, and should sufficiently
explain his findings.
B.

The Court
Argument

Declines

to

Reach

Plaintiff’s

Remaining

Plaintiff also argues that the ALJ failed to adequately
develop the administrative record.

Docket No. 8 at 17.

Because

the Court has determined that remand is required for the ALJ to set
forth specific findings with respect to step three, it need not
reach

this

issue.

On

remand

and

after

evaluating

whether

plaintiff’s degenerative disc disease matches or medically equals
8

1.04 and 1.04A and providing specific findings, the Commissioner
should revisit whether there are any obvious gaps in the record
with respect to plaintiff’s medically determinable impairments in
light of the record as a whole.
C.

The Commissioner’s Motion to Strike is Granted

In addition to the parties’ competing motions for judgment on
the pleadings, the Commissioner has also filed a motion to strike.
Docket No. 14.

The Commissioner explains that medical records and

administrative

materials

plaintiff

inadvertently

were

Administrative

relating

Transcript,

to

included

and

were

a
in

claimant
the

removed

other

initially
in

Administrative Transcript filed on August 4, 2017.

the

than
filed

Amended

In order to

protect the privacy interest of the non-party claimant whose
materials were inadvertently filed, the Commissioner asks the Court
to order that the initially filed Administrative Transcript (Docket
No. 5) be removed
the

from the docket.

Commissioner’s

appropriate

under

request,
the

and

Plaintiff has not objected to
the

Court

circumstances.

finds

that

Accordingly,

it

is
the

Commissioner’s motion to strike is granted and the Clerk of the
Court is instructed to remove the initially filed Administrative
Transcript from the docket in this matter.
VI.

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

the pleadings(Docket No. 8) is granted to the extent that this
matter is remanded to the Commissioner for further administrative
9

proceedings

consistent

with

this

Decision

and

Order.

The

Commissioner’s motion for judgment on the pleadings (Docket No. 16)
is denied.

The Commissioner’s motion to strike (Docket No. 14) is

granted.

The Clerk of the Court is directed to remove the

originally filed Administrative Transcript (Docket No. 5) from the
docket in this matter and to close this case.
ALL OF THE ABOVE IS SO ORDERED.
s/ Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

October 6, 2017
Rochester, New York.

10