Clyburn v. Colvin

Filing 21

DECISION AND ORDER: Plaintiff's Motion for Judgment on the Pleadings 10 is GRANTED, the Commissioner's Motion for Judgment on the Pleadings 20 is DENIED, and this matter is REMANDED to the Commissioner for further administrative proceedings. The Clerk of Court is directed to enter judgment and close this case. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 12/5/2017. (AFM)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHASZIE VANICE CLYBURN,
Plaintiff,
Case # 16-CV-1029-FPG
v.
DECISION AND ORDER
NANCY A. BERRYHILL, 1 ACTING COMMISSIONER
OF SOCIAL SECURITY,
Defendant.

Chaszie Vanice Clyburn (“Clyburn” 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. 10, 20. 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.
BACKGROUND
On August 24, 2012, Clyburn protectively applied for DIB with the Social Security
Administration (“the SSA”). Tr. 2 231-32. She alleged disability since November 28, 2011 due to
osteoarthritis of the knees and back, right hand and wrist tenosynovitis, a pinched nerve in the right

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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).
2
References to “Tr.” are to the administrative record in this matter.

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hip, obesity, and asthma. Tr. 259. On November 5, 2014, Clyburn and a vocational expert (“VE”)
appeared and testified at a hearing before Administrative Law Judge Robert T. Harvey (“the ALJ”).
Tr. 133-70. On March 18, 2015, the ALJ issued a decision finding that Clyburn was not disabled
within the meaning of the Act. Tr. 93-103. On October 27, 2016, the Appeals Council denied
Clyburn’s request for review. Tr. 1-7. Thereafter, Clyburn commenced this action seeking review
of the Commissioner’s final decision. ECF No. 1.
LEGAL STANDARD
I.

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).
II.

Disability Determination
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

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(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).

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DISCUSSION
I.

The ALJ’s Decision
The ALJ’s decision analyzed Clyburn’s claim for benefits under the process described

above. At step one, the ALJ found that Clyburn had not engaged in substantial gainful activity
since the alleged onset date. Tr. 95. At step two, the ALJ found that Clyburn has the following
severe impairments: bilateral knee osteoarthritis and right hand tenosynovitis. Tr. 95-96. At step
three, the ALJ found that these impairments, alone or in combination, did not meet or medically
equal any Listings impairment. Tr. 96.
Next, the ALJ determined that Clyburn retains the RFC to perform light work 3 with
additional restrictions. Tr. 96-102. Specifically, the ALJ found that Clyburn cannot work near
unprotected heights or heavy, moving, or dangerous machinery; can occasionally bend, climb,
stoop, squat, kneel, balance, and crawl; cannot climb ropes, ladders, or scaffolds; can occasionally
handle (i.e., perform gross manipulation) with the right hand; can occasionally push and pull with
the right upper extremity; and cannot be exposed to weather changes. Tr. 96-97.
At step four, the ALJ relied on the VE’s testimony and found that Clyburn can perform her
past relevant work as a receptionist and general clerk. Tr. 102-03. Accordingly, the ALJ
concluded that Clyburn was not “disabled” under the Act. Tr. 103.

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“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires
a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm
or leg controls. To be considered capable of performing a full or wide range of light work, [the claimant] must have
the ability to do substantially all of these activities. If someone can do light work, [the SSA] determine[s] that he or
she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability
to sit for long periods of time.” 20 C.F.R. § 404.1567(b).

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II.

Analysis
Clyburn argues that remand is required because the ALJ did not consider whether it was

medically necessary for her to use a cane. 4 ECF No. 10-1 at 28-29. As a result, Clyburn asserts
that the RFC assessment is not supported by substantial evidence because it does not provide for
cane use. Id. The Court agrees.
Social Security Ruling (“S.S.R.”) 96-9p provides that
[t]o find that a hand-held assistive device is medically required,
there must be medical documentation establishing the need for a
hand-held assistive device to aid in walking or standing, and
describing the circumstances for which it is needed (i.e., whether all
the time, periodically, or only in certain situations; distance and
terrain; and any other relevant information).
S.S.R. 96-9p, 1996 WL 374185, at *7 (S.S.A. July 2, 1996). The need to use a cane does not
automatically limit a claimant to sedentary work or render her disabled. Magby v. Colvin, No. 15CV-285-FPG, 2016 WL 4585903, at *2 (W.D.N.Y. Sept. 2, 2016). In fact, courts have affirmed
decisions where the ALJ found that the claimant could perform a reduced range of light work with
the use of a cane. See Rice v. Comm’r of Soc. Sec, 114 F. Supp. 3d 98, 107 (W.D.N.Y. 2015);
Koszuta v. Colvin, No. 14-CV-694-JTC, 2016 WL 231383, at *1 (W.D.N.Y. Jan. 19, 2016),
vacated in part on other grounds, 2016 WL 824445 (W.D.N.Y. Mar. 3, 2016). In evaluating
whether it is medically necessary for the claimant to use a cane, the ALJ “must always consider
the particular facts of a case.” S.S.R. 96-9p, 1996 WL 374185, at *7; Wright v. Colvin, No. 6:13cv-06585 (MAT), 2015 WL 4600287, at *5 (W.D.N.Y. July 29, 2015) (the ALJ must “properly
consider the medical necessity of Plaintiff using a cane”).

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Clyburn advances other arguments that she believes warrant reversal of the Commissioner’s decision. ECF
No. 10-1 at 18-28. However, the Court will not address those arguments because it disposes of this matter based on
the ALJ’s failure to consider whether Clyburn needed to use a cane.

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Here, Clyburn testified that her treating physician prescribed her a walker. 5 Tr. 145. The
treatment notes of consultative examiner John Schwab, D.O., also indicate that a cane was
“prescribed by a doctor” and that Clyburn “[u]ses the cane for pain in the knees most of the time.”
Tr. 363. Dr. Schwab stated that in his “opinion,” the cane is “necessary.” Id. This opinion satisfies
the requirements of S.S.R. 96-9p because it (1) establishes that a cane is necessary to aid in walking
or standing and (2) indicates that the cane is needed to minimize pain. See S.S.R. 96-9p, 1996 WL
374185, at *7. Dr. Schwab also noted that Clyburn’s gait was normal with and without the cane.
Id. Without the cane, she could not walk on her toes, but she could walk on her heels. Id. With
the cane, she had difficulty walking on her toes, but she could walk on her heels. Id. Dr. Schwab
also indicated that Clyburn could not squat fully due to pain in her knees and right hip. Id.
The ALJ afforded “some weight” to Dr. Schwab’s medical source statement that Clyburn
has a “mild restriction” as to walking and climbing stairs, yet he did not mention that Dr. Schwab
opined that it was medically necessary for Clyburn to use a cane and he did not analyze how this
might erode the occupational base for light work. Tr. 99-100, 365. The ALJ merely noted that
Clyburn “had a normal gait with and without a cane.” Tr. 99.
Several treatment notes in the record also indicate that Clyburn used a cane and that she
had joint and knee pain, difficulty ambulating, and an antalgic gait. See, e.g., Tr. 322, 399, 402,
407, 417, 432, 434. One treatment note specifically reports that Clyburn requested a handicapped
parking sticker because she “is unable to walk any significant distance without pain or the
assistance of a cane.” Tr. 411. Moreover, Clyburn’s treating providers noted that she has chronic

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It is important to note that S.S.R. 96-9p “does not mandate that the hand-held assistive device be prescribed to be
considered medically necessary.” Hoke v. Colvin, No. 1:14-CV-0663 (GTS/CFH), 2015 WL 3901807, at *14
(N.D.N.Y. June 25, 2015) (emphasis added). It “require[s] specific medical documentation establishing its need and
the circumstances surrounding its need.” Id. Thus, the Commissioner’s argument that the ALJ did not err because
Clyburn “points to no evidence in the record of a medical prescription for a cane” is unpersuasive. ECF No. 20-1 at
19.

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severe arthritis in her knees and opined that she is “very limited” in her ability to walk and stand,
that she requires the option to alternate between sitting and walking every hour, and that she can
only stand and walk up to two hours in an eight-hour workday. 6 Tr. 56, 389, 392, 627.
Additionally, although the ALJ found Clyburn capable of performing less than the full
range of light work, he did not limit the amount she is required to lift or how often she must perform
lifting activities. The regulations provide that light work “involves lifting no more than 20 pounds
at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. §
404.1567(b). A job may also be in this category “when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg
controls.” Id. Light work also requires the “use of arms and hands to grasp and hold and turn
objects.” S.S.R. 83-10, 1983 WL 31251, at *6 (S.S.A. Jan. 1, 1983). If Clyburn needs to use a
cane, it means that at least one hand is not free to hold other objects and perform the lifting and
carrying requirements of light work, which are not minimal. See Wright, 2015 WL 4600287, at
*5.
The ALJ also ignored the suggestion in S.S.R. 96-9p that an ALJ should consult a VE to
determine whether an individual who needs to use a cane can adjust to other work. S.S.R. 96-9p,
1996 WL 374185, at *7. At Clyburn’s hearing, the ALJ posed a series of hypothetical questions
to the VE without any caveat that the individual would need to use a cane. Tr. 165-69; cf. Magby,

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Although the Court declines to analyze whether the ALJ properly weighed these opinions, the ALJ is reminded on
remand that he must give controlling weight to a treating physician’s opinion when it is “well-supported . . . not
inconsistent with the other substantial evidence in [the] record.” 20 C.F.R. § 404.1527(c)(2). The ALJ must give
“good reasons” for rejecting a treating physician’s opinion. Id. Because the record also contains an opinion from
Clyburn’s treating physician’s assistant, the ALJ is further reminded that opinions from “other sources” are
“important” and “should be evaluated on key issues such as impairment severity and functional effects, along with the
other relevant evidence in the file.” S.S.R. 06-03p, 2006 WL 2329939, at *3 (S.S.A. Aug. 9, 2006). An ALJ must
weigh other source opinions based on the factors set forth in the regulations, 20 C.F.R. § 404.1527(c)(1)-(6), and he
should “explain the weight given to opinions from these ‘other sources,’ or otherwise ensure that the discussion of the
evidence in the determination or decision allows a claimant or subsequent reviewer to follow the [ALJ]’s reasoning[.]”
S.S.R. 06-03p, 2006 WL 2329939, at *6.

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2016 WL 4585903, at *3 (finding that the ALJ did not err because he incorporated the plaintiff’s
cane use into the RFC assessment and specifically asked the VE whether the plaintiff could use a
cane and adjust to other work).
For the reasons stated, the Court finds that the ALJ did not properly consider whether it
was medically necessary for Clyburn to use a cane. Accordingly, the RFC assessment is not
supported by substantial evidence and remand is required. Because Clyburn filed her application
over five years ago, the Court directs the Commissioner to expedite the remand and review of her
case.
CONCLUSION
Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 10) is GRANTED, the
Commissioner’s Motion for Judgment on the Pleadings (ECF No. 20) 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). The Clerk of Court is directed to enter judgment and close this case.

IT IS SO ORDERED.
Dated: December 5, 2017
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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