Haynes v. Berryhill
Filing
23
DECISION AND ORDER granting 14 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 19 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 7/24/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK
____________________________________
MICHAEL D. HAYNES,
Plaintiff,
1:17-cv-00081-MAT
DECISION AND ORDER
-vNANCY A. BERRYHILL,
Acting Commissioner OF Social Security,
Defendant.
____________________________________
INTRODUCTION
Michael
D.
Haynes
(“Plaintiff”),
represented
by
counsel,
brings this action pursuant to Titles II and XVI of the Social
Security Act (“the Act”), seeking review of the final decision of
the Acting Commissioner of Social Security (“Defendant” or “the
Commissioner”) denying his applications for disability insurance
benefits (“DIB”) and supplemental security income (“SSI”). The
Court has jurisdiction over the matter pursuant to 42 U.S.C.
§§ 405(g), 1383(c). Presently before the Court are the parties’
competing motions for judgement on the pleadings pursuant to
Rule 12(c) of the Federal Rules of Civil Procedure. 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.
PROCEDURAL BACKGROUND
On May 30, 2013, Plaintiff protectively filed for DIB and SSI,
alleging disability
beginning
January
2,
2011.
Administrative
Transcript (“T.”) 155-62. The claims were initially denied on
August 19, 2013, and Plaintiff timely requested a hearing. T. 10009. A hearing was conducted on June 8, 2015, in Buffalo, New York
by administrative law judge (“ALJ”) Sharon Seeley. T. 27-71.
Plaintiff appeared with his attorney and testified. An impartial
vocational expert (“VE”) also testified.
The ALJ issued an unfavorable decision on August 20, 2015.
T. 7-22. Plaintiff timely requested review of the ALJ’s decision by
the
Appeals’
Council.
T.
23-26.
The
Appeals
Council
denied
Plaintiff’s request for review on December 23, 2016, making the
ALJ’s decision the final decision of the Commissioner. T. 1-6.
Plaintiff then timely commenced this action.
THE ALJ’S DECISION
The
ALJ
applied
the
five-step
sequential
evaluation
promulgated by the Commissioner for adjudicating disability claims.
See
20
C.F.R.
evaluation,
§
the
404.1520(a).
ALJ
found
At
that
step
one
Plaintiff
of
had
the
not
sequential
engaged
in
substantial gainful activity since the application date. T.12.
At
step
two,
the
ALJ
determined
that
Plaintiff
had
the
following “severe” impairments: coronary artery disease status post
coronary artery bypass; degenerative disc disease of the lumbar
spine; chronic kidney disease; diabetes mellitus; and obesity.
T.
12.
The
ALJ
also
determined
that
Plaintiff’s
medically
determinable impairment of sleep apnea was non-severe and created
no significant work-related functional limitations. T. 13.
2
At step three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that meets or medically
equals an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. The ALJ specifically considered Listings 1.04, 4.04,
6.05,
and
11.14.
T.
13.
The
ALJ
also
considered
SSR
02-1p
(obesity), both singularly and in combination with Plaintiff’s
underlying impairments. Id.
Before proceeding to step four, the ALJ assessed Plaintiff as
having the residual functional capacity (“RFC”) to perform light
work as defined in 20 C.F.R. 404.1567(b) and 416.967(b), with the
following limitations: can lift, carry, push, and pull twenty
pounds occasionally and ten pounds frequently; can sit, stand and
walk for six hours each in an eight-hour workday, alternating at
will (but not more frequently than every fifteen minutes) between
sitting
and
standing;
can
frequently
handle
or
finger
with
bilateral upper extremities; can occasionally climb stairs and
ramps, but can never climb ladders, ropes or scaffolds; can work in
an environment with no concentrated exposure to extreme cold or
heat, wetness or humidity, or fumes, dust, or other pulmonary
irritants; and no exposure to hazards such as unprotected heights
or moving machinery. Id.
At step four, the ALJ determined that Plaintiff was unable to
perform any past relevant work. T. 17. At step five, the ALJ relied
on the VE’s testimony to find that, taking into account Plaintiff’s
3
age, education, work experience, and RFC, there are jobs that exist
in significant numbers in the national economy that Plaintiff can
perform, including the representative occupations of: order clerk
(Dictionary
of
unskilled,
SVP
preparer(DOT
Occupational
No.
2,
Titles
sedentary
(“DOT”)
exertional
249.587-018,
unskilled,
No.
209.567-014,
level);
SVP
2,
document
sedentary
exertional level); and charge account clerk(DOT No. 205.367-014,
unskilled, SVP 2, sedentary exertional level). T. 18. The ALJ
accordingly found that Plaintiff was not disabled as defined in the
Act. Id.
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). The
district court must accept the Commissioner’s findings of fact,
provided that such findings are supported by “substantial evidence”
in the record. See 42 U.S.C. § 405(g) (the Commissioner’s findings
“as to any fact, if supported by substantial evidence, shall be
conclusive”). “Substantial evidence means ‘such relevant evidence
as
a
reasonable
mind
might
accept
as
adequate
to
support
a
conclusion.’” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)
(quotation
omitted).
The
reviewing
4
court
nevertheless
must
scrutinize the whole record and examine evidence that supports or
detracts from both sides. Tejada v. Apfel, 167 F.3d 770, 774
(2d Cir. 1998) (citation omitted). “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)).
DISCUSSION
Plaintiff contends that remand is warranted for the following
reasons: (1) the ALJ failed to properly evaluate an opinion of
Plaintiff’s treating nurse practitioner; (2) the ALJ erred in
substituting her own judgement for that of a physician; (3) the ALJ
failed to properly develop the record by obtaining a treating
medical opinion regarding Plaintiff’s functional limitations; and
(4) the ALJ failed to properly assess Plaintiff’s credibility. For
the reasons discussed below, the Court agrees that the ALJ failed
to properly develop the record and therefore finds that remand of
this matter for further administrative proceedings is required.
I.
The ALJ’s Failure to Obtain a Treating Physician’s Opinion
Requires Remand
Plaintiff argues that the ALJ failed to fulfill her duty to
fully and fairly develop the record by failing to obtain a treating
RFC
opinion
after
she
rejected
the
opinion
of
consultative
internist, Dr. John Schwab – the only medical opinion of record.
Accordingly, Plaintiff requests that this matter be remanded to the
5
ALJ, with instructions to contact Plaintiff’s treating sources for
a functional limitation opinion.
A review of the medical record shows Plaintiff had a heart
attack, followed immediately by bypass surgery in 2009. T. 216-20.
Plaintiff thereafter returned to his long-held job as a custodian
and was put on light duty, with the limitation of lifting no more
than
twenty
pounds
and
climbing
fewer
stairs
than
he
had
previously. T. 14. Plaintiff testified he left his position as head
custodian in 2011, in preparation for an anticipated move to the
state of Georgia to be closer to his wife’s parents. T. 39.
Ultimately,
Plaintiff
and
his
wife
did
not move
to
Georgia;
instead, his wife’s parents moved back to Western New York and
Plaintiff began looking for work. Plaintiff then took a maintenance
job at a nursing home, which required him to take a physical exam.
Id. The physical exam revealed Plaintiff had kidney failure and
several hernias.
Based
on
the
results
of
the
physical
exam,
Plaintiff was not hired by the nursing home. T. 40. Plaintiff
testified his condition continued to deteriorate thereafter, with
his “biggest problem” being his back pain and arthritis. T. 39-42.
A 2013 MRI showed Plaintiff had polycystic kidney disease with
innumerable bilateral renal cysts, as well as multiple hepatic
cysts. T. 274. The MRI also showed mild straightening of the lumbar
lordosis, mild
degenerative changes of the anterior endplates at
T11-T12 with anterior spurring, and minimal left posterior ridging
6
and bulge minimally effacing the left anterior subarachnoid space.
Plaintiff also had a mild left posterolateral bulge encroaching on
the left neural foramen and minimally effacing the undersurface of
the existing left L3 nerve root. Id.
Plaintiff testified he had a “slight heart attack” in 2014 and
was “Mercy Flighted” to Buffalo General hospital for treatment. He
continues to have chest pain if he over exerts himself. T. 43. In
February 2015, treatment notes indicate Plaintiff’s back pain was
continuing to worsen. Plaintiff’s treating nurse practitioner,
Michael Ostolski, noted on examination Plaintiff had tenderness in
his lower back and complained of painful joints. Plaintiff was
walking with a cane. T. 322-23. In April 2015, nurse practitioner
Ostolski
again
noted
Plaintiff’s
painful
joints
and
referred
Plaintiff for a CT scan. T. 320. Plaintiff testified he also
suffers from numbness in his hands, which causes him to drop
things. T. 45. He testified the numbness lasts for ten-to-twenty
minutes at a time, during which he has no feeling. T. 46-47.
Plaintiff was examined by Dr. John Schwab on August 13, 2013.
Upon examination, Plaintiff was able to walk on his heels and toes
without difficulty, squat fully, get on and off the exam table
without difficulty, and rise from his chair without difficulty.
Dr. Schwab opined Plaintiff should avoid any endurance activities,
but otherwise had no restrictions based on the examination. T. 27881. Dr. Schwab diagnosed Plaintiff with coronary artery disease
7
status
post
myocardial
infarction
with
six
stents
placed,
hypertension, diabetes mellitus type two, osteoarthritis in his
lumber vertebrae, polycystic kidney disease, history of abdominal
hernias, and tobacco abuse. T. 281.
In
her
decision,
dated
August
20,
2015,
the
ALJ
gave
Dr. Schwab’s opinion “great weight as of the date on which it was
rendered.” T. 16. “However,” she noted, “the claimant testified and
the medical records indicate that his condition has worsened in
some respects in the interim. Accordingly, Dr. Schwab’s opinion
cannot be given great weight in assessing the claimant’s residual
functional capacity.” Id. Plaintiff’s medical record contains no
additional medical opinions.
Although
the
Commissioner’s
regulations
provide
that
a
claimant is responsible for furnishing evidence upon which to base
an RFC assessment, “the ALJ generally has an affirmative obligation
to develop the administrative record [before making a disability
determination.]
This
duty
exists
even
when
the
claimant
is
represented by counsel.” Perez v. Chater, 77 F.3d 41, 47 (2d Cir.
1996)
(internal
citation
omitted).
Furthermore,
the
ALJ
is
responsible for “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 an ALJ is not required to obtain a medical
opinion
where
the
record
is
sufficient
8
to
make
an
informed
decision, an ALJ is not qualified to assess a claimant’s RFC based
on bare medical findings. Wilson v. Colvin, No. 13-CV-6286P, 2015
WL 1003933, at *21 (W.D.N.Y. Mar. 6, 2015) (citing Daily v. Astrue,
2010 WL 4703599, at *11 (W.D.N.Y. Oct. 26, 2010)).
Here, Plaintiff argues that the ALJ’s decision to discount
Dr. Schwab’s stale consultative opinion renders the record devoid
of any means by which the ALJ could reasonably reach a finding
based on substantial evidence. The Court agrees.
Where the record contains no useful medical opinions or a body
of evidence sufficient enough to properly assess a plaintiff’s RFC
without the opinions, as in this case, remand is warranted. See
McCarthy v. Colvin, 66 F.Supp.3d 315, 322 (W.D.N.Y. 2014) (“The lay
evaluation of an ALJ is not sufficient evidence of the claimant’s
work capacity; an explanation of the claimant’s functional capacity
from a doctor is required.”) (quoting Zorilla v. Chater, 915
F.Supp. 662, 666-67 (S.D.N.Y. 1996)). Furthermore, it is wellestablished that an ALJ is not “permitted to substitute his own
expertise or view of the medical proof for the treating physician’s
opinion or for any competent medical opinion.” Greek v. Colvin, 802
F.3d 370, 375 (2d Cir. 2015) (internal citations omitted).
In her decision, the ALJ acknowledged the medical record
indicated
that
Plaintiff’s
condition
had
worsened
since
Dr. Schwab’s examination and opinion in 2013. T. 16. However, the
ALJ did not seek an updated consultative opinion or request an
9
assessment of Plaintiff’s functional limitations from Plaintiff’s
treating doctors, but instead relied on her own assessment of
Plaintiff’s functional capacity. This error was not harmless. At
the hearing, the ALJ presented the VE with a hypothetical of only
occasional use of hands for grasping and fingering, presumably in
light of Plaintiff’s testimony he had frequent numbness in his
hands. The VE testified that including that limitation, along with
the other limitations the ALJ presented, would eliminate all jobs
at the sedentary, unskilled level. T. 69. The ALJ was thus on
notice that Plaintiff’s numbness could significantly erode the
occupational base. Nevertheless, she did not seek a medical opinion
regarding
the
extent
of
Plaintiff’s
handling
and
fingering
limitations, but instead relied on her own lay assessment of the
evidence in concluding that Plaintiff was capable of frequent
handling and fingering. The VE’s testimony demonstrates that the
ALJ’s failure to appropriately develop the record was not harmless.
The Court further finds that, in the absence of an updated
medical
opinion,
Plaintiff’s
treatment
notes
alone
cannot
constitute substantial evidence in support of the ALJ’s conclusion.
Although
the
record
contains
treatment
notes
relating
to
Plaintiff’s degenerative disc disease, chronic kidney disease,
coronary artery disease, and diabetes, it does not contain medical
assessments
assessment
as
of
to
how
the
they
severity
might
10
of
these
impact
conditions,
Plaintiff’s
nor
an
functional
capacity.
While
conclusion
opinions,
treatment
based
it
was
on
records
medical
error
for
may
be
findings
and
the
to
used
ALJ
to
support
acceptable
substitute
a
medical
her
own
interpretation of the medical record for the opinions of treating
or examining medical professionals. See Dennis v. Colvin, 195
F.Supp.3d 469, 473 (W.D.N.Y. 2016) (remand required where the ALJ
erroneously evaluated treatment notes and diagnostic testing to
support the RFC finding, in the absence of a relevant medical
opinion).
As a result of the ALJ’s failure to appropriately develop the
record, remand is warranted. See McCarthy, 66 F.Supp.3d at 322
(remanding where ALJ discounted the only medical opinion that
assessed claimant’s functional limitations and instead relied on
his own assessment). On remand, the ALJ is directed to obtain an
opinion
of
Plaintiff’s
functional
capacity
from
a
treating
physician or, if such an opinion is unavailable, to order an
updated examination by a consultative physician.
II. Plaintiff’s Remaining Arguments
Plaintiff has also argued that the ALJ failed to properly
evaluate an opinion of his treating nurse practitioner and failed
to properly assess his credibility.
Having found remand necessary
as explained, the Court need not address Plaintiff’s remaining
arguments.
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CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on
the pleadings (Doc. 14) is granted to the extent that this matter
is
remanded
proceedings
to
the
Commissioner
consistent
with
this
for
further
Decision
administrative
and
Order.
The
Commissioner’s opposing motion for judgement on the pleadings (Doc.
19) is denied. The Clerk of the Court is directed to close this
case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
_____________________________
MICHAEL A. TELESCA
United States District Judge
Dated:
July 24, 2018
Rochester, New York
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