Rowe v. Berryhill
Filing
21
DECISION AND ORDER granting 10 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 13 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/6/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK
____________________________________
KENNETH J. ROWE,
Plaintiff,
1:17-cv-00208-MAT
DECISION AND ORDER
-vNANCY A. BERRYHILL,
Acting Commissioner OF Social Security,
Defendant.
____________________________________
INTRODUCTION
Kenneth J. Rowe (“Plaintiff”), represented by counsel, brings
this action under Title II of the Social Security Act (“the Act”),
seeking review of the final decision of the Acting Commissioner of
Social Security (“the Commissioner” or “Defendant”), denying his
application for disability insurance benefits (“DIB”). The Court
has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g).
Presently before the Court are the parties’ competing motions for
judgment 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 to the Commissioner for further administrative proceedings
consistent with this Decision and Order.
PROCEDURAL BACKGROUND
On January 15, 2013, Plaintiff protectively filed for DIB,
alleging
disability
beginning
March
1,
2012.
Administrative
Transcript (“T.”) 191. The claim was initially denied on April 12,
2013, and Plaintiff timely requested a hearing. T. 105-15. On
March 12, 2015, a hearing was conducted in Buffalo, New York by
administrative law judge (“ALJ”) Sharon Seeley. T. 34-88. Plaintiff
appeared with his attorney and testified. An impartial vocational
expert (“VE”) also testified via telephone.
The ALJ issued an unfavorable decision on September 18, 2015.
T. 13-33. Plaintiff timely requested review of the ALJ’s decision
by
the
Appeals’
Council.
T.
12.
The
Appeals
Council
denied
Plaintiff’s request for review on December 29, 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. § 404.1520(a). Initially, the ALJ determined that
Plaintiff met the insured status requirements of the Act through
March 31, 2015. T. 18.
At step one of the sequential evaluation, the ALJ found that
Plaintiff had not engaged in substantial gainful activity from his
alleged onset date of March 1, 2012 through his date last insured
of March 31, 2015. T.18.
At step two, the ALJ determined that Plaintiff suffered from
the “severe” impairments of degenerative disc disease, depression,
and mild ulnar neuropathy. T. 19. The ALJ also determined that
Plaintiff’s
medically
determinable
2
impairments
of
essential
hypertension and vision impairment were non-severe and created no
significant work-related functional limitations. Id.
At step three, the ALJ found that, through the date last
insured, Plaintiff did not have an impairment or combination of
impairments that met or medically equaled an impairment listed in
20 C.F.R. Part 404, Subpart P, Appendix 1. Id.
Before proceeding to step four, the ALJ assessed Plaintiff as
having the residual functional capacity (“RFC”) to perform less
than
a
full
range
of
light
work
as
defined
in
20
C.F.R.
404.1567(b), with the following additional limitations: can lift
and carry twenty pounds occasionally and ten pounds frequently; can
sit for six hours in an eight-hour workday; can stand and/or walk
two hours in an eight-hour workday, alternating after thirty
minutes to sitting for ten minutes; can occasionally stoop, crouch,
kneel, crawl, climb ramps and stairs, climb ladders, ropes, and
scaffolds; can understand, remember, and independently carry out
simple
instructions
and
tasks;
can
maintain
attention
and
concentration sufficient for such tasks with customary breaks; can
respond appropriately to customary levels of supervision; and can
work in a low stress environment, meaning that work does not
involve supervisory responsibilities or frequent changes in work
routines, process or settings and does not require independent
decision-making other than simple, routine work-related decisions.
T. 22.
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At step four, the ALJ determined that Plaintiff was unable to
perform any past relevant work. T. 27. At step five, the ALJ relied
on the VE’s testimony to find that, taking into account Plaintiff’s
age, education, work experience, and RFC, there were jobs that
exist in significant numbers in the national economy that Plaintiff
could perform, including the representative occupations of counter
clerk, furniture retail consultant, and inspector of surgical
instruments. T. 28. 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
court
nevertheless
must
scrutinize the whole record and examine evidence that supports or
4
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 of this matter is
warranted
because: (1) the ALJ failed to consider a medically required use of
a cane under Social Security Regulation (“SSR”) 96-9p (S.S.A.),
1996 WL 374185 (July 2, 1996); (2) the ALJ failed to properly
consider Medical Listing 1.04(A) for lumbar spine disc injury; and
(3) the ALJ erred in substituting her own judgment for that of a
physician. For the reasons discussed below, the Court finds the ALJ
failed
to
provide
adequate
analysis
for
her
finding
that
Plaintiff’s degenerative disc disease did not meet or equal Listing
1.04(A). The
Court
further
finds
the ALJ
failed
to
properly
consider Plaintiff’s use of a cane in determining Plaintiff’s RFC.
Accordingly, the Court finds that remand of this matter for further
administrative proceedings is required.
I.
Failure to Properly Consider Medical Listing 1.04(A)
“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,
5
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 who meet the
criteria specified in the regulations are disabled per se. For
Listing
1.04(A)
specifically,
an
individual
is
presumptively
disabled if he or she suffers from “herniated nucleus pulposus,
spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative
disc disease, facet arthritis, or vertebral fracture[], resulting
in
compromise
“[e]vidence
of
of
a
nerve
nerve
root
root
.
.
.
or
compression
spinal
cord”
characterized
with
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).” 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 1.04(A).
In this case, at step three of the sequential evaluation, the
ALJ stated that the record contained “no evidence” of the criteria
specific to Listing 1.04, which are noted above. T. 20. While she
6
provided a recital of Listing 1.04’s criteria, the ALJ gave no
analysis of Plaintiff’s medical records as they related to Listing
1.04
or
an
explanation
why
they
did
not
meet
the
necessary
criteria. This was error.
“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.” Critoph v. Berryhill, No. 1:16-CV-00417(MAT), 2017
WL 4324688, at *3 (W.D.N.Y. Sept. 28, 2017) (quoting Cardillo v.
Colvin, No. 6:16-CV-134(CFH), 2017 WL 1274181, at *4 (N.D.N.Y.
Mar. 24, 2017)). “While the ALJ may ultimately find that [a
considered listing] do[es] not apply to Plaintiff, he must still
provide some analysis of Plaintiff’s symptoms and medical evidence
in the context of the Listing criteria.” Id. (quoting Peach v.
Colvin, No. 15-CV-104S, 2016 WL 2956230, at *4 (W.D.N.Y. May 23,
2016)). In this case, the ALJ failed to meet this standard,
inasmuch as she provided only a conclusory statement which was
unsupported by the evidence of record.
The Commissioner argues that the Plaintiff had the burden of
proving his back impairment met or equaled the requirements of
Listing 1.04, and that Plaintiff has failed to establish that he
satisfied all of the required medical criteria. However, although
a claimant does bear the burden at step three, the ALJ is required
to explain why a claimant failed to meet or equal the Listings
“[w]here the claimant’s symptoms as described by the medical
7
evidence appear to match those described in the Listings.” Rockwood
v. Astrue, 614 F. Supp. 2d 252, 273 (N.D.N.Y. 2009) (citation
omitted). Notably, it is the ALJ’s responsibility to “build an
accurate and logical bridge from the evidence to [his or her]
conclusion to enable a meaningful review.” Hamedallah ex rel. E.B.
v. Astrue, 876 F. Supp. 2d 133, 142 (N.D.N.Y. 2012). Failure to do
so warrants remand. See Cardillo,
2017 WL 1274181, at *4 (holding
that an ALJ merely stating that he or she had considered the
requirements of a listing was “patently inadequate to substitute
for specific findings in view of the fact that plaintiff has at
least a colorable case for application of listing 1.04(A)” and that
where there is “record support for each of the[ ] [necessary]
symptoms ... the ALJ was required to address that evidence, and his
failure to specifically do so was error that would justify a
remand”); Torres v. Colvin, No. 14-CV-479S, 2015 WL 4604000, at *4
(W.D.N.Y. July 30, 2015) (remanding where “the record evidence
suggests
that
Plaintiff’s
symptoms
could
meet
the
Listing
requirements in 1.04(A)” but the ALJ’s “only reference to it is a
recitation of the standard”).
In
her
decision,
the
ALJ
found
Plaintiff’s
diagnosed
degenerative disc disease was a severe impairment at step two.
T. 19. However, she stated at step three that there was “no
evidence” of any of the criteria required to meet Listing 1.04(A).
T. 20. This was a mischaracterization of Plaintiff’s medical
8
records. In direct contrast to the ALJ’s conclusory assertion of a
total lack of evidence, the record contains numerous references to
a loss of sensation, limitations of the range of motion, and other
criteria set forth in Listing 1.04(A). See e.g., T. 257 (Plaintiff
complained of right proximal leg weakness with occasional pain,
numbness and tingling. Plaintiff reported that at times, the
sensation causes him weakness and that he has fallen); T. 267 (an
MRI of Plaintiff’s lower spine revealed anterolisthesis of L5 and
L4, mild-to-moderate spondylotic change with degenerative disc
disease at l4-5, and a broad-based disc bulge at L3-4); T. 272-73
(Plaintiff had diminished sensation throughout his right leg and he
complained of back pain and right leg pain); T. 304 (Plaintiff
walked with a limp, was unable to perform heel and toe walking due
to his low back pain, and squatted at fifty percent due to his low
back
pain);
T.
flexion/extension
305
at
(Plaintiff’s
thirty-five
cervical
degrees,
spine
lateral
showed
flexion
at
thirty-five degrees bilaterally, and rotary movement at seventy
degrees bilaterally. His lumbar spine showed lateral flexion at
twenty degrees bilaterally, and rotary movement at twenty degrees
bilaterally. The straight-leg raise test was positive at thirtyfive degrees on the left side and fifteen degrees on the right
side. Plaintiff’s right hand and leg had decreased sensation
compared to his left side).
The ALJ’s failure to discuss any of
this evidence at step three of the sequential evaluation was
9
erroneous. This Court is therefore unable to perform a meaningful
review of the ALJ’s conclusion that Plaintiff did not meet the
requirements of Listing 1.04(A). Accordingly, remand of this matter
for further administrative proceedings is required. See Torres,
2015 WL 4604000, at *4. On remand, the ALJ shall perform a proper
evaluation of the medical evidence as it pertains to Listing
1.04(A) and provide a thorough explanation of her findings as to
whether Plaintiff’s impairments meet or equal Listing 1.04(A).
II.
Plaintiff’s Use of a Cane
Plaintiff also contends the ALJ failed to properly consider
Plaintiff’s use of a cane under SSR 96-9p and further erred when
she failed to give sufficient reasons for excluding Plaintiff’s use
of a cane in the RFC finding. For the reasons discussed below, the
Court agrees.
Pursuant to SSR 96-9p, in order to find that a hand-held
assistive device, such as a cane, is medically required, the record
must contain medical documentation establishing the need for the
device
to
aid
in
walking
or
standing.
Furthermore,
the
documentation must describe the circumstances for which it is
needed (i.e., all the time, periodically, or only in certain
situations; distance and terrain; and other relevant information).
See SSR 96-9p, 1996 WL 374185, at *7. When use of a hand-held
assistive device is medically required, the ALJ must consider its
impact on the claimant’s RFC. Failure to do so warrants remand. See
10
Wright v. Colvin, No. 6:13-cv-0685(MAT), 2015 WL 4600287, at *4-5
(W.D.N.Y.
July 29,
2015)
(remanding
where
the
ALJ
failed
to
properly consider the medical necessity of plaintiff’s use of a
cane).
On September 30, 2014, Plaintiff was treated at Buffalo
General Medical Center’s Emergency Room for right side leg pain and
right side arm numbness and tingling. Plaintiff reported his right
hip had been giving out and he had right hip pain since his fall
from a roof several years earlier. T. 341. Plaintiff reported
frequent falls secondary to his injuries and requested a cane to
help with ambulation. Id. On physical examination, Plaintiff had
right hip discomfort with a full range of motion and was able to
ambulate. He was diagnosed with arthritis and ulnar tunnel syndrome
and
discharged
with
a
cane
and
wrist
splint,
with
the
recommendation he follow up with his primary care physician.
T. 342. The discharge summary noted the cane should be used to
assist with ambulation for four weeks. T. 339.
In her decision, the ALJ noted Plaintiff’s continued daily use
of a cane, but pointed out this use only began in September 2014,
at his specific request, and purportedly in spite of his full range
of motion and statement that his pain was controlled by Tylenol and
ibuprofen. T. 22. No accommodations related to Plaintiff’s use of
a cane were noted in the RFC finding, nor did the ALJ make an
explicit finding as to whether the cane was medically required.
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The Court finds the ALJ’s discussion of Plaintiff’s use of the
cane inadequate. Insofar as the ALJ suggested Plaintiff’s use of a
cane lacked legitimacy because Plaintiff protectively requested the
cane to assist with his ambulation, the fact remains that his
treatment provider supplied a valid prescription to Plaintiff for
its use. Moreover, “a cane need not be prescribed to be considered
medically necessary[.]” Allen v. Commissioner of Social Security,
No. 5:14-CV-1576(DNH/ATB), 2016 WL 996381, at *7 (N.D.N.Y. Feb 22,
2016) (internal citation omitted). Furthermore, while the ALJ
stated that Plaintiff had a full range of motion when he received
the cane, the record contains several instances where Plaintiff’s
range of motion was limited. See e.g., T. 304, 311, 333. The ALJ’s
mischaracterization of the record related to Plaintiff’s use of a
cane further supports the conclusion that remand of this matter is
required. On remand, the ALJ is instructed to properly evaluate
Plaintiff’s use of a cane based on the requirements set forth in
SSR 96-9p. If the cane is deemed to be medically necessary, the ALJ
is instructed to properly incorporate its use in determining
Plaintiff’s RFC.
III. Plaintiff’s Remaining Argument
Finding remand necessary for the reasons explained above, the
Court need not and does not reach Plaintiff’s remaining argument
concerning the ALJ’s assessment of weight limitations.
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CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on
the pleadings (Doc. 10) is granted to the extent that this matter
is
remanded
proceedings
to
the
Commissioner
consistent
with
for
this
further
Decision
administrative
and
Order.
The
Commissioner’s opposing motion for judgement on the pleadings
(Doc. 13) is denied. The Clerk of the Court is directed to close
this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
_____________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
September 6, 2018
Rochester, New York
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