Hudson v. Berryhill
Filing
17
DECISION AND ORDER granting 12 Plaintiff's Motion for Summary Judgment to the extent that the Commissioner's decision is reversed and the matter remanded for further administrative proceedings consistent with this opinion; and denying 14 Defendant's Motion for Judgment on the Pleadings. Signed by Hon. Michael A. Telesca on 9/21/18. (AFB)-CLERK TO FOLLOW UP-The Clerk of Court is directed to close this case.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
ANITA D. HUDSON,
Plaintiff,
1:17-CV-00463 (MAT)
DECISION AND ORDER
-vNANCY A. BERRYHILL, Acting Commissioner
of Social Security,
Defendant.
____________________________________
INTRODUCTION
Anita D. Hudson (“Plaintiff”), represented by counsel, brings
this action under Title II of the Social Security Act (“the Act”),
seeking review of the final decision of Nancy A. Berryhill, Acting
Commissioner
of
Social
Security
(“the
Commissioner”
or
“Defendant”),1 denying her 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, this matter is remanded, as Commissioner’s
decision contains errors of law and is not supported by substantial
evidence.
1 Nancy A. Berryhill is no longer serving in this position. The Clerk of Court
therefore is directed to substitute “The Commissioner of Social Security” for
“Nancy A. Berryhill, Acting Commissioner of Social Security” as the defendant
in this action. See 20 C.F.R. § 422.210(d).
PROCEDURAL BACKGROUND
On December 9, 2013, Plaintiff protectively filed for DIB,
alleging disability beginning February 15, 2013. (Administrative
Transcript (“T.”) 123, 193-95). The claim was initially denied on
February 7, 2014, and Plaintiff timely requested a hearing. (T.
139-48). A hearing was conducted on February 1, 2016, in Buffalo,
New York by Administrative Law Judge Susan Smith (“the ALJ”). (T.
87-122). Plaintiff appeared with her attorney and testified. A
vocational expert (“VE”) also testified.
The
ALJ
promulgated
applied
by
the
the
five-step
Commissioner
for
sequential
evaluation
adjudicating
disability
claims. See 20 C.F.R. § 404.1520(a). At step one, the ALJ found
that Plaintiff had not engaged in substantial gainful activity
since the alleged onset date. (T. 75). At step two, the ALJ found
Plaintiff had the severe impairments of degenerative disc disease,
cervical
disc
herniation
and
radiculopathy,
was
status
post
cervical discectomy and fusion at C5-C7, and had left shoulder
tendinopathy with a labral tear and chronic pain. (T. 75-77). At
step
three,
the
ALJ
found
that
Plaintiff
does
not
have
an
impairment or combination of impairments that meets or medically
equals
the
severity
of
any
impairment
in
the
Listing
of
Impairments. (T. 77). Before proceeding to step four, the ALJ found
2
that Plaintiff had the residual functional capacity (“RFC”) to
perform sedentary work as defined in 20 C.F.R. § 404.1567(a), with
certain restrictions. (T. 77). At step four, the ALJ determined
that Plaintiff is unable to perform any of her past relevant work
as a school bus driver or as a certified nurse’s aide. (T. 81). At
step
five,
the
requirements
of
ALJ
found
that
representative
Plaintiff
occupations
can
such
perform
as
the
document
preparer (Dictionary of Occupational Titles (“DOT”) No. 249.587018,
unskilled,
sedentary);
unskilled,
sedentary);
and
unskilled,
sedentary),
with
inspector
(DOT
No.
669.687-014,
assembler
(DOT
No.
715.687-114,
50,000;
125,000;
and
170,000
positions, respectively, in the national economy. (T. 81-82). The
ALJ issued an unfavorable decision on September 16, 2015. (T. 7382). Plaintiff timely requested review of the ALJ’s decision by
the
Appeals
Council.
(T.
66-69).
The
Appeals
Council
denied
Plaintiff’s request for review on March 2, 2016, making the ALJ’s
decision
the
Plaintiff
final
decision
of
the
Commissioner.
(T.
1-7).
timely instituted a civil action in this Court on
February 23, 2017. (Docket No. 1).
SCOPE OF REVIEW
A
district
court
may
set
aside
the
Commissioner’s
determination that a claimant is not disabled only if the factual
3
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
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
Commissioner’s conclusions of law.”
does
not
apply
to
the
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 improperly weighed the opinions of Plaintiff’s
physicians; (2) the ALJ improperly assessed Plaintiff’s subjective
4
complaints; and (3) the ALJ incorrectly found the Plaintiff could
perform other work in the national economy. Defendant argues that
the ALJ did not commit legal error and that her determination was
supported by substantial evidence and should be affirmed. For the
reasons discussed below, the Court finds that the Commissioner’s
decision contains errors of law and is unsupported by substantial
evidence.
Therefore,
the
Court
remands
the
matter
to
the
Commissioner for further proceedings consistent with this Decision
and Order.
I.
The ALJ Failed to Properly Consider and Weigh the Medical
Opinions of Plaintiff’s Treating Physicians (Plaintiff’s
Argument I)
The Plaintiff contends that the ALJ did not properly consider
and weigh the medical opinions of her treating physicians Dr. Zair
Fishkin, Dr. A. Marc Tetro, and Dr. Eugene Gosy; independent
medical examiners Dr. Donald Jacob and Dr. Steven Hausmann. who
examined her in connection with her Workers Compensation claim;
and consultative examiner Dr. Donna Miller, who examined her at
the Commissioner’s request. (Plaintiff’s Brief (Docket No. 12-1)
(“Pl’s Br.”) at 18-22).
The
treating
physician
rule
requires
the
ALJ
to
give
a
treating physician’s opinion “controlling weight” if the opinion
is “well-supported by medically acceptable clinical and laboratory
5
diagnostic
techniques
substantial
evidence
and
in
is
not
the
case
inconsistent
record.”
20
with
other
C.F.R.
§
404.1527(d)(2); Clark v. Commissioner of Soc. Sec., 143 F.3d 115,
118 (2d Cir. 1998). When an ALJ does not afford controlling weight
to a treating physician’s opinion, the regulations require that
the ALJ provide “good reasons” for choosing to discount the opinion
of the treating physician. 20 C.F.R. § 404.1527(c)(2). An ALJ’s
“failure to follow the procedural requirement of identifying the
reasons for discounting the opinions and for explaining precisely
how the reasons affected the weight given denotes a lack of
substantial evidence.” Harris v. Colvin, 148 F.Supp.3d 435, 441
(W.D.N.Y. 2016) (citations omitted).
Here, the ALJ indicated she assigned Dr. Tetro’s and Dr.
Fishkin’s opinions “significant weight” because they were “likely
to be the medical professionals most able to provide a detailed,
longitudinal picture of the claimant’s medical impairments. Their
opinions and conclusions as to the claimant’s limitations and
capacity to work are well supported by substantial evidence.” (T.
79). Plaintiff argues that while the ALJ gave significant weight
to the opinions of Dr. Fishkin and Dr. Tetro, the ALJ erred in
engaging
in
impermissible
cherry-picking
6
of
evidence
by
not
adopting
specific
portions
of
their
opinions
that
were
more
favorable to Plaintiff. See Pl’s Br. at 19-20.
Plaintiff argues that it is improper for the ALJ to “simply
pick and
choose
from
the
transcript
only
such
evidence
that
supports his determination, without affording consideration to
evidence supporting the plaintiff’s claims.” Harris, 149 F.Supp.3d
at 446 (citing Lopez v. Sec’y of Dep’t of Health and Human Servs.,
728 F.2d 148, 150-51 (2d Cir. 1984)). “It is a fundamental tenet
of Social Security law that an ALJ cannot pick and choose only
parts of a medical opinion that supports his determination.” Nix
v. Astrue, 07-CV-344, 2009 WL 3429616, at *6 (W.D.N.Y. Oct. 22,
2009) (citing Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir.
2004); other citation omitted). An ALJ cannot “ignore an entire
line of evidence that is contrary to [his] findings.” Id. (quoting
Zurawski v. Halter, 245 F.3d 881, 888 (7th Cir. 2001); other
citation omitted; alteration in original)).
Dr. Fishkin
Dr. Fishkin treated Plaintiff exclusively for her cervical
injuries. Plaintiff was initially injured working as a certified
nurse’s aide in February 2013, and was diagnosed with a shoulder
sprain, degenerative joint disease, and tendonitis. (T. 93-94,
311-17).
On
July
26,
2013,
Dr.
7
Fishkin
performed
a
cervical
discectomy and fusion at the C5-C7 position on Plaintiff. (T. 37577). Dr. Fishkin indicated that Plaintiff was slow to heal from
the surgery. (T. 349). He reported that Plaintiff had ongoing
complaints of cervical pain and continued to display an abnormal
cervical range of motion. (Id.).
First, Plaintiff argues that the ALJ improperly discounted
Dr. Fishkin’s statements that Plaintiff was “100% disabled,” and
likewise, Dr. Gosy’s statements that she was “75% disabled.” Pl’s
Br.
at
19-20,
determination
of
Commissioner.
20
22.
However,
whether
C.F.R.
a
§
the
regulations
claimant
is
404.1527(d)(1).
reserve
disabled
This
the
to
the
Circuit
has
repeatedly held that “[a] treating physician’s statement that a
claimant is disabled cannot itself be determinative.” Claymore v.
Astrue, 519 F. App’x 36, 38 (2d Cir. 2013) (unpublished opn.)
(citing Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999)). The
Commissioner
is
“responsible
for
making
the
determination
or
decision whether [the claimant] meet[s] the statutory definition
of disability.” (Id.) (citing 20 C.F.R. § 404.1527(d)(1)). The ALJ
did not err in giving these statements little weight.
Conversely, the ALJ did err by failing to properly weigh Dr.
Fishkin’s opinion, which first required the ALJ to develop the
record to clarify certain inconsistencies in Dr. Fishkin’s RFC
8
findings. On October 9, 2014, Dr. Fishkin adopted the RFC reported
by occupational therapist Joseph J. Higgins and indicated it was
to supersede his (Dr. Fishkin’s) prior RFC findings. (T. 613-16).
However, this report contains several inconsistencies. Notably,
the occupational therapist reported both that Plaintiff could
perform sedentary work and could not perform sedentary work. (T.
548). Moreover, the occupation therapist reported restrictions
that are inconsistent with being able to perform sedentary work
including
that
Plaintiff
could
“occasionally”
lift
over
ten
pounds; could “never” to “occasionally” stand and walk; and could
push and pull over forty pounds “occasionally.” See 20 C.F.R. §
404.1567(a) (defining “sedentary work” as involving lifting no
more than ten pounds at a time or lifting lightweight items, and
if walking and standing are required occasionally); see also Perez
v. Chater, 77 F.3d 41, 46 (2d Cir. 1996) (stating that sedentary
work generally involves up to two hours of standing or walking in
an eight-hour work day).
Further, Dr. Fishkin’s report contains inconsistencies with
regard to Plaintiff’s ability to perform certain functions. First,
it was reported that Plaintiff could stand for one to three hours
per eight-hour work day, but on the next page it was indicated
that Plaintiff could “never” to “occasionally” stand. (T. 547-48).
9
Then, it was indicated that Plaintiff could walk for one to two
hours per eight-hour work day, but also that Plaintiff could
“never” to “occasionally” walk. (Id.). Likewise, the occupational
therapist indicated that Plaintiff was limited in her ability to
reach with her both her arms, but on the next page, he reported
that Plaintiff could “never” to “occasionally” reach with both
arms.
(Id.).
Dr.
Fishkin
accepted
in
their
entirety
the
RFC
findings reported by Higgins but did not make note of these
inconsistencies or provide clarification.
The ALJ failed to fully develop the record to correct these
inconsistencies, especially since some of these limitations would
prevent the Plaintiff from performing the exertional requirements
of the jobs that the ALJ found she could perform at step five. See
Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir. 1999) (holding that “if
an ALJ perceives inconsistences in a treating physician’s report,
the ALJ bears an affirmative duty to seek out more information
from the treating physician and to develop the administrative
record accordingly”).
Dr. Tetro
Likewise, the ALJ erred in weighing the opinion of treating
physician Dr. Tetro by failing to develop the record and recontact
Dr. Tetro for clarification. The ALJ is required to develop the
10
record in cases where there is a “conflict or ambiguity” about a
critical finding. Rolon v. Comm’r of Soc. Sec., 994 F. Supp.2d.
496, 504 (S.D.N.Y. 2014) (citing 20 C.F.R. §§ 404.1512(e)(1);
416.912(e)(1)).
Plaintiff treated with Dr. Tetro exclusively for her left
shoulder joint injuries. (T. 437). Based on an MRI dated May 20,
2013,
Dr.
Tetro
diagnosed
Plaintiff
with
a
left
shoulder
impingement syndrome, a left shoulder glenoid labral tear, and
left shoulder AC joint arthrosis. (T. 351). Dr. Tetro consistently
reported that Plaintiff had an abnormal range of motion in her
left shoulder, positive Neer’s tests, positive Hawkins’ tests, and
continuing
pain
in
her
left
shoulder.
He
believed
that
the
Plaintiff was a candidate for a left shoulder arthroscopy and
decompression. (T. 388-89).
Dr. Tetro additionally consistently reported that Plaintiff
was unable to engage in repetitive reaching or overhead activity
with
her
left
shoulder.
The
ALJ’s
RFC,
however,
omits
the
limitation that Plaintiff cannot engage in “overhead activity with
her left shoulder” and therefore, the ALJ engages in a selective
parsing of Dr. Tetro’s opinion by not providing an explanation for
rejecting this portion of his opinion. It is also unclear what Dr.
Tetro includes in his definition of no “overhead activity,” which
11
is a finding that could change the VE’s testimony at step five.
Dr. Hausmann later opined that Plaintiff cannot “lift overhead
with her left arm,” and it is possible that Dr. Tetro meant to
include this limitation as well as others. (T. 456). The ALJ has
a
duty
to
seek
clarification
to
resolve
this
ambiguity
by
contacting Dr. Tetro. Therefore, the ALJ’s weighing of Dr. Tetro’s
opinion is not supported by substantial evidence.
Dr. Jacob
Plaintiff also argues that the ALJ engaged in a selective
analysis of consultative examiner Dr. Jacob’s opinion despite
giving it significant weight. See Pl’s Br. at 21-22. In doing so,
the ALJ engaged in impermissible cherry-picking of Dr. Jacob’s
opinion.
The ALJ noted that Dr. Jacob “opined that the claimant’s
cervical
spine
disproportional
findings.”
(T.
and
to
left
the
80).
shoulder
findings
However,
on
with
range
the
of
MRIs
respect
motion
and
to
[is]
objective
Plaintiff’s
shoulder’s range of motion, the ALJ mischaracterizes Dr. Jacobs’
statement, which went on further to state that while “the range of
motion
[Plaintiff]
displays
in
her
left
shoulder
is
out
of
proportion with the underlying pathology demonstrated on [the]
MRI.
It
is
possible
that
she
has
12
more
severe
pathology
not
visualized on [the] MRI and in that case, she would benefit from
left shoulder arthroscopic surgery.” (T. 641). Moreover, with
respect to both Plaintiff’s spinal and left shoulder injuries, the
ALJ ignores other portions of Dr. Jacob’s opinion that are more
favorable to Plaintiff.
Dr. Jacob found restrictions of no repetitive twisting or
bending of the neck, no work above waist level with the left hand
or arm, and no pushing or pulling over ten pounds occasionally or
two pounds frequently. (T. 640). These limitations are not included
in the ALJ’s RFC, and she offers no explanation for the omissions.
Also, Dr. Jacob indicated that he thought Plaintiff would likely
significantly benefit from left shoulder arthroscopic surgery and
that Plaintiff should receive further electrodiagnostic studies to
see if her cervical condition was improving. (T. 640-41). He noted
that Plaintiff’s symptoms became worse after the accident. (T.
641). The ALJ engages in a selective analysis of Dr. Jacob’s
opinion by including evidence that was favorable to Plaintiff in
her RFC finding and by ignoring the portions of Dr. Jacob’s opinion
that would have supported a more restrictive RFC.
Dr. Hausmann
At the request of the Workers’ Compensation carrier, Dr.
Hausmann examined Plaintiff on April 8, 2014.
13
The Court finds the
ALJ engaged in a selective analysis of Dr. Hausmann’s opinion by
including
only
those
portions
that
supported
her
RFC
determination. While the ALJ is correct that Dr. Hausmann reported
that the Plaintiff had “quite a number of complaints [that] do not
really match with her pathology,” he goes on further to state that
Plaintiff “does suffer from depression, which likely makes her
symptoms more prominent.” (T. 456). It is also unclear from his
report which of Plaintiff’s complaints do not match with her
pathology.
The ALJ also ignored other portions of Dr. Hausmann’s opinion
that supported a more restrictive RFC finding. Dr. Hausmann opined
that Plaintiff cannot stoop, bend, or squat; cannot lift overhead
with her left arm; and cannot lift above the waist anything of
more than three to four pounds. (Id.). All of these findings are
more restrictive than the ALJ’s RFC. The ALJ reasoned that while
“objective
medical
evidence
[did]
not
support
[the]
complete
inability to stoop or squat . . . the rest of [the] opinion is
supported by clinical findings and [is] consistent with the opinion
made by [Plaintiff’s] treating sources.” (T. 80). Even if the
complete
inability
to
stoop
or
squat
is
not
supported
by
substantial evidence, the ALJ still fails to include limitations
that Plaintiff cannot lift with her left arm, cannot bend, and
14
cannot lift anything above the waist that is more than three to
four pounds. The ALJ offers no explanation why these limitations
were not included.
Dr. Hausmann further reports that Plaintiff has cervical and
left shoulder sprain, exacerbation of cervical degenerative disc
disease and spondylosis, and a left shoulder labral tear. (T. 456).
He
states
that
Plaintiff
has
not
“reached
maximum
medical
improvement” and that an “end result has not been achieved.” (T.
456). The ALJ’s weighing of Dr. Hausmann’s opinion is not supported
by substantial evidence as she also engages in a selective analysis
of his opinion.
Dr. Miller
Plaintiff additionally argues the ALJ erred when she gave
little weight to the opinion of consultative examiner Dr. Miller.
On January 21, 2014, Dr. Miller reported an RFC that included
“moderate to severe limitation for repetitive lifting, bending,
carrying pushing, or pulling.” (T. 447). The ALJ gave little weight
to Dr. Miller’s opinion because it was “rendered a short period
out from the fusion, and Dr. Miller indicated a fair prognosis for
improvement.” (T. 78). This opinion, however, is inconsistent with
Dr. Fishkin who reported two weeks prior that Plaintiff was slow
to heal, and that he was expecting to see her making more progress.
15
(T. 349). The ALJ offers no explanation for the inconsistency.
Rather, it is apparent from the rest of the ALJ’s analysis that
Dr. Miller’s opinion was only given little weight because the ALJ
could not find anything to select from it to support her RFC.
II.
The
ALJ
Erred
in
Assessing
(Plaintiff’s Argument 2)
Plaintiff’s
Credibility
Plaintiff also argues the ALJ erred in the assessment of her
credibility. See Pl’s Br. at 23-27. The Court has reviewed the
ALJ’s credibility assessment, and for the reasons discussed below,
finds that her assessment is not supported by substantial evidence.
The regulations provide guidelines for making credibility
determinations where disability claims are based on subjective
symptoms of pain. See 20 C.F.R. § 404.1529. First, the ALJ must
decide whether the claimant suffers from a medically determinable
impairment
that
could
reasonably
be
expected
to
produce
the
symptoms alleged. 20 C.F.R. § 404.1529(c). If so, the ALJ must
evaluate the intensity, persistence, and limiting effects of the
claimant’s symptoms to determine the extent to which they limit
the claimant’s function. 20 C.F.R. § 404.1529(c)(3). Where an ALJ
believes the reported complaints exceed those that are supported
by objective medical evidence, the ALJ must consider the following
factors: the claimant’s daily activities; the nature and intensity
of her symptoms; the type, effectiveness, and adverse side effects
16
or treatment; and/or other measures which she used to relieve pain
or other symptoms. Id.
In making her RFC determination, the ALJ stated she did not
find Plaintiff to be credible because the “objective findings [did]
not support the extent of her allegations nor [did] the evidence
show that the claimant’s impairments precluded her from performing
basic work activities.” (T. 78). The ALJ further indicated that
“notably, at more than one evaluation it was noted that the
claimant’s presenting symptoms were not corroborated by objective
measures.” (Id.).
The regulations state that the ALJ “will not reject [the
claimant’s] statements about the intensity and persistence of
[her] pain or other symptoms or about the effect [her] symptoms
have
on
objective
[her]
ability
evidence
to
does
work
not
solely
because
substantiate
the
[the
available
claimant’s]
statements.” 20 C.F.R. § 404.1529(c)(2). When “objective” medical
evidence appears to be lacking, and symptoms appear to exceed such
evidence, the regulations require the ALJ to consider the seven
factors discussed above. Here, even if the ALJ’s credibility
analysis was not solely based on a lack of objective evidence, the
ALJ’s analysis is not based on subjective evidence as she engages
in selective parsing of Dr. Hausmann’s and Dr. Jacob’s opinions.
17
On March 24, 2015, at the request of the Workers’ Compensation
Board, Dr. Jacob conducted an independent medical exam. (T. 63957). Dr. Jacob opined that “[t]here are no objective findings that
explain why [Plaintiff] demonstrates such marked restrictions in
her cervical range of motion. At this time, the range of motion
she displays in her left shoulder is also out of proportion to the
underlying pathology demonstrated on the MRI.” However, the ALJ
omits that Dr. Jacob went on to state “[i]t is possible she has
more severe pathology not visualized on the MRI and in that case,
she would benefit from left shoulder arthroscopic surgery.” (T.
641). In addition, Dr. Jacob found a more restrictive RFC than did
the ALJ, which included that Plaintiff cannot engage in repetitive
twisting or bending of the neck and cannot perform work above the
waist level with her left hand or arm. (T. 640-41).
Dr. Jacob also diagnosed Plaintiff with left shoulder strain;
cervical
strain,
tendinopathy
with
distal
evidence
supraspinatus
of
small
and
infraspinatus
intrasubstance
partial
thickness labral tear, posterior disc extrusion at C5-6, and
degenerative anterior spurring at C6-7. (T. 640). He further
reported
that
improvement
from
“cervical
nerve
decompression
surgery may take up to two years or longer” and that it would be
helpful to conduct electrodiagnostic studies to see if Plaintiff’s
18
condition was improving. (T. 641). Moreover, he indicated that
Plaintiff’s
pain
in
her
“arms,
bilateral
hand
numbness,
and
weakness have actually gotten worse.” (T. 642). Therefore, it is
clear the ALJ took Dr. Jacob’s statement out of context with
respect to his other findings.
Likewise, while Dr. Hausmann indicated that Plaintiff has
“quite a number of complaints [that] do not really match with her
pathology,” he still reported that Plaintiff would not be able to
lift overhead with her left arm; would not be able to stoop, bend,
or squat; and would not be able to lift above the waist height
anything in excess of three to four pounds. (T. 456). The ALJ also
ignored more favorable evidence in Dr. Hausmann’s opinion as he
diagnosed
Plaintiff
exacerbation
of
with
cervical
cervical
and
left
degenerative
shoulder
disc
sprain,
disease
and
spondylosis, and a left shoulder labral tear. (Id.). He opined
that Plaintiff was a candidate for left shoulder arthroscopic
surgery and labral repair; and a possible shoulder decompression;
therefore, he reported that Plaintiff had “not reached maximum
medical improvement.” (Id.). Thus, the ALJ’s analysis involving a
lack of objective evidence is not supported by substantial evidence
as she engages in impermissible cherry-picking of Dr. Jacob’s and
Dr. Hausmann’s opinions.
19
The
other
factor
the
ALJ
considered
in
her
credibility
analysis was Plaintiff’s daily activities. A claimant’s daily
activities are a proper factor for the ALJ to consider in assessing
credibility. 20 C.F.R. § 404.1529(c)(3). The ALJ indicated she
found
that
the
Plaintiff
was
not
fully
credible
because
her
impairments “did not preclude her from performing basic work
activities” and that Plaintiff had reported “good activities of
daily
living
including
driving,
preparing
meals,
and
going
shopping, which are not limited to the extend one would expect,
given the complaints of disabling symptoms and limitations.” (T.
78, 80). The Court finds this reason for discounting Plaintiff’s
credibility to be unpersuasive. It is well settled that “[t]here
is a critical difference between activities of daily living and
keeping a full-time job.” Harris, 149 F.Supp.3d at 444-45 (other
citations omitted). “The fact that an appellant can still perform
simple functions, such as driving, grocery shopping, dish washing
and
floor
sweeping,
does
not
necessarily
indicate
that
this
appellant possesses an ability to engaged in substantial gainful
activity.” Mecklenburg v. Astrue, 07-CV-760, 2009 WL 4042939, at
*8 (W.D.N.Y. Nov. 9, 2009) (quoting Walston v. Gardner, 381 F.2d
580, 586 (6th Cir. 1967)).
20
Here, the ALJ’s determination is not based on substantial
evidence
as
she
overstates
Plaintiff’s
abilities.
Plaintiff
indicated that while she can drive, she does not drive much. (T.
302). She told Dr. Jacob she can only drive for ten minutes. (T.
642). Dr. Jacob also reported that Plaintiff “needs help dressing
and putting on her shoes . . . she does not do any laundry, house
cleaning or other housework.” (T. 642). Likewise, the Plaintiff
testified she paid “people to come and clean [her] bathroom,
vacuum, wash clothes, [and] mop floors,” and told Dr. Hausmann she
has “difficulty with housework due to her pain.” (T. 112, 302).
Plaintiff additionally reported that while she does go grocery
shopping, she only gets a few items at a time, can only carry two
light bags, thinks she might be able to lift a gallon of milk, and
goes with someone else. (T. 642, 115).
The ALJ’s credibility analysis only addressed the objective
evidence and Plaintiff’s daily activities and is not supported by
substantial evidence. Therefore, remand is required.
III. The ALJ Incorrectly Found that the Plaintiff Could Perform
Other Work in the National Economy (Plaintiff’s Argument 3)
Plaintiff argues that the ALJ incorrectly concluded she could
perform
other
hypotheticals
work
in
presented
the
to
national
the
VE
did
economy
not
because
include
all
the
of
Plaintiff’s limitations. See Pl’s Br. at 29-31. At step five, the
21
VE found that Plaintiff could perform the work of a document
preparer (DOT No. 249.587-018), inspector (DOT No. 669.687-014),
and assembler (DOT No. 715.687-114). (T. 81-82).
While the Commissioner may depend on the testimony of a
vocational
expert
to
sustain
her
burden
at
step
five,
the
“vocational expert’s testimony is only useful if it addresses
whether
the
particular
claimant,
with
his
limitations
and
capabilities, can realistically perform a particular job.” Abeuf
v. Schweiker, 802 F.2d 601, 604-05 (2d Cir. 1981). Therefore, if
the
Commissioner
relies
upon
the
factual
foundation
of
a
hypothetical presented to the VE, it must contain an accurate
description
Barnhart,
vocational
of
312
Plaintiff’s
F.
Supp.2d
expert’s
information
given
condition.
415,
opinion
is
accurately
430
only
See,
e.g.,
(W.D.N.Y.
useful
reflects
if
the
Johnson
v.
2003)
(“[T]he
the
factual
[claimant]’s
condition.”).
The VE expressly testified that work as a document inspector,
inspector, and assembler required frequent twisting and bending of
the neck and that these occupations would be impossible to perform
by
Plaintiff
because
of
her
restrictions.
(T.
120).
The
VE
expressly testified that Plaintiff would be unable to perform other
work in the national economy if she could only occasionally reach
22
in all directions. (T. 118-19). Accordingly, the Court finds that
the ALJ’s decision was erroneous as a matter of law and not
supported by substantial evidence.
Plaintiff also argues the ALJ erred by not considering her
limitations that she cannot lift to the chest more than three to
five pounds, can only use her left hand to lift two to four pounds,
and cannot conduct overhead activities with her left arm. See Pl’s
Br. at 29-30. The VE was presented with a hypothetical that
included “no work above the waist level that [requires] bilateral
extremities.” In response, the VE testified there would be no jobs
in the national economy such an individual could perform, but the
VE seemed to imply it was because “no repetitive twisting or
bending of the neck” was also included in the hypothetical. (T.
120). The lack of clarity in the VE’s testimony and the ALJ’s use
of
hypotheticals
that
do
not
accurately
reflect
Plaintiff’s
limitations denotes a lack of substantial evidence at step five.
See, e.g., Slattery v. Colvin, 111 F. Supp.3d 360, 375 (W.D.N.Y.
2015) (“If a hypothetical question does not include all of a
claimant’s
impairments,
limitations,
otherwise
inadequate,
a
VE’s
and
response
restrictions,
cannot
or
is
constitute
substantial evidence to support a conclusion of no disability.”).
23
Lastly, Plaintiff contends that the ALJ erred by failing to
consider whether she had a medical necessity to use a cane. See
Pl’s Br. at 30. Although medical providers indicated that Plaintiff
reported using a cane, the record lacks medical documentation that
establishes Plaintiff needed a cane. See SSR 96-9p, 1996 WL 374185,
at *7 (S.S.A. July 2, 1996) (indicating that to find that a handheld assistive device was medically required, there must be medical
documentation establishing the need for a hand-held assistive
device). Therefore, the Court cannot say that the ALJ erred as a
matter of law in failing to include the use of an assistive device.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Judgment on
the Pleadings is granted to the extent that the Court finds that
the
Commissioner’s
unsupported
by
decision
contains
substantial
legal
evidence.
error
and
Accordingly,
is
the
Commissioner’s decision is reversed, and the matter is remanded to
the Commissioner for further administrative proceedings consistent
with
this
Decision
and
Order.
In
particular,
on
remand,
the
Commissioner is directed to (1) recontact Dr. Tetro and Dr. Fishkin
for clarification of their opinions; (2) reweigh the opinions of
Dr. Tetro, Dr. Fishkin, Dr. Miller, Dr. Jacob, and Dr. Hausmann
using the appropriate factors and legal principles; (3) perform a
24
new credibility assessment of Plaintiff using the appropriate
factors and legal principles; and (4) conduct a new step five
analysis. Defendant’s Motion for Judgment on the Pleadings is
denied. The Clerk of Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
_____________________________
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
September __, 2018
Rochester, New York
25
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