McGlothin v. Berryhill

Filing 21

DECISION AND ORDER granting 9 Plaintiff's Motion for Judgment on the Pleadings to the extent that the matter is remanded for further administrative proceedings consistent with this opinion; denying 14 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 4/4/19. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ERICKA A. MCGLOTHIN,
No. 1:17-cv-00776-MAT
DECISION AND ORDER

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

INTRODUCTION
Erika A. McGlothin (“Plaintiff”) brings this action pursuant
to Title II of the Social Security Act (“the Act”), seeking
review

of

Security

the
(“the

Disability

final

decision

of

Commissioner”)

Insurance

the

Commissioner

denying

Benefits

her

(“DIB”).

of

Social

application
This

Court

for
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.
PROCEDURAL STATUS
Plaintiff
December
2011.

22,

protectively
2012,

alleging

Administrative

filed

her

application

disability

Transcript

(“T.”)

beginning
148-49.

for

DIB

October

on
25,

Plaintiff’s

application was initially denied on August 7, 2013, and she filed
a timely request for a hearing before an Administrative Law Judge
(“ALJ”). T. 99, 104-05.

At Plaintiff’s request, a hearing was conducted on June 18,
2015, by the ALJ in Buffalo, New York, and Plaintiff appeared in
person with counsel. A vocational expert (“VE”) also testified.
In a decision dated February 11, 2016, the ALJ found Plaintiff
not disabled from October 25, 2011, through the date of the
decision. T. 27. On June 12, 2017, the Appeals Council denied
Plaintiff’s

request

for

review,

and

the

ALJ’s

decision

thus

became the final decision of the Commissioner subject to judicial
review. T. 1-6. This action followed.
THE ALJ’S DECISION
The ALJ applied the five-step sequential evaluation process
promulgated

by

the

Commissioner

for

adjudicating

disability

claims. See 20 C.F.R. § 404.1520(a)(4).
At step one, the ALJ found that that Plaintiff had not
engaged in substantial gainful activity since the alleged onset
date. T. 19.
At step two, the ALJ found that Plaintiff suffers from the
following severe impairments: lumbar degenerative disc disease,
bilateral knee osteoarthritis, status post left shoulder rotator
cuff

repair,

and

migraines.

T.

19;

see

20

C.F.R.

§ 404.1520(a)(4)(ii). The ALJ did not find Plaintiff’s depression
or alleged fibromyalgia to be “severe.” T. 19-20; see 20 C.F.R.
§ 404.1522. The ALJ noted that although Plaintiff was taking
Cymbalta for depression caused by pain, she was not receiving any

other mental health treatment. The ALJ also found that there was
no evidence establishing fibromyalgia as a medically determinable
impairment. T. 19-20.
At step three, the ALJ determined that Plaintiff did not
have an impairment or combination of impairments that met or
equaled
Part
§

the

severity

404,

of

Subpart

404.1520(a)(4)(iii).

an

P,
The

impairment
Appendix

ALJ

listed
1.

considered

in

See
whether

20
20

C.F.R.
C.F.R.

Plaintiff’s

conditions met or medically equaled Listings 1.02, 1.03, and
1.04. T. 20.
Before proceeding to step four, the ALJ found that Plaintiff
retained the residual functional capacity (“RFC”) to perform less
than a full range of sedentary work as defined in 20 C.F.R.
§ 404.1567(a), with the following limitations: Plaintiff can lift
and

carry

ten

pounds

occasionally

and

light

items

such

as

envelopes, folders, and small tools frequently; sit six hours in
an eight-hour workday; stand and/or walk a total of two hours in
an

eight-hour

sitting

for

workday,

ten

alternating

minutes,

and

using

after
a

twenty

cane

when

minutes

to

walking

or

standing; occasionally climb stairs or ramps, but never climb
ladders, ropes, or scaffolds; occasionally stoop, kneel, crouch,
or crawl; occasionally reach overhead with her non-dominant left
upper extremity, with no limitations regarding her right upper
extremity; work in an environment with no more than a moderate

noise

level

and

no

exposure

to

hazards

such

as

unprotected

heights or moving machinery; and perform work that would allow
her to be off-task for up to ten percent of the workday, in
addition to customary breaks. T. 20.
At step four, based on the record and the testimony of the
VE, the ALJ found that Plaintiff was able to perform her past
relevant work as a Case Worker, a skilled, sedentary job as it is
performed generally in the national economy. T. 25-26.
The ALJ conducted an alternative step five analysis and
found

that,

based

on

the

VE’s

testimony

and

Plaintiff’s

vocational profile and RFC, there are other jobs that exist in
significant numbers in the national economy that she can perform.
T.

26.

The

ALJ

cited

the

representative

occupations

of

Appointment Clerk and Telemarketer, both of which are unskilled
jobs

performed

at

the

sedentary

exertional

level.

Id.

Accordingly, the ALJ found that Plaintiff has not been under a
disability, as defined in the Act, from the onset date through
the date of decision.

T. 27.
SCOPE OF REVIEW

A federal district court may set aside an ALJ decision to
deny disability benefits only where it is based on legal error or
is not supported by substantial evidence. Balsamo v. Chater, 142
F.3d 75, 79 (2d Cir. 1998); see 42 U.S.C. § 405(g). 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”). 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

does

not

apply

to

the

Commissioner’s

conclusions of law.” Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir.
2003) (citation omitted).
DISCUSSION
Plaintiff

argues

that

the

RFC

is

not

supported

by

substantial evidence because the ALJ (i) failed to evaluate seven
of

Plaintiff’s

medically

determinable

physical

impairments

at

step two, (ii) relied on medical evidence that did not provide an
assessment

of

essential

functions

for

sedentary

work,

and

(iii) relied on her own lay opinion to find highly specific
limitations that were not supported by the medical evidence.
I.

Failure to Evaluate Impairments at Step Two (Plaintiff’s
Point I)
Plaintiff

contends that

despite

numerous

medical

records

showing that she was diagnosed with and treated for left hip
osteoarthritis,
right knee

lateral

Baker’s

cyst,

epicondylitis,
ulnar

nerve

medial
lesion,

epicondylitis,
ankle

and foot

osteoarthritis,

or

myofascial

syndrome,

the

ALJ

failed

to

evaluate these impairments at step two and failed to clearly
account for their functional effects for the remainder of the
sequential. The Commissioner argues that any step two error was
harmless

because

the

ALJ

sufficiently

accounted

for

the

functional effects of these impairments in assessing Plaintiff’s
RFC.
At the second step of the sequential analysis, the ALJ must
determine whether the plaintiff has a severe impairment that
significantly limits the plaintiff’s physical or mental ability
to do basic work activities. See 20 C.F.R. §§ 404.1520(c). The
step-two severity standard “is de minimis and is intended only to
screen out the very weakest cases.” McIntyre v. Colvin, 758 F.3d
146, 151 (2d Cir. 2014)). An impairment is “not severe” if the
medical

evidence

establishes

only

a

slight

abnormality

or

combination of slight abnormalities which do not significantly
limit

the

claimant’s

ability

to

perform

basic

work-related

activities. See SSR 85-28, 1985 WL 56856, *3-4 (S.S.A. Jan. 1,
1985).

“Although an impairment is not severe if it has no more

than a

minimal

effect

on

an

individual’s

physical

or

mental

ability(ies) to do basic work activities, the possibility of
several such impairments combining to produce a severe impairment
must be considered.” Id. Thus, “when assessing the severity of
whatever impairments an individual may have, the adjudicator must

assess the impact of the combination of those impairments on the
person's ability to function, rather than assess separately the
contribution of each impairment to the restriction of his or her
activity as if each impairment existed alone.” Id.
Plaintiff argues that the ALJ committed error by failing to
consider

the

following

impairments

at

step-two:

hip

osteoarthritis, lateral epicondylitis, medial epicondylitis, left
knee

Baker’s

osteoarthritis,

cyst,1
and

ulnar

nerve

myofascial

lesion,

ankle

syndrome. Plaintiff

and

foot

notes

that

these diagnoses were made by several of her treating physicians:
pain management specialists Dr. Eugene Gosy and Dr. Nikita Dave;
surgeon Dr. Timothy McGrath; and surgeon Dr. Nicholas Violante.
Plaintiff

asserts

that

these

impairments,

singly

and

in

combination, caused more than slight abnormalities. Dkt. 9-1,
p. 20 (citing T. 798, 804, 809, 813, 818, 822, 893-905, 907-19,
927-33, 935-40, 945-53, 963-65, 970, 978, 987).
Review
diagnosed

of
with

these
these

records
medical

indicates

that

conditions

and

Plaintiff
received

was
a

significant amount of treatment for them, including cortisone
injections, various pain management modalities, physical therapy,
and surgery. For instance, pain management specialist Dr. Dave
1

Although Plaintiff refers to the right knee in her memorandum of law, it
appears to be a typographical error since Plaintiff’s recurrent Baker’s cysts
were on her left knee.
She had swelling and pain in her right knee, and a
Baker’s cyst was suspected; however, it was not confirmed on diagnostic imaging.

diagnosed her with myofascial pain syndrome on June 11, 2014.
T. 798. She had sharp shooting pain and spasms starting in the
lower lumbar area and radiating down into her lower extremities;
aggravating factors included walking, standing or sitting more
than ten minutes, and reaching. See also T. 804, 809 (Dr. Dave
reiterated diagnosis of myofascial pain syndrome on November 3,
2014); T.

813,

818,

822

(Dr.

Gosy diagnosed

myofascial

pain

syndrome on December 23, 2014; February 6, 2015; April 10, 2015).
Plaintiff was treated for a left knee pain by Dr. Jason Matuszak
at Excelsior Orthopaedics and was found to have a Baker’s cyst
which was injected and aspirated. T. 893. She returned to Dr.
Matuszak complaining of shooting, sharp left hip pain on March
10,

2014,

which

began

suddenly

about

two

to

three

weeks

previously and was aggravated by all types of movement. T. 89697. Dr. Nicholas Violante suspected a labral tear. When Plaintiff
saw Dr. Matuszak in follow-up for her left knee pain and left hip
pain, she received injections in her hip bursa and hip joint, and
her Baker’s cyst was aspirated again. T. 901.
Plaintiff returned to Excelsior Orthopaedics for numbness
and tingling in her feet and continued pain in her left shoulder
(brachial plexus lesions) and left elbow (lateral epicondylitis)
on March 26, 2014. She received a corticosteroid injection in her
elbow, and Dr. Matuszak recommended a consult with a neurologist
for her peripheral compression neuropathy. T. 905. Plaintiff had

some

improvement

in

her

left

hip

after

the

injection,

but

Dr. Violante stated on April 10, 2014, that she will eventually
need a total hip arthroplasty. T. 912.
On

May

7,

2014,

Plaintiff

returned

to

Dr.

McGrath

with

continued pain in her left shoulder and left elbow; she received
another corticosteroid injection in her shoulder. T. 915. The
following day, she saw Dr. Violante for significant pain in the
left hip following a lumbar spine injection; she was ambulating
with a cane that day. T. 919.
Plaintiff

ultimately

had

hip

surgery

performed

by

Dr. Violante in October 2014; while she was recovering from this,
she developed a left foot cyst that caused continuous burning and
soreness as well as numbness, tingling, swelling, and pain at
night. T. 942. Dr. Hurley at Excelsior Orthopaedics referred her
to Dr. Todd Lorenc to have the cyst aspirated and injected.
T. 947. Plaintiff continued to have left elbow and left shoulder
pain into December of 2014. T. 950. On December 2, 2014, she
returned to her orthopedics practice complaining of shooting pain
from her hips to her knees and burning/numbness down both legs
into

her

recovery

feet.
from

T.
her

951.

Dr.

Violante

hip

surgery

was

noted

that

“impeded

by

Plaintiff’s
concurrent

musculoskeletal issues.” T. 965.
However,

the

ALJ

did

not

mention

any

of

these

medical

conditions at step two, despite the fact that they were medically

determinable

impairments,

sources,

which

for

diagnosed

Plaintiff

received

by

acceptable

ongoing

medical

treatment.

The

Commissioner argues that the ALJ properly considered them at
later steps in the evaluation and cites various medical records
to support this assertion. See Def.’s Mem. at 23-25 (citations to
record omitted). However, this evidence was not discussed by the
ALJ and therefore could not have supported the ALJ’s findings. It
is

well

settled

that

“[a]

reviewing

court

‘may

not

accept

appellate counsel’s post hoc rationalizations for agency action.”
Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999) (quotation
omitted).
The Commissioner also argues that any error was harmless
since the ALJ proceeded through the remaining steps and stated
that she considered all of Plaintiff’s symptoms. Def.’s Mem. at
23-24 (citations omitted). The Second Circuit, in unpublished
opinions and mainly in dicta, has applied a “specialized variant
of harmless-error analysis,” Snyder v. Colvin, No. 5:13-CV-585
GLS/ESH, 2014 WL 3107962, at *5 (N.D.N.Y. July 8, 2014), pursuant
to which step two omissions can be harmless error where the ALJ
identifies some severe impairments at step two, and then proceeds
through sequential evaluation on the basis of combined effects of
all impairments. Id. (citing Stanton v. Astrue, 370 F. App’x 231,
233 n. 1 (2d Cir. 2010) (unpublished opn.) (noting, in dictum,
that there was no error in finding disc herniation non-severe

because ALJ did identify other severe claims at step two so that
claim proceeded though the sequential evaluation process and all
impairments

were

considered

in

combination);

other

citation

omitted). Here, however, the Court cannot say that the combined
effects of the omitted impairments were fully considered and
factored into the subsequent RFC; the ALJ’s assertion that she
considered all of Plaintiff’s symptoms is insufficient to enable
meaningful review. E.g., Booker v. Astrue, No. 1:07-CV-646 GLS,
2011 WL 3735808, at *5 (N.D.N.Y. Aug. 24, 2011) (remanding based
on step two error). Since the Court cannot “confidently conclude
that the same result would have been reached absent the error,”
Snyder, 2014 WL 3107962, the Court cannot say the error was
harmless. Id. Remand is therefore required so that the ALJ can
perform a new step two severity determination.
II.

Erroneous Reliance on Incomplete Medical Opinion and
Substitution of Lay Opinion (Plaintiff’s Points II and
III)

Plaintiff
detailed

RFC

also
based

argues
on

the

that

the

opinion

ALJ
of

improperly

consultative

formed

a

physician

Dr. Donna Miller which did not specify any physical functional
limitations. Relatedly, Plaintiff contends that the ALJ elevated
her own lay opinion above those of the medical professionals.
In support of her RFC finding for sedentary work, the ALJ
accorded significant weight to Dr. Miller’s opinion. However,
Dr.

Miller

failed

to

offer

any

opinion

as

to

the

essential

exertional and postural functions required to perform sedentary
work. T. 754. During her examination, Dr. Miller noted twice that
Plaintiff had undergone left shoulder surgery the day before and
consequently could not perform left shoulder, elbow, or wrist
range

of

motion

exercises.

In

addition,

Plaintiff

exhibited

limited ranges of motion in her lumbar spine and both hips. Id.
Dr. Miller offered no opinions with regard to Plaintiff’s ability
to

stand,

walk,

sit,

push,

pull,

lift,

carry,

or

perform

manipulative or postural functions. T. 755. It is thus unclear
how Dr. Miller’s statement provides support for the ALJ’s highly
specific RFC formulation, much less a general conclusion that
Plaintiff

can

perform

all

of

the

exertional

and

postural

requirements of sedentary work. Moreover, the numerous physical
impairments

omitted

from

consideration

step

two

all

were

diagnosed after Dr. Miller’s consultative examination, rendering
her opinion stale and unable to serve as substantial evidence.
See Schuler v. Colvin, No. 5:13-CV-144 GLS, 2014 WL 2196029, at
*3

(N.D.N.Y.

May

22,

2014)

(finding

that

medical

review

consultant “constitute substantial evidence for the ALJ’s RFC
determination

because

it

is

based

on

a

stale

examination”)

(citing Acevedo v. Astrue, No. 11 Civ. 8853, 2012 WL 4377323, at
*16 (S.D.N.Y. Sept. 4, 2012) (noting that courts have found a
lack

of

substantial

evidence

where

an

ALJ

relies

on

an

RFC

assessment that was completed before a full medical history was

developed); Pierce v. Astrue, No. 09–CV–813, 2010 WL 6184871, at
*5–6 (N.D.N.Y. July 26, 2010) (holding that the ALJ erred in
relying on a treating source’s opinion, where it was rendered
nearly three years prior to the ALJ’s decision, and, in the
meantime, the evidence indicated that the claimant’s condition
may have worsened)).
It is well settled that judges are “not allowed to ‘play
doctor’ by using their own lay opinions to fill evidentiary gaps
in the record.” Suide v. Astrue, 371 F. App’x 684, 690 (7th Cir.
2010) (unpublished opn.) (quoting Blakes v. Barnhart, 331 F.3d
565, 570 (7th Cir. 2003)). Since this is not a case where the
medical evidence shows only minor physical impairments, it was
not a situation where the ALJ permissibly could render a commonsense

judgment

about

functional

capacity

even

without

a

physician’s assessment. Williams v. Berryhill, No. 16-CV-283-FPG,
2017 WL

1370995,

at *3-4

(W.D.N.Y.

Apr.

17,

2017)

(citation

omitted). Remand is required to obtain an updated opinion from a
consultative

physician

or

other

acceptable

medical

source

regarding all of Plaintiff’s exertional and postural limitations.
CONCLUSION
For

the

foregoing

reasons,

the

Court

finds

that

the

Commissioner’s decision contains legal error and is unsupported
by substantial evidence. Therefore, it is reversed. Accordingly,
Plaintiff’s motion for judgment on the pleadings is granted to

the extent that the matter is remanded for further administrative
proceedings

consistent

with

this

opinion.

The

Commissioner’s

motion for judgment on the pleadings is denied. The Clerk of
Court is directed to close this case.
SO ORDERED.
S/Michael A. Telesca
________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge

Dated:

April 4, 2019
Rochester, New York