Straughter v. Berryhill
Filing
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DECISION AND ORDER granting plaintiff's 15 Motion for Judgment on the Pleadings and denying Commissioner's 18 Motion for Judgment on the Pleadings.. Signed by Hon. Michael J. Roemer on 3/18/2019. (RAZ)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
TYRONE STRAUGHTER,
17-CV-796-MJR
DECISION AND ORDER
Plaintiff,
-vCOMMISSIONER OF SOCIAL SECURITY, 1
Defendant.
___________________________________
Pursuant to 28 U.S.C. §636(c), the parties consented to have a United States
Magistrate Judge conduct all proceedings in this case. (Dkt. No. 16).
Plaintiff Tyrone Straughter brings this action pursuant to 42 U.S.C. §§405(g) and
1383(c)(3) seeking judicial review of the final decision of the Commissioner of Social
Security denying him Social Security Disability Insurance Benefits (“DIB”) and
Supplemental Security Income Benefits (“SSI”) under the Social Security Act (the “Act”).
Both parties have moved for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. For the following reasons, Straughter’s motion (Dkt.
No. 15) is granted, the Commissioner’s motion (Dkt. No. 18) is denied, and this case is
remanded to the Commissioner for further administrative proceedings consistent with this
Decision and Order.
BACKGROUND
On February 19, 2014, Straughter filed applications for DIB and SSI alleging
disability since January 1, 2012 due to severe lower back pain and arthritis in his hands.
1
The Clerk of Court is directed to amend the caption accordingly.
(See Tr. 105-06, 169-82, 199). 2 Born in 1953, Straughter was sixty-years old at the time
of his applications. (Tr. 170). He has a tenth-grade education with vocational training in
welding. (Tr. 200). He previously worked as a dishwasher, ingredient mixer, trash
collector, salvage laborer, and delivery driver (Tr. 100-101), but he contends that he can
no longer work because of his impairments. Straughter’s applications were denied on
May 28, 2014 (Tr. 105-28), after which he requested a hearing before an Administrative
Law Judge (Tr. 131-32). On May 12, 2016, Administrative Law Judge George M. Bock
(the “ALJ”) held a video hearing from Kansas City, Missouri, at which Straughter appeared
with counsel and testified from Buffalo, New York. (Tr. 84-104). On June 2, 2016, the
ALJ issued his decision denying Straughter’s DIB and SSI claims. (Tr. 40-55). Straughter
requested review by the Appeals Council (Tr. 164-68), but on July 25, 2017, the Appeals
Council denied Straughter’s request, making the ALJ’s decision the final decision of the
Commissioner (Tr. 2-8). This action followed.
DISCUSSION
I.
Scope of Judicial Review
The Court’s review of the Commissioner’s decision is deferential. Under the Act,
the Commissioner’s factual determinations “shall be conclusive” so long as they are
“supported by substantial evidence,” 42 U.S.C. §405(g), that is, supported by “such
relevant evidence as a reasonable mind might accept as adequate to support [the]
conclusion,” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks
and citation omitted). “The substantial evidence test applies not only to findings on basic
evidentiary facts, but also to inferences and conclusions drawn from the facts.” Smith v.
2
References to “Tr.” are to the administrative record in this case.
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Colvin, 17 F. Supp. 3d 260, 264 (W.D.N.Y. 2014). “Where the Commissioner’s decision
rests on adequate findings supported by evidence having rational probative force,” the
Court may “not substitute [its] judgment for that of the Commissioner.” Veino v. Barnhart,
312 F.3d 578, 586 (2d Cir. 2002). Thus, the Court’s task is to ask “‘whether the record,
read as a whole, yields such evidence as would allow a reasonable mind to accept the
conclusions reached’ by the Commissioner.” Silvers v. Colvin, 67 F. Supp. 3d 570, 574
(W.D.N.Y. 2014) (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)).
Two related rules follow from the Act’s standard of review. The first is that “[i]t is
the function of the [Commissioner], not [the Court], to resolve evidentiary conflicts and to
appraise the credibility of witnesses, including the claimant.” Carroll v. Sec’y of Health &
Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). The second rule is that “[g]enuine
conflicts in the medical evidence are for the Commissioner to resolve.” Veino, 312 F.3d
at 588. While the applicable standard of review is deferential, this does not mean that the
Commissioner’s decision is presumptively correct. The Commissioner’s decision is, as
described above, subject to remand or reversal if the factual conclusions on which it is
based are not supported by substantial evidence. Further, the Commissioner’s factual
conclusions must be applied to the correct legal standard. Kohler v. Astrue, 546 F.3d
260, 265 (2d Cir. 2008). Failure to apply the correct legal standard is reversible error. Id.
II.
Standards for Determining “Disability” Under the Act
A “disability” is an inability “to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of
not less than twelve (12) months.” 42 U.S.C. §§423(d)(1)(A), 1382c(a)(3)(A).
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The
Commissioner may find the claimant disabled “only if his physical or mental impairment
or impairments are of such severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage in any other kind
of substantial gainful work which exists in the national economy, regardless of whether
such work exists in the immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.” Id. §§423(d)(2)(A),
1382c(a)(3)(B). The Commissioner must make these determinations based on “objective
medical facts, diagnoses or medical opinions based on these facts, subjective evidence
of pain or disability, and . . . [the claimant’s] educational background, age, and work
experience.” Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983) (first alteration in
original) (quoting Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981)).
To guide the assessment of whether a claimant is disabled, the Commissioner has
promulgated a “five-step sequential evaluation process.” 20 C.F.R. §§404.1520(a)(4),
416.920(a)(4). First, the Commissioner determines whether the claimant is “working” and
whether that work “is substantial gainful activity.” Id. §§404.1520(b), 416.920(b). If the
claimant is engaged in substantial gainful activity, the claimant is “not disabled regardless
of [his or her] medical condition or . . . age, education, and work experience.” Id.
§§404.1520(b), 416.920(b). Second, if the claimant is not engaged in substantial gainful
activity, the Commissioner asks whether the claimant has a “severe impairment.” Id.
§§404.1520(c), 416.920(c). To make this determination, the Commissioner asks whether
the claimant has “any impairment or combination of impairments which significantly limits
[the claimant’s] physical or mental ability to do basic work activities.” Id. §§404.1520(c),
416.920(c). As with the first step, if the claimant does not have a severe impairment, he
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or she is not disabled regardless of any other factors or considerations.
Id.
§§404.1520(c), 416.920(c). Third, if the claimant does have a severe impairment, the
Commissioner asks two additional questions: first, whether that severe impairment meets
the Act’s duration requirement, and second, whether the severe impairment is either listed
in Appendix 1 of the Commissioner’s regulations or is “equal to” an impairment listed in
Appendix 1. Id. §§404.1520(d), 416.920(d). If the claimant satisfies both requirements
of step three, the Commissioner will find that he or she is disabled without regard to his
or her age, education, and work experience. Id. §§404.1520(d), 416.920(d).
If the claimant does not have the severe impairment required by step three, the
Commissioner’s analysis proceeds to steps four and five.
Before doing so, the
Commissioner must “assess and make a finding about [the claimant’s] residual functional
capacity [“RFC”] based on all the relevant medical and other evidence” in the record. Id.
§§404.1520(e), 416.920(e). RFC “is the most [the claimant] can still do despite [his or
her] limitations.” Id. §§404.1545(a)(1), 416.945(a)(1). The Commissioner’s assessment
of the claimant’s RFC is then applied at steps four and five.
At step four, the
Commissioner “compare[s] [the] residual functional capacity assessment . . . with the
physical and mental demands of [the claimant’s] past relevant work.” Id. §§404.1520(f),
416.920(f). If, based on that comparison, the claimant is able to perform his or her past
relevant work, the Commissioner will find that the claimant is not disabled within the
meaning of the Act. Id. §§404.1520(f), 416.920(f). Finally, if the claimant cannot perform
his or her past relevant work or does not have any past relevant work, then at the fifth
step the Commissioner considers whether, based on the claimant’s RFC, age, education,
and work experience, the claimant “can make an adjustment to other work.”
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Id.
§§404.1520(g)(1), 416.920(g)(1). If the claimant can adjust to other work, he or she is
not disabled. Id. §§404.1520(g)(1), 416.920(g)(1). If, however, the claimant cannot
adjust to other work, he or she is disabled within the meaning of the Act.
Id.
§§404.1520(g)(1), 416.920(g)(1).
The burden through steps one through four described above rests on the claimant.
If the claimant carries his burden through the first four steps, “the burden then shifts to
the [Commissioner] to show there is other gainful work in the national economy which the
claimant could perform.” Carroll, 705 F.2d at 642.
III.
The ALJ’s Decision
The ALJ followed the required five-step analysis for evaluating disability claims.
Under step one, the ALJ found that Straughter has not engaged in substantial gainful
activity since January 1, 2012, his alleged onset date. (Tr. 45). At step two, the ALJ
concluded that Straughter has the following severe impairments: very mild degenerative
disc disease of the lumbar spine, osteoarthritis of the bilateral hands and wrists, mild
carpal tunnel syndrome, and partial thickness tear of the left shoulder rotator cuff. (Id.).
At step three, the ALJ found that Straughter does not have an impairment or combination
of impairments that meets or medically equals the severity of one of the listed
impairments. (Tr. 46). Before proceeding to step four, the ALJ assessed Straughter’s
RFC as follows:
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[T]he claimant has the residual functional capacity to perform
medium work as defined in [20 C.F.R. §§404.1567(c) and
416.967(c)] 3 involving lifting, carrying, pushing and pulling up
to 50 pounds occasionally and 25 pounds frequently. The
claimant could sit up to six hours in an eight-hour workday,
and he could stand or walk up to six hours in an eight-hour
workday. The claimant could perform no forceful grasping or
twisting, but ordinary manipulation is not limited. He could not
perform work overhead. The claimant could not climb ladders,
ropes or scaffolds, and he could not crawl.
(Id.). Proceeding to step four, the ALJ found that Straughter is capable of performing his
past relevant work as a dishwasher. (Tr. 49). In the alternative, the ALJ proceeded to
step five where he considered Straughter’s age, education, work experience, RFC, and
the testimony of a vocational expert to conclude that Straughter can perform jobs that
exist in significant numbers in the national economy, such as dining room attendant,
change house attendant, and counter supply worker. (Tr. 50-51). 4 Accordingly, the ALJ
found that Straughter has not been under a disability within the meaning of the Act from
his alleged onset date of January 1, 2012 through the date of the ALJ’s decision. (Tr. 5152).
IV.
Straughter’s Challenge
Straughter argues that the ALJ’s RFC assessment is not supported by substantial
evidence because the opinion of consultative examiner Dr. Samuel Balderman (Tr. 26873), to which the ALJ assigned “some weight,” is too vague. (Dkt. No. 15-1 (Straughter’s
Memo. of Law) at 11-13). The Court agrees.
3
“Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of
objects weighing up to 25 pounds.” 20 C.F.R. §§404.1567(c), 416.967(c).
4
The ALJ’s decision mistakenly identifies the counter supply worker position as “counter supplier.”
(Compare Tr. 51, with Tr. 102).
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In determining Straughter’s RFC, the ALJ gave “some weight” to Dr. Balderman’s
opinion that Straughter has “mild physical limitations.” (Tr. 49). The ALJ acknowledged
that Dr. Balderman’s opinion does not provide “specific functional limitations imposed by
the symptoms of his impairments.” (Id.). Dr. Balderman’s opinion appears to be the only
medical opinion in the record as to Straughter’s physical limitations.
Dr. Balderman’s opinion that Straughter’s physical limitations are “mild” is too
vague for the ALJ to have relied upon without any additional information or explanation.
Dr. Balderman’s opinion does not, for example, address specific limitations in sitting,
standing, walking, lifting, carrying, reaching, and so forth. Consequently, the Court finds
that the ALJ’s RFC assessment is not supported by substantial evidence. See Moe v.
Colvin, No. 1:15-cv-347(MAT), 2017 WL 6379239, at *5-7 (W.D.N.Y. Dec. 14, 2017)
(finding Dr. Balderman’s opinion too vague and remanding; collecting cases); Gagovits v.
Colvin, No. 15-CV-3246(JS), 2016 WL 4491537, at *11 (E.D.N.Y. Aug. 25, 2016) (“In
according Dr. Greenberg’s opinion ‘some weight,’ the ALJ acknowledged that this nonexamining opinion was vague but held that it was consistent with the record. However,
the Court finds that Dr. Greenberg’s opinion — which uses the term ‘moderate’ without
additional information or development — is so vague as to render it useless in evaluating
the claimant’s residual functional capacity.”) (internal alterations, citations, and some
quotation marks omitted). The ALJ should have recontacted Dr. Balderman to clarify his
opinion or otherwise sought additional medical opinion evidence regarding Straughter’s
functional limitations. See Tolhurst v. Comm’r of Soc. Sec., No. 5:15-CV-428(GTS), 2016
WL 2347910, at *5-6 (N.D.N.Y. May 4, 2016) (remanding for ALJ to recontact consulting
examiner where examiner’s opinion was too vague to rely upon in formulating RFC).
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Accordingly, for these reasons, this case is remanded for the ALJ to re-evaluate
Straughter’s RFC. The ALJ should also consider on remand Straughter’s argument that
the ALJ’s step four and five conclusions are not supported by substantial evidence (see
Dkt. No. 15-1 (Straughter’s Memo. of Law) at 13-16) as well as the new medical evidence
Straughter first presented to the Appeals Council (see id. at 16-17).
CONCLUSION
For the foregoing reasons, Straughter’s motion for judgment on the pleadings (Dkt.
No. 15) is granted, the Commissioner’s motion for judgment on the pleadings (Dkt. No.
18) is denied, and this case is remanded to the Commissioner for further administrative
proceedings consistent with this Decision and Order.
The Clerk of Court shall take all steps necessary to close this case.
SO ORDERED.
Dated:
March 18, 2019
Buffalo, New York
/s/ Michael J. Roemer
MICHAEL J. ROEMER
United States Magistrate Judge
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