Mancuso-Rosner v. Commissioner of Social Security

Filing 19

DECISION AND ORDER granting plaintiff's 11 Motion for Judgment on the Pleadings and denying Commissioner's 15 Motion for Judgment on the Pleadings. This case is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order. Signed by Hon. Michael J. Roemer on 2/19/2019. (RAZ)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
DEANA M. MANCUSO-ROSNER,

17-CV-1019-MJR
DECISION AND ORDER

Plaintiff,
-vCOMMISSIONER OF SOCIAL SECURITY,
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. 13).
Plaintiff Deana Mancuso-Rosner 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 her 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, Mancuso-Rosner’s motion
(Dkt. No. 11) is granted, the Commissioner’s motion (Dkt. No. 15) is denied, and this case
is remanded to the Commissioner for further administrative proceedings consistent with
this Decision and Order.
BACKGROUND
On December 16, 2013, Mancuso-Rosner filed applications for DIB and SSI
alleging disability since September 30, 2012 due to herniated discs, degenerative disc
disease, diabetes, arthritis, rheumatoid arthritis, bursitis, depression, and thyroid

problems. (See Tr. 80, 176-83, 231). 1 Born in 1961, Mancuso-Rosner was fifty-two years
old at the time of her applications. (Tr. 176). Mancuso-Rosner’s applications were denied
on February 10, 2014 (Tr. 80-91, 94-101) after which she requested a hearing before an
Administrative Law Judge (Tr. 102-03). On April 4, 2016, Mancuso-Rosner appeared
with counsel before Administrative Law Judge Melissa Lin Jones (the “ALJ”) for a hearing.
(Tr. 38-79). On April 27, 2016, the ALJ issued her decision denying Mancuso-Rosner’s
DIB and SSI claims. (Tr. 7-26). Mancuso-Rosner requested review by the Appeals
Council (Tr. 160-61), but on August 11, 2017, the Appeals Council denied MancusoRosner’s request, making the ALJ’s decision the final decision of the Commissioner (Tr.
1-6). 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.
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,

1

References to “Tr.” are to the administrative record in this case.
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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).

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

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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
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

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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.”

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

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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 Mancuso-Rosner has not engaged in substantial
gainful activity since September 30, 2012, her alleged onset date. (Tr. 12). At step two,
the ALJ concluded that Mancuso-Rosner has the following severe impairments:
degenerative disc disease, sleep apnea, and obesity. (Id.). At step three, the ALJ found
that Mancuso-Rosner does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments. (Tr. 14). Before
proceeding to step four, the ALJ assessed Mancuso-Rosner’s RFC as follows:
[T]he claimant has the residual functional capacity to perform
light work as defined in [20 C.F.R. §§404.1567(b) and
416.967(b)] 2 except the claimant can never climb ladders or
scaffolds or operate foot controls with the right foot. She can
only occasionally climb ramps and stairs, kneel, crouch, crawl,
or work in exposure to dust, odors, fumes and pulmonary
irritants. The claimant is limited to simple, routine tasks and
making simple work-related decisions. She will have a
sit/stand option where she will be able to sit for 30 minutes
and stand for 10 minutes and still remain on task.
2

“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category
when it requires a good deal of walking or standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of
light work, [the claimant] must have the ability to do substantially all of these activities.” 20 C.F.R.
§§404.1567(b), 416.967(b).
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(Tr. 15-16). Proceeding to step four, the ALJ found that Mancuso-Rosner is capable of
performing her past relevant work as a recreation aide. (Tr. 19). In the alternative, the
ALJ proceeded to step five where she considered Mancuso-Rosner’s age, education,
work experience, RFC, and the testimony of a vocational expert to conclude that
Mancuso-Rosner can perform jobs that exist in significant numbers in the national
economy, such as office helper, information clerk, and mail clerk.

(Tr. 20-21).

Accordingly, the ALJ found that Mancuso-Rosner has not been under a disability within
the meaning of the Act from her alleged onset date of September 30, 2012 through the
date of the ALJ’s decision. (Tr. 21).
IV.

Mancuso-Rosner’s Challenge

Mancuso-Rosner argues that the ALJ’s RFC assessment is not supported by
substantial evidence because the ALJ incorrectly evaluated the opinion of consultative
examiner Dr. Hongbiao Liu. (See Dkt. No. 11-1 (Pltf. Memo. of Law) at 23-26).
The ALJ must assess the claimant’s RFC based on all the relevant medical and
other evidence in the record. See 20 C.F.R. §§404.1545(a)(3); 416.945(a)(3). “[I]f the
ALJ’s ‘RFC assessment conflicts with an opinion from a medical source, the [ALJ] must
explain why the opinion was not adopted.’” Dioguardi v. Comm’r of Soc. Sec., 445 F.
Supp. 2d 288, 297 (W.D.N.Y. 2006) (quoting Social Security Ruling 96-8p, 1996 WL
374184, at *7 (July 2, 1996)). Relatedly, “when an ALJ adopts only portions of a medical
opinion, he must explain why he rejected the remaining portions.” McFarland-Deida v.
Berryhill, No. 17-CV-6534-FPG, 2018 WL 1575273, at *3 (W.D.N.Y. Apr. 2, 2018).
Here, Dr. Liu opined that Mancuso-Rosner “has mild to moderate limitations for
prolonged walking, bending, kneeling, and overhead reaching” and “should avoid dust

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and other irritating factors to limit [an] asthma attack.” (Tr. 320-27). In determining that
Mancuso-Rosner can perform a range of light work, the ALJ gave “great weight” to Dr.
Liu’s entire opinion and essentially adopted his limitations regarding her ability to walk,
bend, kneel, and work around dust and other pulmonary irritants. (Tr. 15-16, 18-19). The
ALJ did not, however, adopt Dr. Liu’s limitation regarding Mancuso-Rosner’s ability to
reach over her head, nor did she provide any explanation for rejecting this particular
limitation. Had the ALJ adopted Dr. Liu’s reaching limitation, she might very well have
found Mancuso-Rosner disabled given that the vocational expert testified that MancusoRosner could not perform her past relevant work at step four or the three representative
occupations identified at step five if her RFC limited her to only occasional reaching. (Tr.
76-78).
Contrary to the Commissioner’s suggestion in her brief (Dkt. No. 15-1 (Deft. Memo.
of Law) at 10), Mancuso-Rosner’s testimony at the ALJ hearing that she can in fact reach
over her head does not support the ALJ’s decision to reject Dr. Liu’s reaching limitation.
First, the ALJ did not cite Mancuso-Rosner’s testimony as a reason for rejecting the
limitation, thus precluding the Commissioner from relying on this particular testimony on
appeal. See Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999) (“A reviewing court may not
accept appellate counsel’s post hoc rationalizations for agency action.”) (internal
quotation marks and citation omitted). Second, although Mancuso-Rosner testified that
she can reach over her head (Tr. 60), she further testified that doing so causes her pain
and she is unsure whether she can reach repetitively (Tr. 61), which is largely consistent
with Dr. Liu’s opinion that she has a mild to moderate limitation in overhead reaching.

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Accordingly, for these reasons, the ALJ erred by affording great weight to Dr. Liu’s
opinion while simultaneously rejecting without explanation the portion of his opinion that
Mancuso-Rosner has a mild to moderate limitation in overhead reaching. Remand to the
Commissioner for further administrative proceedings is thus required. On remand, the
ALJ should either incorporate Dr. Liu’s reaching limitation into her RFC assessment or
explain why this limitation is not warranted. The ALJ should also consider on remand
Mancuso-Rosner’s arguments that the ALJ failed to properly analyze her neuropathy,
degenerative disorders, and diabetes throughout the five-step sequential evaluation
process and that the ALJ misassessed her credibility. (See Dkt. No. 11-1 (Pltf. Memo. of
Law) at 14-23, 26-30).
CONCLUSION
For the foregoing reasons, Mancuso-Rosner’s motion for judgment on the
pleadings (Dkt. No. 11) is granted, the Commissioner’s motion for judgment on the
pleadings (Dkt. No. 15) 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:

February 19, 2019
Buffalo, New York
/s/ Michael J. Roemer
MICHAEL J. ROEMER
United States Magistrate Judge

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