Numan v. Commissioner of Social Security

Filing 25

ORDER granting in part and denying in part 16 Motion for Judgment on the Pleadings and denying 20 Motion for Judgment on the Pleadings. The decision of the Commissioner is vacated, and the matter is remanded for further administrative proceedings consistent with this decision. Signed by Hon. Lawrence J. Vilardo on 6/28/2019. (AMD)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MUNA F. NUMAN,
Plaintiff,
v.

17-CV-1022
DECISION & ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

On October 10, 2017, the plaintiff, Muna Numan, brought this action under the
Social Security Act ("the Act"). She seeks review of the determination by the
Commissioner of Social Security ("Commissioner") that she was not disabled. Docket
Item 1. On January 28, 2019, Numan moved for judgment on the pleadings, Docket
Item 16; on March 29, 2019, the Commissioner responded and cross-moved for
judgment on the pleadings, Docket Item 20; and on June 3, 2019, Numan replied,
Docket Item 24.
For the reasons stated below, this Court grants Numan’s motion in part and
denies the Commissioner’s cross-motion.

BACKGROUND
I.

PROCEDURAL HISTORY
On September 30, 2013, Numan applied for Supplemental Security Income

benefits. Docket Item 9 at 40. She claimed that she had been disabled since August 4,
2012, due to back injuries from a car accident. Id.
On January 21, 2014, Numan received notice that her application was denied
because she was not disabled under the Act. Id. at 114. She requested a hearing
before an administrative law judge ("ALJ"), id. at 158, which was held on March 4, 2016,
id. at 40. The ALJ then issued a decision on March 17, 2016, confirming the finding that
Numan was not disabled. Id. at 55. Numan appealed the ALJ’s decision, but her
appeal was denied, and the decision then became final. Id. at 5.
II.

THE ALJ’S DECISION
In denying Numan’s application, the ALJ evaluated Numan’s claim under the

Social Security Administration’s five-step evaluation process for disability
determinations. See 20 C.F.R. § 404.1520. At the first step, the ALJ must determine
whether the claimant is currently engaged in substantial gainful employment.
§ 404.1520(a)(4)(i). If so, the claimant is not disabled. Id. If not, the ALJ proceeds to
step two. § 404.1520(a)(4).
At step two, the ALJ decides whether the claimant is suffering from any severe
impairments. § 404.1520(a)(4)(ii). If there are no severe impairments, the claimant is
not disabled. Id. If there are any severe impairments, the ALJ proceeds to step three.
§ 404.1520(a)(4).

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At step three, the ALJ determines whether any severe impairment or impairments
meet or equal an impairment listed in the regulations. § 404.1520(a)(4)(iii). If the
claimant’s severe impairment or impairments meet or equal one listed in the regulations,
the claimant is disabled. Id. But if the ALJ finds that none of the severe impairments
meet any in the regulations, the ALJ proceeds to step four. § 404.1520(a)(4).
As part of step four, the ALJ first determines the claimant’s residual functional
capacity (“RFC”). See §§ 404.1520(a)(4)(iv); 404.1520(d)-(e). The RFC is a holistic
assessment of the claimant—addressing both severe and nonsevere medical
impairments—that evaluates whether the claimant can perform past relevant work or
other work in the national economy. See 20 C.F.R. § 404.1545.
After determining the claimant's RFC, the ALJ completes step four. 20 C.F.R.
§ 404.1520(e). If the claimant can perform past relevant work, he or she is not disabled
and the analysis ends. § 404.1520(f). But if the claimant cannot, the ALJ proceeds to
step five. 20 C.F.R. §§ 404.1520(a)(4)(iv); 404.1520(f).
In the fifth and final step, the Commissioner must present evidence showing that
the claimant is not disabled because the claimant is physically and mentally capable of
adjusting to an alternative job. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987);
20 C.F.R. § 404.1520(a)(v), (g). More specifically, the Commissioner bears the burden
of proving that the claimant "retains a residual functional capacity to perform alternative
substantial gainful work which exists in the national economy." Rosa v. Callahan, 168
F.3d 72, 77 (2d Cir. 1999).
Here, at step one the ALJ determined that Numan had not engaged in substantial
gainful activity since her alleged disability onset date. Docket Item 9 at 42. At step two,

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the ALJ found that Numan had two severe impairments: discogenic lumbar spine and
lumbar radiculopathy. Id. at 43. At step three, the ALJ determined that those
impairments did not meet or medically equal the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 44. At step four, the
ALJ reached the following RFC:
[t]he claimant has the residual functional capacity to perform light work as defined
in 20 CFR 416.967(b) except she has occasional limitations in bending, climbing,
stooping, squatting and crawling and in pushing/pulling with the upper extremities.
Lastly, she cannot have exposure to extreme cold or dampness.
Id. at 45. At step five, the ALJ found that Numan is capable of performing a significant
number of jobs in the national economy, such as small products assembler or labeler.
LEGAL STANDARDS
“The scope of review of a disability determination . . . involves two levels of
inquiry.” Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). The court “must first
decide whether [the Commissioner] applied the correct legal principles in making the
determination.” Id. This includes ensuring “that the claimant has had a full hearing
under the . . . regulations and in accordance with the beneficent purposes of the Social
Security Act.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting Cruz v.
Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)). Then, the court “decide[s] whether the
determination is supported by ‘substantial evidence.’” Johnson, 817 F.2d at 985
(quoting 42 U.S.C. § 405(g)). “Substantial evidence” means “more than a mere scintilla.
It means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “Where there is a
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reasonable basis for doubt whether the ALJ applied correct legal principles, application
of the substantial evidence standard to uphold a finding of no disability creates an
unacceptable risk that a claimant will be deprived of the right to have her disability
determination made according to correct legal principles.” Johnson, 817 F.2d at 986.
DISCUSSION
I.

ALLEGATIONS
Numan objects to the ALJ’s RFC determination. Docket Item 16-1. She

specifically argues that the ALJ erred by failing to develop the record despite evidence
of an apparent inconsistency in medical records. Id. at 13. She also argues that the
ALJ improperly substituted her lay opinion for the opinion of any physician regarding
Numan’s physical limitations. Id. at 23. This Court finds that remand is required
because the ALJ failed to meet her duty to develop the record in light of the apparent
inconsistency in the medical records.
II.

ANALYSIS
“Social Security proceedings are inquisitorial rather than adversarial. It is the

ALJ’s duty to investigate the facts and develop the arguments both for and against
granting benefits.” Sims v. Apfel, 530 U.S. 103, 111 (2000). With respect to a
claimant’s RFC, the ALJ fulfills the “‘responsibility’ of ‘assessing [a claimant’s] residual
functional capacity’ by reviewing ‘all the relevant evidence.’” Dougherty-Noteboom v.
Berryhill, 2018 WL 3866671, at *10 (W.D.N.Y. Aug. 15, 2018) (quoting relevant
regulations). In weighing the evidence, the ALJ must make specific findings and
“conduct a distinct analysis that would permit adequate review on appeal.” Aung Winn

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v. Colvin, 541 Fed. Appx. 67, 70 (2d Cir. 2013) (quoting Kohler v. Astrue, 546 F.3d 260
(2d Cir. 2008)) (summary order).
“Where there are deficiencies in the record, an ALJ is under an affirmative
obligation to develop a claimant’s medical history.” Rosa, 168 F.3d at 79; see also
Tumpower v. Colvin, 2015 WL 162991, at *14 (W.D.N.Y. Jan. 13, 2015) (remanding
“where the ALJ rejected Dr. Newman’s opinion in large part because . . . it was
incomplete”; therefore “the ALJ had a duty to develop the record by re-contacting Dr.
Newman for clarification regarding [the] foundation for [the] opinion.”) (citations omitted);
Mecklenburg v. Astrue, 2009 WL 4042939, at *6 (W.D.N.Y. 2009) (when doctor “opined
that the plaintiff was totally disabled [but] the ALJ stated that [the treating physician] did
not identify specific and objective clinical findings that supported his finding of disability,”
the ALJ had a duty to develop the record) (quotations of the administrative record
omitted).
Here, the record included inconsistent MRI records: the early MRIs of Numan’s
lumbar spine evidenced more positive findings than her most recent one. An MRI taken
on April 22, 2009, for example, revealed “annular tears and small posterior disc
herniations/protrusions which mildly efface the thecal sac” at the L4-5 and L5-S1 levels.
Id. at 248. An MRI on February 26, 2013, revealed “[a]dvanced disc degeneration with
disc height loss” at both the L4-L5 and L5-S1 levels. Id. at 294. That February 2013
MRI report also noted “a broad-based left paracentral disc protrusion[,] . . . posterior
displacement of the traversing left S1 root[,] . . . [and that the] L5 root ha[d] exited the
neural foramen above the level of the disc protrusion.” Id. With respect to the L4-L5
level, the report noted “3 mm of retrolisthesis L4 with respect to L5[, d]iscogenic marrow

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signal alteration[,] . . . broad based midline disc protrusion[,] . . . mild encroachment on
the ventral aspect of the thecal sac[, and] . . . mild encroachment on the caliber of the
neural foramina for the L4 roots bilaterally.” Id. But the only positive finding in the
January 30, 2016 MRI—the most recent one before the hearing—was “[s]ubtle early
disc desiccation at L4-L5 and L5-S1.”1 Id. at 539.
The ALJ interpreted the most recent MRI report as indicating “interval
improvement.” Id. at 44. But at the hearing, Numan and her attorney told the ALJ that
her primary care physician, Ghous Yasin, M.D., doubted the accuracy of this most
recent MRI. For example, Numan’s attorney told the ALJ that “[Numan’s] doctor,
actually advised her to have [the January 2016 MRI] redone because she thought—or
the doctor that that that [sic] was an incorrect reading.” Docket Item 9 at 65. In her
hearing testimony, Numan reported that “last week, Friday,” her doctor said that her
“MRI result doesn’t appear to me that they were read right because of your previous
MRI. He did suggest for me to go see a back specialist to go over the MRI results.” Id.
at 80.
The ALJ rejected Numan’s testimony about her doctor’s lack of confidence in her
most recent MRI as “hearsay” that did “not qualify as objective evidence that the
January 30, 2016 MRI was erroneous.” Id. at 44. Instead, the ALJ credited the January
30, 2016 MRI, finding that the “evidence regarding the compromise of a nerve root or
spinal cord [was] equivocal . . . given the minimal findings in the most recent lumbar
spine MRI.” Id.

1

The radiologist did not review any prior MRI studies when reviewing this MRI.
See Docket Item 9 at 539 (“COMPARISONS: None”).
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Numan’s testimony included hearsay, but the “strict rules of evidence, applicable
in the courtroom, are not to operate at social security hearings.” Brault v. Soc. Sec.
Admin., Comm’r, 683 F.3d 443, 449 (2d Cir. 2012) (quoting Richardson v. Perales, 402
U.S. 389, 400-01 (1971) (internal alterations omitted). In this regard, the “ALJ’s
credibility findings ‘must be set forth with sufficient specificity to permit intelligible
plenary review of the record.’” Bowen v. Berryhill, 2017 WL 1159729, at *3 (W.D.N.Y.
Mar. 29, 2017) (quoting Phelps v. Colvin, 20 F. Supp. 3d 392, 403 (W.D.N.Y. 2014)).
Discounting testimony that Numan’s primary care physician doubted her recent MRI
results—which may well have been probative evidence for the ALJ’s inquiry—simply
because it was hearsay does not permit intelligible review of whether the ALJ based her
decision on substantial evidence.
What is more, the January 30, 2016 MRI showed substantially fewer symptoms
than the other MRIs in the record, compare Docket Item 9 at 539 with id. at 248, 294,
but there was nothing in the record explaining why. Despite Numan’s testimony about
Dr. Yasin’s reaction, the ALJ surmised that the latest MRI evidenced “improvement,” id.
at 44, 46—a lay interpretation not based on medical evidence. At the very least, the
combination of this inconsistency and Numan’s testimony required the ALJ to follow up
with Dr. Yasin—or some other treating source or medical provider—rather than assume
that the report accurately indicated that Numan’s condition had improved. See
McBrayer v. Sec’y. of Health and Human Servs., 712 F.2d 795, 799 (2d Cir. 1983)
(“[T]he ALJ cannot arbitrarily substitute his own judgment for competent medical
opinion.”); Fuller v. Astrue, 2010 WL 3516935, at *5 (W.D.N.Y. Sep. 7, 2010) (“[A]n ALJ
is not free to substitute his own lay opinion for opinions from treating sources.”).

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The ALJ’s failure to recontact Dr. Yasin is especially problematic because the
ALJ gave “limited persuasive weight” to Dr. Yasin’s opinion—less than a month after the
January 2016 MRI—that Yasin had significant physical limitations. Docket Item 9 at 51.
The ALJ found that Numan could perform light work, which “requires a good deal of
walking or standing.” 20 C.F.R. § 416.967(b). But on February 22, 2016, Dr. Yasin
opined that Numan could stand or walk for less than two hours per day. Id. at 556. Dr.
Yasin’s opinion was consistent with Numan’s testimony that the January 2016 MRI
report might not be accurate, another reason why the ALJ was required to recontact Dr.
Yasin or another medical source about the accuracy of that MRI report.
In sum, the inconsistency in the records—especially coupled with Numan’s
testimony about her treating source’s doubts regarding the latest MRI—triggered the
ALJ’s duty to develop the record. It was incumbent on the ALJ to contact Dr. Yasin or
another source before relying on the January 30, 2016 MRI as conclusive evidence that
Numan’s condition had improved. The matter therefore is remanded for the ALJ to
recontact Dr. Yasin or another physician regarding the apparent inconsistency between
the January 30, 2016 MRI and Numan’s earlier MRI reports and whether the most
recent MRI was accurate evidence that Numan’s condition had improved.2

Because the “remaining issues ... may be affected by the ALJ’s treatment of this
case on remand,” this Court does not reach them. Watkins v. Barnhart, 350 F.3d 1297,
1299 (10th Cir. 2003).
2

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CONCLUSION
For the reasons stated above, the Commissioner's motion for judgment on the
pleadings, Docket Item 20, is DENIED, and Numan’s motion for judgment on the
pleadings, Docket Item 16, is GRANTED in part and DENIED in part. The decision of
the Commissioner is VACATED, and the matter is REMANDED for further
administrative proceedings consistent with this decision.
SO ORDERED.
Dated:

June 28, 2019
Buffalo, New York

s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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