Schwartz v. Commissioner of Social Security
Filing
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DECISION & ORDER The Commissioner's motion for judgment on the pleadings 17 is denied, and Schwartz's motion for judgment on the pleadings 15 is granted to the extent that the Commissioner's decision is reversed, and this case is remanded to the Commissioner pursuant to 42 U.S.C. § 405(g), sentence four, for further administrative proceedings consistent with this decision. Signed by Hon. Marian W. Payson on 5/3/2019. (KAH)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
BRITTNEY MARIE SCHWARTZ,
DECISION & ORDER
Plaintiff,
17-CV-1088P
v.
COMMISSIONER OF SOCIAL SECURITY
Defendant.
_______________________________________
PRELIMINARY STATEMENT
Plaintiff Brittney Marie Schwartz (“Schwartz”) brings this action pursuant to
Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final
decision of the Commissioner of Social Security (the “Commissioner”) denying her applications
for Disability Insurance Benefits and Supplemental Security Income (“DIB/SSI”). Pursuant to
28 U.S.C. § 636(c), the parties have consented to the disposition of this case by a United States
magistrate judge. (Docket # 9).
Currently before the Court are the parties’ motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket ## 15, 17). For the
reasons set forth below, I hereby vacate the decision of the Commissioner and remand this claim
for further administrative proceedings consistent with this decision.
DISCUSSION
I.
Standard of Review
This Court’s scope of review is limited to whether the Commissioner’s
determination is supported by substantial evidence in the record and whether the Commissioner
applied the correct legal standards. See Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004)
(“[i]n reviewing a final decision of the Commissioner, a district court must determine whether
the correct legal standards were applied and whether substantial evidence supports the
decision”), reh’g granted in part and denied in part, 416 F.3d 101 (2d Cir. 2005); see also
Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (“it is not our function to determine de novo
whether plaintiff is disabled[;] . . . [r]ather, we must determine whether the Commissioner’s
conclusions are supported by substantial evidence in the record as a whole or are based on an
erroneous legal standard”) (internal citation and quotation omitted). Pursuant to 42 U.S.C.
§ 405(g), a district court reviewing the Commissioner’s determination to deny disability benefits
is directed to accept the Commissioner’s findings of fact unless they are not supported by
“substantial evidence.” See 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner . . . as to
any fact, if supported by substantial evidence, shall be conclusive”). Substantial evidence is
defined as “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) (internal quotation omitted).
To determine whether substantial evidence exists in the record, the court must
consider the record as a whole, examining the evidence submitted by both sides, “because an
analysis of the substantiality of the evidence must also include that which detracts from its
weight.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). To the extent
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they are supported by substantial evidence, the Commissioner’s findings of fact must be
sustained “even where substantial evidence may support the claimant’s position and despite the
fact that the [c]ourt, had it heard the evidence de novo, might have found otherwise.” Matejka v.
Barnhart, 386 F. Supp. 2d 198, 204 (W.D.N.Y. 2005) (citing Rutherford v. Schweiker, 685 F.2d
60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983)).
A person is disabled for the purposes of SSI and disability benefits if he or she is
unable “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 12 months.” 42 U.S.C.
§§ 423(d)(1)(A) & 1382c(a)(3)(A). In assessing whether a claimant is disabled, the ALJ must
employ a five-step sequential analysis. See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)
(per curiam). The five steps are:
(1)
whether the claimant is currently engaged in substantial
gainful activity;
(2)
if not, whether the claimant has any “severe impairment”
that “significantly limits [the claimant’s] physical or mental
ability to do basic work activities”;
(3)
if so, whether any of the claimant’s severe impairments
meets or equals one of the impairments listed in Appendix
1 of Subpart P of Part 404 of the relevant regulations;
(4)
if not, whether despite the claimant’s severe impairments,
the claimant retains the residual functional capacity
[“RFC”] to perform his past work; and
(5)
if not, whether the claimant retains the residual functional
capacity to perform any other work that exists in significant
numbers in the national economy.
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20 C.F.R. §§ 404.1520(a)(4)(i)-(v) & 416.920(a)(4)(i)-(v); Berry v. Schweiker, 675 F.2d at 467.
“The claimant bears the burden of proving his or her case at steps one through four[;] . . . [a]t
step five the burden shifts to the Commissioner to ‘show there is other gainful work in the
national economy [which] the claimant could perform.’” Butts v. Barnhart, 388 F.3d at 383
(quoting Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998)).
II.
Schwartz’s Contentions
Schwartz contends that the ALJ’s determination that she is not disabled is not
supported by substantial evidence and is the product of legal error. (Docket ## 15-1, 18). She
contends that the ALJ’s RFC assessment is flawed because it is not supported by any medical
opinion of record and instead relies on his own lay interpretation of medical findings. (Docket
## 15-1 at 12-16; 18 at 1-3). The Commissioner counters that substantial record evidence
supports the ALJ’s finding that Schwartz could perform sedentary work with the additional
limitations identified in the RFC. (Docket # 17-1 at 6-9).
III.
Analysis
An individual’s RFC is his or her “maximum remaining ability to do sustained
work activities in an ordinary work setting on a regular and continuing basis.” Melville v. Apfel,
198 F.3d 45, 52 (2d Cir.1999) (quoting SSR 96–8p, 1996 WL 374184, *2 (July 2, 1996)). In
making an RFC assessment, the ALJ should consider “a claimant’s physical abilities, mental
abilities, symptomology, including pain and other limitations which could interfere with work
activities on a regular and continuing basis.” Pardee v. Astrue, 631 F. Supp. 2d 200, 221
(N.D.N.Y. 2009) (citing 20 C.F.R. § 404.1545(a)). “To determine RFC, the ALJ must consider
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all the relevant evidence, including medical opinions and facts, physical and mental abilities,
non-severe impairments, and [p]laintiff’s subjective evidence of symptoms.” Stanton v. Astrue,
2009 WL 1940539, *9 (N.D.N.Y. 2009) (citing 20 C.F.R. §§ 404.1545(b)-(e)), aff’d, 370
F. App’x 231 (2d Cir. 2010).
In his decision, at step two, the ALJ found that Schwartz had the severe
impairments of “mild facet arthropathy, lumbar spine, with chronic back pain and
radiculopathy.” (Tr. 14). At step four, the ALJ concluded that Schwartz had the RFC to perform
sedentary work except that:
she must be able to sit or stand alternatively, at will, provided she
is not off task more than 10% of the work period in addition to her
regularly scheduled breaks[;] [s]he can frequently reach overhead,
bilaterally; and she can frequently climb ramps and stairs[;] [s]he
can occasionally stoop and crouch; but she can never kneel, crawl
or climb ladders, ropes or scaffolds[;] [s]he must avoid exposure to
loud noise, unshielded moving mechanical parts and unprotected
heights[;] [s]he is limited to simple, routine, repetitive tasks
involving only simple work-related decisions and performed in a
work environment that is free of fast-paced production
requirements, meaning free of constant activity with work tasks
performed sequentially in rapid succession with few if any
workplace changes[;] [and she] must be allowed to be off task 10%
of the time in a typical 8-hour workday in addition to her regularly
scheduled breaks.
(Tr. 17).
In explaining his RFC finding, the ALJ summarized the record evidence,
including treatment records. (Tr. 18-20). The ALJ noted that Schwartz had “mid-back and low
back pain through the period under consideration with clinical findings of left-sided radiculitis or
radiculopathy.” (Tr. 18). The ALJ observed that Schwartz’s diagnosed back pain was supported
by imaging, although he noted that the imaging revealed “only mild facet spurring and mild
possible associated neural foraminal and/or central canal narrowing significantly less impressive
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than expected by the degree of reported symptoms [. . . ,] and EMGs have been negative for
neuropathy or radiculopathy.” (Id.). As the ALJ further acknowledged, Schwartz had exhibited
“exquisite tenderness” to palpation, limited motion, weakness and sensory loss in the left lower
extremity, positive straight leg raising, and “gait abnormality.” (Id.). She had been treated with
various pain medications, including “steadily increasing” doses of Cymbalta, physical therapy,
and a TENS unit; surgical intervention had apparently not been considered. (Id.). The ALJ
noted that Schwartz had worked during much of the relevant period, usually in part-time
positions, which she indicated she had left for reasons unrelated to her impairments, and had
experienced an improvement in her symptoms in and after January 2015 when she began to take
higher doses of pain medication. (Id.). As the ALJ acknowledged, however, Schwartz
experienced “recurrent symptoms” in March 2016. (Id.).
In evaluating Schwartz’s credibility, the ALJ found that “there is a reasonable
nexus between her medical determinable facet arthropathy and her alleged symptoms such as leg
pain and associated functional limitations,” but concluded that her day-to-day activities and
part-time work history1 “diminish[ed] the persuasiveness of her subjective complaints.” (Id.).
Specifically, the ALJ stated:
Considering the evidence as a whole, including opinions and
testimony provided, the undersigned finds the claimant has a
medically determinable impairment that is severe and could
reasonably be expected to cause symptoms she has alleged.
However, even giving the claimant the benefit of the doubt, when
considering her impairments singly or in combination, the
undersigned concludes that the residual functional capacity
assessment and limitations set forth in this decision are consistent
with a preponderance of the evidence in this record and
appropriately accommodate her impairments and symptoms,
reflected by exertional, postural, upper extremity, environmental
At step one, the ALJ concluded that Schwartz’s post-onset work did not constitute substantial gainful
activity. (Tr. 14).
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and mental limitations consistent with her pain and associated
stress in combination with her other impairments of lesser severity.
(Tr. 19-20).
As to the “medical opinion” evidence, the ALJ correctly identified that the record
contained no “State agency medical opinions regarding plaintiff’s physical function.” (Tr. 19).
The record contained one letter dated December 29, 2015 from Schwartz’s primary care
physician addressed to “Whom It May Concern.” (Id. (citing Ex. 9F at 2)). The letter simply
stated that Schwartz “had some medical issues, inc. back and neurological issues that affect her
legs, and it is necessary for her to sit for a couple of minutes every hour or two, due to this.”
(Id.). The letter appears to have been intended for an employer because it concludes, “This
would be a great benefit for my patient, I greatly appreciate you working with her.” (Id.).
The ALJ gave the letter opinion “partial weight,” noting that the physician “did
not support his opinions with actual records of his own treatment or examination of [Schwartz]
and his actual knowledge of her impairments is unclear, as her treatment appears to be
administered by others in his office.” (Id. (citing Ex. 9F)). Schwartz does not argue that the ALJ
erred in determining to give only partial weight to the letter opinion. Rather, Schwartz argues
that in the absence of a competent medical opinion, the ALJ had no basis upon which to make
his RFC finding. I agree.
The record in this case demonstrates that Schwartz had suffered from persistent
back impairments for which she had received ongoing treatment since at least the alleged onset
date in 2013 through the time of the hearing. Her condition was diagnosed based upon objective
imaging and clinical findings, and she was treated with increasing doses of pain medication,
physical therapy and a TENS unit. The treatment records reflect that she was treated by
neurologists, primary care providers, and physical therapists for back pain. (Tr. 50-51, 305-18,
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355-60, 363-66, 376-77, 379-82, 417-19, 420-27, 430-32, 434-35, 438-44, 448-51, 456-57,
463-65, 468-73, 477-79, 481-83, 485-503, 506-509, 511). Although she worked at several
part-time jobs, those positions did not meet the level of substantial gainful activity.
Schwartz’s application for benefits and trial testimony reflect that she stated that
her back condition caused various functional limitations, including an inability to put her arms
overhead and reach, an inability to squat or kneel, an inability to climb stairs other than by
crawling on her knees, and difficulty bending down. (Tr. 117, 263-68). She testified at the
hearing that she could stand for a maximum of thirty minutes and sit for a maximum of two
hours before needing to change positions. (Tr. 120). Her treatment records document
complaints of difficulties with walking, bending, squatting, lifting, and with sitting or standing
for long periods. (Tr. 420, 426, 431-32, 441-42, 468, 472-73, 499). Indeed, the Commissioner’s
own disability analyst concluded that she could not perform work that required any overhead
lifting with her left arm. (Tr. 145).
Despite Schwartz’s claimed functional limitations, the ALJ found that she had the
capacity to perform full-time sedentary work notwithstanding her standing and sitting limitations
provided she was allowed to stand or sit at will. Although her treating physician sent a letter to
someone requesting breaks to sit, it is far from clear to whom that letter was addressed. Since
she had a variety of part-time jobs at that time, it is reasonable to conclude that the physician
provided the letter to Schwartz’s current or prospective part-time employer. (See Tr. 107-15).
Thus, the letter offers no opinion regarding the ability to perform full-time, even sedentary work,
given her “medical issues.” Nor does the letter offer any opinion on any other functional
limitations caused by her impairments. In addition, the record does not reveal the basis upon
which the ALJ rejected Schwartz’s claims of reaching, squatting, and stair climbing limitations
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in concluding that she could frequently reach overhead bilaterally, frequently climb stairs, and
occasionally stoop and crouch. No opinion evidence or function-by-function assessment is
contained in the record to support the ALJ’s findings.
“[A]n ALJ is not qualified to assess a claimant’s RFC on the basis of bare medical
findings, and as a result an ALJ’s determination of RFC without a medical advisor’s assessment
is not supported by substantial evidence.” Dailey v. Astrue, 2010 WL 4703599, *11 (W.D.N.Y.)
(internal quotation omitted), report and recommendation adopted by, 2010 WL 4703591
(W.D.N.Y. 2010). Accordingly, although the RFC determination is an issue reserved for the
Commissioner, “[w]here the medical findings in the record merely diagnose [the] claimant’s
exertional impairments and do not relate those diagnoses to specific residual functional
capabilities,” as a general rule, the Commissioner “may not make the connection himself.”
Nanartowich v. Comm’r of Soc. Sec., 2018 WL 2227862, *9 (W.D.N.Y. 2018) (quoting Deskin
v. Comm’r of Soc. Sec., 605 F. Supp. 2d 908, 912 (N.D. Ohio 2008)). Although under certain
circumstances, particularly where the medical evidence shows relatively minor physical
impairment, “an ALJ permissibly can render a common sense judgment about functional
capacity even without a physician’s assessment,” House v. Astrue, 2013 WL 422058, *4
(N.D.N.Y. 2013) (internal quotation omitted), I conclude that those circumstances are not present
here.
As the ALJ acknowledged, Schwartz has been diagnosed with back impairments
and has received ongoing treatment to address those impairments. Although the ALJ reviewed
and discussed Schwartz’s treatment records, the ALJ did not rely upon any medical source
statement or a consultative examiner’s report to assist him in translating the treatment notes into
an assessment of Schwartz’s physical capacity for work-related activities. The one letter
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opinion, which the ALJ discounted, addressed only standing and sitting limitations, and did so in
the probable context of part-time employment. See, e.g., Suide v. Astrue, 371 F. App’x 684,
689-90 (7th Cir. 2010) (“it is not the ALJ’s evaluation of [the treating physician’s] reports that
requires a remand in this case[;] . . . it is the evidentiary deficit left by the ALJ’s rejection of his
reports – not the decision itself – that is troubling”); see Nanartowich v. Comm’r of Soc. Sec.,
2018 WL 2227862 at *10 (ALJ’s discounting of medical opinions created evidentiary gap in the
record requiring remand); House v. Astrue, 2013 WL 422058 at *4 (ALJ’s proper rejection of
treating physician opinion nonetheless necessitated remand because absence of any other
medical assessment created evidentiary gap).
In other words, the record before the ALJ lacked any opinion from any medical
source assessing Schwartz’s physical limitations. Although there were treatment notes in the
record, they generally contained bare medical findings and did not address or illuminate how her
impairments affected her physical ability to perform work-related functions. The ALJ
determined that Schwartz retained the physical RFC to perform sedentary work with certain
exceptions, several of which conflict with her claimed limitations (reaching, climbing stairs,
stooping and crouching). It is unclear how the ALJ arrived at his RFC because the ALJ’s
decision does not explain the connection between the evidence of record and the physical
limitations assessed in the RFC. Although the ALJ thoroughly summarized the record, he did
not articulate how the evidence of record supported his RFC findings.
Contrary to the Commissioner’s contention (see Docket # 17-1 at 7), the Second
Circuit’s decision in Monroe v. Comm’r of Soc. Sec., 676 F. App’x 5 (2d Cir. 2017), does not
compel or counsel a different conclusion. In that case, the Court explained that where “the
record contains sufficient evidence from which an ALJ can assess the claimant’s [RFC], . . . a
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medical source statement or formal medical opinion is not necessarily required.” Monroe v.
Comm’r of Soc. Sec., 676 F. App’x at 8 (internal quotation and citations omitted). “While in
some circumstances, an ALJ may make an RFC finding without treating source opinion
evidence, the RFC assessment will be sufficient only when the record is clear and contains some
useful assessment of the claimant’s limitations from a medical source.” Muhammad v. Colvin,
2017 WL 4837583, *4 (W.D.N.Y. 2017) (internal quotations omitted). In other words, an ALJ
“may not interpret raw medical data in functional terms.” Militello v. Comm’r of Soc. Sec., 2019
WL 1409711, *3 (W.D.N.Y. 2019) (internal quotations and citations omitted). Where, as here,
the record lacks a “useful assessment” of the claimant’s limitations, remand is appropriate. See,
e.g., Militello v. Comm’r of Soc. Sec., 2019 WL 1409711 at *3-4; Benman v. Comm’s of Soc.
Sec., 350 F. Supp. 3d 252, 260 (W.D.N.Y. 2018); Smith v. Comm’r of Soc. Sec., 337 F. Supp. 3d
216, 226-27 (W.D.N.Y. 2018); Kain v. Colvin, 2017 WL 2059806, *4 (W.D.N.Y. 2017).
Moreover, Schwartz’s impairments “were not so minimal that the ALJ could permissibly make a
common sense judgment as to [her] physical RFC.” Johnson v. Comm’r of Soc. Sec., 351
F. Supp. 3d 286, 294 (W.D.N.Y. 2018) (quoting Johnson v. Berryhill, 2018 WL 3688313, *4
(W.D.N.Y. 2018)). Here, unlike in Monroe, the treatment notes do not provide useful
assessments of Schwartz’s “ability to perform sustained gainful activity.” See Monroe, 676
F. App’x at 8.
Under these circumstances, I conclude that the ALJ’s physical RFC assessment is
not supported by substantial evidence. See Suide v. Astrue, 371 F. App’x at 690 (“[w]hen an
ALJ denies benefits, she must build an accurate and logical bridge from the evidence to her
conclusion, . . . and she is not allowed to ‘play doctor’ by using her own lay opinions to fill
evidentiary gaps in the record”) (internal quotations and citations omitted); House, 2013 WL
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422058 at *4 (“[b]ecause there is no medical source opinion supporting the ALJ’s finding that
[plaintiff] can perform sedentary work, the court concludes that the ALJ’s RFC determination is
without substantial support in the record and remand for further administrative proceedings is
appropriate”); Dailey v. Astrue, 2010 WL 4703599 at *11 (“[w]ithout this additional medical
evidence[,] [the ALJ], as a layperson, could not bridge the gap between plaintiff’s [impairments]
and the functional limitations that flow from these impairments”); Walker v. Astrue, 2010 WL
2629832, *7 (W.D.N.Y.) (same), report and recommendation adopted by, 2010 WL 2629821
(W.D.N.Y. 2010); Lawton v. Astrue, 2009 WL 2867905, *16 (N.D.N.Y. 2009) (“[t]he record in
this [case] contains no assessment from a treating source quantifying plaintiff’s physical
capabilities, and thus there is no basis upon which the court can find that substantial evidence
supports the ALJ’s light work RFC determination”); Deskin v. Comm’r of Soc. Sec., 605
F. Supp. 2d at 913 (“remand is necessary to obtain a proper medical source opinion to support
the ALJ’s residual functional capacity finding”).
“As a general rule, where the transcript contains only diagnostic evidence and no
opinion from a medical source about functional limitations . . . , to fulfill the responsibility to
develop a complete record, the ALJ must recontact the treating source, order a consultative
examination, or have a medical expert testify at the hearing.” See Gross v. Astrue, 2014 WL
1806779, *18 (W.D.N.Y. 2014) (quoting Deskin, 605 F. Supp. 2d at 912). Review of the record
here leads me to conclude that remand is appropriate to allow the ALJ to obtain a physical RFC
assessment or medical source statement from an acceptable medical source concerning
Schwartz’s physical capabilities.
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CONCLUSION
For the reasons stated above, the Commissioner’s motion for judgment on the
pleadings (Docket # 17) is DENIED, and Schwartz’s motion for judgment on the pleadings
(Docket # 15) is GRANTED to the extent that the Commissioner’s decision is reversed, and this
case is remanded to the Commissioner pursuant to 42 U.S.C. § 405(g), sentence four, for further
administrative proceedings consistent with this decision.
IT IS SO ORDERED.
s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
May 3, 2019
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