Sherwood-Willis v. Commissioner of Social Security

Filing 21

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER granting 10 Motion for Judgment on the Pleadings; denying 17 Motion for Judgment on the Pleadings Plaintiff's Motion for Judgment (Docket No . 10) is granted; defendant's Motion for Judgment (Docket No. 17) is denied. This matter is remanded to defendant Commissioner for further proceedings.The Court Clerk to enter judgment consistent with this Order.So Ordered. Signed by Hon. Hugh B. Scott on 4/17/2019. (DRH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANN MARIE SHERWOOD-WILLIS,
Plaintiff,

Hon. Hugh B. Scott

17CV1177

v.

CONSENT
Order

COMMISSIONER,
Defendant.

Before the Court are the parties’ respective motions for judgment on the pleadings
(Docket Nos. 10 (plaintiff), 17 (defendant Commissioner)). Having considered the
Administrative Record, filed as Docket No. 5 (references noted as “[R. __]”), and the papers of
both sides, this Court reaches the following decision.
INTRODUCTION
This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination
of the Commissioner of Social Security that plaintiff is not disabled and, therefore, is not entitled
to disability insurance benefits. The parties consented to proceed before a Magistrate Judge
(Docket No. 11).
PROCEDURAL BACKGROUND
The plaintiff (“Ann Marie Sherwood-Willis” or “plaintiff”) filed an application for
disability insurance benefits on October 16, 2013 [R. 22]. That application was denied initially.
The plaintiff appeared before an Administrative Law Judge (“ALJ”), who considered the case de

novo and concluded, in a written decision dated May 19, 2016, that the plaintiff was not disabled
within the meaning of the Social Security Act. The ALJ’s decision became the final decision of
the Commissioner on September 22, 2017, when the Appeals Council denied plaintiff’s request
for review.
Plaintiff commenced this action on November 17, 2017 (Docket No. 1). The parties
moved for judgment on the pleadings (Docket Nos. 10, 17), and plaintiff duly replied (Docket
No. 18). Upon further consideration, this Court then determined that the motions could be
decided on the papers.
FACTUAL BACKGROUND
Plaintiff, a 51-year-old with an Associate’s degree, last worked as a dental hygienist for
20 years [R. 44]. Plaintiff claims disability as of the onset date of October 27, 2010 [R. 22].
Plaintiff claims the following impairments deemed severe by the ALJ: degenerative disc
disease of cervical spine status-post ACDF (Anterior Cervical Discectomy and Fusion) [R. 24].
Plaintiff also claimed other ailments not deemed to be severe by the ALJ, including
hypothyroidism/goiter (the ALJ concluding that this does not add to impairments, with little
testimony or treatment); non-ischemic cardiomyopathy (the ALJ deemed to be stable) [R. 24];
and adjustment disorder with anxiety and use of psychotropic drugs [R. 25]. As for the
adjustment disorder with anxiety, the ALJ found that the “Paragraph B” criteria functional areas
were no more than mild [R. 25].
MEDICAL AND VOCATIONAL EVIDENCE
Plaintiff testified that she had headaches daily and pain in her shoulders and numbness
and tingling on the right side [R. 26, 45]. She said that her symptoms were no better after her
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surgery, that she used hydrocodone, lidocaine ointment, and ice to relieve pain [R. 26, 45, 47].
She was advised in 2014 to work three days a week (Monday, Tuesday, Thursday) to give her
body a rest [R. 46]. She testified that she could only lift 10 pounds, sit for no more than 40
minutes before needing to stand, and stand for no more than 40 minutes before needing to lie
down and that these limitations have been ongoing since October 2010 [R. 26, 49-50]. Plaintiff
testified that she used the treadmill and elliptical for thirty minutes daily and had taken multiple
vacations to Mexico (three times) and the Dominican Republic (once) in the four years prior to
the ALJ’s decision [R. 27, 52-53, 55-56]. Plaintiff said she stayed on the resort properties
“relaxed, sat in the sun, [and] sat on the beach” [R. 56]. While traveling, plaintiff made sure the
trips were direct flights and with minimal layovers [R. 57]. The ALJ used this travel as proof of
plaintiff’s functioning [R. 27]. Plaintiff also denied jogging [R. 53]. Plaintiff’s daily activities
included preparing meals, tending to pets, shopping, doing laundry, and light housework [R. 27].
Plaintiff’s cardiologist, Dr. Dennis Chugh, recommended continued exercise [R. 27, 671]
and plaintiff was prescribed a personal trainer and a gym membership [R. 27, 669]. The
evidence also noted that plaintiff did volunteer work with canine therapy several times monthly,
has a personal trainer three times weekly and rides a bike in warm weather [R. 28, 688, 689,
746]. Independent medical examiner Dr. Joshua Auerbach noted that plaintiff volunteered part
time with canine therapy at Women’s and Children’s Hospital one to two times a month for
about 45-60 minutes [R. 759]. Despite plaintiff’s aggravation of her cervical disc disease, Dr.
Auerbach opined that she was capable of light work [R. 762], that plaintiff could lift 30 pounds
occasionally and 10 pounds frequently [R. 763].

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Dr. James Egnatchik, on April 29, 2015, concluded that plaintiff was 75% marked
permanent disability and was the 10% of patents that did not improve after anterior cervical
discectomy surgery [R. 688]. Earlier, on July 2013, Dr. Egnatchik advised that plaintiff could
not sit for greater than 30 minutes, stand longer than an hour, could not drive for more than
30 minutes, or work overhead [R. 292].
A surveillance video [see R. 745, 761] of plaintiff for various dates between August 2011
and July 2013 was shown to some of the examiners, showing plaintiff jogging and biking for two
hours [R. 27, 28, 684-85]. Dr. Louis Medved1, an independent medical examiner who saw this
video, found that these activities were inconsistent with plaintiff’s subjective complaints [R. 28,
685, 761]. Dr. Medved concluded that the only factor preventing plaintiff from returning to
work is her subjective complaints of pain [R. 685].
The ALJ found that plaintiff had a residual functional capacity light work, except plaintiff
is never to climb ladders, ropes and scaffolds; can occasionally perform overhead reaching
(bilateral limitation), can frequently perform handling and fingering with the right dominant
upper extremity; must avoid concentrated exposure to hazardous conditions such as unprotected
heights and dangerous machinery [R. 25].
The ALJ (assisted by the vocational expert) found that plaintiff was able to perform past
relevant work as a dental hygienist (an exertionally light, skilled occupation) as compared with
her residual functional capacity [R. 29-30]. The ALJ posed two hypotheticals to the vocational
expert; the first was that the claimant could perform light work, and the second added the
limitation about frequent handling and fingering with her right hand; the expert opined that this

Erroneously identified in the record as Dr. “Meved” [R. Index 3, identifying Ex. 24F], see also Docket
No. 17, Def. Memo. at 7.
1

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claimant could resume work as a dental hygienist [R. 59-60]. With this capacity and the
additional limitations for light work, the vocational expert outlined transferable skills from
plaintiff’s past relevant work and opined that a hypothetical claimant like plaintiff was able to
perform such sedentary occupations as an information clerk, telephone solicitor, or an order filler
[R. 30-31, 61-62]. The ALJ amended the hypotheticals to make the claimant off task 20% of
the time due to symptoms or unscheduled breaks or miss three days a month and the expert
concluded that the claimant still could perform the essential functions of the job [R. 62-63]. The
ALJ posed a further amended hypothetical, adding that claimant’s ability to stand and/or walk or
to sit during less than an 8-hour workday the expert concluded that it would rule out all work on
a full-time basis [R. 63].
As a result, the ALJ held that plaintiff was not disabled [R. 31].
DISCUSSION
The only issue to be determined by this Court is whether the ALJ’s decision that the
plaintiff was not under a disability is supported by substantial evidence. See 42 U.S.C.
§ 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). 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)
(quoting Consolidated Edison Co. v. National Labor Relations Bd., 305 U.S. 197, 229 (1938)).
Standard
For purposes of both Social Security Insurance and disability insurance benefits, a person
is disabled when 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
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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).
Such a disability will be found to exist only if an individual’s “physical or mental
impairment or impairments are of such severity that [he or she] is not only unable to do [his or
her] previous work but cannot, considering [his or her] age, education, and work experience,
engage in any other kind of substantial gainful work which exists in the national economy . . . .”
42 U.S.C. §§ 423(d)(2)(A) & 1382c(a)(3)(B).
The plaintiff bears the initial burden of showing that the impairment prevents the
claimant from returning to his or her previous type of employment. Berry v. Schweiker,
675 F.2d 464, 467 (2d Cir. 1982). Once this burden has been met, “the burden shifts to the
[Commissioner] to prove the existence of alternative substantial gainful work which exists in the
national economy and which the plaintiff could perform.” Id.; see also Dumas v. Schweiker,
712 F.2d 1545, 1551 (2d Cir. 1983); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980).
To determine whether the plaintiff is suffering from a disability, the ALJ must employ a
five-step inquiry:
(1) whether the plaintiff is currently working;
(2) whether the plaintiff suffers from a severe impairment;
(3) whether the impairment is listed in Appendix 1 of the relevant regulations;
(4) whether the impairment prevents the plaintiff from continuing past relevant
work; and
(5) whether the impairment prevents the plaintiff from doing any kind of work.
20 C.F.R. §§ 404.1520 & 416.920; Berry, supra, 675 F.2d at 467. If a plaintiff is found to be
either disabled or not disabled at any step in this sequential inquiry, the ALJ’s review ends.
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20 C.F.R. §§ 404.1520(a) & 416.920(a); Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir.
1992). However, it should be noted that the ALJ has an affirmative duty to fully develop the
record. Gold v. Secretary, 463 F.2d 38, 43 (2d Cir. 1972).
Under agency regulations, “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,” 20 C.F.R. § 404.1567(b).
To determine whether an admitted impairment prevents a claimant from performing past
work, the ALJ is required to review the plaintiff’s residual functional capacity and the physical
and mental demands of the work that has done in the past. 20 C.F.R. §§ 404.1520(e) &
416.920(e). When the plaintiff’s impairment is a mental one, special “care must be taken to
obtain a precise description of the particular job duties which are likely to produce tension and
anxiety, e.g. speed, precision, complexity of tasks, independent judgments, working with other
people, etc., in order to determine if the claimant’s mental impairment is compatible with the
performance of such work.” See Social Security Ruling 82-62 (1982); Washington v. Shalala,
37 F.3d 1437, 1442 (10th Cir. 1994). The ALJ must then determine the individual’s ability to
return to past relevant work given the claimant’s residual functional capacity. Washington,
supra, 37 F.3d at 1442.
Application
In the instant case, the issue is whether the ALJ had substantial evidence to support the
decision rendered denying disability coverage. First, plaintiff complains that the ALJ erred by
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discounting the opinions of her treating physicians, Dr. James Egnatchik and Dr. Lisa Hoffman
(Docket No. 10, Pl. Memo. at 13-18). Next, plaintiff argues that the residual functional capacity
did not include restrictions for reaching, neck movement, and for working less than full-time
work (id. at 18-22). Plaintiff contends that the ALJ did not properly weigh her subjective
complaints (id. at 22-25). Finally, plaintiff objects to the ALJ transferring her dental hygienist
skills to clerical or customer service skills (id. at 25-27).
This case turns upon the reliance of the ALJ on a surveillance video and at least one
independent examining physician’s opinion.
I.

Plaintiff’s Treating Sources
A.

Dr. Egnatchik

Dr. Egnatchik was plaintiff’s treating spine surgeon. The doctor assessed plaintiff as
75% disabled [R. 28, 291-92, 688-89, 732, 784], although plaintiff’s physical examinations were
normal and the doctor noted plaintiff’s subjective complaints (Docket No. 17, Def. Memo. at
15). The doctor then opined that plaintiff could perform sedentary work other than her past
work as a dental hygienist [R. 685]. The ALJ gave “only some weight” to the doctor’s opinion
since it was not consistent with the medical evidence of record and plaintiff’s reported activities
of daily living, including those depicted in a surveillance video [R. 28] (Docket No. 10, Pl.
Memo. at 13).
Plaintiff now argues that the ALJ’s “boilerplate statement” that the doctor’s statement
was not entirely consistent with the medical evidence is not a good reason for rejecting a treating
source’s opinion (Docket No. 10, Pl. Memo. at 16, see Knorr v. Colvin, No. 15CV6702,
2016 WL 4746252, *14 (W.D.N.Y. Sept. 13, 2016) (Telesca, J.)). As for the so-called
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surveillance video, plaintiff points out that the video was not included as part of the
administrative record (id.), see Ross v. Verizon Communications, Inc., 837 F. Supp. 2d 28, 50-51
(N.D.N.Y. 2011). The video was from fifteen days from August 11, 2011, to July 5, 2013 (id.;
[R. 684]), which plaintiff argues fails to demonstrate regular and consistent activity (Docket
No. 10, Pl. Memo. at 16). She testified that the bicycle she rode was specially designed to
minimize her bending or reaching far with her arms (Docket No. 10, Pl. Memo. at 16; [R. 53]).
B.

Dr. Hoffman

Dr. Hoffman, plaintiff’s primary care physician, in May 2015 concluded that plaintiff
could not return to her previous profession [R. 28, 507-11, 756]. The ALJ gave this opinion less
weight [R. 28], reviewing Dr. Hoffman’s treatment notes and finding evidence that the doctor
was aware of plaintiff’s activities, such as plaintiff travels to the Dominican Republic and
plaintiff’s extensive exercises [R. 28-29, 693]. The ALJ found that “the independent medical
examiners to have had a better overall view of the claimant’s combined issues and function than
do the treating providers” [R. 29]. The ALJ also noted that the providers were not aware of
plaintiff’s “regular travels” or details revealed in the surveillance video [R. 29].
Plaintiff argues that her exercise and going on trips would not necessitate rejecting
Dr. Hoffman’s opinion and it is improper to reject a medical opinion based upon occasional trips
(Docket No. 10, Pl. Memo. at 17), Doyle v. Apfel, 105 F. Supp. 2d 115, 120 (E.D.N.Y. 2000).
Plaintiff construes Dr. Hoffman’s awareness of plaintiff’s activities as informing Dr. Hoffman’s
treatment findings, that Dr. Hoffman advised plaintiff to be more active (id.).

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C.

Consideration of Treating Sources’ Opinions

These medical opinions were generated before March 2017 and the change in Social
Security regulations. Pertinent to this case is the treating physician’s rule (as of May 2016)2,
wherein a treating physician’s opinion should be given controlling weight where it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques,” and is not
inconsistent with the other substantive evidence of record, 20 C.F.R. § 404.1527(c)(2) (2016).
If not given controlling weight, the ALJ must provide good reasons for not crediting it,
McCarthy v. Colvin, No. 13CV6467, 2014 WL 6065675, at *7 (W.D.N.Y. Nov. 13, 2014)
(Telesca, J.); see Sanders v. Comm’r of Soc. Sec., 506 F. App’x 74, 77 (2d Cir. 2012). If not
giving the controlling weight to the treating physician’s opinion, the ALJ then needs to consider
various factors in assessing that opinion, such as the examining relationship, its extent, medical
support for the opinion, its consistency, and the physician’s specialization, and other relevant
factors, 20 C.F.R. § 404.1527(c) (2016).
Both of plaintiff’s personal doctors concluded that she could not return to work as a
dental hygienist. The ALJ (and by extension, the vocational expert) [R. 30] erred in finding
that plaintiff could resume that job based on her residual functional capacity. The hypotheticals
posed to the vocational expert presumed light work, that is the ability to lift 20 pounds and stand
and walk for a good deal of time, 20 C.F.R. § 404.1567(b).
The ALJ in effect rejected these medical opinions based upon a surveillance video [R.
28] that was shown to consulting examiners but not included in this record. The ALJ also relied

2

The Social Security Administration issued new regulations surrounding the acceptable medical sources
and how to consider medical opinions, 82 Fed. Reg. 15,132 (Mar. 27, 2017), 82 Fed. Reg. 5,844 (Jan. 18, 2017),
effective for claims filed on or after March 27, 2017. Docket No. 19, Def. Memo. at 20 n.2.

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upon plaintiff’s vacations as grounds for activities of daily living that belie plaintiff’s complaints
and her medical opinions. When plaintiff traveled and cycled, she took efforts to minimize the
impact on her body from the activities (by scheduling flight to avoid layovers, staying on the
beach once in Mexico or the Dominican Republic, using an adjusted bicycle). Taking
occasional trips is “not indicative of an ability to satisfactorily perform a job, much less
plaintiff’s previous job,” Doyle, supra, 105 F. Supp. 2d at 120.
Dr. Louis Medved, independent medical examiner, on February 9, 2015, found that
“claimant’s physical functional capacity is in the light range, adequate to function as a dental
hygienist. She can work 6 hours per day.” [R. 685.] This is despite a report from Janet Kraft
of Buffalo Ergonomics and Rehabilitation Services of July 2013 that Dr. Medved reviewed that
indicated that the job of dental hygienist was listed as sedentary, “the postural demands of the
job are not within claimant’s safe physical abilities at this time” [R. 683]. The ALJ noted that
Dr. Medved saw the surveillance video which showed plaintiff jogging and biking for two hours;
Dr. Medved concluded that these activities were inconsistent with plaintiff’s subjective
complaints [R. 28, 684, 685]. The ALJ gave “significance” to Dr. Medved’s opinion [R. 28].
The parties differ in their interpretation of Dr. Medved’s opinion. Plaintiff claims that plaintiff
can work only up to six hours and thus could not perform light work (Docket No. 10, Pl. Memo.
at 18). Defendant argues that plaintiff was not limited to up to six hours, but that plaintiff could
work as a dental hygienist (Docket No. 17, Def. Memo. at 18). But Dr. Medved’s opinion is
based upon a video that is not part of the overall record.
The ALJ lacks substantial evidence in determining that plaintiff could return to work as a
dental hygienist in the face of her physicians finding that she could not. The ALJ cannot rely
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upon a surveillance video that was not part of the administrative record, Ross, supra, 837 F.
Supp. 2d at 50-51 (disability pension action under ERISA); see also Hubbard v. Barnhart, 225 F.
App’x 721, 722-23 (9th Cir. 2007) (where Commissioner disclosed video in list of exhibits,
admission of surveillance video into evidence in hearing did not violate claimant’s due process
rights); Schneiderman v. Colvin, No. 2:14-CV-00120-JTR, 2015 WL 3562582, at *10-11 (E.D.
Wash. June 5, 2015) (Rogers, Mag. J.) (in rejecting surveillance video to undermine claimant’s
credibility, ALJ’s reliance upon video deemed “troubling” because the video itself was not in the
record only descriptions of the video written by two doctors), or upon plaintiff’s occasional
vacations. Further, the ALJ contends that the treating physicians were not informed about the
surveillance or plaintiff’s travel thus giving Dr. Medved’s and another independent medical
examiner’s opinion [R. 759-65] more weight [R. 29]. Dr. Hoffman noted plaintiff’s trip to the
Dominican Republic [R. 693] (acknowledged by the ALJ, [R. 28-29]) and plaintiff herself being
aware of the surveillance [R. 745, Oct. 8, 2015, examination].
On this basis, plaintiff’s motion (Docket No. 10) is granted.
At least one of these doctors, however, did find that plaintiff could perform sedentary
work [R. 685]. The vocational expert opined that plaintiff could perform such sedentary jobs as
information clerk, telephone solicitor, or order filler based upon the hypotheticals that had a
claimant who was able (with some limitations) to perform light work. When given the last
hypothetical restricting time for standing, walking, or sitting, the expert concluded that that
claimant could not work full time [R. 63]; the expert was not asked (and did not opine) on
whether a claimant could perform these jobs in general. On remand, plaintiff’s capabilities to
perform sedentary work should be examined.
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II.

Residual Functional Capacity
Plaintiff next argues that the residual functional capacity should have included

restrictions for below the shoulder reaching, neck movement, and limitations to less than fulltime work (Docket No. 10, Pl. Memo. at 18-22). As for the full-time work, this Court above
noted the parties’ different interpretations of Dr. Medved’s opinion whether plaintiff could work
for 6 hours or up to 6 hours (compare Docket No. 10, Pl. Memo. at 18 with Docket No. 17, Def.
Memo. at 18). Defendant relies upon Dr. Medved’s opinion that plaintiff could return to her
prior work to justify the residual functional capacity reached by the ALJ (Docket No. 17, Def.
Memo. at 18). Since this Court disagrees and finds error in relying upon the conclusion that
plaintiff could return to work as a hygienist, the ALJ erred in reliance on Dr. Medved’s contrary
opinion.
III.

Plaintiff’s Subjective Complaints
Plaintiff contends that the ALJ erred in weighing her subjective complaints (Docket

No. 10, Pl. Memo. at 22-25). As previously noted, Dr. Medved opined that the only restraint for
plaintiff returning to work as a hygienist is her subjective complaints of pain [R. 685]. As noted
above, this is an area that should be reconsidered on remand.
IV.

Transferability of Skills
Plaintiff finally complains that the ALJ erred in finding that her past work as a dental

hygienist had clerical or customer service transferrable skills that the vocational expert then
opined in stating additional occupations a hypothetical claimant like her could perform (Docket
No. 10, Pl. Memo. at 25-27). In reply, plaintiff stresses that the ALJ erred in finding skills are
transferable without substantial evidence that she in fact acquired those skills (Docket No. 18, Pl.
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Reply Memo. at 3), see Cahill v. Colvin, No. 12 Civ. 9445, 2014 WL 7392895, at *30 (S.D.N.Y.
Dec. 29, 2014). The first two hypotheticals to the vocational expert supposed that plaintiff’s
skills as a hygienist would be transferable to other, sedentary jobs [R. 61].
Transferability of skills is governed by 20 C.F.R. § 404.1568(d) and depend upon
whether the past work was skilled or semi-skilled and the type of work involved, §
404.1568(d)(1), this is without regard whether the claimant can perform the past work or not.
Therefore, this is an issue that may be considered on remand and may inform which sedentary
positions plaintiff could perform in her present condition.
CONCLUSION
For the foregoing reasons, plaintiff’s motion (Docket No. 9) judgment on the pleadings is
granted, and defendant’s motion (Docket No. 13) for judgment on the pleadings is denied.
Thus, the decision of the defendant Commissioner is vacated and remanded for further
proceedings consistent with the above decision to find additional facts, pursuant to sentence four
of 42 U.S.C. § 405(g), see Curry v. Apfel, 209 F.3d 117, 124 (2d Cir. 2000). The Clerk of the
Court shall close this case.
So Ordered.

s/Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge
Buffalo, New York
April 17, 2019

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