Reyes v. Commissioner of Social Security

Filing 15

DECISION AND ORDER granting 9 Motion for Judgment on the Pleadings; denying 12 Motion for Judgment on the Pleadings. This matter is reversed and remanded for further administrative proceedings. The Clerk of the Court is directed to close this case. SO ORDERED. Signed by Hon. H. Kenneth Schroeder Jr. on 11/08/2018. (HKG)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LISA REYES,
Plaintiff,
v.

DECISION AND ORDER
17-CV-1194

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

Background
Plaintiff Lisa Reyes challenges the Administrative Law Judge’s (“ALJ”)
determination that she is not disabled within the meaning of the Social Security Act (“the
Act”). Plaintiff alleges that she has been disabled since July 29, 2012, due to hepatitis C,
bipolar disorder, depression, anxiety, carpal tunnel and epilepsy. Tr.1 231. Plaintiff
contends her impairments render her unable to work and, therefore, she is entitled to
disability benefits under the Act.

The Court has jurisdiction over this action under

42 U.S.C. § 405(g).

On July 30, 2013, Plaintiff protectively applied for Supplemental Security
Income (“SSI”). Tr. 185-205. Plaintiff appeared with counsel and testified in two hearings
before Administrative Law Judge Eric Glazer (“the ALJ”) on August 4, 2015, and March
17, 2016. Tr. 36-66. On March 21, 2016, the ALJ consulted with a vocational expert
(“VE”). Tr. 284-295. On July 5, 2016, the ALJ issued a written decision denying Plaintiff’s
application for benefits. Tr. 17-30. On September 20, 2017, the Appeals Council denied

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

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Plaintiff’s request for review. Plaintiff filed the current action on November 20, 2017,
challenging the Commissioner’s final decision.2 Both parties have moved for judgment
on the pleadings pursuant to Federal Rule of Civil Procedure 12 (c). Dkt. Nos. 9, 12, 13.

Legal Standard
I.

District Court Review
“In reviewing a final decision of the SSA, this Court is limited to determining

whether the SSA’s conclusions were supported by substantial evidence in the record and
were based on a correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012) (quotation marks omitted); see also 42 U.S.C. § 405(g). The Act holds that a
decision by the Commissioner is “conclusive” if it is supported by substantial evidence.
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.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quotation marks omitted).
It is not the Court’s function to “determine de novo whether [the claimant] is disabled.”
Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quotation marks omitted); see also
Wagner v. Sec’y of Health and Human Servs., 906 F.2d 856, 860 (2d Cir. 1990) (holding
that review of the Secretary’s decision is not de novo and that the Secretary’s findings
are conclusive if supported by substantial evidence).

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The ALJ’s July 5, 2016 decision became the Commissioner’s final decision when the Appeals Council
denied Plaintiff’s request for review.

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II.

Disability Determination
An ALJ must follow a five-step process to determine whether an individual

is disabled under the Act. See Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). At step
one, the ALJ must determine whether the claimant is engaged in substantial gainful work
activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not, the ALJ
proceeds to step two and determines whether the claimant has an impairment, or
combination of impairments, that is “severe” within the meaning of the Act, meaning that
it imposes significant restrictions on the claimant’s ability to perform basic work activities.
20 C.F.R. § 404.1520(c).

If the claimant does not have a severe impairment or

combination of impairments, the analysis concludes with a finding of “not disabled.” If the
claimant does, the ALJ continues to step three.

At step three, the ALJ examines whether a claimant’s impairment meets or
medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of
Regulation No. 4 (the “Listings”). 20 C.F.R. § 404.1520(d). If the impairment meets or
medically equals the criteria of a Listing and meets the durational requirement (20 C.F.R.
§ 404.1509), the claimant is disabled. If not, the ALJ determines the claimant’s residual
functional capacity (“RFC”), which is the ability to perform physical or mental work
activities on a sustained basis, notwithstanding limitations for collective impairments. See
20 C.F.R. § 404.1520(e)-(f).

The ALJ then proceeds to step four and determines whether the claimant’s
RFC permits him or her to perform the requirements of his or her past relevant work.

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20 C.F.R. § 404.1520(f). If the claimant can perform such requirements, then he or she
is not disabled. If he or she cannot, the analysis proceeds to the fifth and final step,
wherein the burden shifts to the Commissioner to demonstrate that the claimant “retains
a residual functional capacity to perform the alternative substantial gainful work which
exists in the national economy” in light of his or her age, education, and work experience.
See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation marks omitted); see also
20 C.F.R. § 404.1560(c).

Discussion
I.

The ALJ’s Decision
The ALJ’s decision analyzed the Plaintiff’s claim for benefits under the

process set forth above. At step one, the ALJ found that Plaintiff has not engaged in
substantial gainful activity since July 30, 2013, the application date. Tr. 22. At step two,
the ALJ found that Plaintiff has the following severe impairments: “depressive disorder,
rule-out substance induced; drugs, substance addiction disorders; and carpal tunnel
syndrome.” Tr. 22. He determined that Plaintiff’s history of seizures did not constitute a
severe impairment under the Act because the evidence does not establish that the
impairment has more than a minimal effect on Plaintiff’s ability to work. Tr. 22. At step
three, the ALJ found that Plaintiff’s impairments, alone or in combination, do not meet or
medically equal the specified criteria of any listed impairment, so that a finding of disability
was not permitted at step three. Tr. 22.

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At step four, the ALJ determined that Plaintiff retains the RFC to perform
light work as defined in 20 C.F.R. § 416.967(b), except that she is limited to lifting and
carrying up to 20 pounds occasionally and 10 pounds frequently; she could push/pull as
much as she could lift/carry; she could stand and walk for up to six hours and sit for up to
six hours in an eight-hour workday; she could frequently handle with both hands,
however, she cannot perform repetitive gross manipulations; fine manipulation and object
positioning is permitted; she could frequently finger with the right hand and occasionally
finger with the left hand; she can never climb ladders, ropes, and scaffolds; she could
occasionally balance and crawl; she cannot perform repetitive stooping, kneeling, or
crouching; she is limited to hearing and understanding simple oral instructions and is able
to communicate simple information; she can have no exposure to unprotected heights,
moving mechanical parts, and can never operate a motor vehicle; she must avoid
concentrated exposure to dust, odors, fumes, and other pulmonary irritants; she cannot
perform work with any handling, sale, or preparation of controlled narcotic substances or
alcoholic beverages; she can have no more than incidental (1/6 of shift) interaction with
co-workers and the public as necessary to complete assigned work, visible or audible
contact is permitted at all other times, but no interaction must be required; she can
respond appropriately to the public on an incidental basis (1/6 of shift); she is limited to
simple work-related decisions; time off-task can be accommodated by normal breaks; she
would be absent once per month, at two-hour intervals each, for pre-arranged mental
health provider appointments. Tr. 24.

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The ALJ found Plaintiff is unable to perform her past relevant work as a
general production worker as it would require abilities that exceed her RFC. Tr. 29.
Finally, at step five, the ALJ found that Plaintiff retains an RFC to perform other work as
a photocopying machine operator, DOT 207.685-014, mail clerk, DOT 209.687-062, or
inspector, DOT 727.687-062. Tr.29-30. Accordingly, the ALJ determined that the plaintiff
was not “disabled” under the Act. Tr. 30.

II.

Analysis
Plaintiff argues that remand is required because the physical RFC

assessment is not supported by substantial evidence.3 Dkt. No. 9 at 10-16. Specifically,
Plaintiff argues that the ALJ erred by relying on his lay opinion instead of a medical opinion
to create the physical RFC assessment, where he failed to incorporate the Plaintiff’s
functional limitations identified by Michael Woltz, PAC (“PA Woltz”). Id.

The

Commissioner contends that the ALJ’s RFC findings are supported by substantial
evidence. Dkt. No. 12 at 29. For the reasons that follow, I find that the RFC determination
was not supported by substantial evidence, which requires remand of this matter for
further administrative proceedings.

A. Physical RFC Assessment
RFC is defined as “what an individual can do despite his or her limitations.”
Desmond v. Astrue, No. 11-CV-0818 (VEB), 2012 WL 6648625, at *5 (N.D.N.Y. Dec. 20,

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Plaintiff advances other arguments that she believes warrant reversal of the Commissioner’s decision.
However, the Court will not address these arguments because it disposes of this matter based on the
improper physical RFC assessment.

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2012) (quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)).

To determine a

claimant’s RFC, “the ALJ considers a claimant’s physical abilities, mental abilities,
symptomatology, including pain and other limitations that could interfere with work
activities on a regular and continuing basis.” Id. (citing 20 C.F.R. § 404.1545(a)). The
ALJ must assess a claimant’s ability to lift, handle, push, pull, reach, sit, stand, and walk.
20 C.F.R. § 404.1545(b). Where an ALJ’s analysis of a claimant’s functional limitations
provides “an adequate basis for meaningful judicial review, applies the proper legal
standards, and is supported by substantial evidence such that additional analysis would
be unnecessary or superfluous . . . [r]emand is not necessary.” Cichocki v. Astrue, 739
F.3d 172, 177 (2d Cir. 2013). However, the Second Circuit also noted, “[r]emand may be
appropriate . . . where an ALJ fails to assess a claimant’s capacity to perform relevant
functions, despite contradictory evidence in the record, or where other inadequacies in
the ALJ’s analysis frustrate meaningful review.” Id. (citing Myers v. Apfel, 238 F.3d 617,
621 (5th Cir. 2001) (remanding where “the ALJ failed to resolve the inconsistencies in the
evidence” regarding claimant’s residual functional capacity.)).

Here, the ALJ found at step two that Plaintiff’s carpal tunnel syndrome is a
severe impairment. Tr. 22. Then, the ALJ determined that the Plaintiff had the RFC to
perform a limited range of light work including: the ability to lift and carry up to 20 pounds
occasionally and 10 pounds frequently and the ability to perform frequent handling but
not repetitive gross manipulations, which the Plaintiff disputes. Tr. 24. In determining the
Plaintiff’s RFC, the ALJ relied on opinions from Susan Santarpia, PhD (examining

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source), C. Butensky, PhD (state agency consultant), Nikita Dave, MD (examining
source), and PA Woltz (treating source). Tr. 28.

Plaintiff argues that the ALJ erred by failing to incorporate the Plaintiff’s
functional limitations identified by treating source PA Woltz. Dkt. No. 9 at 1, 11-14. The
Commissioner contends that substantial evidence supports the ALJ’s decision to discount
portions of PA Woltz’s opinion because it is the ALJ’s role to choose between medical
opinions and resolve evidentiary conflicts. Dkt. No. 12 at 25-26 (citing Veino v. Barnhart,
312 F.3d 578, 588 (2d Cir. 2002)). I agree with Plaintiff that the ALJ failed to provide an
explanation for discounting portions of PA Woltz’s opinion dated August 22, 2015.

B. The ALJ’s treatment of PA Woltz’s Opinion
In determining the Plaintiff’s RFC, the ALJ adopted PA Woltz’s conclusions
that the Plaintiff is capable of low stress jobs; can walk for many blocks without rest; and
could sit and stand for more than two hours at one time for more than six hours per
workday. Tr. at 28. The ALJ noted that, despite PA Woltz being an unacceptable medical
source, he accorded his physical RFC questionnaire assessment of the Plaintiff in August,
2015, “substantial weight” where he found it “consistent with the record as a whole” and
“supported with an explanation.”

Id.

The ALJ mentioned the Plaintiff’s “additional

limitations” identified by PA Woltz, but only addressed the attendance limitation where PA
Woltz opined that Plaintiff may miss two days of work per month. Id. The ALJ discredited
the attendance limitation and opined that the Plaintiff can “generally adjust to work with
her existing symptoms.” Id. The ALJ noted that PA Woltz was unsure if Plaintiff was a

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malingerer.4 Id. Finally, the ALJ concluded that PA Woltz’s assessment was consistent
with the Plaintiff’s neurology records showing a good range of motion and no significant
decrease in grip strength. Id.

Although there is no requirement that an RFC finding correspond directly to
a specific medical opinion, when an ALJ adopts only portions of a medical opinion he or
she must explain why the remaining portions were rejected. Dioguardi v. Comm’r of Soc.
Sec., 445 F.Supp.2d at 297 (quoting Soc. Sec. Ruling 96-8p, 1996 WL 374184, *7
(1996)); Raymer v. Colvin, No. 14-CV-6009P, 2015 WL 5032669, at *5 (W.D.N.Y. Aug.
25, 2015) (citing Younes, 2015 WL 1524417 at *8 (N.D.N.Y. April 2, 2015) (Although an
ALJ is free to credit only a portion of a medical opinion, “when doing so smacks of ‘cherry
picking’ of evidence supporting a finding while rejecting contrary evidence from the same
source, an [ALJ] must have a sound reason for weighting portions of the same-source
opinions differently.”)).

C. Plaintiff’s “Additional Limitations” identified by PA Woltz
Plaintiff does not dispute that the ALJ’s RFC assessment with respect to
Plaintiff’s ability to sit, walk, and stand is generally consistent with PA Woltz’s opinion and
the medical evidence record. Instead, Plaintiff contends that the ALJ’s RFC assessment
failed to incorporate the Plaintiff’s “additional limitations” assessed by PA Woltz including:

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Question 9 of the Physical RFC Questionnaire asked, “Is your patient a malingerer?” PA Woltz
responded, “She may be seeking secondary gain, I am unsure at this time. She needs cervical eval by
Neuro.” Tr. 662.

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rarely being able to lift ten pounds and being able to use her hands for only 10 percent of
the day. Dkt. No. 9 at 12.

On August 22, 2015, PA Woltz completed a physical RFC questionnaire.
Tr. 665-669. He found that the Plaintiff can never lift and carry 20 pounds, rarely lift and
carry 10 pounds, and can frequently lift and carry less than 10 pounds. Tr. 667 (ex. B16F,
p. 3) (emphasis added).

PA Woltz also concluded that the Plaintiff has significant

limitations with reaching, handling, and fingering due to numbness of her hands and
would be limited to using her hands and fingers for only ten percent of an eight-hour
workday and her arms for thirty percent. Tr. 667 (ex. B16F, p. 4). PA Woltz further opined
that the Plaintiff would be absent from work about two days per month due to “bad days”
resulting from her impairments or treatment. Tr. 667 (ex. B16F, p. 4).

Even though the ALJ accorded PA Woltz’s assessment “substantial weight”
and it was the only medical source opinion that addressed the Plaintiff’s ability to lift and
carry (limited to rarely lifting 10 pounds), the ALJ somehow determined that she retained
a RFC of light work requiring Plaintiff to frequently lift 10 pounds and occasionally lift 20
pounds. For example, at the hearing, Plaintiff testified that she couldn’t lift much and
would be unable to lift a gallon of milk for long, if at all, due to the pain in her hands. Tr.
79. Therefore, both PA Woltz’s medical opinion (which the ALJ accorded “substantial
weight”) and the Plaintiff’s testimony conflict with the ALJ’s RFC finding. The ALJ also
found that the Plaintiff could frequently handle, again in conflict with the handling
limitations identified by PA Woltz.

Here, the ALJ made no mention of PA Woltz’s

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assessment opining that the Plaintiff would be limited in the use of her hands and fingers
to ten percent of an 8-hour workday. It is unclear to the Court how the ALJ, who is not a
medical professional, was able to make this highly specific determination without reliance
on a medical opinion. “[T]he ALJ’s RFC finding as to the Plaintiff’s physical impairments
does not provide the Court, as it must, with the ALJ’s rationale in relation to the evidence.”
Paul v. Colvin, 15-CV-310-RJA-HBS, 2016 WL 6275231, at *2 (W.D.N.Y. Oct. 27, 2016)
(citing Cichocki, 729 F.3d at 177); see also Buchanan v. Colvin, 15-CV-88S, 2016 WL
2729593, at *4 (W.D.N.Y. May 11, 2016). The ALJ cannot “cherry pick from a medical
opinion, i.e., he or she may not credit evidence that supports administrative findings while
ignoring conflicting evidence from the same source.” Zayas v. Colvin, 2016 WL 1761959,
at *4 (W.D.N.Y. May 2, 2016); Caternolo v. Astrue, 2013 WL 1819264 at *9 (W.D.N.Y.
April 29, 2013) (“The ALJ assigned parts of [the doctor’s] opinion ‘significant’ weight, but
he completely disregarded the portion of the report that would have led to a finding of
disability by eroding Plaintiff’s ability to do all light work.”) As a result, I find the RFC
assessment is not supported by substantial evidence.

Accordingly, on remand, the ALJ is directed to evaluate and delineate which
portions of PA Woltz’s opinion will be incorporated into his RFC finding, and which will not
be included. For those portions of PA Woltz’s opinion that are not included, the ALJ must
explain why, when determining Plaintiff’s capacity to perform relevant functions.

See

Vazquez v. Comm’r of Soc. Sec., 2015 WL 4562978, at *14 (S.D.N.Y. July 21, 2015)
(“Where an ALJ ignores relevant evidence that is before him and neglects to ‘adequately

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explain which evidence’ he rejects and why, remand is appropriate.”) (internal citation
omitted); 20 C.F.R. § 404.1529(c)(1).

Conclusion
For the reasons stated above, Defendant’s motion for judgment on the
pleadings (Dkt. No. 12) is DENIED, and Plaintiff’s motion for judgment on the pleadings
(Dkt. No. 9) is GRANTED to the extent that the Commissioner’s decision is reversed, and
the matter is remanded for further administrative proceedings consistent with this
Decision and Order.

DATED:

Buffalo, New York
November 8, 2018

s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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