Vogt v. Commissioner of Social Security
Filing
16
DECISION AND ORDER granting in part and denying in part Vogt's motion for judgment on the pleadings, Docket Item 10 , and denying the Commissioner's cross-motion for judgment on the pleadings, Docket Item 13 . The decision of the Commissioner is VACATED, and the matter is REMANDED for further administrative proceedings consistent with this decision. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 9/16/2019. (LCH)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LAYLA M. VOGT,
on behalf of
Allen L. Vogt,
Plaintiff,
18-CV-231
DECISION AND ORDER
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
On February 12, 2018, the plaintiff, Layla M. Vogt, brought this action under the
Social Security Act ("the Act"). She seeks review of the determination by the
Commissioner of Social Security ("Commissioner") that Allen L. Vogt was not disabled. 1
Docket Item 1. On October 15, 2018, Vogt moved for judgment on the pleadings,
Docket Item 10; on December 13, 2018, the Commissioner responded and crossmoved for judgment on the pleadings, Docket Item 13; and on January 7, 2019, Vogt
replied. Docket Item 14.
For the reasons stated below, this Court grants Vogt’s motion in part and denies
the Commissioner’s cross-motion.
1
Allen Vogt passed away on May 6, 2017, while his claim was pending before
the Appeals Council. Docket Item 10-1 at 2-3. Allen Vogt’s daughter, Layla Vogt, was
subsequently designated as the substitute party on his behalf. Docket Item 10-1 at 2-3.
The Commissioner does not challenge the authority of Layla Vogt to bring this action.
See Davis ex rel. Maitland v. Colvin, 2013 WL 1183000, at *5 n.14 (N.D.N.Y. Feb. 27,
2013).
BACKGROUND
I.
PROCEDURAL HISTORY
On November 20, 2013, Allen L. Vogt applied for Supplemental Security Income
benefits (“SSI”). Docket Item 7 at 114. He claimed that he had been disabled since
January 1, 2009, due to chronic obstructive pulmonary disease, hypertension, carpal
tunnel syndrome, and neuropathy. Id. at 114-15.
On January 22, 2014, Vogt received notice that his application was denied
because he was not disabled under the Act. Id. at 125-35. He requested a hearing
before an administrative law judge ("ALJ"), id. at 137-45, which was held on December
28, 2015, id. at 78. The ALJ then issued a decision on April 29, 2016, confirming the
finding that Vogt was not disabled. Id. at 55. Vogt appealed the ALJ’s decision, but his
appeal was denied, and the decision then became final. Id. at 5-7.
II.
HEARING TESTIMONY
Vogt and his attorney engaged in the following dialog with respect to his carpal
tunnel syndrome at the hearing:
Q. Can you tell me a little bit about your carpal tunnel currently?
A. Well, as you can see, my left hand is quite a bit smaller than my right
and the muscle, muscle loss and whatever.
Q. And do you experience carpal tunnel in—you had problems with both
hands?
A. Yes.
Q. Okay. Let’s talk about the left hand first. I mean which—is one hand
better than the other?
A. My right hand is better than my left hand.
2
Q. Okay. So let’s talk about the left hand first. What are you able to do
with your left hand.
A. Not much, virtually nothing.
Q. Can you—
A. I can’t pick much of anything up.
Q. Can you pick up, like, a coffee mug or a plate?
A. With my right hand, I usually can pick up with my right hand so I don’t
break it.
Q. So you tend to drop things?
A. Yes.
Q. Okay, so with your—what’s the last thing you lifted with your left hand?
A. I don’t—I really don’t know.
Q. Okay. So you don’t use your left hand for—
A. Not much.
Q. Okay.
Docket Item 7 at 92-93. Later, the ALJ clarified:
Q. So since your surgery you haven’t used your left hand for much of
anything?
A. No, not much of anything.
Id. at 95.
III.
RELEVANT MEDICAL EVIDENCE
The following summarizes the medical evidence most relevant to Vogt’s claims.
Vogt was examined by several different providers but only three—John Callahan, M.D.,
an orthopedic surgeon; S. David Miller, M.D., a physiatrist; and David Avino, M.D., an
internist—are of significance to this Court’s review of Vogt’s disability claim.
3
A.
John Callahan, M.D., Orthopedic Surgeon
On March 22, 2013, Vogt visited John Callahan, M.D., an orthopedic surgeon,
with complaints of “left hand pain.” Docket Item 7 at 307. Vogt told Dr. Callahan that
his hand pain did not arise from a specific injury but instead that his “symptoms have
been present for 5 years.” Id. Vogt also told Dr. Callahan that he had “a continuously
sharp and throbbing pain” and rated “his pain as a 6/10 that is worse with activity.” Id.
He reported “associated numbness, shooting pain, popping, snapping, swelling, tingling,
and weakness.” Id. On April 9, 2013, Dr. Callahan noted that there “is intrinsic atrophy
of the left hand.” Id. at 318. On May 1, 2013, Dr. Callahan noted that although Vogt’s
left hand did not have a “deformity,” there was “hypothenar eminence atrophy and
intrinsic atrophy of the hands bilaterally.” Id. at 305.
On June 4, 2013, Dr. Callahan operated on Vogt to address the carpal tunnel
syndrome in his left hand. Docket Item 7 at 275-76. Dr. Callahan explained that Vogt
had had “progressive signs and symptoms of . . . left carpal tunnel and cubital tunnel
syndrome, unresponsive to conservative care to date.” Id. at 275. Ten days later, Vogt
followed up with Dr. Callahan’s office and a physician assistant supervised by Dr.
Callahan noted upon examination that Vogt had “[a]trophy of the left hand.” Id. at 302.
On September 12, 2013, Vogt complained to Dr. Callahan that he was still
experiencing pain in both hands. Id at 331. Dr. Callahan said that “it takes at least 6
months to get more relief” and that “[i]t may take up to 1 1/2 years to totally get full
benefit f[rom] the surgery.” Id. at 332, 345.
4
B.
S. David Miller, M.D., Physiatrist
On May 9, 2013, Vogt visited S. David Miller, M.D., a physiatrist. Docket Item 7
at 247-51. Vogt’s chief complaint was “[w]eakness and atrophy of the left hand.” Id. at
247. Vogt explained that his hand impairments “develop[ed] . . . over the past few years
. . . without a clear precipitating event/injury.” Id. Dr. Miller found that there was
“intrinsic atrophy of the left hand with relative sparing of left thenar musculature.” Id.
C.
David Avino, M.D., Internist
On May 23, 2013, David Avino, M.D., an internist, examined Vogt and conducted
a stress test. Docket Item 7 at 258. Dr. Avino noted that Vogt
exercised for 1 minute and 45 seconds on a standard Bruce protocol. He
stopped because of leg pain probably due to peripheral occlusive vascular
disease of the lower extremities. He achieved a workload of approximately
3 METS. The resting heart rate was 77 and increased to 147 near maximal
exercise. This is 92% of the patient’s age predicted maximum heart rate.
The resting blood pressure was 170/90 and increased to 220/90 near
maximal exercise indicating probably a hypersensitive response to
exercise. No angina developed. . . . The Duke treadmill score was round at
2.
Id.
IV.
THE ALJ’S DECISION
In denying Vogt’s application, the ALJ evaluated Vogt’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
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not disabled. Id. If there are any severe impairments, the ALJ proceeds to step three.
§ 404.1520(a)(4).
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 or equal 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)(4)(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).
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In this case, the ALJ determined at step one that Vogt had not engaged in
“substantial gainful activity during the period from his alleged onset date of January 1,
2009, through his date last insured of December 31, 3013.” Docket Item 7 at 51. At
step two, the ALJ found that Vogt had several medically determinable impairments:
“chronic obstructive pulmonary disease (“COPD”), carpal tunnel syndrome, and
hypertension.” Id. But the ALJ then found that Vogt “did not have an impairment or
combination of impairments that significantly limited the ability to perform basic workrelated activities for 12 consecutive months; therefore [he] did not have a severe
impairment or combination of impairments.” Id. at 52.
STANDARD OF REVIEW
“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
reasonable basis for doubt whether the ALJ applied correct legal principles, application
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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
“[T]he Social Security Amendments Act . . . define[s] ‘disability’ as ‘inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment.” Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (quoting
42 U.S.C. § 423(d)(1)(A)). At step two of the sequential evaluation process, a disability
claim is rejected only “[i]f [a claimant does] not have any impairment or combination of
impairments which significantly limits [a claimant’s] physical or mental ability to do basic
work activities.” 20 C.F.R. § 404.1520(c).
“Step Two may do no more than screen out de minimis claims.” Dixon v.
Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995). The severity requirement at step two
“increases the efficiency and reliability of the evaluation process by identifying at an
early stage those claimants whose medical impairments are so slight that it is unlikely
that they would be found to be disabled even if their age, education, and experience
were taken into account.” Bowen, 482 U.S. at 153. But the step two analysis is
designed only to “weed out at an early stage of the administrative process those
individuals who cannot possibly meet the statutory definition of disability.” Id. at 156
(O’Connor, J., concurring). 2 Conversely, step two “does not permit the Secretary to
2
Justice O’Connor’s concurring opinion in Bowen has been recognized as the
controlling interpretation of the step two standard. See Dixon v. Shalala, 54 F.3d 1019,
1030-31 (2d Cir. 1995).
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deny benefits to a claimant who may fit within the statutory definition without
determining whether the impairment prevents the claimant from engaging in either his
prior work or substantial gainful employment that, in light of the claimant’s age,
education, and experience, is available to him in the national economy.” Id. at 158. In
other words, “[o]nly those claimants with slight abnormalities that do not significantly
limit any ‘basic work activity’ can be denied benefits without undertaking this vocational
analysis.” Id.
An ALJ’s decision that a combination of impairments is no greater than “slight
abnormalities that do not significantly limit any ‘basic work activity,’” id., must be
“supported by ‘substantial evidence’ in the record as whole.” Veino v. Barnhart, 312
F.3d 578, 586 (2d Cir. 2002). And a step two finding that a claimant’s impairment “is
nonsevere is not supported by substantial evidence [when] the evidence on which it is
based is inconsistent with evidence that [the claimant’s impairment] significantly
impaired her ability to do basic work activities.” Parker-Grose v. Astrue, 462 F. App’x
16, 17-18 (2d Cir. 2012). For example, in Parker-Grose, the ALJ found at step two that
the claimant’s depression was nonsevere. Id. at 17. But one psychologist had opined
that the claimant “was experiencing depression” and another psychologist noted that
she experienced “‘moderate symptoms’ including ‘moderate difficulty in school, work,
and social functioning.’” Id. at 18 (quoting Admin. R. 455). In that case, substantial
evidence did not support the ALJ’s conclusion that the claimant’s impairment was
nonsevere. Id.
A review of the cases sustaining step two findings of nonsevere impairments also
is instructive. In Wavercak v. Astrue, 420 F. App’x 91 (2d Cir. 2011), for example, the
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claimant alleged that his sleep apnea was a severe impairment, but at the hearing,
“when asked to explain how sleep apnea affected him during the time in question, [the
claimant] responded that his fatigue and day-time drowsiness were caused more by the
pain in his neck than from any sleep disorder.” Id. at 93. Because the claimant was
“unable” to “point to a medical exhibit in the record that documented the presence of
sleep apnea” at any relevant time, finding a nonsevere impairment at step two was
supported by the record. Id.
Likewise, in Reynolds v. Colvin, 570 F. App’x 45 (2d Cir. 2014), the plaintiff
argued that the ALJ had erred in determining that the claimant, his wife, “was severely
impaired by cancer, but not by neck and back pain” between the years 2001 and 2006.
Id. at 47. The only evidence supporting the significance of that impairment, however,
was a “1989 cervical spine MRI and June 3, 1991 office note . . . generated more than a
decade prior to the relevant period.” Id. And it was “undisputed that in the interim, [the]
claimant worked at substantial gainful activity, a circumstance making it difficult to infer
severe impairment from the earlier records.” Id. Again, the ALJ’s finding of a
nonsevere impairment at step two was sustained.
Here, there is little doubt that the ALJ’s decision at step two was erroneous.
More specifically, the finding that Vogt’s combination of impairments is no greater than
“slight abnormalities that do not significantly limit any ‘basic work activity,’” Bowen, 482
U.S. at 158 (O’Connor, J., concurring), is not “supported by ‘substantial evidence’ in the
record as whole,” Veino, 312 F.3d at 586. In fact, that determination “is inconsistent
with evidence that [Allen Vogt’s combination of impairments] significantly impaired [his]
ability to do basic work activities.” Parker-Grose, 462 F. App’x at 17-18.
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To begin, when Vogt appeared before the ALJ at the hearing, he not only used
words to describe the nature and severity of his hand impairment, but he also physically
showed the ALJ that his “left hand is quite a bit smaller than [his] right.” Docket Item 7
at 92. If that were untrue or inaccurate, one would expect the ALJ to have said
otherwise at the hearing or to have corrected the record in his decision in his decision.
See Klemens v. Berryhill, 703 F. App’x 35, 36 (2d Cir. 2017) (quoting Calzada v. Astrue,
753 F. Supp. 2d 250, 269 (S.D.N.Y. 2010)) (“Among the ALJ’s legal obligations is the
duty to adequately explain his reasoning in making findings on which his ultimate
decision rests, and in doing so he must address all pertinent evidence.”); Thomas v.
Colvin, 826 F.3d 953, 961 (7th Cir. 2016) (ALJs must “confront the evidence in [a
claimant’s] favor and explain why it was rejected before concluding that [his]
impairments [do] not impose more than a minimal limitation on [his] ability to perform
basic work tasks.”); Chiappa v. Sec’y of Dep’t of Health, Educ. and Welfare, 497 F.
Supp. 356, 358 (S.D.N.Y. 1980) (“ALJs must let the parties and the reviewing courts
know, in some intelligible fashion, where they stand on pivotal issues of fact posed by
the applications they adjudicate.”). But the ALJ did neither. And it is hard to fathom
how having one hand with atrophy that made it “quite a bit smaller” than the other could
be considered a “slight abnormalit[y] that do[es] not significantly limit any ‘basic work
activity.’” Bowen, 482 U.S. at 158 (O’Connor, J., concurring).
That is especially so for Vogt, whose last job was working for eighteen years as a
“millwright” at an automobile component manufacturer and who alleged a disability
beginning at age fifty-five. Vogt worked with his hands, and he would have had trouble
adapting to new types of work at his “advanced age.” See 20 C.F.R. § 404.1563(e). So
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Vogt’s hand atrophy was likely not just a “slight abnormality.” Bowen, 482 U.S. at 158
(O’Connor, J., concurring).
Vogt’s visible hand atrophy was far from the only evidence in support of his
impairment, however. Dr. Callahan and Dr. Miller both documented “atrophy of the left
hand” multiple times, see Docket Item 7 at 247, 302, 318, consistent with Vogt’s
testimony that his left hand was smaller. Indeed, Vogt’s left-hand impairment was so
severe that he required surgery during the relevant period. Id. at 275-76. What is more,
in 2013 Vogt told his treating physicians that his hand pain had been the same for
several years. Id. at 307. And there is no indication that Vogt worked from the time he
had his hand surgery in 2013 until the hearing date in 2015.
Finally, when Vogt stopped seeing Dr. Callahan for financial reasons, his hand
problem had not improved significantly. Id. at 331-32. Dr. Callahan then told him that it
might take up to a year and a half to get the full benefit of surgery. Id. at 332, 345.
What that full benefit might be, of course, remained to be seen. But Vogt had done
what he could to get medical help for his hand issues, see, e.g., id. at 286, and it
therefore was not surprising that he did not continue to see Dr. Callahan for medical
care that would have to pay for himself. See id. (noting on September 4, 2013, that
Vogt’s “insurance will not cover any more visits [and Vogt] therefore did not wish to
schedule anymore [sic] visits”).
Vogt’s hand atrophy and weakness was not his only impairment either. For
example, the ALJ summarily dismissed Vogt’s hypertension impairment, finding it to be
non-severe because “it has been described as benign . . . and well controlled with
medication.” Docket Item 7 at 54. The ALJ also noted that there “is no evidence that
12
hypertension causes the claimant to be significantly limited in his ability to perform basic
work-related activities for 12 consecutive months.” Id. But those findings also are “not
supported by substantial evidence since the evidence on which [they are] based is
inconsistent with evidence that [Vogt’s hypertension] significantly impaired [his] ability to
do basic work activities.” Parker-Grose, 462 F. App’x at 17-18. Specifically, the ALJ’s
conclusion is inconsistent with Dr. Avino’s stress test showing that Vogt could exercise
for only a minute and forty-five seconds before experiencing leg pain due to vascular
disease. Docket Item 7 at 258. And in that minute and forty-five seconds, Vogt’s blood
pressure rose from 170/90 to 220/90 “indicating . . . a hypersensitive response to
exercise.” Id. That evidence—unaddressed by the ALJ—suggests that Vogt’s
hypertension may well have been more than a “slight abnormalit[y] that d[id] not
significantly limit any ‘basic work activity.’” Bowen, 482 U.S. at 158 (O’Connor, J.,
concurring).
For the foregoing reasons, the ALJ’s conclusion that Vogt had no impairments
that are anything more than “slight abnormalities that do not significantly limit any ‘basic
work activity,’” id., is not supported by “‘substantial evidence’ in the record as whole.”
Veino, 312 F.3d at 586. Of course, that does not mean Vogt was disabled. But the ALJ
erred by ending his analysis of Vogt’s claims at step two and failing to “determin[e]
whether [Vogt’s] impairment[s] prevent[ him] from engaging in either his prior work or
substantial gainful employment that, in light of [Vogt’s] age, education, and experience,
13
is available to him in the national economy.” Bowen, 482 U.S. at 158 (O’Connor, J.,
concurring). 3
CONCLUSION
For the reasons stated above, the Commissioner's motion for judgment on the
pleadings, Docket Item 13, is DENIED, and Vogt’s motion for judgment on the
pleadings, Docket Item 10, 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. 4
SO ORDERED.
Dated:
September 16, 2019
Buffalo, New York
s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
3
This Court “will not reach the remaining issues raised by [Vogt] because they
may be affected by the ALJ’s treatment of this case on remand.” Watkins v. Barnhart,
350 F.3d 1297, 1299 (10th Cir. 2003)).
4
On remand, the ALJ also should consider the cause of Vogt’s death. Because
a “disability” is defined as “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,” 42 U.S.C. § 423(d)(1)(A), if Vogt died from a medically
determinable physical or mental impairment, his death could be evidence that one of the
impairments he suffered from could have been “expected to result in death,” id.
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