Seneca v. Commissioner of Social Security

Filing 20

DECISION AND ORDER granting 13 Motion for Judgment on the Pleadings insofar as it seeks remand; denying 17 Motion for Judgment on the Pleadings. This case is remanded for further proceedings. The Clerk of the Court is directed to close this case. SO ORDERED. Signed by Hon. H. Kenneth Schroeder Jr. on 8/21/2019. (HKG)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TRACY ANN SENECA,
Plaintiff,
v.
18-CV-345
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

DECISION AND ORDER
Pursuant to 28 U.S.C. § 636(c), the parties have consented to have the
undersigned conduct any and all further proceedings in this case, including entry of final
judgment. Dkt. No. 19. Tracy Ann Seneca (“Plaintiff”), who is represented by counsel,
brings this action pursuant to the Social Security Act (“the Act”) seeking review of the final
decision of the Commissioner of Social Security (“the Commissioner”) denying her
application for Social Security Income (“SSI”) benefits. This Court has jurisdiction over the
matter pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties’
competing motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure. Dkt. Nos. 13, 17.

BACKGROUND
On February 10, 2014, Plaintiff protectively filed for SSI, alleging that she
became disabled on December 29, 1998. Tr. at 19, 158-63.1 Plaintiff’s application was
denied at the initial level and she requested review. Tr. at 95-102. On November 8, 2016,

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Citations to “Tr. __” refer to the pages of the administrative transcript, which appears at Docket
No. 8.

Plaintiff appeared with her attorney for a hearing before Administrative Law Judge Melissa
Lin Jones (“the ALJ”) and testified, along with an impartial vocational expert (“VE”). Tr. at
32-75. At that time, she amended her alleged onset date to February 10, 2013. Tr. at 36.
Following a de novo review, the ALJ issued a decision on February 6, 2017, in which she
found that Plaintiff was not disabled and therefore not eligible for SSI. Tr. at 16-31. The
Appeals Council denied Plaintiff’s request for review making the ALJ’s determination the
final decision of the Commissioner. Tr. at 1-7. Thereafter, Plaintiff commenced this action
seeking review of the Commissioner’s decision. Dkt. No. 1.

LEGAL STANDARD
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,” 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
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Regulation No. 4 (the “Listings”). 20 C.F.R. § 404.1520(d). If the impairment meets or
medically equals a Listings criterion 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. 20
C.F.R. § 404.1520(f). If the claimant can perform such requirements, then he or she is not
disabled. If not, 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 alternative substantial gainful work which exists in the national
economy” in light of the claimant’s 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).

District Court Review
42 U.S.C. § 405(g) authorizes a district court “to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the decision of
the Commissioner of Social Security, with or without remanding the cause for a rehearing.”
42 U.S.C. § 405(g) (2007). Section 405(g) limits the scope of the Court’s review to two
inquiries: whether the Commissioner’s conclusions were based upon an erroneous legal
standard, and whether the Commissioner’s findings were supported by substantial
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evidence in the record as a whole. See Green-Younger v. Barnhart, 335 F.3d 99, 105-106
(2d Cir. 2003). Substantial evidence is “more than a mere scintilla.” Moran v. Astrue, 569
F.3d 108, 112 (2d Cir. 2009). “It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id. (emphasis added and citation
omitted). The substantial evidence standard of review is a very deferential standard, even
more so than the “clearly erroneous” standard. Brault v. Comm’r of Soc. Sec., 683 F.3d
443, 447-48 (2d Cir. 2012) (citing Dickinson v. Zurko, 527 U.S. 150, 153 (1999)).

When determining whether the Commissioner’s findings are supported by
substantial evidence, the Court’s task is “‘to examine the entire record, including
contradictory evidence and evidence from which conflicting inferences can be drawn.’”
Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722 F.2d
1033, 1038 (2d Cir. 1983) (per curiam)). If there is substantial evidence for the ALJ’s
determination, the decision must be upheld, even if there is also substantial evidence for
the Plaintiff’s position. See Perez v. Chater, 77 F.3d 41, 46-47 (2d Cir. 1996); Conlin ex
rel. N.T.C.B. v. Colvin, 111 F. Supp. 3d 376, 384 (W.D.N.Y. 2015). Likewise, where the
evidence is susceptible to more than one rational interpretation, the Commissioner’s
conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

DISCUSSION AND ANALYSIS
The ALJ’s Decision
ALJ Jones analyzed Plaintiff’s claims using the familiar five-step process
described above. Lynch v. Astrue, No. 07-CV-249, 2008 WL 3413899, at *2 (W.D.N.Y.
Aug. 8, 2008) (detailing the five steps). At step one, the ALJ found that Plaintiff had not
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engaged in substantial gainful activity since February 10, 2014, her application date. Tr. at
21. At step two, she found that Plaintiff had the following severe impairments: arthritis of
the hands bilaterally, degenerative disc disease of the lumbar spine, and panic disorder
related in part to substance abuse. Tr. at 21. The ALJ also noted that Plaintiff had a
history of opioid and alcohol dependence and a diagnosis of bipolar disorder, but
concluded that these impairments were non-severe. Tr. at 21. At step three, the ALJ
concluded that Plaintiff’s impairments did not, either individually or in combination, meet or
equal the Listings. Tr. at 21-23.

Next, the ALJ found that Plaintiff retained the RFC to perform light
work as defined by 20 C.F.R. 416.967(b), except that she can perform unskilled work that
requires only frequent handling, fingering, feeling or reaching overhead bilaterally and
occasional interaction with supervisors, coworkers, or the public. Tr. at 23-24. Continuing
to the fourth step, the ALJ found that Plaintiff is not able to perform her past relevant work.
Tr. at 24-25. At step five, the ALJ considered Plaintiff’s status as an individual
approaching advanced age2 with a high school education, past work experience as a
nurse’s aide and EKG technician, and the aforementioned RFC, and relied on the VE’s
testimony to conclude that Plaintiff could perform jobs that exist in significant numbers in
the national economy. Tr. at 25. Specifically, the VE opined that Plaintiff could work as an
office clerk, administrative support, or order filler. Tr. at 26. Accordingly, the ALJ
concluded that Plaintiff had not been under a disability as defined by the Act since
February 10, 2014, the date the application was filed. Tr. at 26.

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Plaintiff was 49 years old, which is defined as a “younger individual,” when she filed her
application on February 10, 2014, but she shifted into the age category “approaching advanced
age” by the time of the ALJ’s decision, February 6, 2017. Tr. at 25.

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Judgment on the Pleadings
As noted above, the parties have cross-moved for judgment on the
pleadings. Dkt. Nos. 13, 17. Plaintiff contends that the ALJ’s decision was not supported
by substantial evidence because: (1) there are no medical opinions in the record that
sufficiently quantified Plaintiff’s physical or mental impairments (Dkt. No. 13-1, pp. 20-23);
(2) the ALJ failed to develop the record, as was her duty; (3) the ALJ “cherry-picked’
evidence to support her conclusion that Plaintiff was not disabled, while ignoring all the
evidence that Plaintiff had greater limitations (Dkt. No. 13-1, pp. 25-28); and (4) the ALJ
failed to consider that Plaintiff used a cane to walk (Dkt. No. 13-1, pp. 28-30). The
Commissioner counters that: (1) an ALJ can determine a claimant’s RFC without a medical
opinion where, as here, the record contains sufficient medical evidence (Dkt. No. 17-1, pp.
12-15); (2) the ALJ adequately developed the record (Dkt. No. 17-1, pp. 19-20); (3) the
ALJ properly considered the record in its entirety (Dkt. No. 17-1, pp. 21-27); and (4) the
ALJ did not err in not accounting for Plaintiff’s use of a cane, as Plaintiff failed to
demonstrate that she needed one to walk, as was her burden (Dkt. No. 17-1, pp. 27-30).
For the reasons that follow, this Court grants Plaintiff’s motion for judgment on the
pleadings insofar as it seeks remand, and denies the Commissioner’s motion for judgment
on the pleadings.

Absence of Any Medical Opinions
The record in this case does not contain any opinions from a medical source
about Plaintiff’s physical and mental limitations. On this, the parties appear to agree. Dkt.
No. 13-1, pp. 18-20; Dkt. No. 112-15. It is well established that “an ALJ is not qualified to
assess a claimant’s RFC on the basis of bare medical findings, and as a result[,] an ALJ’s
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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, 2010 WL 4703591 (W.D.N.Y.
2010). While the determination of a claimant’s RFC 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.”
Wilson v. Colvin, No. 13-CV-6286P, 2015 WL 1003933, at *21 (W.D.N.Y. Mar. 6, 2015)
(quoting Deskin v. Comm’r of Soc. Sec., 605 F. Supp. 2d 908, 912 (N.D. Ohio 2008)).

Under a narrow exception, where the medical evidence reveals a relatively
minor 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, at *4 (W.D.N.Y. 2013) (internal quotation omitted). I find that it is not the case that
Plaintiff had only minor physical or mental impairments, such that the ALJ could
permissibly “make the connection” herself between the bare medical findings and the RFC.
To the contrary, the record contains evidence that Plaintiff suffered from back pain,
depression, anxiety, and alcohol/substance abuse during the relevant time period, and that
these conditions were potentially disabling.

For example, in June 2013, Plaintiff treated with Dr. Pratibha Bansal at
Pain Rehabilitation of WNY, who noted that Plaintiff had an “extensive amount of
myofascial pain in the lumbar paravertebral, gluteal, piriformis and iliotibial fascia.” Tr at
695-98. Dr. Bansal reported that Plaintiff had lumbosacral spine tenderness on palpitation
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and muscle spasm, positive straight-leg raise test, and tenderness over her L5-S2 facet
joints and spine. Tr at 695-98. Plaintiff, who walked with a cane at the time, reported
constant pain that was aggravated by walking and bending and which radiated down her
legs causing numbness and muscle weakness. Tr. at 695-98.

The record suggests that Plaintiff’s back condition was chronic.
Dr. Bansal noted that Plaintiff exhibited continued pain and tenderness in her spine, as
well as left leg numbness and weakness on November 26, 2013, and December 9, 2013.
Tr. at 689-91, 686-88. On November 22, 2015, Plaintiff presented at the Buffalo General
Emergency Room with lumbar pain. Tr. at 940. An MRI revealed severe spinal stenosis,
disc herniation, and myelopathy. Tr. at 941. Dr. Tobias Mattei, a neurologist,
recommended spinal decompression and fusion surgery on November 30, 2015, after
noting severe spinal stenosis on Plaintiff’s MRI, positive straight-leg raise test with
radiation down the left foot, and pain on palpation of the lower back with peripheral tender
points. Tr. at 946-47. Plaintiff agreed to the surgery, which was performed on December
23, 2015. Tr. at 959, 969. After some improvement in her leg and back pain, Plaintiff
returned to Dr. Mattei on January 26, 2016. Tr. at 995-96. Plaintiff (who was again
walking with a cane) reported a burning, aching pain in her left lumbar paraspinal region,
and Dr. Mattei noted significant tenderness to palpation over the left lumbar paraspinal and
sacral region. Tr. at 995-96. Approximately two months later, on March 12, 2016, Plaintiff
presented at the Buffalo General Emergency Room with increased back pain after falling.
Tr. at 1036-37. The following day, Dr. Mattei noted that Plaintiff has significant tenderness
to palpation and that Patrick’s, Gaenslen’s, compression and distraction tests were all
positive to the left, consistent with residual left L5 radiculopathy. Tr. at 1011-12.
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Plaintiff’s mental health issues appear to be potentially debilitating as well.
Prior to her alleged onset date, Plaintiff abused alcohol, opiates and other drugs, resulting
in near overdoses and psychiatric hospital admissions on numerous occasions. Tr. at 226,
240, 244, 251, 432, 472, 474, 482. Plaintiff was treated at Lakeshore Behavioral Health
from January 6, 2013 to August 19, 2013, leading into the alleged period of disability, for
bipolar disorder, panic disorder, and opiate dependence. Tr. at 670. She reported
depression that began at age seven, and panic attacks at night and in public. Tr. at 677.
Plaintiff began treatment at Spectrum Human Services on November 25, 2014, reporting
severe symptoms of anxiety, depression, mania, hyperactivity, racing thoughts, and
irritability. Tr. at 725. Jarod Wabick, LMHC-P of Spectrum noted that Plaintiff was
dependent on opiates, cocaine, and crack. Tr. at 738-39. In a January 30, 2015 chemical
dependence assessment, Plaintiff reported that she had thoughts of not wanting to live
from the time she was seven, and that she used drugs to cope with her problems. Tr. at
773.

Although there are many treatment notes in the record, they generally
consist of bare medical findings (and subjective complaints) and do not address how
Plaintiff’s impairments affect her physical or mental ability to perform work-related
functions. Despite the lack of any opinion from a medical source, the ALJ determined that
Plaintiff retained the physical RFC to perform light work with some limitations on handling,
fingering, feeling, and reaching overhead bilaterally, and interacting with supervisors,
coworkers, or the public. Tr. at 23. It is entirely unclear how the ALJ arrived at this RFC.
Under these circumstances, I find that the ALJ’s RFC is not supported by substantial
evidence. See Suide v. Astrue, 371 F. App’x 684, 690 (7th Cir. 2010) (“[w]hen an ALJ
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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 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.”); Lawton v. Astrue, 2009 WL 2867905, at *16
(N.D.N.Y. Sept. 2, 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.”).

“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, at *18 (W.D.N.Y. May 7, 2014); Wilson, 2015 WL
1003933, at *22. Accordingly, this case is remanded to allow the ALJ to obtain an RFC
assessment or medical source statement from an acceptable medical source concerning
Plaintiff’s physical and mental ability to perform work.

Because I find that remand is warranted on this basis, this Court will not
address Plaintiff’s remaining arguments which raise objections which would likely be
remedied by a consultative exam or testimony from a medical expert.
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CONCLUSION
For the reasons stated herein, Plaintiff’s motion for judgment on the
pleadings (Dkt. No. 13) is hereby GRANTED insofar as it seeks remand, and the
Commissioner’s motion for judgment on the pleadings (Dkt. No. 17) is DENIED. The Clerk
of the Court is directed to close this case.

SO ORDERED.

DATED:

Buffalo, New York
August 21, 2019

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

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