Taylor v. Commissioner of Social Security
Filing
15
DECISION AND ORDER RE 8 Motion for Judgment on the Pleadings; 12 Motion for Judgment on the Pleadings. Signed by Hon. Jeremiah J. McCarthy on 9/24/19. (DAZ)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
DOMINIQUE TAYLOR,
DECISION AND ORDER
Plaintiff,
1:18-CV-00377(JJM)
v.
ANDREW M. SAUL, COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,1
Defendant.
______________________________________
This is an action brought pursuant to 42 U.S.C. §§405(g) and 1383(c)(3) to review
the final determination of defendant Andrew M. Saul, the Commissioner of Social Security, that
plaintiff was not entitled to Disability Insurance Benefits (“DIB”) or Supplemental Security
Income (“SSI”). Before the court are the parties’ cross-motions for judgment on the pleadings
[8, 12]. 2 The parties have consented to my jurisdiction [14]. Having reviewed their submissions
[8, 12, 13], the action is remanded to the Commissioner for further proceedings.
BACKGROUND
In May 2014 plaintiff, who was 28 years old, applied for DIB and SSI, alleging a
disability onset date of April 8, 2014, due to “back problems, nerve problems in right foot and
leg”, and “slipped and bulging discs in back”, arising from a workplace injury.3 Administrative
record [6], pp. 161, 229-42, 263, 309. After plaintiff’s applications were denied (id., pp. 163-
1
On June 17, 2019, Andrew M. Saul became the Commissioner of Social Security, and is
automatically substituted as the named defendant. See Fed. R. Civ. P. 25(d); 42 U.S.C. §405(g).
2
Bracketed references are to the CM/ECF docket entries. Unless otherwise indicated, page
references are to numbers reflected on the documents themselves rather than to the CM/ECF pagination.
While working as a personal care assistant, plaintiff was “rolling a patient away from herself” and
“felt a ‘crunching’ sensation in her back”. [6], p. 289.
3
67), an administrative hearing was conducted before Administrative Law Judge (“ALJ”) Michael
Carr on February 8, 2017 at which plaintiff, who was represented by counsel, and a vocational
expert testified. Id., pp. 114-50.
In November 2016, several months prior to the administrative hearing, plaintiff
was involved in a motor vehicle accident. In his May 15, 2017 decision, ALJ Carr determined
that plaintiff’s severe impairments were “lumbar spine (from alleged onset date), cervical spine
(from November 2016); and obesity”, but determined that her “right shoulder partial thickness
tear”, asthma, and adjustment disorder with depression were non-severe. Id., pp. 12-13. Based
on the record before him, ALJ Carr concluded that plaintiff had the residual functional capacity
(“RFC”) to perform sedentary work, except that she “can occasionally climb ramps and stairs,
balance, stoop, kneel, but cannot climb ladders, ropes, or scaffolds, crouch, or crawl”, and
“[w]hile at the workstation, needs to alternate to standing for 2 minutes after every 45 minutes of
sitting and to sitting for 2 minutes after every 45 minutes of standing or walking”. Id., p. 15.
In reaching that determination, ALJ Carr specifically addressed a number of
relevant medical opinions, including the May 9, 2014 opinion of Rajiv Jain, M.D., issued shortly
after plaintiff’s workplace injury, that she should “avoid heavy lifting and work on gradual
weight loss program”. Id., p. 290. ALJ Carr gave this opinion “little weight”, since it was “too
vague”. Id., p. 18.
In June 2015, spinal surgeon Cameron Huckell, M.D. opined that plaintiff had
“suffered significant injuries to the spine as a result of the work related accident”. Id., p. 530.
With respect to plaintiff’s limitations, Dr. Huckell found that plaintiff a “temporary partial
disability to a marked degree . . . as a result of the [April 8, 2014] work-related accident”, and
“should avoid bending, stooping, reaching, twisting, crawling or climbing”, “not lift anything
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greater than 20 pounds”, and “avoid sitting, standing or walking for more than 2 hours at one
time without a break and the total work day should not exceed 8 hours”. Id., pp. 535-36.4 ALJ
Carr gave this opinion “significant weight”. Id., p. 17.
In October 2015 Michael Calabrese, M.D., of Medical Care of WNY, who had
been treating plaintiff since her workplace accident, opined that she “can do a light duty job that
allows frequent position changes from sitting to standing and does not require any lifting,
pushing or pulling in excess of 10 pounds. She cannot bend over to pick up anything from below
mid thigh level”. Id., p. 388. ALJ Carr also gave this opinion “significant weight”. Id., pp. 1718.
Several of Dr. Calabrese’s reports also opined that plaintiff was able to perform
sedentary work. See, e.g., Id., pp. 390 (October 2015), 402 (August 2015), 410 (May 2015). In
March 2015, Cheryle Hart, M.D., also of Medical Care of WNY, similarly opined that plaintiff
was limited to sedentary work. Id., p. 474. ALJ Carr gave these opinions “some weight”, since
they were “vague and d[id] not account for any non-exertional limitations”. Id., p. 18.
In November 2015, plaintiff “self referred” herself to Bernard Beaupin, M.D.,
“for additional options”. Id., p. 418. Dr. Beaupin opined that plaintiff was 75% disabled and was
able to lift up to five pounds. Id., p. 421. He also opined that she should “avoid bending, lifting,
and twisting”, as well as “sitting for more than 2 hours at a time without a break”. Id. ALJ Carr
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Dr. Huckell rendered a similar opinion in January 2015. [6], p. 541. His reports explained that
plaintiff’s lumbar spine MRIs taken in June 2014 showed “loss of signal at the L2-3 disc level with disc
bulge somewhat more sever (sic) to the left in the midline, a loss of signal at the L3-4 level with a central
and left paracentral focal disc protrusion with mild narrowing of the left neural foramina with a small
annular tear that is identified at the posterior anterior annulus, a small central focal annual tear at the L4-5
level along with a disc protrusion with mild narrowing of both neural foramina, and a central L5-S1 disc
protrusion that extends somewhat to the left with mild to moderate narrowing of the left neural foramina,
all of which can explain the patient’s current symptoms”. Id., pp. 530, 535. He further opined that “she is
considered to be a potential candidate for surgery to address any or all four of the . . . pathologic discs”.
Id.
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gave this opinion “little weight”, because the lifting restriction was “extreme and . . . not
consistent with the imaging studies or the physical examinations on file”. Id., p. 18.
Because of plaintiff’s workers’ compensation benefits, the record also contained
other opinions as to plaintiff’s percentage of temporary disability, ranging from 50% to 100%
disabled. Id., p. 18. ALJ Carr gave no weight to those opinions, finding that they were vague and
“infringe[d] on a finding reserved for the Commissioner”. Id.
Based upon plaintiff’s RFC and the vocational expert’s testimony, ALJ Carr
found that there were significant jobs in the national economy that plaintiff was able to perform.
Id., p. 19. Therefore, he concluded that plaintiff was not under a disability from April 8, 2014
through the date of the May 15, 2017 decision. Id., p. 20. The Appeals Council denied
plaintiff’s request for review (id., pp. 1-5), and thereafter she commenced this action.
ANALYSIS
A.
Standard of Review
“A district court may set aside the Commissioner's determination that a claimant
is not disabled only if the factual findings are not supported by ‘substantial evidence’ or if the
decision is based on legal error.” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (quoting 42
U.S.C. §405(g)). Substantial evidence is that which a “reasonable mind might accept as
adequate to support a conclusion”. Consolidated Edison Co. of New York. Inc. v. NLRB, 305
U.S. 197, 229 (1938).
It is well settled that an adjudicator determining a claim for Social Security
benefits employs a five-step sequential process. Shaw, 221 F.3d at 132; 20 C.F.R. §§404.1520,
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416.920. The plaintiff bears the burden with respect to steps one through four, while the
Commissioner has the burden at step five. Talavera v. Astrue, 697 F.3d 145, 151 (2d. Cir. 2012).
In seeking remand, plaintiff raises several arguments, including that: 1) ALJ Carr
relied on the stale opinions of Drs. Huckell and Calabrese rendered in 2015, “prior to [her] later
[November 2016] motor vehicle accident and progression of her symptoms”; 2) “there was no
substantial evidence for the ALJ’s alternating [sitting/standing] formulation, and this formulation
was crucial to the vocational expert’s conclusion that there were jobs [she] could perform”; and
3) ALJ Carr’s credibility determination was “very limited and the few facts he utilized to support
finding Plaintiff less than credible did not match up with cited evidence”. Plaintiff’s
Memorandum of Law [8-1], pp. 21-28.
B.
Did ALJ Carr Rely on Stale Medical Opinions?
“[M]edical source opinions that are stale . . . and based on an incomplete
medical record may not be substantial evidence”. Camille v. Colvin, 104 F. Supp. 3d 329, 343
(W.D.N.Y. 2015), aff'd, 652 Fed. App'x 25 (2d Cir. 2016). Generally, “[a] stale medical
opinion . . . is not substantial evidence to support an ALJ’s finding”. Pagano v. Commissioner of
Social Security, 2017 WL 4276653, *5 (W.D.N.Y. 2017). However, “[t]he mere passage of time
does not render an opinion stale. Instead, a medical opinion may be stale if subsequent treatment
notes indicate a claimant’s condition has deteriorated.” Whitehurst v. Berryhill, 2018 WL
3868721, *4 (W.D.N.Y. 2018); Cruz v. Commissioner of Social Security, 2018 WL 3628253, *6
(W.D.N.Y. 2018) (“consultative examination is not stale simply because time has passed, in the
absence of evidence of a meaningful chan[ge] in the claimant’s condition”). “Just because the
claimant continues treatment after an opinion is rendered, however, does not mean that the
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opinion is stale.” Palistrant v. Commissioner of Social Security, 2018 WL 4681622, *6
(W.D.N.Y. 2018).
Following the November 2016 motor vehicle accident, plaintiff complained of
low back symptoms increasing in severity, as well as neck and right shoulder pain, and was seen
by Dr. Hart and Ryan DenHaese, M.D., a neurosurgeon. [6], pp. 544-547, 549-59.
Demonstrating the plaintiff’s condition deteriorated, Dr. Hart, who previously opined in March
2015 that plaintiff was able to perform sedentary work ([6], p. 474), opined on December 22,
2016, following the motor vehicle accident, that she “has been and remains 100% impaired as a
direct result of motor vehicle injuries sustained on 11/10/16” and “unable to work”. Id., p. 558.5
This was consistent with the January 23, 2017 opinion of Tiffany Albakri, also of RES Physical
Medicine and Rehab Services. Id., p. 553. Correspondingly, Dr. Hart’s assessment of plaintiff’s
range of motion in her lumbar spine decreased following the November 2016 motor vehicle
accident. Compare id., p. 472 with p. 556.
Plaintiff also sustained a cervical spine injury that resulted in limitations in
movement. Id., pp. 544, 555-56. Palpation of the cervical spine by Dr. Hart revealed myospasms,
trigger points, and paraspinal muscle tenderness. Id., p. 556. A cervical compression test was
also positive. Id. Even ALJ Carr recognized that plaintiff sustained additional injuries to her
cervical spine from the car accident by concluding that plaintiff’s cervical spine became a severe
impairment after the November 2016 accident. Id., p. 12. Yet, he did not rely on any postaccident medical opinion in formulating plaintiff’s RFC.
5
In this interval, Dr. Hart went from working for Medical Care of WNY to working for RES
Physical Medicine and Rebab Services.
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Moreover, plaintiff sustained a right shoulder injury in the November 2016
accident. Although plaintiff did not sustain a fracture of labral tear, a February 7, 2017 MRI
report revealed a “severe sprain and high-grade partial-thickness tear at the posterior edge of the
supraspinatus tendon distal to the AC joint. High-grade intrasubstance tear of the distal body of
the of the infraspinatus tendon extending into the musculotendinous junction and the tendon of
the infraspinatus is noted. Micro-communication cannot be excluded. There is associated joint
effusion and subdeltoid bursal fluid.” Id., p. 561. Drs. Hart and DenHaese both found decreased
strength in plaintiff’s upper right extremity. Id., pp. 556, 545. ALJ Carr concluded that
plaintiff’s right shoulder partial thickness tear was non-severe because there was no evidence
that this condition would last for 12 continuous months. Id., p. 13.
Even though ALJ Carr rejected all of the medical opinions assessing plaintiff’s
level of disability by percentage ([6], p. 18),6 the variance in Dr. Hart’s opinion (from an ability
perform sedentary work to the inability to perform any work) demonstrates that plaintiff
experienced a deterioration following the motor vehicle accident. In support of his argument that
no deterioration occurred, the Commissioner contends that Dr. DenHaese “thought Plaintiff’s
care could be managed conservatively”. Commissioner’s Brief [12-1], p. 18. However, that
mischaracterizes what Dr. DenHaese actually said in his January 2017 report - he stated only that
6
As discussed above, ALJ Carr rejected these opinions because they were vague and infringed on
the findings reserved for the Commissioner. [6], p. 18. Although not raised by the plaintiff, there is case
law supporting that “[e]ven where a treating source expresses an opinion on an issue reserved to the
Commissioner, such as whether a claimant is ‘disabled,’ the ALJ cannot simply ignore or disregard the
treating source’s opinion”. Goble v. Colvin, 2016 WL 3179901, *5 (W.D.N.Y. 2016)); Dumbleton v.
Berryhill, 2018 WL 6250518, *2 (W.D.N.Y. 2018); SSR 96-5P, 1996 WL 374183, *2-3 (“[f]or treating
sources, the rules . . . require that we make every reasonable effort to recontact such sources for
clarification when they provide opinions on issues reserved to the Commissioner and the bases for such
opinions are not clear to us”).
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“my hope is that she can manage her symptoms conservatively as she does wish to avoid
surgery”. [6], p. 545 (emphasis added).
Although the expected duration of plaintiff’s limitations following the November
2016 motor vehicle accident may have been unsettled, the deterioration in plaintiff’s condition
required further development of the record and was not suitable for lay interpretation by ALJ
Carr.7 See Cobb v. Colvin, 2017 WL 1034724, *5 (N.D.N.Y. 2017) (“the ALJ’s conclusion that
any issue related to plaintiff’s left carpal tunnel release in January 2014 ‘would be expected to
resolve in less than twelve months’ is not based on or supported by the medical evidence of
record and, therefore, constitutes the ALJ’s own lay opinion about the effects of plaintiff’s
Carpal Tunnel Syndrome”). Therefore, I conclude the opinions of Drs. Calabrese and Huckell,
rendered prior to plaintiff’s motor vehicle accident, were stale, and thus could not provide
substantial evidence for ALJ Carr’s RFC determination. See Whitsett v. Berryhill, 2019 WL
156261, *4 (W.D.N.Y. 2019) (opinion rendered prior to a motor vehicle accident was stale). 8
C.
Did ALJ Carr Properly Assess Plaintiff’s Credibility?
Plaintiff argues that “the ALJ’s credibility assessment was very limited and the
few facts he utilized to support finding Plaintiff less than credible did not match up with cited
evidence”. Plaintiff’s Memorandum of Law [8-1], p. 24. In assessing the credibility of a
claimant's subjective complaints, the regulations require the ALJ to employ a two-step inquiry.
A person is disabled 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) (emphasis added).
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8
Because I am remanding for an undated medical opinion, it is unnecessary for me to determine
whether ALJ Carr properly assessed plaintiff’s need to alternate sitting/standing positions.
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See Meadors v. Astrue, 370 F. App'x 179, 183 (2d Cir. 2010) (Summary Order). “First, the ALJ
must determine whether the claimant suffers from a ‘medically determinable impairment[ ] that
could reasonably be expected to produce’” the alleged symptoms. Id. (quoting 20 C.F.R.
§404.1529(c)(1)). “Second, the ALJ must evaluate the intensity and persistence of those
symptoms considering all of the available evidence; and, to the extent that the claimant's
[subjective] contentions are not substantiated by the objective medical evidence, the ALJ must
engage in a credibility inquiry.” Id. The ALJ must assess the credibility of the claimant’s
subjective complaints by considering the entire record in light of the following symptom-related
factors: (1) claimant’s daily activities; (2) location, duration, frequency, and intensity of
claimant’s symptoms; (3) precipitating and aggravating factors; (4) type, dosage, effectiveness,
and side effects of any medication taken to relieve symptoms; (5) other treatment received to
relieve symptoms; (6) any measures taken by the claimant to relieve symptoms; and (7) any
other factors concerning claimant’s functional limitations and restrictions due to symptoms. See
20 C.F.R. §§404.1529(c)(3)(i)-(vii); 416.929(c)(3)(i)-(vii).
“[T]he court must uphold the ALJ’s decision to discount a claimant’s subjective
complaints of pain” if supported by substantial evidence. Aponte v. Secretary, Department of
Health & Human Services of the United States, 728 F.2d 588, 591 (2d Cir. 1984). While “[i]t is
the function of the [ALJ], not [the Court] . . . to appraise the credibility of . . . the claimant”,
Carroll v. Secretary of Health & Human Services, 705 F.2d 638, 642 (2d Cir. 1983), “[t]he ALJ
must explain a decision to reject a claimant’s testimony with sufficient specificity to enable the
reviewing Court to decide whether there are legitimate reasons for the ALJ’s disbelief and
whether the ALJ’s decision is supported by substantial evidence.” Quintana v. Colvin, 2017 WL
752187, *13 (S.D.N.Y. 2017). See also Judelsohn v. Astrue, 2012 WL 2401587, *6 (W.D.N.Y.
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2012) (“[f]ailure to expressly consider every factor set forth in the regulations is not grounds for
remand [so long as] the reasons for the ALJ's determination of credibility are sufficiently specific
to conclude that he considered the entire evidentiary record in arriving at his determination”).
Thus, credibility “findings ‘should be closely and affirmatively linked to substantial evidence
and not just a conclusion in the guise of findings.’” Nix v. Astrue, 2009 WL 3429616, *5
(W.D.N.Y. 2009) (quoting Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)); Konidis v.
Colvin, 2015 WL 2454004, *7 (W.D.N.Y.), adopted, 2015 WL 2454038 (W.D.N.Y. 2015)
(“credibility determinations must contain specific findings based on substantial evidence in order
to allow for review”); Gumaer v. Colvin, 2014 WL 701770, *5 (N.D.N.Y. 2014). “A recitation
of the evidence, without more, is insufficient to permit th[e] Court to review the ALJ’s
credibility determination.” Spear v. Astrue, 2014 WL 4924015, *20 (W.D.N.Y. 2014).
Here, ALJ Carr found “that the claimant’s medically determinable impairments
could reasonably be expected to cause the alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence and limiting effects of these symptoms are not entirely
consistent with the medical evidence and other evidence in the record for the reasons explained
in this decision. Accordingly, these statements have been found to affect the claimant’s ability to
work only to the extend they can reasonably be accepted as consistent with the objective medical
and other evidence” [6], p. 16.
ALJ Carr’s conclusory credibility determination lacks any specific explanation as
to why plaintiff’s subjective complaints concerning the intensity and persistence of her back
limitations are not supported by the record. See Konidis, 2015 WL 2454004, *7 (“the ALJ
merely presented the recitation of the medical record without stating the specific inconsistency of
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that record to plaintiff’s stated complaints to justify questioning her credibility”); Spear, 2014
WL 4924015, *20.
Although plaintiff takes issue with ALJ Carr’s findings concerning her ability to
participate in church and to watch her niece on a daily basis, those findings were made in the
context of ALJ Carr’s determination as to whether plaintiff’s adjustment disorder with
depression constituted a severe impairment, not whether her subjective physical limitations were
credible. See [6], p. 13.
In any event, without further explanation from ALJ Carr, those activities, standing
alone, are not sufficient to dispel plaintiff’s subjective limitations. For example, while ALJ Carr
focused on plaintiff’s statement that she was active in church (id., p. 507), he ignored her
statements she was no longer able to sing in the church choir because of her inability to stand
long enough, which is entirely consistent with her subjective limitations. Id., pp. 310, 337.
Likewise, while the record contains an isolated reference to plaintiff watching her niece (id., p.
507), without more information (e.g., age of the child, duration of the babysitting, assistance
from others), it is difficult to discern whether that activity is inconsistent with her subjective
complaints or establishes that she is capable of performing sedentary work on a sustained basis.
See Starzynski v. Colvin, 2016 WL 6956404, *4 (W.D.N.Y. 2016) (“[c]ourts in this Circuit
consistently have observed that a claimant's participation in the activities of daily living will not
rebut his or her subjective statements of pain or impairment unless there is proof that the
claimant engaged in those activities for sustained periods of time comparable to those required to
hold a sedentary job”); Vasquez v. Barnhart, 2004 WL 725322, *11 (E.D.N.Y. 2004) (“[u]nder
the law of the Second Circuit a finding that a claimant is capable of undertaking basic activities
of daily life cannot stand in for a determination of whether that person is capable of maintaining
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employment, at least where there is no evidence that the claimant ‘engaged in any of these
activities for sustained periods comparable to those required to hold a sedentary job’”). More is
required.
Based on ALJ Carr’s conclusory assessment of plaintiff’s credibility, I am unable
to determine whether ALJ Carr’s credibility determination is supported by substantial evidence.
See Gorman v. Colvin, 2014 WL 537568, *9 (E.D.N.Y. 2014); Jaeckel v. Colvin, 2015 WL
5316335, *11 (E.D.N.Y. 2015) (remanding where the ALJ “failed to properly consider the
factors in 20 C.F.R. § 404.1529(c)(3) other than activities of daily living with sufficient
specificity to permit a reviewing court to decide whether there are legitimate reasons for the
ALJ's disbelief and whether his decision is supported by substantial evidence”). Therefore,
remand is also necessary on this basis.
CONCLUSION
For these reasons, plaintiff’s motion for judgment on the pleadings [8] is granted
to the extent that this case is remanded to the Commissioner for further proceedings
consistent with this Decision and Order, but is otherwise denied, and the Commissioner’s motion
[12] is denied.
SO ORDERED.
Dated: September 24, 2019
/s/ Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge
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