Ryan v. Commissioner of Social Security
Filing
24
DECISION AND ORDER: Plaintiff's 17 Motion for Judgment on the Pleadings is GRANTED, the Commissioner's 23 Motion for Judgment on the Pleadings is DENIED, and this matter is REMANDED to the Commissioner for further administrative proceedings. The Clerk of Court will enter judgment and close this case. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 6/17/2019. (AFM)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RACHEL A. RYAN,
Plaintiff,
v.
Case # 18-CV-388-FPG
DECISION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
INTRODUCTION
Plaintiff Rachel A. Ryan seeks review of the decision of the Social Security Administration
(“the SSA”) that she is no longer disabled. ECF No. 1. The Court has jurisdiction over this action
under 42 U.S.C. §§ 405(g), 1383(c). Both parties moved for judgment on the pleadings pursuant
to Federal Rule of Civil Procedure 12(c). ECF Nos. 17, 23. For the reasons that follow, Plaintiff’s
motion is GRANTED, the Commissioner’s motion is DENIED, and this matter is REMANDED
to the Commissioner for further administrative proceedings.
BACKGROUND
On October 19, 2010, the SSA approved Ryan’s Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) applications and found her disabled as of June 1, 2007 due
to bipolar disorder and asthma. Tr. 104-109. On October 6, 2014, however, the SSA informed
Ryan that it was terminating her benefits. Tr. 114-16, 118-22. Specifically, after reviewing certain
medical records, the SSA determined that Ryan was no longer disabled because her health
improved and she could work. Id.
Ryan objected to this determination and appeared before Administrative Law Judge Bryce
Baird (“the ALJ”) for a hearing. Tr. 26-78. The ALJ issued an unfavorable decision on March
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15, 2017, and the Appeals Council denied Ryan’s request for review of that decision. Tr. 1-5, 1120. On March 27, 2018, Ryan appealed to this Court. ECF No. 1.
LEGAL STANDARD
I.
District Court Review
When the Court reviews a final decision from the SSA, it “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) (citing 42 U.S.C. §
405(g)) (other citation omitted). The Act holds that the Commissioner’s decision 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) (citations
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).
II.
Disability Determination
An ALJ uses a five-step sequential evaluation to determine whether a claimant is disabled.
See Parker v. City of New York, 476 U.S. 467, 470-71 (1986). At step one, the ALJ determines
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. Id. §
404.1520(c). If the claimant does not have a severe impairment or combination of impairments,
then he or she is not disabled. If the claimant does, the ALJ continues to step three.
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At step three, the ALJ examines whether the 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”). Id. § 404.1520(d). If the impairment meets or medically equals the criteria of a Listing
and meets the durational requirement, the claimant is disabled. Id. § 404.1509. 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 the limitations that stem
from the collective impairments. See id. § 404.1520(e)-(f).
The ALJ then proceeds to step four and determines whether the claimant’s RFC permits
him or her to perform his or her past relevant work. 20 C.F.R. § 404.1520(f). If the claimant can
return to his or her past relevant work, then he or she is not disabled. Id. If he or she cannot, the
analysis proceeds to the fifth and final step, wherein the burden shifts to the Commissioner to show
that the claimant is not disabled. Id. § 404.1520(g). To do so, the Commissioner must present
evidence 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 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 made the following findings that are relevant to the Court’s analysis. 1 At step
one, the ALJ found that Ryan had not engaged in substantial gainful activity through the date of
1
To determine whether a claimant has experienced medical improvement, an ALJ follows an eight-step process in
evaluating DIB claims and a seven-step process in evaluating SSI claims, both of which differ slightly from the fivestep process described above. See 20 C.F.R. §§ 404.1594, 416.994 (effective Aug. 24, 2012 to Mar. 26, 2017). Ryan
does not argue that the ALJ improperly determined that she experienced medical improvement and, therefore, for the
sake of brevity, the Court does not set forth the ALJ’s findings in this regard.
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his decision. Tr. 13. At step two, the ALJ found that Ryan has four severe impairments: bipolar
disorder, asthma, fibromyalgia, and migraine headaches. Id. At step three, the ALJ found that
these impairments, alone or in combination, do not meet or medically equal any Listings
impairment. Tr. 13-15.
Next, the ALJ determined that Ryan retains the RFC to perform light work 2 with additional
limitations. Tr. 17-19. Specifically, the ALJ found that Ryan can sit up to six hours and stand or
walk up to four hours in an eight-hour workday; can occasionally climb stairs and ramps, balance,
kneel, and crouch; cannot crawl or climb ropes, ladders, or scaffolds; cannot tolerate exposure to
excessive heat, cold, humidity, or vibration, hazards like unprotected heights or moving
machinery, or bright or flashing lights; can tolerate only moderate noise; and can perform simple,
routine tasks with only superficial interaction with the public and frequent interaction with
coworkers. Tr. 17.
At step four, the ALJ indicated that Ryan has no past relevant work. Tr. 19. At step five,
the ALJ determined that Ryan can adjust to other work that exists in significant numbers in the
national economy given her RFC, age, education, and work experience. Tr. 19-20. Specifically,
a vocational expert testified that Ryan can work as a housekeeper and marker. Id. Thus, the ALJ
found Ryan not disabled. Tr. 20.
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“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. To be considered capable of performing a full or wide range of light work, [the claimant] must have the
ability to do substantially all of these activities. If someone can do light work, [the SSA] determine[s] that he or she
can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit
for long periods of time.” 20 C.F.R. §§ 404.1567(b), 416.967(b).
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II.
Analysis
Ryan argues that the RFC determination lacks substantial evidence because the ALJ
improperly discounted her statements and a medical opinion as to her fibromyalgia, and therefore
remand is required. 3 ECF No. 17-1 at 12-16. The Court agrees.
Fibromyalgia “is a complex medical condition characterized primarily by widespread pain
in the joints, muscles, tendons, or nearby soft tissues that has persisted for at least 3 months.” SSR
12-2p, 2012 WL 3104869, at *2 (S.S.A. July 25, 2012). A fibromyalgia diagnosis does not
automatically render a claimant disabled; however, “courts recognize that fibromyalgia is a disease
that eludes objective measurement.” Campbell v. Comm’r of Soc. Sec., No. 5:16-CV-272-GTSWBC, 2017 WL 9509958, at *6 (N.D.N.Y. Apr. 14, 2017), report and recommendation adopted,
2017 WL 2304218 (May 26, 2017) (citing Green-Younger v. Barnhart, 335 F.3d 99, 104, 108 (2d
Cir. 2003)) (quotation marks and alterations omitted). Because fibromyalgia eludes objective
measurement, “a number of district courts have overturned denials of disability claims based on
fibromyalgia where the ALJ’s determination turned on the lack of ‘objective’ evidence in the
record to support the claimant’s subjective complaints of pain.” Lim v. Colvin, 243 F. Supp. 3d
307, 316 (E.D.N.Y. 2017) (collecting cases).
Ryan argues that the ALJ improperly rejected her testimony and physician’s assistant
Kellie Schwartz’s opinion, both of which establish that her fibromyalgia makes her off task and
absent too frequently to sustain employment. ECF No. 17-1 at 15-16.
With respect to her testimony, Ryan contends that the ALJ should have credited her
assertions of pain in light of her valid fibromyalgia diagnosis. Specifically, Ryan testified that her
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Ryan also asserts that her migraine headaches require a more restrictive RFC; however, the Court remands based on
the ALJ’s improper evaluation of Ryan’s fibromyalgia and therefore does not discuss her headaches.
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fibromyalgia causes morning stiffness that lasts two to three hours, chronic fatigue, and chronic
pain in her whole body, especially her back, hips, neck, shoulders, and spine, that is dull and achy
or sharp. Tr. 40-41. In his decision, the ALJ found that Ryan’s impairments could reasonably be
expected to produce her alleged symptoms but that her statements about the intensity, persistence,
and limiting effects of those symptoms were “not entirely consistent with the objective medical
and other evidence.” 4 Tr. 17. As noted above, however, fibromyalgia generally lacks objective
support. Moreover, Ryan’s complaints are consistent with fibromyalgia symptoms. See GreenYounger, 355 F.3d at 108 (“With regard to the issue of [the plaintiff]’s credibility, her complaints
of pain in her back, legs, and upper body, fatigue, and disturbed sleep are internally consistent and
consistent with common symptoms of fibromyalgia.”). Accordingly, the Court finds that the ALJ
improperly discounted Ryan’s statements on this basis.
Ryan also argues that the ALJ should have given greater weight to the opinion of P.A.
Schwartz, who examined her regularly and under the supervision of treating physician Stanley
Michalski, M.D. On August 24, 2016, P.A. Schwartz completed a Fibromyalgia Medical Source
Statement wherein she opined, among other things, that Ryan is likely to be off task more than
25% of the workday and absent more than four days per month. Tr. 1509.
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When an ALJ evaluates a claimant’s alleged symptoms, he follows a two-step process: first, he considers whether
the medical evidence shows an impairment that “could reasonably be expected to produce the pain or other symptoms
alleged,” and second, if such an impairment is shown, the ALJ evaluates the “intensity and persistence” of the
claimant’s symptoms to determine the extent to which they limit her work capacity. 20 C.F.R. §§ 404.1529(a), (c)(1),
416.929(a), (c)(1) (effective June 13, 2011 to Mar. 26, 2017).
When the objective medical evidence alone does not substantiate the claimant’s alleged symptoms, an ALJ considers:
(1) the claimant’s daily activities; (2) the location, duration, frequency, and intensity of the claimant’s symptoms; (3)
precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication taken to
alleviate symptoms; (5) other treatment received to relieve symptoms; (6) any measures the claimant has taken to
relieve symptoms; and (7) any other factors concerning the claimant’s functional limitations and restrictions due to
symptoms. Id. §§ 404.1529(c)(3)(i)-(vii), 416.929(c)(3)(i)-(vii). The ALJ did not analyze these factors with regard
to Ryan’s alleged symptoms.
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The ALJ afforded “little weight” to P.A. Schwartz’s opinion because he found it
inconsistent with the fact that Ryan cared for a young child, admitted that she is independent in
her daily activities, and attended college. Tr. 18. It is unclear, and the ALJ does not explain, how
these circumstances undermine P.A. Schwartz’s findings. The ALJ also concluded that P.A.
Schwartz’s opinion was “not supported by treatment notes showing such limitations.” Tr. 18. In
reaching this conclusion, “[t]he ALJ effectively required ‘objective’ evidence for a disease that
eludes such measurement.” Green-Younger, 335 F.3d at 108. This was improper.
The Court recognizes that P.A. Schwartz’s opinion is not entitled to controlling weight
because a physician’s assistant is considered an “other source” and not an “acceptable medical
source.” 5 See Eusepi v. Colvin, 595 F. App’x 7, 8-9 (2d Cir. 2014) (summary order); see also SSR
06-03p, 2006 WL 2329939, at *2 (S.S.A. Aug. 9, 2006). Nonetheless, evidence from a physician’s
assistant may be based on “special knowledge” of the claimant and “provide insight” into the
severity of her impairments and functional limitations. SSR 06-03p, 2006 WL 2329939, at *2; see
also SSR 12-2p, 2012 WL 3104869, at *4 (S.S.A. July 25, 2012) (noting that the ALJ may consider
evidence from “other sources” when he evaluates the severity and functional effects of a claimant’s
fibromyalgia).
An ALJ is entitled to afford little or no weight to a physician’s assistant’s opinion, but he
“generally should explain the weight given” to that opinion “or otherwise ensure that the
discussion of the evidence in the determination or decision allows a claimant or subsequent
reviewer to follow the [ALJ]’s reasoning, when such opinions may have an effect on the outcome
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Although he did not co-sign her opinion, treating physician Dr. Michalski co-signed all of P.A. Schwartz’s treatment
notes. See, e.g., 584, 586, 588, 759, 762, 765, 768, 772, 776. When a treating physician signs off on a medical opinion
prepared by an “other source” like a physician’s assistant, the ALJ should evaluate it “under the treating physician
rule unless evidence indicates that the report does not reflect the doctor’s views.” Djuzo v. Comm’r of Soc. Sec., No.
5:13-CV-272 GLS/ESH, 2014 WL 5823104, at *4 (N.D.N.Y. Nov. 7, 2014) (citations omitted). The Court does not
suggest that the ALJ erred by not conducting a treating physician rule analysis; however, Dr. Michalski’s repeated
approval of P.A. Schwartz’s notes should lend more support to her conclusions as to Ryan’s ability to work.
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of the case.” SSR 06-03p, 2006 WL 2329939, at *6; see also 20 C.F.R. §§ 404.1527(f)(2),
416.927(f)(2). Here, P.A. Schwartz’s opinion affects the outcome of Ryan’s case because, if
credited, it establishes that Ryan is disabled. 6 But, for the reasons stated above, the Court cannot
follow the ALJ’s reasoning for discounting Ryan’s opinion and therefore determines that remand
is required.
It is worth noting that the record contains another medical opinion as to Ryan’s physical
ability to work. On August 25, 2014, consultative examiner Abrar Siddiqui, M.D., examined
Ryan. Tr. 543-47. In his report, Dr. Siddiqui summarized Ryan’s history of fibromyalgia and
noted that she demonstrated pressure points in several areas due to fibromyalgia. Tr. 543, 545.
Dr. Siddiqui opined that Ryan has an unlimited ability to sit, stand, climb, push, pull, or carry
heavy objects, but that she has a “history of fibromyalgia, which is a chronic, debilitating disease
with no effective treatment,” that may cause functional limitations in the “near future.” 7 Tr. 546.
This should have given the ALJ pause, especially since P.A. Schwartz found that Ryan’s
fibromyalgia imposed significant limitations two years after Dr. Siddiqui opined that Ryan had no
limitations but could develop them soon.
For all the reasons stated, the Court finds that remand is required.
CONCLUSION
Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 17) is GRANTED, the
Commissioner’s Motion for Judgment on the Pleadings (ECF No. 23) is DENIED, and this matter
is REMANDED to the Commissioner for further administrative proceedings consistent with this
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The vocational expert testified that an individual who is off task approximately 25% of the workday or absent more
than four days per month is unemployable. Tr. 75-77.
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The ALJ afforded “some weight” to Dr. Siddiqui’s opinion because “it is based on a personal examination of [Ryan]
and his findings are consistent with his assessed limitations.” Tr. 18. The ALJ did not explain how he reconciled this
conclusion with the limitations he imposed in the RFC assessment or acknowledge Dr. Siddiqui’s warning that Ryan
could become limited due to fibromyalgia.
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opinion 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 Court will enter judgment and close this case.
IT IS SO ORDERED.
Dated: June 17, 2019
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court
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