Winter v. Commissioner of Social Security
Filing
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DECISION AND ORDER denying the Commissioner's 14 Motion for Judgment on the Pleadings; and granting Plaintiff's 11 Motion for Judgment on the Pleadings. This matter is REMANDED to the Commissioner for further administrative proceedings consistent with the Decision and Order, pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk of Court is directed to enter judgement and close this case.Signed by Hon. Frank P. Geraci, Jr. on 5/12/2020. (JEH)-CLERK TO FOLLOW UP-
Case 1:18-cv-00632-FPG Document 19 Filed 05/12/20 Page 1 of 11
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MICHELE WINTER,
Plaintiff,
Case # 18-CV-632-FPG
v.
DECISION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
INTRODUCTION
Plaintiff Michele Winter brings this action pursuant to the Social Security Act seeking
review of the final decision of the Commissioner of Social Security that denied her application for
Disability Insurance Benefits (“DIB”) under Title II of the Act. ECF No. 1. The Court has
jurisdiction over this action under 42 U.S.C. § 405(g).
Both parties moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). ECF Nos. 11, 14. For the reasons that follow, the Commissioner’s motion is
DENIED, Winter’s motion is GRANTED, and this matter is REMANDED to the Commissioner
for further administrative proceedings consistent with this opinion.
BACKGROUND
In June 2014, Winter applied for Disability Insurance Benefits (“DIB”) under Title II of
the Act with the Social Security Administration (the “SSA”). Tr. 1 21. She alleged disability
beginning in October 2013 due to herniations in her neck and back, nerve damage, hand and wrist
injuries, celiac artery compression syndrome, headaches, high blood pressure, depression, panic
disorder, PTSD, and ADHD. Tr. 21, 220, 252. In February 2017, Winter and a vocational expert
1
“Tr.” refers to the administrative record in this matter. ECF No. 7.
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appeared at a video hearing before Administrative Law Judge Paul Greenberg (“the ALJ”). Tr. 21,
35. On May 1, 2017, the ALJ issued a decision finding that Winter was not disabled. Tr. 21–35.
On April 9, 2018, the Appeals Council denied Winter’s request for review. Tr. 1–3. This action
seeks review of the Commissioner’s final decision. ECF No. 1.
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) (internal 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)
(internal quotation marks omitted). It is not the Court’s “function to determine de novo whether
[plaintiff] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (alteration in original,
internal quotation marks omitted).
II.
Disability Determination
An ALJ must follow a five-step sequential evaluation process to determine whether a
claimant is disabled within the meaning of the Act. See Bowen v. City of New York, 476 U.S. 467,
470–71 (1986); 20 C.F.R. § 404.1520(a). At step one, the ALJ must determine whether the
claimant is engaged in substantial gainful work activity. See 20 C.F.R. § 404.1520(a)(4)(i). If so,
the claimant is not disabled. Id. 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
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of the Act, meaning that it imposes significant restrictions on the claimant’s ability to perform
basic work activities. Id. § 404.1520(a)(4)(ii), (c). If the claimant does not have a severe
impairment or combination of impairments, the analysis concludes with a finding of “not
disabled.” Id. § 404.1520(a)(4)(ii). 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”). Id. § 404.1520(a)(4)(iii). If the impairment meets or medically equals the criteria of a
Listing and meets the durational requirement, the claimant is disabled. Id. 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 caused by his
or her collective impairments. See id. § 404.1520(a)(4)(iv), (e)–(f).
The ALJ then proceeds to step four and determines whether the claimant’s RFC permits
claimant to perform the requirements of his or her past relevant work. Id. § 404.1520(a)(4)(iv). If
the claimant can perform such requirements, 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(a)(4)(v), (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. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999)
(internal quotation marks omitted); see also 20 C.F.R. § 404.1560(c).
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DISCUSSION
I.
The ALJ’s Decision
The ALJ analyzed Winter’s claim for benefits using the process described above. At step
one, the ALJ found that Winter had not engaged in any substantial gainful activity since her alleged
onset date. Tr. 23. At step two, the ALJ found that Winter had two severe impairments: multilevel
degenerative disc disease and carpal tunnel syndrome. Id. At step three, the ALJ found that these
impairments did not meet or medically equal any Listings impairment. Tr. 26.
Next, the ALJ determined that Winter had the RFC to perform light work with additional
limitations. Tr. 26–33. Specifically, the ALJ found that Winter could: frequently balance and
stoop; occasionally kneel, crouch, crawl, and climb ramps and stairs; and frequently handle and
finger bilaterally. Id. The ALJ further found that Winter could not: perform work while climbing
ladders, ropes, or scaffolds; work around unprotected heights or moving mechanical parts; or
operate motorized equipment as part of her job. Id. The ALJ also found that Winter needed to sit
for five minutes after standing for twenty-five minutes or stand for five minutes after sitting for
twenty-five minutes, but that she could continue working in either position. Id. At steps four and
five, the ALJ found that Winter could not perform her past relevant work but that there were jobs
that existed in significant numbers in the national economy that she could perform. Tr. 33–34. The
ALJ therefore found that Winter had not been disabled from October 1, 2013 through the date of
his decision. Tr. 35.
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II.
Analysis
Winter argues that the ALJ’s RFC determination with respect to her mental impairments
was not supported by competent medical opinion. ECF No. 11-1 at 25–28. 2 The Court agrees.
As an initial matter, the ALJ found that Winter’s mental impairments were not “severe” at
step two of the sequential evaluation process. Tr. 23–26. The ALJ, however, went on to consider
Winter’s alleged mental impairments in determining her RFC. Tr. 26–33. Winter briefly argues
that the ALJ’s step two determination regarding her mental impairments was improper but devotes
most of her argument to the ALJ’s RFC determination. ECF No. 11-1 at 25–28. The Court need
not examine the ALJ’s step two determination. If an ALJ finds at least one “severe” impairment,
the “ALJ still must consider the impact of all of a claimant’s medically determinable impairments
when assessing a claimant’s RFC” “[r]egardless of whether an impairment qualifies as severe or
nonsevere at step two.” Boudreau v. Comm’r of Soc. Sec., No. 18-CV-6681, 2020 WL 1501752,
at *4 (W.D.N.Y. Mar. 30, 2020) (citing 20 C.F.R. § 404.1545(a)(2)). Any error at step two would
be harmless if the Court finds that the ALJ adequately accounted for Winter’s mental impairments
in his RFC determination. See, e.g., London v. Comm’r of Soc. Sec., 339 F. Supp. 3d 96, 106–07
(W.D.N.Y. 2018). Accordingly, the Court turns directly to the question of whether the ALJ’s RFC
determination appropriately addressed Winter’s mental impairments.
“[T]he Commissioner’s procedures do not permit the ALJ to simply rely on his finding of
non-severity as a substitute for a proper RFC analysis.” MacDonald v. Comm’r of Soc. Sec., No.
17-CV-921, 2019 WL 3067275, at *3 (W.D.N.Y. July 11, 2019) (alteration in original) (quoting
Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013)). If an ALJ finds that nonsevere impairments
2
Winter also argues for reversal of the Commissioner’s decision on other grounds. ECF No. 11-1 at 20–
25, 28–29. The Court declines to address those arguments because remand is appropriate based on the
ALJ’s error in analyzing Winter’s alleged mental impairments.
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result in “mild” restrictions, the ALJ must analyze those restrictions in determining the claimant’s
RFC. Id. If the ALJ “fails to address nonsevere mental impairments in formulating a claimant’s
RFC, it is ‘necessary to remand [the] case for further consideration.’” Id. (alteration in original)
(quoting Parker-Grose v. Astrue, 462 F. App’x 16, 18 (2d Cir. 2012) (summary order)).
In most cases in which this Court has remanded based on an ALJ’s failure to examine nonsevere mental impairments as part of her RFC determination, the ALJ either did not discuss the
impairments in his or her RFC assessment, e.g., Dale v. Colvin, No. 15-CV-496, 2016 WL
4098431, at *4 (W.D.N.Y. Aug. 2, 2016), or merely included boilerplate language and/or made a
few references to related evidence, e.g., Rogers v. Berryhill, No. 16-CV-6349, 2017 WL 3483666,
at *4 (W.D.N.Y. Aug. 15, 2017). Here, however, the ALJ analyzed Winter’s mental impairments
in his RFC analysis. Accordingly, the Court must determine whether the ALJ’s “specific
conclusions” were supported by substantial evidence. Wells, 727 F.3d at 1065 n.3 (“[T]he
ALJ . . . f[ou]nd ‘mild’ restrictions in three of the relevant functional areas, requiring further
analysis [in his RFC assessment].”).
An RFC determination does not have to “perfectly correspond” with the medical source
opinions cited in the ALJ’s decision; rather, the ALJ is “entitled to weigh all of the evidence
available to make an RFC finding that [i]s consistent with the record as a whole.” Matta v. Astrue,
508 F. App’x 53, 56 (2d Cir. 2013) (summary order). But “[a]n ALJ is not qualified to assess a
claimant’s RFC on the basis of bare medical findings, and as a result an ALJ’s determination of
RFC without a medical advisor’s assessment is not supported by substantial evidence.” Wilson v.
Colvin, No. 13-CV-6286, 2015 WL 1003933, at *21 (W.D.N.Y. Mar. 6, 2015). In other words, an
ALJ’s ability to make inferences about the functional limitations caused by an impairment does
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not extend beyond that of an ordinary layperson. Agostino v. Comm’r of Soc. Sec., No. 18-CV1391, 2020 WL 95421, at *3 (W.D.N.Y. Jan. 8, 2020).
Here, the ALJ found that Winter had medically determinable mental impairments of
affective disorder, anxiety disorder, posttraumatic stress disorder, and attention deficit
hyperactivity disorder that, in combination, resulted in no “more than minimal limitation in
[Winter]’s ability to perform basic mental work activities.” Tr. 24. Specifically, the ALJ found that
these impairments caused mild limitations in understanding, remembering, or applying
information; interacting with others; and concentrating, persisting, or maintaining pace. Tr. 24–
25.
In his RFC analysis, the ALJ primarily focused on Winter’s physical impairments, but the
ALJ explicitly weighed three opinions regarding Winter’s mental limitations. Tr. 26–33. He gave
“partial weight” to the opinions of consultative examiner Susan Santarpia, Ph.D., and State agency
consultant M. Totin, Ph.D. Tr. 32–33. Dr. Santarpia reported that her evaluation of Winter
appeared “consistent with psychiatric problems that at times may interfere with [Winter]’s ability
to function on a daily basis.” Tr. 613. She specifically noted that “[m]oderate impairment [wa]s
demonstrated in learning new tasks, performing complex tasks independently, and relating
adequately with others.” Id. Dr. Totin assessed Winter as having moderate difficulties in social
functioning, in performing at a consistent pace, and in carrying out detailed instructions. Tr. 148–
50. Dr. Totin concluded that Winter appeared to retain “the capacity to perform simple tasks in a
position that involves low contact with others.” Tr. 144.
The ALJ gave “limited weight” to the opinion of Michael Mogerman, M.D., a treating
source for Winter. Tr. 33. Dr. Mogerman concluded that Winter had sundry mental impairments,
including “poor” to no ability in multiple functional areas (such as accepting instructions and
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responding appropriately to criticism from supervisors). Tr. 994–96. The ALJ declined to credit
Dr. Mogerman because his opinion was in checklist form with limited narrative and was
inconsistent with both the routine care described in his treatment records and Winter’s 30-year
work history. 3 Tr. 33.
Despite claiming to give “partial weight” to two of the relevant medical opinions, the ALJ
clearly rejected the conclusions of those opinions as to residual functional capacity and instead
opted to reach his own conclusion regarding Winter’s functional limitations. Tr. 32–33; York v.
Comm’r of Soc. Sec., 357 F. Supp. 3d 259, 261–62 (W.D.N.Y. 2019) (holding that, although ALJ
gave “partial” weight to “the only medical opinion evidence of record,” the ALJ’s rejection of the
assessment in relevant part “based upon the ALJ’s own lay interpretation of raw medical data” was
“not supported by substantial evidence”); see also Garrett v. Comm’r of Soc. Sec., No. 17-CV1009, 2019 WL 2163699, at *5 (W.D.N.Y. May 17, 2019) (“By not assigning significant weight
to any opinions and, instead, assigning them only limited weight, the ALJ created an evidentiary
gap in the record requiring remand.”).
All three doctors assessed at least moderate impairment in Winter’s social functioning; yet,
even with medical findings of affective disorder, anxiety disorder, posttraumatic stress disorder,
and attention deficit hyperactivity disorder, the ALJ assigned no corresponding mental limitation
in his RFC assessment. Tr. 24, 33. The ALJ is prohibited from rejecting all opinion evidence and
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The Court doubts that Winter’s pre-onset-date work history could serve as a valid basis for discounting
Dr. Mogerman’s post-onset-date assessment of Winter’s functional capacity. See Wells, 727 F.3d at 1069–
71 (rejecting ALJ’s reliance on statement made regarding claimant’s daily activities and employment before
her alleged onset date and noting “the ALJ’s . . . use of pre-onset date work cast doubt on the validity of his
analysis”).
Similarly, the ALJ noted that Winter “has no history of difficulty getting along with others” in his analysis
of severity at step two. Tr. 25. But again, the ALJ appears to be referring to Winter’s ability to work before
her onset date. Tr. 25, 273 Although the ALJ did not specifically reference Winter’s history of getting along
with others in his RFC analysis, this pre-onset-date history does not support the ALJ’s RFC findings.
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“playing doctor.” Johnson v. Comm’r of Soc. Sec., 351 F. Supp. 3d 286, 292 (W.D.N.Y. 2018)
(internal quotation marks omitted); Cutre v. Berryhill, No. 17-CV-135, 2018 WL 3968385, at *3–
4 (W.D.N.Y. Aug. 20, 2018) (holding that it was error for ALJ to formulate RFC after rejecting
the only medical opinions regarding claimant’s mental ability to work). Absent other medical
evidence of a claimant’s functional limitations, an ALJ’s rejection of all medical opinions in the
record creates “an evidentiary gap in the record requiring remand.” Zayas v. Colvin, No. 15-CV6312, 2016 WL 1761959, at *4 (W.D.N.Y. May 2, 2016); see also Defrancesco v. Berryhill, No.
16-CV-6575, 2017 WL 4769004, at *4 (W.D.N.Y. Oct. 23, 2017) (holding that ALJ giving “little
weight” to “the only physical medical opinion in the record created an evidentiary gap that
require[d] remand”). Here, the ALJ rejected all relevant medical opinions and created such an
evidentiary gap. See Davis v. Saul, No. 17-CV-167, 2019 WL 6682159, at *4 (W.D.N.Y. Dec. 6,
2019) (holding that, where ALJ assigned “greater weight” to a medical opinion that assessed
“mild” limitations in a claimant’s ability to work, ALJ erred in not addressing how the “mild
limitations affected [claimant’s] ability to work or incorporat[ing] any mental health limitations
into the RFC”); Truby v. Comm’r of Soc. Sec., No. 18-CV-6069, 2019 WL 2295403, at *3–4
(W.D.N.Y. May 30, 2019) (“[T]he ALJ appears to have relied on raw medical data and his own
lay opinion to reach this conclusion, because he ignored the only medical opinions as to how
[claimant]’s mental limitations would or would not affect his ability to work.”).
Even assuming the ALJ did not create an evidentiary gap, the ALJ’s rejection of the
relevant medical opinions does not appear to be supported by substantial evidence and “[a]n ALJ
may not ‘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, 2016
WL 1761959, at *4 (collecting cases); see also Pritchard v. Comm’r of Soc. Sec., No. 18-CV-
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1460, 2020 WL 553575, at *3–4 (W.D.N.Y. Feb. 4, 2020) (holding that remand was appropriate
where the RFC was “completely devoid of any limitations accounting for Plaintiff’s mental
impairments” and ALJ’s “reason for assigning different weights to parts of [a medical] opinion
[wa]s not supported by substantial evidence”).
The ALJ credited Dr. Santarpia as an independent examiner, familiar with the SSA
program. Tr. 32. But, the ALJ discounted all of Dr. Santarpia’s findings with respect to functional
limitations. Tr. 32–33. The ALJ also described Dr. Santarpia’s report as linking Winter’s mental
limitations to associated “stressors.” Tr. 32. But neither Dr. Santarpia nor the ALJ specifically
examined what those stressors were and the ALJ made no finding that those stressors would be
accounted for by his RFC determination. Tr. 32–33, 610–14; see Collins v. Colvin, No. 15-CV423, 2016 WL 5529424, at *3 (W.D.N.Y. Sept. 30, 2016) (noting that “stress is ‘highly
individualized’”).
The ALJ found that Dr. Totin’s opinion was “derivative” of Dr. Stantarpia’s opinion, and
therefore, discounted it for the same reasons. Tr. 33. It is true that Dr. Santarpia’s opinion was
available to Dr. Totin. Tr. 140. Dr. Totin, however, did not simply rely on Dr. Santarpia’s opinion.
He specifically found that her opinion, coupled with other evidence, was insufficient to support a
decision on Winter’s claim and he made distinct findings regarding Winter’s functional capacity.
Tr. 142, 148–50. It does not appear that the ALJ’s wholesale rejection of Dr. Totin’s conclusions
regarding Winter’s mental limitations was supported by substantial evidence.
In short, remand is required for further development of the record. See Winters v. Comm’r
of Soc. Sec., No. 18-CV-1049, 2020 WL 1061491, at *6 (W.D.N.Y. Mar. 5, 2020) (“[B]y
discounting all medical opinions of record . . . the ALJ was left without a proper assessment of
Winters’s limitations, causing the ALJ to improperly render an RFC assessment based on his own
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lay opinion. Under the circumstances of this case, remand is required for the ALJ to resolve the
gaps created in the medical record.”); York, 357 F. Supp. 3d at 262–63 (finding that remand for
further proceedings was necessary where ALJ rejected only medical opinion evidence of record);
Reed v. Comm’r of Soc. Sec., No. 18-CV-169, 2019 WL 4643605, at *3 (W.D.N.Y. Sept. 24, 2019)
(“[E]ven if substantial evidence supports the ALJ’s determination that plaintiff’s mental health
impairments are not severe at Step Two, remand is still necessary for further consideration because
the ALJ failed to account [for plaintiff’s] mental health limitations.” (internal quotation marks
omitted)).
CONCLUSION
For all of the reasons stated, the Commissioner’s Motion for Judgment on the Pleadings,
ECF No. 14, is DENIED and Winter’s Motion for Judgment on the Pleadings, ECF No. 11, is
GRANTED. This matter is REMANDED to the Commissioner for further administrative
proceedings consistent with this opinion, pursuant to sentence four of 42 U.S.C. § 405(g). The
Clerk of Court is directed to enter judgment and close this case.
IT IS SO ORDERED.
Dated: May 12, 2020
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court
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