Farr v. Commissioner of Social Security
Filing
12
DECISION AND ORDER Plaintiff's motion for judgment on the pleadings 7 is granted, and the Commissioner's cross-motion 9 is denied.The Commissioner's decision that plaintiff, Gerald F. Farr, was not disabled is reversed, and the matter is remanded for further proceedings. Upon remand, the Commissioner is instructed to request RFC reports (and, to the extent he deems necessary, updated treatment records) from plaintiff's treating source(s), and/or to order consultative examinations, sufficient to permit the redetermination of plaintiff's RFC and disability status upon a full and complete record. Signed by Hon. David G. Larimer on 9/3/2020. (KAH) -CLERK TO FOLLOW UP-
Case 1:19-cv-00541-DGL Document 12 Filed 09/03/20 Page 1 of 5
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
GERALD F. FARR,
DECISION AND ORDER
Plaintiff,
19-CV-0541L
v.
ANDREW SAUL,
Commissioner of Social Security,
Defendant.
________________________________________________
Plaintiff appeals from a denial of disability benefits by the Commissioner of Social Security
(“the Commissioner”). The action is one brought pursuant to 42 U.S.C. § 405(g) to review the
Commissioner’s final determination.
On April 19, 2016, plaintiff filed an application for a period of disability and disability
insurance benefits, alleging an inability to work since November 24, 2013. His application was
initially denied. Plaintiff requested a hearing, which was held on June 25, 2018 via
videoconference before Administrative Law Judge (“ALJ”) Anthony Dziepak. (Administrative
Transcript, Dkt. #4 at 12). The ALJ issued a decision on August 9, 2018, concluding that plaintiff
was not disabled under the Social Security Act. (Dkt. #4 at 12-20). That decision became the final
decision of the Commissioner when the Appeals Council denied review on March 1, 2019. (Dkt.
#4 at 1-3). Plaintiff now appeals.
The plaintiff has moved for judgment remanding the matter for further proceedings (Dkt.
#7), and the Commissioner has cross moved for judgment on the pleadings (Dkt. #9), pursuant to
Case 1:19-cv-00541-DGL Document 12 Filed 09/03/20 Page 2 of 5
Fed. R. Civ. Proc. 12(c). For the reasons set forth below, the plaintiff’s motion is granted, the
Commissioner’s cross motion is denied, and the matter is remanded for further proceedings.
DISCUSSION
I.
Relevant Standards
Determination of whether a claimant is disabled within the meaning of the Social Security
Act requires a five-step sequential evaluation, familiarity with which is presumed. See Bowen v.
City of New York, 476 U.S. 467, 470-71 (1986). The Commissioner’s decision that a plaintiff is
not disabled must be affirmed if it is supported by substantial evidence, and if the ALJ applied the
correct legal standards. See 42 U.S.C. § 405(g); Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.
2002).
II.
The ALJ’s Decision
Here, the ALJ found that the plaintiff had a severe impairment, consisting of lumbar spine
disorder status post multiple remote surgeries, which did not meet or equal a listed impairment.
After summarizing the evidence of record, the ALJ determined that plaintiff retains the
residual functional capacity (“RFC”) to perform sedentary work, lifting and carrying up to ten
pounds occasionally, sitting for up to six hours in an eight-hour workday, and standing or walking
for up to four hours in an eight-hour workday. However, after thirty minutes of sitting, standing or
walking, plaintiff must be able to change positions for five minutes, remaining on task. The
claimant must avoid climbing ladders, ropes or scaffolds, balancing on wet, uneven or vibrating
surfaces, or crawling. He can no more than occasionally climb ramps or stairs, stoop, kneel, or
crouch. He must avoid pushing, pulling, operating foot controls with his right lower extremity,
heavy moving machinery, operating vibrating tools or motor vehicles, or similar work setting
machinery, as well as unprotected heights. (Dkt. #4 at 15-16).
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Case 1:19-cv-00541-DGL Document 12 Filed 09/03/20 Page 3 of 5
When asked at the hearing whether there were jobs in the economy that a person with this
RFC could perform, vocational expert Larry Takki testified that such an individual could perform
the unskilled sedentary positions of address clerk, table worker and touch up screener. (Dkt. #4 at
20).
III.
The Medical Opinions of Record
The ALJ’s decision made detailed findings with respect to plaintiff’s RFC, with some
reference to plaintiff’s medical and surgical history. However, upon review, I find that the record
upon which his decision was based is incomplete and inadequate, and as such, the matter must be
remanded for the purpose of gathering additional medical opinion evidence.
“Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ
generally has an affirmative obligation to develop the administrative record.” Perez v. Chater, 77
F.3d 41, 47 (2d Cir. 1996). The record in this case contained treatment and surgical records
establishing plaintiff’s longstanding lumbar spine disorder, which multiple surgeries were unable
to completely resolve. As such, a thorough assessment and understanding of plaintiff’s specific
exertional and postural limitations was necessary in order to reach a disability determination
supported by substantial evidence.
Nonetheless, the medical opinions of record which the ALJ considered were limited to
sporadic statements by plaintiff’s treating family physician, Dr. Thomas Bogar, concerning
plaintiff’s ability to perform a previous job, and the report of a state agency “single decision
maker,” Jill Tedd. (Dkt. #4 at 66-70, 426-46). The ALJ assigned “limited” weight to Dr. Bogar’s
statements on the grounds that they were all given prior to the disability onset date (November 24,
2013), during a period of time when plaintiff was actively working as a forklift operator without
restrictions. (Dkt. #4 at 18). The ALJ assigned no particular weight to Ms. Tedd’s opinion, since
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she ultimately declined to opine as to plaintiff’s functional limitations: she found that the record
before her, which contained only a few treatment records which predated the disability onset date
by several years, was insufficient to make a determination. (Dkt. #4 at 18, 68).
The record also contained a functional estimate by treating surgeon Dr. Kevin Gibbons,
who stated in 2009 (four years prior to the alleged disability onset date) that plaintiff was disabled
at 75% due to his spinal impairment, required the ability to frequently change positions, could lift
no more than 10 pounds, could not repetitively bend or twist, and needed to be “careful in avoiding
impacts.” (Dkt. #4 at 260-61). The ALJ did not weigh this opinion, and may have overlooked it.
The scantiness of the medical opinion evidence in this matter presented a clear gap in the
record. Not only did the opinions of Dr. Bogar and Dr. Gibbons fall outside of the period under
review, giving them little probative value in the first instance, but their opinions consisted of
disability estimates and work-related restrictions which were related piecemeal in treatment notes,
with little background or accompanying clinical findings. From the record, it does not appear that
any physician, whether treating, examining or reviewing, ever undertook to perform a global
assessment of plaintiff’s exertional functional capacity at any time.
Given that there was not a single medical opinion of record which objectively assessed
plaintiff’s specific functional limitations during the period under review, the ALJ should have
attempted to obtain an RFC report from a treating physician with respect to plaintiff’s condition
during the relevant period, and failing that, “should have sought a conclusive determination from
a medical consultant” who was able to review the record and perform an in-person evaluation.
Falcon v. Apfel, 88 F. Supp. 2d 87, 90 (W.D.N.Y. 2000). See generally 20 C.F.R. §404.1519a(b)(4)
(an ALJ must order a consultative examination when a “conflict, inconsistency, ambiguity or
insufficiency in the evidence must be resolved”). Failure to complete the record, and/or a resultant
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failure to support an RFC determination with substantial evidence rather than with the ALJ’s
speculative interpretation of raw medical evidence, is reversible error: remand for further
development of the record is therefore appropriate here. See Falcon, 88 F. Supp. 2d 87 at 90. See
generally Aurilio v. Berryhill, 2019 U.S. Dist. LEXIS 157839 at *23 (D. Conn. 2019)(where ALJ
rejects all medical opinions in the record, an evidentiary gap is created); Smith v. Commissioner,
337 F. Supp. 3d 216, 226 (W.D.N.Y. 2018)(where the ALJ rejects all medical opinion evidence
and the record “does not contain a useful assessment of [p]laintiff’s limitations,” remand for
development of the record is appropriate).
CONCLUSION
For the foregoing reasons, plaintiff’s motion for judgment on the pleadings (Dkt. #7) is
granted, and the Commissioner’s cross-motion (Dkt. #9) is denied.
The Commissioner’s decision that plaintiff, Gerald F. Farr, was not disabled is reversed,
and the matter is remanded for further proceedings. Upon remand, the Commissioner is instructed
to request RFC reports (and, to the extent he deems necessary, updated treatment records) from
plaintiff’s treating source(s), and/or to order consultative examinations, sufficient to permit the
redetermination of plaintiff’s RFC and disability status upon a full and complete record.
IT IS SO ORDERED.
_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
September 3, 2020.
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