Burton v. Astrue
Filing
14
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 6 Commissioner's Motion for Judgment on the Pleadings; granting 7 Plaintiff's Motion for Judgment on the Pleadings; reversing Commissioner's decision and remanding this matter for calculation and payment of benefits. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 6/2/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
YOLANDA BURTON,
Plaintiff,
DECISION and ORDER
No. 6:12-CV-6347(MAT)
-vsCAROLYN COLVIN, Commissioner of
Social Security,
Defendant.
I.
Introduction
Plaintiff
Yolanda
Burton
(“Plaintiff”),
represented
counsel, brings this action pursuant to Titles II and
by
XVI of the
Social Security Act (“the Act”), seeking review of the final
decision
of
the
Commissioner
of
Social
Security
(“the
Commissioner”)1 denying her application for Disability Insurance
Benefits (“DIB”) and Social Security Insurance (“SSI”). This Court
has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c). Presently before the Court are the parties’ motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure.
1
Carolyn W. Colvin has replaced Michael J. Astrue as the Commissioner of
Social Security. She therefore is automatically substituted as the defendant in
this action pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.
II.
Procedural History
On April 27, 2009, Plaintiff protectively filed applications
for DIB and SSI, alleging disability beginning July 14, 2008. After
the claims were denied, Plaintiff requested a hearing. She appeared
with her attorney via videoconference before Administrative Law
Judge Lawrence Levey (“the ALJ”) on January 24, 2011. T.22-60.2 The
ALJ issued an unfavorable decision on January 25, 2011. T.5-21.
Plaintiff filed a request for review with the Appeals Council,
which declined jurisdiction on May 7, 2012. T.1-4.
Plaintiff then timely filed her complaint in this Court.
During the pendency of this action, Plaintiff filed a second
application and was granted benefits with a disability onset date
of January 26, 2011. The relevant time period for purposes of this
action, therefore, is July 14, 2008, through January 24, 2011.
III. Summary of the Administrative Record
A.
Medical Evidence Prior to the Onset Date
Plaintiff saw orthopedist M. Gordon Whitbeck, Jr., M.D. on
March 28, 2005, complaining of lower back pain and left leg pain
going down to the foot for the past 2 to 3 months. T.249. The pain
was constant, worsening with standing and walking. On examination,
straight leg raising (“SLR”) was positive on the left, producing
pain down to the calf. T.250. Magnetic resonance imaging (“MRI”) of
2
Numerals preceded by “T.” refer to pages of the administrative
transcript, submitted as a separately bound exhibit by Defendant.
-2-
the lumbar spine performed on January 27, 2005, showed degenerative
changes at L4-5 and L5-S1, and a large left paracentral disc
herniation
at
L5-S1
with
significant
nerve
root
impingement.
Dr. Whitbeck’s assessment was L5-S1 disc herniation and left
sciatica. Dr. Whitbeck noted that Plaintiff still was working
despite her “obvious impairment.” T.249.
Dr. Whitbeck performed a discectomy at L5-S1 on April 20,
2005. T.251-52. On June 1, 2005, Plaintiff still had significant
pain in her back and left leg to about knee-level. T.253. The most
likely cause was inflammation around the nerve root, and it was
expected to improve over time. Dr. Whitbeck prescribed Neurontin,
Darvocet, and anti-inflammatories, and stated that she was totally
temporarily disabled until June 20, 2005. T.253.
On July 27, 2005, Plaintiff informed Dr. Whitbeck that her leg
pain had resolved although she still had a small amount of lower
back pain. T.254. She had returned to work and was using an
ergonomic chair purchased by her employer. Id.
On August 26, 2005, Plaintiff returned to Dr. Whitbeck with
complaints of pain across the lower portion of her back, along with
pain and numbness in both legs down to her feet, worse on the left.
T.255. The pain was constant, difficult to tolerate, and increased
with bending, standing, and walking. Id. After an emergency room
visit due to the pain, she was prescribed Hydrocodone and Soma. At
her examination with Dr. Whitbeck, she had positive SLR on the left
-3-
with pain down the left leg, and equivocal SLR on the right. T.255.
Dr. Whitbeck opined that the recurrent bilateral sciatica might
represent a recurrent disc herniation or a disc herniation at the
middle level of the spine. The main finding based on the MRI was a
large,
recurrent
Plaintiff
had
left-sided
significant
disc
extrusion
degenerative
disc
at
L5-S1,
disease.
where
T.256.
Dr. Whitbeck ordered an MRI, prescribed Hydrocodone and Flexeril,
and stated Plaintiff was temporarily totally disabled. T.255.
On November 1, 2005, Plaintiff underwent re-exploration of L5S1 with left L5-S1 discectomy; capstone spacer insertion at L5-S1;
transforaminal lumbar interbody fusion at L5-S1; bilateral lateral
fusion at L5-S1 with autogenous iliac crest graft; and nonsegmental
instrumentation at L5-S1. T.257-59.
At a follow-up appointment with Dr. Whitbeck on February 9,
2006, Plaintiff was 75% to 80% improved, although she had some
residual lower back pain and left sciatic symptoms. T.262. She
remained temporarily totally disabled. Id.
On April 4, 2006, Plaintiff told Dr. Whitbeck that she was
having
daily
back
spasms,
intermittently
throughout
the
day.
However, she wished to return to work, so Dr. Whitbeck released her
with a moderate temporary partial disability on April 20, 2006,
limiting her to part-time work (6 hours per day) with no lifting of
greater than 10 to 15 pounds, no twisting or bending, and the
ability to frequently change position. T.263.
-4-
On June 12, 2006, Plaintiff was doing well and was in her
first trimester of pregnancy. She was to be returned to work
without restriction on July 3, 2006. T.264.
In 2007, Plaintiff complained of stress at home and at work to
her primary care physician, Louise Richardson, M.D.
On January 22, 2007, Plaintiff saw Dr. Whitbeck and was “doing
quite well in terms of back and leg symptoms.” T.362. She was able
to move around the room without difficulty. Dr. Whitbeck stated
that she had made a good recovery and should restart some of her
physical therapy exercises. Id.
On
March
7,
2008, Plaintiff
told Dr.
Whitbeck
that the
nonsteroidal anti-inflammatories (“NSAIDs”) he had prescribed had
resolved her symptoms. T.360, 363-66. However, she was no longer
working. On examination, she had no focal atrophy and no focalized
tenderness in the lumbar spine. Strength was full and sensation was
intact. T.360.
On April 4, 2008, Plaintiff told Dr. Whitbeck she was not
taking any medications and still was not working. At that point,
she was 2 years and 5 months out from an L5-S1 discectomy and
posterolateral fusion. The exacerbation of some left proximal thigh
symptoms had been resolved with prescription NSAIDs. T.360-62.
On June 3, 2008, Dr. Richardson diagnosed Plaintiff with
hypertension. She issued a note, on June 5, 2008, that Plaintiff
could not return to work until further notice. T.272.
-5-
On July 7, 2008, Plaintiff saw Dr. Richardson complaining of
a sore throat, fever, and dizziness. Dr.
Richardson advised rest
and fluids, and to stay out of work until July 9, 2008. T.276.
B.
Medical Records After the Onset Date (July 14, 2008)
On July 14, 2008, Plaintiff saw Dr. Richardson in follow-up,
reporting a sore throat, swollen glands, dizziness, and aches and
pains. T.284. She was treated for strep pharyngitis, and suffered
an allergic reaction 2 days later with swelling of the ankles and
hands, as well as a rash. On November 11, 2008, Plaintiff told
Dr. Richardson that she had been experiencing urinary incontinence
since August. Dr. Richardson recommended a urological consult.
T.283.
Plaintiff was seen by Dr. Richardson on May 4, 2009, due to
vomiting after eating certain foods, and lower back and left leg
pain. On examination, Plaintiff had decreased sensation in the left
thigh and tenderness in the left lumbar region. Dr. Richardson
diagnosed gastroesphogeal reflux disease (“GERD”) and chronic low
back
pain
with
radiculopathy.
T.270.
For
pain
management,
Dr. Richardson recommended Advil and Tylenol; for GERD symptoms,
she recommended Zantac. Id.
Plaintiff saw urologist Melanie Butler, M.D. regarding her
incontinence and constipation on February 20, 2009. T.265-66.
Plaintiff reported 2 episodes of urine leakage without sensation.
Dr. Butler
diagnosed
urinary
incontinence,
-6-
unspecified; urine
retention, unspecified; and constipation, unspecified. Id. She
recommended a trial of Vesicare for 2 weeks; if no improvement was
seen, a full work-up would be done. T.266.
Plaintiff saw Dr. Richardson on April 20, 2009, complaining of
vomiting.
Dr.
She
Richardson
chronic anxiety,
had
discontinued
diagnosed
fatigue,
Prevacid
hyperlipidimia,
and
increasing
and
GERD,
Cymbalta.
hypertension,
irritability.
T.281.
Dr. Richardson told her to restart Simvastin and Prevacid. Id.
On May 29, 2009, Plaintiff saw electromyelographer Harold
Lesser, M.D., on referral from Drs. Richardson and Whitbeck, for
nerve conduction studies to determine the cause of her continuing
back and leg pain. T.307-08. Plaintiff told Dr. Lesser that she had
been experiencing increasing left-sided leg and back pain following
the delivery of her son in January 2007. T.307. Nerve conduction
studies of the lower extremities were notable for an absent tibial
H-reflex on the left but otherwise were unremarkable. T.308.
Dr. Lesser’s impression was that her examination was “[a]bnormal”
based on “electrodiagnostic evidence of a presumably old left S1
radiculopathy supported by the absent tibial H-reflex and ankle
jerk on the left.” T.308. Dr. Lesser noted that Plaintiff had
“unusual complaints of unilateral buttock weakness in concert with
progressive numbness in the heels bilaterally.” Id. He ordered an
MRI of the lumbar spine to see if there was any epidural fibrosis
that might produce the progressive neurologic complaints of the
-7-
type she describes. Failing that, Plaintiff might need “additional
imaging studies of the thoracic spine and/or further workup for a
central basis for her current bladder and buttock complaints.” Id.
An MRI of the lumbar spine on June 1, 2009, by Eric Spitzer,
M.D., see T.352-53, revealed a diffuse disc bulge at L3-4 with a
left paracentral disc protrusion indenting the ventral thecal sac,
encroaching on the left L4 nerve root and contributing to mild
spinal
canal
narrowing
and
mild
bilateral
neural
foraminal
narrowing. The left paracentral disc protrusion and overall diffuse
disc bulging were new from the prior exam. T.352. At L4-5, there
was diffuse disc bulging combined with bilateral facet degenerative
change and ligamentum flavum thickening, contributing to mild
spinal canal narrowing. At L5-6, there was diffuse disc bulging but
no spinal canal narrowing and minimal neural foraminal narrowing.
T.352.
Consultative physician Harbinder Toor, M.D. examined Plaintiff
on
July
2,
2009.
T.314-17.
Plaintiff
reported
a
history
of
depression and anxiety since 2002; asthma since 1995; urinary
incontinence;
50
degrees;
and
back
extension
pain.
was
Her
0
lumbar
degrees;
spine
flexion
was
lateral
flexion
was
30 degrees; and rotation was 30 degrees, with “pain in the back.”
T.316. SLR was positive bilaterally, both supine and sitting, at
20 degrees on the left and 30 degrees on the right. Id. With regard
to her lung function, she had mild obstruction on spirometry
-8-
testing. Id. Dr. Toor diagnosed the following: history of lower
back
pain/injury,
cholesterol,
asthma,
anxiety,
and
hypertension,
depression.
acid
T.317.
reflux,
high
opined
that
He
Plaintiff had “mild to moderate” limitations in her ability to
walk, sit, bend, and lift; and should avoid irritants or other
activities
that
could
precipitate
asthma
symptoms.
Id.
Her
prognosis was “fair”.
Also
on
July
2,
2009,
consultative
psychologist
Kavitha
Finnity, Ph.D. examined Plaintiff. T.309-12. Plaintiff reported
difficulty sleeping, a dysphoric mood, hopelessness, excessive
emotionality, anxiety, and irritability. T.309. She had recurrent
thoughts
of
suicide,
emotionality
with
without
anxiety.
intent
Id.
Dr.
or
plan;
Finnity’s
and
excessive
diagnosis
was
depressive disorder, not otherwise specified. For her medical
source statement, Dr. Finnity stated that Plaintiff “can follow and
understand simple directions and perform simple tasks”, although
she “may have some difficulty with attention and concentration and
maintaining a regular schedule.” T.311. She “can learn new tasks
and perform complex tasks” and “make appropriate decisions”, but
she “has difficulty relating with others and dealing with stress.”
Id.
Dr.
Finnity
recommended
that
Plaintiff
seek
individual
psychological and psychiatric treatment. Id. Her prognosis was
“fair.” T.312.
-9-
On
July
27,
2009,
state
agency
non-examining
review
psychiatrist, Z. Mata, M.D. opined that Plaintiff did not suffer
from any severe mental impairments. T.326-28.
On October 26, 2009, Plaintiff’s primary care physician,
Dr. Richardson, completed a Medical Assessment Of Ability To Do
Work Related Activities (Physical) form. T.348-50. Dr. Richardson
opined that Plaintiff has lifting/carrying; standing/walking; and
sitting restrictions but did not provide specifics, e.g., how many
hours in an 8-hour day can Plaintiff sit. T.348. Dr. Richardson
stated that Plaintiff can “never” climb, stoop, crouch, kneel, or
crawl, and can “occasionally” balance.
Plaintiff saw Dr. Whitbeck on March 26, 2010. T.358-59. His
assessment was lower back pain and left sciatica, and he explained
conservative treatment modalities (epidurals and physical therapy)
that would provide temporary relief. Dr. Whitbeck opined that she
remained totally disabled for the past year and a half. T.359. On
January 4, 2011, Dr. Whitbeck signed a form titled “Medical Listing
1.04” which set forth the criteria for Listing 1.04(A) (disorders
of the spine with evidence of nerve root compression) and Listing
1.04(C) (disorders of the spine with lumbar spinal stenosis). The
form stated, “Please circle as appropriate for Yolanda Burton that
she meets or functionally equals [sic].” T.370 (underline in
original). Dr. Whitbeck signed the form, but apparently did not see
-10-
or understand the instructions and failed to circle anything on the
form.
On January 8, 2011, Dr. Richardson issued a second Medical
Assessment Of Ability To Do Work Related Activities (Physical)
form, which imposed limitations that precluded even sedentary
work.3 T.372-73. This report is discussed in detail further below.
IV.
Standard of Review
This Court’s function is not to determine de novo whether a
claimant is disabled, Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.
1996) (citation omitted), but rather to evaluate whether the
Commissioner applied the correct legal standard in making the
determination and, if so, whether such determination is supported
by substantial evidence in the record. E.g., Shaw v. Chater, 221
F.3d 126, 131 (2d Cir. 2000) (citing 42 U.S.C. § 405(g); Bubnis v.
Apfel, 150 F.3d 177, 181 (2d Cir. 1998)).
This Court must independently determine if the Commissioner
applied
the
correct
legal
standards
in
determining
that
the
claimant is not disabled. See Townley v. Heckler, 748 F.2d 109, 112
3
See SSR 96-9P, 1996 WL 374185, at *6 (S.S.A. July 2, 1996)
(“In order to perform a full range of sedentary work, an individual
must be able to remain in a seated position for approximately 6
hours of an 8-hour workday, with a morning break, a lunch period,
and an afternoon break at approximately 2-hour intervals. If an
individual is unable to sit for a total of 6 hours in an 8-hour
work day, the unskilled sedentary occupational base will be
eroded.”).
-11-
(2d Cir. 1984). “Failure to apply the correct legal standards is
grounds for reversal.” Id. Therefore, this Court first reviews the
Commissioner’s application of the pertinent legal standards, and
then, if the standards were correctly applied, considers the
substantiality of the evidence. See Johnson v. Bowen, 817 F.2d 983,
985 (2d Cir. 1987) (stating that “[w]here there is a reasonable
basis for doubt whether the ALJ applied correct legal principles,
application of the substantial evidence standard to uphold a
finding of no disability creates an unacceptable risk that a
claimant will be deprived of the right to have her disability
determination made according to the correct legal principles”).
V.
Eligibility for SSI and DIB
A claimant must establish that she is disabled when applying
for either SSI or DIB: “Both statutes define ‘disability’ as the
‘inability to engage in any substantial gainful activity . . . .’”
Bowen
v.
City
of
N.Y.,
476
U.S.
467,
470
(1986).
Thus,
in
situations where claimants have filed concurrent applications for
SSI and DIB, courts have addressed the issue of a claimant’s
disability in terms of meeting a single disability standard under
the Act.
See, e.g., Hankerson v. Harris, 636 F.2d 893, 895 n.2 (2d
Cir. 1980) (stating that the disability standards for SSI and DIB
are “virtually identical” and the standard for judicial review “is
also identical”).
-12-
To establish disability under the Act, a claimant bears the
burden of demonstrating (1) that she has been unable to engage in
substantial gainful activity by reason of a physical or mental
impairment that has lasted or could have been expected to last for
a continuous period of at least twelve months, and (2) that the
existence of such impairment has been demonstrated by evidence
supported
by
medically
acceptable
clinical
and
laboratory
techniques. 42 U.S.C. § 1382c(a)(3); see also Barnhart v. Walton,
535 U.S. 212, 215 (2002).
VI.
The ALJ’s Decision
The ALJ applied the five-step sequential evaluation processed
set out in 20 C.F.R. §§ 404.1520, 416.920. See also Williams v.
Apfel, 204 F.3d 48, 48-49 (2d Cir. 1999). At the first step, the
ALJ determined that Plaintiff met the insured status requirements
through December 31, 2013, and had not engaged in substantial
gainful activity since July 14, 2008, the alleged onset date. T.10.
Plaintiff’s
severe
impairments
were
lumbar
degenerative
disc
disease with radiculopathy, asthma, high cholesterol, hypertension,
urinary
incontinence,
anxiety,
and
depression.
Id.
The
ALJ
determined that none of these impairments, considered singly or in
combination, met or medically equaled one of the listed impairments
in 20 C.F.R. Pt. 404, Subpt. P, App. 1. T.11.
The ALJ found Plaintiff retained the residual functional
capacity (“RFC”) to perform light work as defined in 20 C.F.R.
-13-
§ 404.1567(b) and § 416.967(b), except she requires the option to
alternate between sitting and standing at 1-hour increments; can
only
occasionally
use
her
left
lower
extremity
for
pushing,
pulling, and operation of foot controls; and must work in close
proximity to a restroom facility. T.12. In addition, Plaintiff is
limited to performing simple, routine, and repetitive tasks with no
greater than occasional interaction with the public, coworkers, and
supervisors. T.12.
Plaintiff’s past relevant work was as a medical secretary
(Dictionary of Occupational Titles (“DOT”) #201-362-014, SVP 6,
sedentary). Because the ALJ found Plaintiff limited to simple,
routine, and repetitive tasks, he found her incapable of doing her
past relevant work, which was performed at a skilled level. T.16.
Because Plaintiff’s ability to perform all or substantially
all
of
the
requirements
of
light
work,
the
ALJ
consulted
a
vocational expert (“VE”) regarding the extent to which Plaintiff’s
limitations eroded the unskilled light occupational base. The VE
testified that a person of Plaintiff’s age, and with her education,
work
experience,
representative
and
RFC
occupations
could
such
perform
as
the
small
requirements
object
of
assembler,
subassembler of electronic equipment (DOT #729.684-054, 400,000
jobs nationally) and lens matcher, optical goods (DOT #713.687-030,
-14-
40,000 jobs nationally). T.16. Accordingly, the ALJ found Plaintiff
not disabled.
VII. Plaintiff’s Contentions
A.
Erroneous Residual Functional Capacity Assessment
Plaintiff contends that the ALJ did not correctly apply the
relevant legal standards in assessing her RFC. In particular,
Plaintiff claims the ALJ misapplied the treating physician rule by
failing to give controlling weight to Dr. Richardson’s January 8,
2011 Medical Assessment Of Ability To Do Work Related Activities
(Physical) form . Plaintiff also contends that the RFC finding
lacks
a
function-by-function
assessment
of
her
work-related
abilities as limited by her impairments.
1.
The ALJ’s Application of the Treating Physician
Rule
Pursuant to the “treating physician rule,” the ALJ must give
controlling weight to a treating physician’s opinion when that
opinion is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the
other
substantial
evidence
in
[the]
record.”
20
C.F.R.
§§ 404.1527(d)(2), 416.927(d)(2); see also Halloran v. Barnhart,
362 F.3d 28, 31–32 (2d Cir. 2004); Shaw v. Chater, 221 F.3d 126,
134 (2d Cir. 2000). Medically acceptable clinical and laboratory
diagnostic techniques include consideration of a “patient’s report
of complaints, or history, [a]s an essential diagnostic tool.” see
-15-
also Green–Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir. 2003).
If
the
ALJ
controlling
gives
the
weight,
treating
however,
physician’s
he
must
opinion
specify
“good
less
than
reasons,”
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.2004) (quoting
20 C.F.R. § 404.1527(d)(2)), and must justify the lesser weight
given by reference to the following factors: (1) length of the
treatment relationship and the frequency of examination, (2) nature
and extent of the treatment relationship, (3) supportability of the
opinion, (4) consistency of the opinion with the other medical
evidence,
(5)
specialization
of
the
treating
physician,
and
(6) other factors that are brought to the attention of the court.
20 C.F.R. §§ 404.1527(d)(1)-(6), 416.927(d)(1)-(6); see also Shaw,
221 F.3d at 134; Clark v. Commissioner of Social Sec., 143 F.3d
115, 118 (2d Cir. 1998).
Here, Plaintiff’s primary care physician, Dr. Richardson,
completed a Medical Assessment Of Ability To Do Work Related
Activities (Physical) form on January 8, 2011. With regard to
lifting/carrying, Dr. Richardson stated that Plaintiff could lift
and carry no more than 5 to 10 pounds; when asked what was the
“Maximum Occasionally” Plaintiff could lift, Dr. Richardson put a
check mark, apparently indicating that 5 to 10 pounds was the
maximum that Plaintiff could lift occasionally. T.372.
With regard to standing/walking, Dr. Richardson indicated that
these activities were affected by Plaintiff’s impairments. Id. When
-16-
asked how many hours Plaintiff could stand and/or walk in an 8-hour
day, Dr. Richardson answered “none”. Id. When asked how many hours
in an 8-hour workday total Plaintiff could stand and/or walk
without interruption, Dr. Richardson again answered “none”. T.372.
When asked how many hours in an 8-hour day could Plaintiff sit,
Dr.
Richardson
interruption.
answered
T.373.
In
“3-4
her
hrs”
total
narrative
and
“1
hr”
without
later
in
the
report,
Dr. Richardson stated that Plaintiff was unable “to bend, stand,
walk or sit for more than 1-2 hrs.” T.374.
As for postural activities, Dr. Richardson indicated that
Plaintiff can “never” climb, balance, stoop, crouch, kneel, or
crawl. Id. She found that Plaintiff has limitations in reaching and
pushing/pulling but no limitations in handling, feeling, seeing,
hearing, and speaking. She has restrictions on working at heights;
moving; using machinery; being exposed to temperature extremes; and
working around chemicals, dust, fumes, humidity, and vibration.
T.374. Dr. Richardson noted that even though Plaintiff tried to
return
to
work,
“the
absenteeism
secondary
to
her
problems
jeopardized her job.” Id. She indicated that there “aren’t any
other surgical options [for Plaintiff] and physical therapy has
been exhausted.” Id.
It bears noting that Dr. Richardson’s report was the only
function-by-function assessment by an acceptable medical source.
Although
a
Single
Decision
Maker
-17-
(“SDM”)
completed
an
RFC
assessment in Plaintiff’s case, courts have found that an RFC
assessment from an SDM is “entitled to no weight as a medical
opinion”,
Sears
2:11–CV–138,
2012
v.
WL
Astrue,
Civil
1758843,
Action
at
(D.
*6
No.
Vt.
2:11–CV–138,
May
15,
2012)
(collecting cases), because SDMs are not medical professionals,
id.; accord, e.g., Box v. Colvin, No. 12–CV–1317 (ADS), __ F.
Supp.2d ___, 2014 WL 997553, at *19 (E.D.N.Y. Mar. 14, 2014).
The ALJ gave Dr. Richardson’s opinion “little weight”, T.15,
because “it seem[ed] to be based primarily on the claimant’s
subjective findings” and there were “few objective reports or
findings to substantiate such a restricted residual functional
capacity,” id. This finding is problematic for several reasons.
First, the Second Circuit has held that a claimant’s subjective
complaints and history are “an essential diagnostic tool.” Burgess
v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (quotation omitted).
Second,
the
clinically
record
contains
significant
objective
findings
that
medical
are
reports
consistent
and
with
Dr. Richardson’s RFC assessment. As discussed further below, the
ALJ’s explanation for discounting Dr. Richardson’s opinion is
contradicted
by
the
record
evidence
and
accordingly
cannot
constitute a “good reason” as required by the regulations.
At the time Dr. Richardson issued her opinion, Plaintiff had
already undergone 2 surgeries on her lumbar spine. Objective
testing indicated radiculopathy and continuing encroachment of the
-18-
L4 nerve root affecting her legs. Specifically, in March 2008,
electromyelographer Dr. Lesser interpreted Plaintiff’s test results
as abnormal insofar as there was electrodiagnostic evidence of a
left S1 radiculopathy and abnormal clinical findings of an absent
tibial H-reflex and an ankle jerk on the left. T.308. An MRI of the
lumbar spine on June 1, 2009, revealed L3-4 left paracentral disc
protrusion encroaching on the left L4 nerve root; mild degenerative
disc disease at L3-4 and L4-5 with annular fissuring in the
posterior disc at L4-5; and L4-5 mild spinal canal narrowing and
bilateral
neural
foraminal
narrowing.
T.352-53.
Orthopedic
specialist Dr. Whitbeck interpreted the MRI as showing moderate
stenosis at L4-5 and some extension of the disc extrusion at LL3-4
into the left forearm. T.359. At an appointment on March 26, 2010,
Dr. Whitbeck noted that Plaintiff was “well known” to his practice.
T.358. He described her as moving slowly around the exam room; she
could forward flex only to floor-level and could extend her back
past neutral with “moderate difficulty.” T.358. He diagnosed low
back pain and left sciatica and noted that she remained totally
disabled. T.359. Consultative examiner Dr. Toor, whose opinion the
ALJ gave “significant weight”, made clinical findings supporting
Dr. Richardson’s opinion, namely, that Plaintiff had positive SLR
in both legs, both supine and sitting, at 20 degrees in the left
leg and 30 degrees in the right; and could only bend at the waist
to 50 degrees. T.316.
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In sum, the clinical findings by various physicians and the
objective medical evidence (including MRIs and nerve conduction
studies) contradict the ALJ’s assertion that only Plaintiff’s
subjective complaints supported Dr. Richardson’s opinion. The ALJ
therefore
should
have
assigned
controlling
weight
to
Dr. Richardson’s opinion. See Muntz v. Astrue, 540 F. Supp.2d 411,
421
(W.D.N.Y.
2008)
(“[T]he
ALJ
offers
no
explanation
for
discounting the record evidence concerning the plaintiff’s nerve
root impingement, neuro-anatomic distribution of pain, limitation
of spinal motion, muscle atrophy, sensory loss, motor loss, and
positive straight leg raising tests. The opinions of plaintiff’s
treating physicians with respect to those aspects of his condition,
which were supported by objective medical evidence and in many
cases corroborated by the opinions of examining physicians, should
have been afforded controlling weight.”).
2.
Lack of Function-by Function Assessment
Plaintiff contends that the ALJ erred by arriving at her RFC
without providing
Plaintiff’s
a
function-by-function
analysis
relating
to
ability to perform the necessary work activities of
light work. See SSR 96–8p, 1996 WL 374184, at *1 (S.S.A. July 2,
1996) (stating that before the ALJ assesses the claimant’s RFC, the
ALJ
must
consider
the
claimant’s
functional
limitations
or
restrictions and assess his or her work-related abilities on a
function-by-function
basis).
The
-20-
ALJ
also
must
address
nonexertional limitations, which include “difficulty performing the
manipulative or postural functions of some work such as reaching,
handling, stooping, climbing, crawling, or crouching.” 20 C.F.R.
§§
404.1569a(c)(vi),
416.969a(c)(vi).
Only
when
there
is
substantial evidence of each physical requirement listed in the
regulations can RFC be expressed in terms of the exertional levels
of work (sedentary, light, medium, heavy, and very heavy). Hogan v.
Astrue, 491 F. Supp.2d 347, 354 (W.D.N.Y. 2007); see also LaPorta
v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y. 1990).
As noted above, the ALJ found that Plaintiff has the RFC to
perform “light work” except she requires the option to alternate
between sitting and standing at 1-hour increments and has certain
other physical limitations. The regulations explain that
[l]ight 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, you
must have the ability to do substantially all of these
activities. If someone can do light work, we determine
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) (emphases supplied); see also
SSR 83-14 (“[M]ost light jobs-particularly those at the unskilled
level of complexity-require a person to be standing or walking most
of the workday. . . .”). However, the ALJ failed specifically
-21-
determine Plaintiff’s ability to sit, stand, walk, lift, carry, and
bend in the context of an 8-hour workday. See Molina v. Barnhart,
04 CIV. 3201(GEL), 2005 WL 2035959, at *8 (S.D.N.Y. Aug. 17, 2005)
(“The ALJ’s finding that Molina is capable of light work is
insufficient because he failed to make a finding as to Molina’s
ability to stoop or bend.”). As Plaintiff notes, no acceptable or
other medical source opined that she was able to stand or walk most
of the workday, notwithstanding her various impairments. The ALJ
did
not
explain
the
basis
for
his
unstated
conclusion
that
Plaintiff would be capable of walking for up to 6 hours per 8-hour
day. Likewise, the ALJ did not provide any rationale for his
implicit
finding
that
Plaintiff
could
fulfill
the
sitting,
standing, lifting, carrying, and bending requirements of a full
range of light work.
The SSA rulings indicate that an ability to bend at least
occasionally is required for both light and sedentary work. Id.
(citing SSR 83-14, 1983 WL 31254, at *4 (S.S.A. 1983) (“[T]he
frequent lifting or carrying of objects weighing up to 10 pounds
(which is required for the full range of light work) implies that
the worker is able to do occasional bending of the stooping type;
i.e., for no more than one-third of the workday to bend the body
downward and forward by bending the spine at the waist.”). Here,
Dr.
Richardson
and
Dr.
Toor
indicated
that
Plaintiff’s
had
restricted forward flexion which clearly detracts from her ability
-22-
to bend, stoop, and lift. The ALJ should have acknowledged these
limitations and made accommodations for them in the RFC.
Moreover, consultative examiner Dr. Toor, whose opinion the
ALJ gave “significant weight”, made clinical findings at odds with
the ALJ’s RFC, namely, that Plaintiff had positive SLR in both
legs, both supine and sitting, at 20 degrees in the left leg and
30 degrees in the right; and could only bend at the waist to
50 degrees. T.316. The ALJ purported to rely on Dr. Toor’s finding
that Plaintiff
had
“mild-to-moderate”
limitations
standing, walking, bending, and lifting, but
is
sitting,
this was error.
Dr. Toor’s assessment of a “mild-to-moderate” limitation on a whole
range of different physical activities, without more, is too vague
to be meaningful or to provide substantial evidence to support the
ALJ’s RFC analysis. See Minor v. Astrue, No. 11–CV–06556–MAT, 2012
WL
5948952,
*4
(W.D.N.Y.
Nov.
28,
2012)
(“Although
[the
consultative examiner] gave the opinion that Plaintiff had only
‘moderate’ limitations in her lumbar spine mobility and ‘mild’
limitations in prolonged standing, walking, and using stairs,
inclines and ladders, these opinions do not constitute ‘substantial
evidence’.”) (citing Curry v. Apfel, 209 F.3d 117, 123 (2d Cir.
2000) (holding that opinions from consultative examiner that a
claimant has “mild” or “moderate” limitations, “without additional
information”, are “so vague as to render [the opinions] useless”);
other citation omitted)).
-23-
B.
Erroneous Credibility Analysis
The ALJ here found that although Plaintiff has medically
determinable impairments that reasonably could be expected to
produce
her
alleged
symptoms,
her
statements
concerning
the
intensity, persistence, and limiting effects of her limitations are
“not credible to the extent they are inconsistent with the above
residual functional capacity assessment.” T.14. The Court has found
no support in the regulations or the caselaw from this Circuit
supporting the propriety of basing a credibility determination
solely upon whether the ALJ deems the claimant’s allegations to be
congruent with the ALJ’s own RFC finding. See, e.g., Smollins v.
Astrue, No. 11–CV–424, 2011 WL 3857123, at *11 (E.D.N.Y. Sept. 1,
2011) (“[The ALJ’s] analysis of Smollins’s credibility is flawed
not only in its brevity, but in its acceptance as a foregone
conclusion
of
Smollins’s
capacity
to
perform
sedentary
work.
Instead of comparing Smollins’s symptoms, as described by Smollins
herself and
her
doctors,
to
the objective
medical
and
other
evidence of record as required by the Social Security regulations,
[the ALJ] merely compared Smollins’s statements regarding her
symptoms
to
his
own
RFC
assessment.”);
Mantovani
v.
Astrue,
No. 09–CV–3957, 2011 WL 1304148, at *5 (E.D.N.Y. Mar. 31, 2011)
(similar). Indeed, the Seventh Circuit has specifically rejected
the boilerplate language used by the ALJ in Plaintiff’s case,
noting that it “implies that ability to work is determined first
-24-
and is then used to determine the claimant’s credibility.” Bjornson
v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012).
Because “[t]he assessment of a claimant’s ability to work will
often depend on the credibility of her statements concerning the
intensity, persistence and limiting effects of her symptoms[,]”
Otero v. Colvin, 12–CV–4757, 2013 WL 1148769, at *7 (E.D.N.Y.
Mar. 19, 2013), it is not logical to decide a claimant’s RFC prior
to assessing her credibility. Id. To use that RFC to discredit the
claimant’s subjective complaints merely compounds the error. Id.;
cf. Faherty v. Astrue, No. 11–CV–02476(DLI), 2013 WL 1290953, at
*14 (E.D.N.Y. Mar. 28, 2013) (“The ALJ explained the reason for
giving Dr. Tranese’s medical source statement significant weight
was that it was consistent with her RFC. Such reasoning is circular
and flawed. The ALJ should use medical opinions to determine
Plaintiff’s RFC, and, therefore, cannot give medical opinions
weight
based
on
their
consistency
with
the
RFC.”)
(internal
citation to record omitted).
“If the ALJ decides to reject subjective testimony concerning
pain
and
other
symptoms,
he
must
do
so
explicitly
and
with
sufficient specificity to enable the Court to decide whether there
are legitimate reasons for the ALJ’s disbelief and whether his
determination is supported by substantial evidence.” Brandon v.
Bowen, 666 F. Supp. 604, 608 (S.D.N.Y. 1987) (citing, inter alia,
-25-
Valente v. Secretary of Health and Human Servs., 733 F.2d 1037,
1045 (2d Cir. 1984); footnote omitted).
The ALJ also misrepresented the record in connection with his
skepticism about Plaintiff’s statement that her back condition
worsened after the birth of her second child. He noted that she
allegedly did not report this to Dr. Whitbeck on January 22, 2007.
T.13. However, this would have been very soon after she gave birth
in that same month. The ALJ ignored the fact that Plaintiff did
inform Dr. Lesser, the electromyelographer, that her back and leg
pain had been increasing since she gave birth in January 2007. The
ALJ’s
other
reasons
for
discounting
Plaintiff’s
subjective
complaints were not reasonable. For instance, the ALJ stated that
since
Plaintiff
activities”,
admitted
she
was
not
she
could
suffering
perform
from
“extensive
disabling
daily
symptoms.
However, Plaintiff was performing these “daily activities” at home,
on her own schedule–not in the context of a competitive work
environment where she would not be able to take breaks or rest as
needed. In any event, “performance of daily activities is not
necessarily
[claimant’s]
a
clear
and
convincing
testimony.”
Provencio
reason
v.
to
discredit
Astrue,
No.
a
CV
11–141–TUC–BPV, 2012 WL 2344072, at *12 (D. Ariz. June 20, 2012)
(citing Webb v. Barnhart, 433 F.3d 683, 687-88 (9th Cir. 2005) (“The
mere fact that a plaintiff has carried on certain daily activities,
such as grocery shopping, driving a car, or limited walking for
-26-
exercise, does not in any way detract from her credibility as to
her
overall
disability.
One
does
not
need
to
be
‘utterly
incapacitated’ in order to be disabled.”) (quoting Vertigan v.
Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (brackets omitted)).
Furthermore, the ALJ failed to give credit for Plaintiff’s
good work record. SSA regulations provide that the ALJ “will
consider all of the evidence presented, including information about
[the claimant’s] prior work record.” 20 C.F.R. § 404.1529(c)(3);
see also SSR 96-7p, 1996 WL 374186, at *5 (S.S.A. July 2, 1996)
(instructing that credibility determinations should take account of
“prior work record”). The Second Circuit has observed that “a good
work history may be deemed probative of credibility.” Schaal v.
Apfel, 134 F.3d 496, 502 (2d Cir. 1998). Plaintiff, who was born in
1972, had enough earnings to provide full quarters of coverage
beginning in 1992, and ending when she could no longer work due to
her impairments. T.159. Indeed, in 2006, she told Dr. Whitbeck that
she desired to return to work notwithstanding her back pain.
C.
Step Five Error
Plaintiff argues that the testimony of the vocational expert
(“the VE”) cannot provide substantial evidence to support the ALJ’s
decision due the ALJ’s errors in formulating Plaintiff’s RFC.
For the opinion of a VE to constitute substantial evidence,
the hypothetical questions posed to the VE must include all of the
claimant’s limitations that are supported by medical evidence in
-27-
the record. See Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir.
1981) (a “vocational expert’s testimony is only useful if it
addresses whether the particular claimant, with his limitations and
capabilities, can realistically perform a particular job”); see
also Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002) (“A
hypothetical question posed to a vocational expert must reflect all
of a claimant’s impairments. . . .”) (internal citations and
quotation marks omitted). A vocational expert’s response to an
inadequate hypothetical cannot constitute “substantial evidence” to
support a conclusion of no disability. Morse v. Shalala, 16 F.3d.
865,
874
(8th
Cir.
1994)
(quoted
in
Melligan
v.
Chater,
No. 94–CV–944S, 1996 WL 1015417, at *8 (W.D.N.Y. Nov. 14, 1996));
see also Burns, 312 F.3d at 123 (“Where there exists in the record
medically undisputed evidence of specific impairments not included
in a hypothetical question . . . , the expert’s response is not
considered substantial evidence.”).
Consultative examiner Dr. Finnity opined that Plaintiff has
difficulty relating with others and dealing with stress. T.311. The
ALJ incorporated Plaintiff’s limitations in relating with others in
his RFC determination, but he did not address her limitations in
dealing with stress, or explain why he did not do so. SSR 85-15
states in pertinent part that because the “response to the demands
of work is highly individualized, the skill level of a position is
not necessarily related to the difficulty an individual will have
-28-
in meeting the demands of the job.” SSR 85-15, 1985 WL 56857, at *6
(S.S.A. 1985).
Here, because the hypothetical questions were based upon an
RFC that did not realistically and accurately describe Plaintiff’s
limitations, the VE’s testimony cannot provide substantial evidence
to support the finding of no disability. E.g., Futia v. Astrue,
No. 1:06-cv-0961(NAM), 2009 WL 425657, at *9 (N.D.N.Y. Feb. 19,
2009).
D.
Remedy
The fourth sentence of 42 U.S.C. § 405(g) provides a reviewing
court with the “power to enter, upon the pleadings and transcript
of the record, a judgment affirming, modifying, or reversing the
decision of the Commissioner, with or without remanding the cause
for a rehearing.” 42 U.S.C. § 405(g); see also Shalala v. Shaefer,
509 U.S. 292, 297 (1993). A court should order the payment of
benefits when a remand for further proceedings is unnecessary
because the record contains persuasive proof of disability. Carroll
v. Secretary of Health and Human Serv., 705 F.2d 638, 644 (2d Cir.
1981). Here, the ALJ’s failure to assign controlling weight to the
medical source statement of Plaintiff’s treating physician, his
discounting
of
Plaintiff’s
questions to the VE
testimony,
and
his
hypothetical
were erroneous for the reasons set out above.
The VE testified that if the limitations assigned by Dr. Richardson
and testified to by Plaintiff were credited, Plaintiff would be
-29-
unable to maintain competitive gainful employment. Because it is
clear from the record that were such evidence credited, the ALJ
would be required to find Plaintiff disabled, and because there are
no outstanding issues needing resolution before a determination of
disability can be made, the Court finds that it is appropriate to
remand the matter for immediate calculation and payment of benefits
from July 14, 2008, through January 25, 2011.
VIII.
Conclusion
For the foregoing reasons, Defendant’s motion for judgment on
the pleadings is denied, and Plaintiff’s motion for judgment on the
pleadings is granted. The Commissioner’s decision is reversed, and
the matter is remanded for calculation and payment of benefits.
SO ORDERED.
S/Michael A. Telesca
________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
June 2, 2014
Rochester, New York
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