Quinones v. Colvin
Filing
14
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 10 Motion for Judgment on the Pleadings; denying 11 Motion for Judgment on the Pleadings; and remanding the case to the Commissioner for further administrative proceedings consistent with this Decision and Order. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 12/8/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ABRAHAM QUINONES,
DECISION AND ORDER
No.6:13-cv-06603(MAT)
Plaintiff,
-vsCAROLYN W. COLVIN, Commissioner of
Social Security,
Defendant.
I.
Introduction
Represented by counsel, Abraham Quinones (“Plaintiff”) brought
this action pursuant to Title II of the Social Security Act (“the
Act”), seeking review of the final decision of the Commissioner of
Social Security (“the Commissioner”) denying his application for
Disability Insurance Benefits (“DIB”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g).
II.
Procedural History
On April 18, 2011, Plaintiff filed a claim for DIB, alleging
disability
since
March
8,
2010,
due
to
low
back
pain
and
neurological symptoms in his legs following an accident at work.
T.163.1
After
the
claim
was
denied,
Plaintiff
requested
an
administrative hearing. T.64; 73-84; 85-87. On May 15, 2012,
1
Citations to “T.” refer to pages in the certified copy of the
administrative transcript, filed by the Commissioner in connection
with her answer to the complaint.
Plaintiff and his attorney appeared before Administrative Law Judge
Michael W. Devlin (“the ALJ”) for a hearing in Rochester, New York.
See T.41-63. Peter Manzi, a vocational expert, also testified.
On August 3, 2012, the ALJ issued a decision finding that
Plaintiff was not disabled under the Act. T.30-36. Plaintiff
submitted additional medical records to the Appeals Council, which
denied Plaintiff’s request for review on September 13, 2012, making
the ALJ’s decision the final decision of the Commissioner. T.1-5;
24-26.
This timely action followed. Presently before the Court are
the parties’ cross-motions for judgment on the pleadings pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure.
III. Summary of the Relevant Medical Evidence
A.
Records Submitted to the ALJ
On May 10, 2010, Plaintiff reported to Lifetime Health Medical
Group with complaints of lower back pain. See T.235-37. Plaintiff
told attending physician Dr. Richard Dudrak that he had injured his
lower back while he was lifting a heavy item at work on May 8,
2010. Plaintiff previously had back pain, but at the time of the
incident, he had a sudden onset of pain radiating down his left
leg.
Plaintiff
Dr. Dudrak
had
assessed
positive
left
straight
lower
back
leg
raising
strain.
For
test,
and
purposes
of
Workers’ Compensation benefits, Dr. Dudrak stated that Plaintiff
-2-
could return to his job as a laborer on May 17, 2010, with no
restrictions.
On October 4, 2010, Plaintiff saw orthopedic surgeon Andrew
Wensel, M.D., complaining of continued back pain following his May
2010 injury. See T.290-91. His symptoms were aggravated by walking,
sitting, standing, using the bathroom, bending, and lying down.
Physical therapy, chiropractic care, and other treatments had not
been helpful. Plaintiff had a positive straight leg raise on the
left. Plaintiff’s MRI showed the following: degenerative discs at
L2-L3 and L4-L5; a herniated disc at L4-L5 completely effacing the
lateral aspect of the spinal central canal and the course of the
lateral roots; and degenerative spondylosis at multiple levels of
the lumbar spine. Dr. Wensel recommended a left L4-L5 discectomy
since Plaintiff’s symptoms had persisted despite conservative care.
Plaintiff underwent surgery with Dr. Wensel on December 8, 2010.
T.257.
Plaintiff saw Dr. Wensel in follow-up on December 20, 2010;
December 30, 2010; and January 27, 2011. See T.286-88. At that
time, Plaintiff was taking ibuprofen for pain. Dr. Wensel stated
that Plaintiff “may have the ability to return to work but overall
probably has a significant chance of having a reinjury of his back
given his lumbar disk problem currently.” T.286.
Due to his ongoing pain complaints, Plaintiff sought treatment
at the University of Rochester Medical Center’s Pain Management
-3-
Clinic from April 2011, through January 2012, where he saw pain
management
specialists
Drs.
Nagendra
Upadhyayula
and
Armando
Villareal, as well as Nurse Practitioner Michelle Duggan (“N.P.
Duggan”). See T.292-301, 329-38. On April 7, 2011, Plaintiff
complained
of
focal
tenderness
over
the
lumbar
spine
at
approximately L1 through L5 into the S1 region. His lumbar spine
exhibited a full ROM and straight leg raising tests were negative.
Plaintiff underwent facet injections on April 14, 2011 and May
9, 2011, for his right lumbar facet arthropathy. At his May 25,
2011 visit with Dr. Upadhyayula, Plaintiff reported that on most
days
following
the
injections
he
had
no
pain.
T.295.
Dr. Upadhyayula assessed post-laminectomy syndrome, and primary
axial pain with radicular features to the anterior aspect of his
thigh
June
very
28,
intermittently,
2011,
Plaintiff
worse
reported
with
ambulation.
continued
T.295.
improvement
On
with
aquatherapy, but complained of increased pain with traditional
physical therapy. T.338.
In July 2011, independent medical examiner (“IME”) Hossein
Hadian, M.D. examined Plaintiff at the request of his Worker’s
Compensation insurance carrier. See T.306-12. Plaintiff complained
of lower back pain radiating to his right leg. He had a near-normal
gain, full muscle strength and a full range of motion (“ROM”), and
normal reflexes and sensations throughout his arms. Plaintiff’s
hips and legs had full ROM with no tenderness; his cervical spine
-4-
had full ROM with no spasms, trigger points, or tenderness; and his
lumbar
spine
exhibit
a
limited
ROM
with
marked
spasms
and
tenderness. T.309-10. Straight leg raising tests were positive
bilaterally.
Dr.
Hadian
assessed
lumbar
spondylosis
without
myelopathy and secondary myofascial pain, and lumbar facetogenic
pain. Dr. Hadian opined that Plaintiff was temporarily 25% disabled
for Worker’s Compensation purposes, and that he could return to
work that did not require him to lift more than 15 pounds
or
engage in repetitive movements that would put stress on his lower
lumbar spine. T.311.
On June 29, 2011, Plaintiff was treated by N.P. Duggan at the
Pain Management Clinic. See T.293. He was progressing in his
aquatherapy, but still experienced pain with traditional physical
therapy. N.P. Duggan’s examination revealed pain on palpation over
the surgery scar, pain in the bilateral facet region, pain on the
left when bending to the right, and pain on the left upon lateral
rotation and extension to the right.
On
Dr.
September
Villareal
noted
26,
that
2011,
pain
Plaintiff
had
management
grossly
specialist
intact
motor
strength and a steady gait. See T.336-37. Although his radicular
symptoms had improved since the discectomy, Plaintiff continued to
have axial back pain with some radiation into his lower extremity,
to the knee. Having reviewed the previous MRI, Dr. Villareal noted
that it “clearly show[ed] a lumbar disc herniation on the left at
-5-
L4-L5 clearly compressing the L5 nerve root” with “evidence of some
posterior column disease” which was “mild to moderate.” T.336.
Plaintiff received a paravertebral facet injection on October 17,
2011. T.333.
On September 28, 2011, Physical therapist Donald McGravett
(“P.T. McGravett”) evaluated Plaintiff at the request of his
Worker’s
Compensation
insurance
carrier.
See
T.352-58.
P.T.
McGravett observed that Plaintiff’s gait was antalgic; and that he
could walk 1051 feet continuously, sit for 86 minutes at a time,
stand
for
53
minutes
at
a
time,
climb
2
flights
of
stairs
occasionally, lift 20 pounds occasionally, and lift 10 pounds
frequently. P.T. McGravett opined that Plaintiff could perform
“light” work. T.357.
On November 9, 2011, Plaintiff saw N.P. Duggan at the URMC
Pain Clinic, reporting that his worst pain level in the previous
24 hours had been 8 out of 10 and that the best level was 6 out of
10. At the time of his appointment, he had pain bilaterally in the
lumbar
region,
with
radiation
to
his
legs,
and
which
was
intensified by sitting, walking, and moving.
B.
Evidence Submitted to the Appeals Council After the ALJ’s
Decision
On January 3, 2012, Plaintiff saw N.P. Duggan for his lower
back pain, and was taking ibuprofen, Cymbalta, and omeprazole.
T.329. On March 20, 2012, Plaintiff was treated by Dr. Jose E.
Lopez at the URMC Pain Clinic. T.350.
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Physician’s assistant Doug Mincer (“P.A. Mincer”) treated
Plaintiff on August 24, 2012, for complaints of back pain. See
T.360, 367-69. P.A. Mincer diagnosed Plaintiff with lumbar disc
degeneration, lumbar radiculopathy, and lumbar strain. P.A. Mincer
opined that Plaintiff could perform work that included no lifting,
pushing, or pulling of more than 10 pounds; and no repetitive
bending or twisting of the back. T.360, 368, 372, 375. For purposes
of Worker’s Compensation, P.A. Mincer assessed a 75% temporary
disability,
and
indicated
that
Plaintiff’s
impairments
were
causally and proximally related to his work-related injury.
On September 12, 2012, Plaintiff underwent an MRI. See T.36465. At L2-L3, imaging revealed “stable”, “degenerative disc changes
with posterior disc bulging and small-to-moderate sized central
subligamentous
disc
extrusion.
.
.
.”
T.364.
There
were
“[r]elatively short pedicles” and “mild central canal stenosis, but
no significant neural foraminal stenosis.” Id. At L4-L5, there were
“changes of left hemi laminectomy” with “only a small amount of
posterior
disc
bulging”,
a
“tiny
amount
of
left
perineural
enhancing scar”, and “only mild left neural foraminal narrowing
associated” with this area. Id.
Plaintiff returned to see P.A. Mincer on September 18, 2012,
reporting pain in the midline lumbar region, radiating to both
legs; the intensity of the pain was 7 out of 10. Plaintiff was
-7-
directed to continue taking acetaminophen (500 mg) and ibuprofen
(200 mg). T.371-72.
On October 31, 2012, Plaintiff continued treatment with P.A.
Mincer, reporting no improvement in his symptoms. See T.374-75. He
declined narcotic pain medication. He had tenderness in the lumbar
spine at the level of the paraspinous muscles and pain with ROM
testing.
P.A.
Mincer
supported
Plaintiff’s
application
for
a
parking permit or license plate for those with severe disabilities,
based on Plaintiff’s permanent disability of chronic, degenerative
disc disease. T.363.
On
June
27,
2013,
Plaintiff
saw
P.A.
Mincer,
reporting
increased achiness, problems performing his activities of daily
living, and increased numbness down both legs. T.7-8. Plaintiff
rated his pain intensity at 8 out of 10. P.A. Mincer reiterated
that Plaintiff’s impairments were causally and proximally related
to Plaintiff’s work-related injury.
IV.
Eligibility for DIB
Plaintiff, who is under the age of 55 and has insured status,
is eligible for DIB if it is determined that he is unable “to
engage in
any
substantial
gainful
activity
by
reason
of
any
medically determinable physical or mental impairment . . . which
has lasted or can be expected to last for a continuous period of
not less than
twelve
months.”
42
U.S.C.
§
423(d)(1)(A).
The
impairment must be “of such severity that [the claimant] . . .
-8-
cannot, considering his age, education, and work experience, engage
in any . . . substantial gainful work which exists in the national
economy.” Id. § 423(d)(2)(A). To determine whether an individual is
entitled
to
disability
benefits,
the
Commissioner
employs
a
five-step sequential analysis. 20 C.F.R. § 404.1520; Berry v.
Schweiker,
675
F.2d
464,
467
(2d
Cir.
1982)
(per
curiam)
(describing steps).
V.
The ALJ’s Decision
The
ALJ
applied
the
five-step
sequential
evaluation
as
promulgated in the Commissioner’s regulations. At step one, the ALJ
found that Plaintiff meets the insured status requirements of the
Act through December 31, 2015, and has not engaged in substantial
gainful activity since the onset date of March 8, 2010. At step
two, the ALJ determined that Plaintiff has the following “severe
impairment”: “lumbar spondylosis; post laminectomy syndrome”. At
step three, the ALJ concluded that Plaintiff’s impairment does not
meet or medically equal a listed impairment.
At step four, the ALJ determined that Plaintiff has the
residual functional capacity (“RFC”) to perform less than the full
range of sedentary work in that he can occasionally lift and/or
carry 10 pounds, frequently lift and/or carry less than 10 pounds,
stand and/or walk at least 2 hours in an 8-hour workday, and
occasionally push and/or pull 10 pounds; he must be permitted to
use an assistive device to ambulate to and from a workstation; he
-9-
can occasionally climb ramps/and or stairs; he can occasionally
balance, stoop, kneel, crouch, and crawl; and he can never climb
ladders, ropes, and scaffolds. Plaintiff had past work was as a
janitor (DOT #382.664-010; semi-skilled; medium, but performed at
the very heavy level) and building repairer (DOT #899.381-010;
skilled; medium, but performed at the very heavy level). Given his
RFC, Plaintiff no longer can perform his past relevant work.
At step five, the ALJ relied on the VE’s testimony to conclude
that there exist jobs in the national economy that Plaintiff can
perform, such as addresser (DOT #209.587-010, unskilled, sedentary)
and
order
clerk
(DOT
#209.567-014,
unskilled,
sedentary).
Accordingly, the ALJ entered a finding of not disabled.
VI.
Standard of Review
Title 42 U.S.C., § 405(g) authorizes district courts “to
enter, upon the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the Commissioner
of Social Security, with or without remanding the cause for a
rehearing.”
42
U.S.C.
§ 405(g).
When
evaluating
a
denial
of
disability benefits, the reviewing court may reverse the decision
only if the Commissioner committed legal error or if her factual
findings are not supported by substantial evidence. Shaw v. Chater,
221 F.3d 126, 131 (2d Cir. 2000) (citing 42 U.S.C. § 405(g)). A
district court’s function thus is not to determine de novo whether
-10-
a claimant is disabled. Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.
1996) (citation omitted).
However, a district 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 (2d Cir. 1984) (“Failure to apply the correct legal
standards is grounds for reversal.”); accord Byam v. Barnhart, 336
F.3d 172, 179 (2d Cir. 2003). Therefore, the reviewing court first
evaluates 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”).
VII. Discussion
A.
Failure to Properly Analyze Listing 1.04(A)
Plaintiff contends that the ALJ erred at step three when he
concluded that Plaintiff’s impairments do not meet or equal the
severity requirements of Listing 1.04(A).
-11-
To satisfy Listing 1.04(A), Plaintiff must establish that he
suffers from a disorder of the spine, with
A. [e]vidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion
of the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower
back, positive straight-leg raising test (sitting and
supine);. . . .
20 C.F.R. Pt. 404, Subpt. P, App. 1 , § 1.04(A). Here, the ALJ
summarily concluded that “the record does not contain evidence of
the functional limitations or neurological deficits necessary to
meet section 1.04 of the listings.” T.32. As Plaintiff notes, the
ALJ did not analyze, let alone mention, any of the relevant medical
evidence regarding Plaintiff’s diagnoses of lumbar spondylosis and
post-laminectomy syndrome, or the symptoms and deficits caused by
these conditions. The ALJ’s “one-sentence, conclusory analysis [of
the pertinent listed impairment] without any recitation of the
facts or medical evidence[,]” Hamedallah ex rel. E.B. v. Astrue,
876
F.
Supp.2d
133,
144
(N.D.N.Y.
2012),
is
“plain
error.”
Id. (citing Morgan o/b/o Morgan v. Chater, 913 F. Supp. 184, 188–89
(N.D.N.Y. 1996) (holding that a one-sentence denial is insufficient
to support the determination, especially in light of the evidence
to the contrary); see also Kerr v. Astrue, No. 09–CV–01119 (GLS),
2010 WL 3907121, at *5 (N.D.N.Y. Sept. 7, 2010) (“[T]he ALJ’s sole
discussion of Listing 1.04A consisted of reciting its requirements
without
any
analysis
of
the
medical
-12-
evidence
or
Plaintiff’s
complaints.
The
ALJ
offered
no
further
explanation
of
what
requirements were not met, or what medical evidence supported his
finding.”).
Such an error is not harmless where, as here, there is
evidence in the record supporting a conclusion that Plaintiff meets
or medically equals Listing 1.04(A). See, e.g., Kerr v. Astrue,
2010 WL 3907121, at *5-6.
Under Listing 1.04(A), if the ALJ had
found nerve root compression he would have then had to consider
whether Plaintiff had (1) neuro-anatomic distribution of pain,
(2) limitation of motion of the spine, (3) motor loss accompanied
by reflex loss, and, because he has alleged lumbar involvement,
(4) positive straight-leg raising test involving the lower back.
See 20 C.F.R. Pt. 404, Subpt. P, App. 1. Listing 1.04(A)). The
medical
record
contains
evidence
suggesting
that
Plaintiff’s
impairment may meet these criteria. See, e.g., T.281 (May 2011
assessment of post-laminectomy syndrome with primary axial pain
with radicular features to the anterior aspect of Plaintiff’s
thigh); T.336 (September 2011 MRI revealed a left lumbar disc
herniation at L4-L5 clearly compressing the L5 nerve root), T.368
(August 2012 diagnosis of lumbar disc degeneration and lumbar
radiculopathy2); T.310-11 (June 2011 assessment of lumbar flexion
2
“The consequence of nerve root damage (from any cause) is
known as a radiculopathy. . . .”
http://www.neuroanatomy.wisc.edu/SClinic/Radiculo/Radiculopathy.h
tm.
-13-
limited to less than 80 degrees, positive straight leg raising
test, and pain upon bending and rotation to left and extension to
right); T.235 (May 2010 notation of weakness in legs); T.353
(September 2011 observation of slow and antalgic gait3).
Because the ALJ failed to provide an analysis of Plaintiff’s
back impairments sufficient to enable this Court to conclude that
the step three finding is supported by substantial evidence, remand
for further administrative proceedings is warranted. E.g., Kerr,
2010
WL
3907121,
at
*6
(citing
Martinbeault
v.
Astrue,
No. 1:07–CV–1297, 2009 WL 5030789, at *6 (N.D.N.Y. Dec. 14, 2009)).
B.
Erroneous RFC Assessment (Plaintiff’s Point III)
Plaintiff contends that the ALJ’s RFC assessment was not based
on substantial evidence because the record lacks an opinion from an
acceptable
medical
source
outlining
Plaintiff’s
function-by-
function limitations. Relatedly, Plaintiff asserts that the ALJ
failed
to
fulfill
his
duty
to
compile
a
complete
record
by
requesting a medical source statement or RFC assessment from one of
Plaintiff’s treating physicians.
In
a
2013
summary
order,
the
Second Circuit
rejected
a
claimant’s contention that an ALJ’s failure to request an RFC
3
Antalgic gait is defined as “a characteristic gait
resulting from pain on weight-bearing in which the stance phase
of gait is shortened on the affected side.”
http://www.medilexicon.com/medicaldictionary.php?t=35907.
-14-
assessment from a treating physician automatically always requires
a
remand.
See
Tankisi
v.
Commissioner
of
Social
Security,
No. 12–1398–CV, 521 F. App’x 29, 33-34, 2013 WL 1296489, at *3-4
(2d Cir. Apr. 2, 2013). Tankisi is distinguishable because, in that
case, there was an assessment of the claimant’s limitations from a
treating physician, and a “voluminous medical record assembled by
the claimant’s counsel that was adequate to permit an informed
finding by the ALJ[.]”
Here,
statements
as
noted
from
a
above,
treating
the
record
physician
lacked
or
an
medical
opinion
source
from
a
consultative examiner. The ALJ accordingly assigned “great” weight
to IME Dr. Hadian, who examined Plaintiff in connection with his
Worker’s Compensation claim. T.34.
Dr. Hadian’s opinion, rendered
in the context of a Worker’s Compensation case, is incomplete. For
example, although Dr. Hadian opined that Plaintiff could not lift
more than 15 pounds, he did not indicate the frequency of this
limitation (e.g., occasionally, frequently). Dr. Hadian stated,
ambiguously,
that
Plaintiff
“should
refrain
from
duties
that
involve repetitive movements that put stress on his lower back.”
T.311. “[R]epetitive movements that put stress on his lower back”
easily could include lifting, carrying, and stooping–all of which
are required activities for sedentary work. See Social Security
Ruling (“SSR”) 96–9p, TITLES II AND XVI: DETERMINING CAPABILITY TO DO OTHER
WORK–IMPLICATIONS OF A RESIDUAL FUNCTIONAL CAPACITY FOR LESS THAN A FULL RANGE
-15-
OF SEDENTARY WORK, 1996 WL 374185, at *6, *7, *8 (S.S.A. July 2,
1996). Furthermore, Dr. Hadian’s opinion does not include the
amount that Plaintiff can sit, stand, or walk at one time and in
total during an 8-hour workday.
Since the Court is ordering remand based on the incomplete
analysis of Plaintiff’s impairments vis-a-vis the requirements of
Listing 1.04(A), the ALJ will have an opportunity to augment the
record by seeking a medical source statement or RFC assessment from
one of Plaintiff’s treating physicians.
C.
Erroneous Credibility Analysis (Plaintiff’s Point IV)
Under the regulations, an ALJ first must decide whether the
claimant suffers from a medically determinable impairment that
could reasonably be expected to produce the symptoms he alleges,
and if so, the ALJ then must consider the extent to which the
claimant’s symptoms can reasonably be accepted as consistent with
the objective medical evidence and other evidence of record. See 20
C.F.R. § 404.1529(a), ©.
Because “an individual’s symptoms can
sometimes suggest a greater level of severity of impairment than
can be shown by the objective medical evidence alone,” S.S.R.
96–7p, 1996 WL 374186, at *3, an ALJ will consider the factors
listed in the Regulations. See, e.g., Meadors v. Astrue, 370 F.
App’x
§
179,
184
n.
1
(2d
404.1529(c)(3)(i)-(vii)).
Cir.
An
2010)
“ALJ’s
(citing
decision
to
20
C.F.R.
discount
a
claimant’s subjective complaints of pain” will be upheld only when
-16-
that decision is “supported by substantial evidence.” Aponte v.
Secretary Dept. of Health & Human Servs., 728 F.2d 588, 591
(2d Cir. 1984); see also Brandon v. Bowen, 666 F. Supp. 604, 608
(S.D.N.Y. 1987) (“If the ALJ decides to reject subjective testimony
concerning
pain
and
other
symptoms,
he
must
do
.
.
.
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.”) (citations
omitted).
Here, the ALJ identified the correct legal standard for
assessing credibility but failed to apply it, concluding summarily
that Plaintiff’s statements concerning the intensity, persistence
and limiting effects of his symptoms were “not credible to the
extent they are inconsistent with the above residual functional
capacity
assessment.”
It
is
erroneous
for
an
ALJ
to
find
a
claimant’s statements not fully credible because those statements
are inconsistent with the ALJ’s own RFC finding. E.g., e.g., Burton
v.
Colvin,
No.
6:12–CV–6347
(MAT),
2014
WL
2452952,
at
*10
(W.D.N.Y. June 2, 2014) (citing Smollins v. Astrue, No. 11–CV–424,
2011 WL 3857123, at *11 (E.D.N.Y. Sept. 1, 2011); Mantovani v.
Astrue, No. 09–CV–3957, 2011 WL 1304148, at *5 (E.D.N.Y. Mar. 31,
2011); see also Pepper v. Colvin, 712 F.3d 351, 367–68 (7th Cir.
2013) (criticizing such language as “meaningless boilerplate”).
Because the assessment of a claimant’s ability to work will often
-17-
depend on the credibility of his subjective complaints, it is
illogical
to decide
a
claimant’s
RFC prior
to
assessing his
credibility. Otero v. Colvin, 12–CV–4757, 2013 WL 1148769, at *7
(E.D.N.Y. Mar. 19, 2013); see also Molina v. Colvin, No. 13 Civ.
4989(AJP), 2014 WL 3445335, at *14 (S.D.N.Y. July 15, 2014). Using
that RFC to discredit the claimant’s subjective complaints then
merely compounds the error. Otero, 2013 WL 1148769, at *7.
In addition to turning the credibility analysis on its head,
the ALJ did not explain why Plaintiff’s subjective complaints are
not as disabling as he alleged.
The ALJ engaged in no comparison
of Plaintiff’s statements concerning his subjective complaints with
the objective medical evidence in the record. Where, as here, “the
ALJ fails sufficiently to explain a finding that the claimant’s
testimony was not entirely credible, remand is appropriate.” Valet
v. Astrue, No. 10–CV–3282(KAM), 2012 WL 194970, *22 (E.D.N.Y. Jan.
23, 2012) (citation omitted).
VIII.
Remedy
Both parties have moved for judgment on the pleadings pursuant
to
Rule
12©
of
the
Federal
Rules
of
Civil
Procedure.
Under
Rule 12(c), judgment on the pleadings may be granted where the
material facts are undisputed and where judgment on the merits is
possible merely by considering the contents of the pleadings.
Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir.
1988). Here, however, the ALJ has misapplied the relevant legal
-18-
standards, making further administrative proceedings before the
Commissioner necessary. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir.
1996) (quotation omitted). Although remand is not required “[w]here
application of the correct legal standard could lead to only one
conclusion,” Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998)
(citation omitted), here the ALJ must further develop the record by
requesting a medical source statement or RFC assessment from one of
Plaintiff’s treating physicians, re-analyze Plaintiff’s impairments
against the criteria of Listing 1.04(A), and possibly re-formulate
Plaintiff’s RFC. See, e.g., Azeez v. Astrue, No. 09–CV–3976(SLT),
2012 WL 959401, at *9 (E.D.N.Y. Mar. 21, 2012) (declining to
reverse for calculation of benefits because the ALJ first “must
properly weigh the treating physicians’ opinions before a clear
conclusion can emerge”); Kerr, 2010 WL 3907121, at *6 (declining to
remand solely for calculation of benefits in case where ALJ’s
analysis of Listing 1.04(A) was deficient because there was “some
objective
medical
evidence
that
Plaintiff
did
not
have
the
requisite motor, reflex, or sensory losses” to meet that listing).
IX.
Conclusion
For the foregoing reasons, Plaintiff’s motion for judgment on
the
pleadings
(Dkt
#10)
is
granted
to
the
extent
that
the
Commissioner’s decision is reversed, and the case is remanded to
the Commissioner for further administrative proceedings consistent
with this Decision and Order. Defendant’s motion for judgment on
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the pleadings (Dkt #11) is denied. The Clerk of the Court is
directed to close this case.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
December 8, 2014
Rochester, New York
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