Aldridge v. Colvin
-CLERK TO FOLLOW UP-DECISION AND ORDER granting 7 Plaintiff's Motion for Judgment on the Pleadings; denying 9 Defendant's Motion for Judgment on the Pleadings. The decision of the Commissioner of Social Security is reversed and the matter is remanded for further administrative proceedings consistent with this opinion. The Clerk of Court is directed to close this case.Signed by Hon. Michael A. Telesca on 11/04/2015. (AFB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CONNIE DORAINE ALDRIDGE,
DECISION AND ORDER
-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Connie Doraine Aldridge “Plaintiff”), represented by counsel
brings this action pursuant to Title II of the Social Security Act
Commissioner of Social Security (“the Commissioner”) denying her
application for Disability Insurance Benefits (“DIB”). This Court
has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c). The parties have moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For
the reasons discussed below, the Court grants
which requests reversal of the Commissioner’s decision and remand
for further administrative proceedings.
Plaintiff’s DIB Application and the ALJ’s Decision
On May 10, 2011, Plaintiff filed an application for DIB,
alleging disability beginning February 26, 2011, due to depression,
Plaintiff’s application was denied on March 21, 2012. A hearing was
conducted via videoconference by Administrative Law Judge Stanley
Chin (“the ALJ”) on October 16, 2012, at which Plaintiff and a
vocational expert (“the VE”) testified. T.1-29.
On November 30, 2012, the ALJ issued an unfavorable decision
finding that Plaintiff was not disabled. T.51-60. The ALJ applied
the well-established five-step sequential evaluation promulgated by
the Commissioner for adjudicating disability claims. See 20 C.F.R.
§ 1520(a) At the first step, the ALJ found that Plaintiff meets the
insured status requirements of the Act through December 31, 2015,
and that she has not engaged in substantial gainful activity since
February 26, 2011, the alleged onset date. T.53.
impairments of recurrent abdominal hernia, obesity, myofascial
lumbar strain, and major depressive disorder, which all were
diagnosed by acceptable medical sources and which cause more than
minimal effects of Plaintiff’s ability to perform basic workrelated activities. T.53.
At step three, the ALJ found that Plaintiff’s major depressive
disorder does not meet or medically equal Listing 12.04 (Affective
Disorders). T.54. The ALJ determined that Plaintiff has “mild”
Citations to “T.” refer to pages from the certified transcript of the
administrative record, submitted by the Commissioner in connection with her
answer to the complaint.
functioning, “moderate” restrictions in maintaining concentration,
persistence or pace, and had not experienced repeated episodes of
decompensation of extended duration. T.54-55. The ALJ did not
specifically discuss any other listed impairments.
The ALJ proceeded to find that Plaintiff has the residual
functional capacity (“RFC”) to “perform light work as defined in 20
CFR 404.1567(b) except [she] can only lift/carry up to 20 pounds
occasionally and [sic] frequently” and “could stand/walk for about
6 hours and sit for up to 6 hours in an 8-hour workday, with normal
breaks.” T.55. The ALJ noted that Plaintiff needs to be able to
alternate sitting and standing at will. Id. She never can climb
ladders, ropes, or scaffolds but occasionally can climb ramps or
stairs, frequently balance, and occasionally stoop, kneel, crouch,
and crawl. The ALJ limited her to simple, routine, and repetitive
tasks performed in a work environment without fast-paced production
requirements, and involving only simple work-related decisions and
routine workplace changes. T.55.
At step four, the ALJ noted that Plaintiff had past relevant
work as a hand packager (medium and unskilled), data entry clerk
unskilled), security guard (light and semi-skilled), and food sales
clerk (light and semi-skilled). See T.23-24. The VE testified at
the hearing that a person with the above-described RFC would be
Plaintiff is unable to perform her past relevant work. T.58. On the
onset date, Plaintiff was 49 years-old and a “younger individual”;
however, she changed age category to “closely approaching advanced
age” because her 50th birthday occurred during the pendency of the
education, work experience, and RFC, Plaintiff can perform jobs
that exist in significant numbers in the national economy. Because
Plaintiff’s RFC was less than the ability to perform the full range
of light unskilled work, the ALJ called a VE to determine to what
extent the occupational base was eroded by Plaintiff’s additional
limitations. Based on the VE’s testimony, the ALJ found that
occupations such as addresser (sedentary, unskilled, SVP 2); order
(sedentary, unskilled, SVP 2). T.59. The ALJ noted that even if he
reduced Plaintiff’s lifting and carrying restriction to 10 pounds,
which is at the less-than-light exertional range, the VE still
found a significant number of jobs that Plaintiff could perform.
Id. Accordingly, the ALJ entered a finding of “not disabled.”
The Appeals Council’s Decision
Plaintiff’s request for review. T.33-36. On September 4, 2014, the
AC adopted the ALJ’s statements regarding the law, the issues in
the case, the evidentiary facts, and the conclusion that Plaintiff
was not disabled, that is, the AC adopted the ALJ’s findings at
steps one, two, three, and four. However, the Appeals Council did
not agree with the ALJ’s step-five finding regarding the jobs that
Plaintiff was able to perform in the national economy. T.34. The AC
noted that the jobs listed by the ALJ in his decision were all
sedentary-level. Based upon its review of the hearing transcript,
the AC stated that the VE also had testified that Plaintiff also
hypothetical situation which considered a limitation to light
exertion, which is consistent with the residual functional capacity
in the hearing decision.” T.34. Therefore, the AC found, Plaintiff
is not disabled based on the VE’s testimony that she could perform
sorter, and photocopy machine operator. T.34.
Scope of Review
When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Act, the district court is
limited to determining whether the Commissioner’s findings were
Commissioner employed the proper legal standards. Green-Younger v.
Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). The district court
must accept the Commissioner’s findings of fact, provided that such
findings are supported by “substantial evidence” in the record.
See 42 U.S.C. § 405(g) (the Commissioner’s findings “as to any
fact, if supported by substantial evidence, shall be conclusive”).
The reviewing court nevertheless must scrutinize the whole record
and examine evidence that supports or detracts from both sides.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation
omitted). “The deferential standard of review for substantial
evidence does not apply to the Commissioner’s conclusions of law.”
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley
v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
Failure to Afford Controlling Weight to Treating
Physician’s Opinion (Plaintiff’s Points I and II)
Plaintiff argues that the ALJ erred in failing to afford
controlling weight to the opinions of treating physician and
surgeon Dr. Rabih Salloum, even though he provided the majority of
Plaintiff’s treatment and his opinion is consistent with his own
treatment notes, the opinion of consultative examiner Dr. Harbindor
Toor, and the other medical evidence in the record. Since the AC
adopted the ALJ’s RFC finding, Plaintiff argues, this error also
was accepted as part of the Commissioner’s final decision.
Dr. Salloum’s Opinions
Dr. Salloum performed a laparoscopic incisional hernia repair
on Plaintiff’s non-reducible ventral hernia on April 1, 2010.2 On
September 10, 2010, Plaintiff reported to Dr. Salloum that the
bulge in her abdomen had increased in size and was causing her
abdomen to swell. T.205. Dr. Salloum observed that Plaintiff had a
reducible bulge in her upper abdomen that was “suspicious for
recurrence” of a hernia. Dr. Salloum scheduled Plaintiff for an
abdominal CT scan and indicated that she would be able to work
within a ten pound weight restriction. T.205, The September 24,
2010, CT scan showed a residual or recurrent supraumbilical ventral
hernia. T.203. On December 10, 2010, Dr. Salloum indicated that it
would “be very useful for her to try to lose some weight[;] if she
is successful then she would reduce the recurrence rate markedly.”
T.204. Dr. Salloum recommended a re-operation and stated that
Plaintiff required a lifting restriction of nothing heavier than
ten pounds. Id. On February 8, 2011, and February 11, 2011, Dr.
unlimited number of hours with a weight restriction of ten pounds.
T.258, 216. About a year later, on June 22, 2012, Plaintiff
returned to Dr. Salloum, who reported that Plaintiff had an easily
reducible ventral hernia in the midline of her abdomen which was
Plaintiff sustained the ventral hernia in February 2010, after lifting a
wooden table weighing more than 50 pounds while working as a catering assistant
at a hotel. T.210. Plaintiff did not return to work after this incident.
separation surgery.3 On October 5, 2012, Dr. Salloum provided a
functional assessment, T.270-77, in which he opined, inter alia,
that Plaintiff could occasionally lift and carry 20 pounds or less.
The ALJ’s Weighing of Dr. Salloum’s Opinions
As noted above, Dr. Salloum issued weight restrictions of 10
pounds several times between June 2010, and February 2011, but in
October 2012, Dr. Salloum stated that Plaintiff occasionally could
lift and carry up to 20 pounds. The ALJ stated that he “accord[ed]
great weight to Dr. Salloum’s opinion on the claimant’s 10-pound
decision, the ALJ stated that he was according “only partial
weight” to Dr. Salloum’s October 2012 opinion, which the ALJ stated
was “generally consistent with a light exertion capacity with
additional postural and environmental limitations.” T.58. Though
the ALJ did not specifically state which portions of the October
2012 he was according “partial weight,” the ALJ’s subsequent
statements suggest that he rejected Dr. Salloum’s October 2012 less
restrictive lifting requirements in favor of the earlier, more
On September 10, 2012, reconstructive surgeon Bryson Richards, M.D.,
indicated that Plaintiff needed a repair of her abdominal wall with separation
of components, closure, and possible biologic mesh placement, and he recommended
that she lose 10 pounds to optimize her chances for a successful surgical
outcome. At the time of the hearing and administrative appeal, Plaintiff had not
undergone the component surgery.
restrictive weight limitation. Specifically, the ALJ stated,
[Dr. Salloum’s] opinion in this medical source statement
may reflect the claimant’s functioning as of the date of
his medical source statement, however it does not pertain
to the entire period under consideration. The medical
evidence and Dr. Salloum’s opinion prior to this medical
source statement shows [sic] that the claimant’s [sic]
was previously limited to working with 10 pounds.
T.58. Read in conjunction with the ALJ’s explicit statement that he
restriction. However, in issuing his RFC summary statement, see
T.55, the ALJ stated that Plaintiff “can only lift/carry up to 20
appears to be missing words and, in any event, it does not make
sense as written. The ambiguity is perpetuated in the ALJ’s step
five discussion, where he listed the representative jobs Plaintiff
all of them were at the sedentary exertion level,
which is consistent with Dr. Salloum’s opinion giving a 10-pound
weight restriction. The AC, on appeal, apparently assumed that the
ALJ had made a mistake in reciting the VE’s testimony. The AC noted
that the VE had testified that a person who could lift and carry up
to 20 pounds occasionally could work a number of jobs and gave
several examples. The AC found that Plaintiff was not disabled
because the ALJ found she had the ability to lift and carry up to
evidently ignored the ambiguities and in the ALJ’s decision that
the Court has discussed above.
Contrary to the Commissioner’s contention, the error by the
ALJ, which was compounded by the AC, was not harmless. MedicalVocational Rule 201.14 directs a finding of “disabled” for an
individual who is closely approaching advanced age (50 to 55 yearsold), has a high school-level or greater education that does not
provide for direct entry into skilled work, and has semi-skilled or
skilled past relevant work from which skills are not transferrable.
See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table No. 1. Plaintiff was
49 years-old on her alleged onset date, and turned 50 years-old on
October 19, 2011. Although she completed two years of college in
1979, she did not obtain a degree, and this academic work is too
remote to afford her direct entry into a skilled job. Plaintiff has
a history of several semi-skilled jobs, but there was no testimony
as to whether she had acquired any transferrable skills from these
jobs. Moreover, the ALJ’s restriction of Plaintiff to performing
unskilled work would render irrelevant any semi-skilled-level job
skills. Had Plaintiff clearly been limited to sedentary work (as
implied by the ALJ’s step five analysis and his assignment of
“great weight” to Dr. Salloum’s 10-pound lifting restriction),
Medical-Vocational Rule 201.14 would direct a finding of “disabled”
as of Plaintiff’s 50th birthday, October 19, 2011.
Remand is Required.
Remand accordingly is required on several grounds. First,
remand is necessary in order for the ALJ to clarify the ambiguities
in his decision, which have been set forth in the preceding
paragraphs of this opinion. As noted, Dr. Salloum, who clearly is
restrictions. In the body of his decision, the ALJ explicitly gave
“great weight” to Dr. Salloum’s 10-pound lifting restriction and
rejected Dr. Salloum’s October 2012 opinion that Plaintiff could
lift and carry up to 20 pounds occasionally; however, the RFC
summary statement is ambiguous and does not appear to reflect that.
The ALJ’s step five discussion also is ambiguous because it states
that Plaintiff can perform representative jobs at the sedentary
exertion level, but the RFC given is light work with some postural
and non-exertional limitations. The ALJ is directed to provide
clarification of his reasoning in assigning different weights to
Dr. Salloum’s various opinions. The ALJ also is directed to clarify
Plaintiff’s lifting and carrying restriction in the RFC. With
regard to Dr. Salloum’s October 2012 opinion afforded “partial
weight,” the ALJ is requested to clarify which portions of that
opinion he is accepting, which portions he is rejecting, and why.
In addition, the ALJ did not address any of the factors required by
the Commissioner’s regulations to be evaluated when assigning less
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (If the ALJ
following factors: length of the treatment relationship and the
frequency of examination, nature and extent of the treatment
relationship, supportability of the opinion, consistency of the
opinion with the other medical evidence, specialization of the
treating physician, and other factors that are brought to the
attention of the court.) (citing 20 C.F.R. § 404.1527(d)(1)-(6)).
Finally, the Commissioner’s regulations require that the ALJ
include in his RFC assessment a “function-by-function analysis of
11–CV–1114(MAD/VEB), 2013 WL 1183035, at *4 (N.D.N.Y. Mar. 1,
2013), R&R adopted, 2013 WL 1182998 (N.D.N.Y. Mar. 21, 2013). The
current RFC is lacking such a function-by-function assessment.
Therefore, on remand, the ALJ is directed to provide a function-byfunction assessment of Plaintiff’s “ability to sit, stand, walk,
lift, carry, push, pull, reach, handle, stoop, or crouch.” Id.
(citing 20 C.F.R. § 404.1513(c)(1); §§ 404.1569a(a), 416.969a(a);
Martone v. Apfel, 70 F. Supp.2d 145, 150 (N.D.N.Y. 1999)).
Insufficient Credibility Determination (Plaintiff’s Point
The Commissioner’s regulations provide a two-step process for
evaluating a claimant’s assertions of pain and other limitations.
Here, the ALJ completed the first step inasmuch as he determined
that Plaintiff suffers from a medically determinable impairment
that could reasonably be expected to produce the symptoms alleged.
See 20 C.F.R. § 404.1529(b).
At the second step, the ALJ 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,
and in particular must examine “[s]tatements [the claimant] or
others make about [her] impairment(s), [her] restrictions, [her]
daily activities, [her] efforts to work, or any other relevant
statements [she] make[s] to medical sources during the course of
examination or treatment, or to [the agency] during interviews, on
applications, in letters, and in testimony in [its] administrative
proceedings.” 20 C.F.R. § 404.1512(b)(3); see also 20 C.F.R. §
404.1529(a). The ALJ’s decision must contain “specific reasons for
the finding on credibility . . . and must be sufficiently specific
to make clear . . . the weight the adjudicator gave to the
individual’s statements and the reasons for that weight.” SSR
96–7P, 1996 WL 374186, *4 (S.S.A. 1996). However, the ALJ simply
persistence, and limiting effects of [her] symptoms are not fully
supported by the substantial evidence of record.” T.56. The ALJ
gave no further explanation regarding his credibility finding apart
from simply reciting Plaintiff’s testimony and summarizing the
record evidence. See T.55-57. Because the ALJ did not detail the
basis for his credibility assessment with respect to Plaintiff’s
alleged symptoms, “it is impossible for the Court to conduct a
meaningful review of her findings at Step Four to determine whether
they are supported by substantial evidence.” Alcantara v. Astrue,
667 F. Supp.2d 262, 278 (S.D.N.Y. 2009) (citing Williams v. Bowen,
859 F.2d 255, 260–61 (2d Cir. 1988); other citation omitted).
Accordingly, the case must be remanded for the ALJ to provide more
detailed reasons for her credibility determination, taking into
consideration the factors set forth in 20 C.F.R. § 404.1529(c)(3).
Id.; see also Lewis v. Apfel, 62 F. Supp.2d 648, 658 (N.D.N.Y.
Incomplete Hypothetical Presented to VE (Plaintiff’s
At step five, the burden is on the Commissioner to prove that
“there is other gainful work in the national economy which the
claimant could perform.” Balsamo v. Chater, 142 F.3d 75 (2d Cir.
1998). If the ALJ relies on an outside expert, there must be
“substantial record evidence to support the assumption upon which
the vocational expert based his opinion.” Dumas v. Schweiker, 712
Furthermore, the ALJ failed to take into account Plaintiff’s apparently
good work record. See 20 C.F.R. § 404.1529(c)(3) (ALJ “will consider . . .
information about [the claimant’s] prior work record”); SSR 96–7p, 1996 WL
374186, at *5 (credibility determinations should take account of claimant’s
“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). Here, it appears that Plaintiff had a good work history, since she
had sufficient quarters of coverage to remain insured through December 31, 2015.
F.2d 1545, 1554 (2d Cir. 1983). “A VE’s opinion in response to an
evidence to support a denial of disability.” Karabinas v. Colvin,
16 F. Supp.3d 206, 221 (W.D.N.Y. 2014) (citing DeLeon v. Sec’y of
Health and Human Servs., 734 F.2d 930, 936 (2d Cir. 1984)). Because
the Court has found ambiguities and inconsistencies in the ALJ’s
discussion of treating physician Dr. Salloum’s opinions and in the
RFC assessment, the ALJ’s hypotheticals to the VE necessarily were
affected. Accordingly, the ALJ will need to revisit step five in
light of the RFC findings made upon remand. Any VE testimony should
Plaintiff’s limitations and RFC.
For the reasons discussed above, the Commissioner’s motion for
Commissioner’s decision is reversed, and the matter is remanded for
further administrative proceedings consistent with the instructions
in this Decision and Order. In particular, the Commissioner is
directed to clarify the weights assigned to Dr. Salloum’s opinions,
giving consideration to the required regulatory factors; provide a
function-by-function assessment of Plaintiff’s ability to perform
the seven work-related physical activities; re-evaluate Plaintiff’s
RFC and clarify her lifting and carrying restrictions; re-evaluate
hypotheticals for the VE, if necessary. The Clerk of the Court is
directed to close this case.
S/ Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
November 4, 2015
Rochester, New York.
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