Alianell v. Colvin

Filing 17

-CLERK TO FOLLOW UP-DECISION AND ORDER granting 11 Plaintiff's Motion for Judgment on the Pleadings to the extent that this matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order; denying 16 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 2/5/16. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JERRI K. ALIANELL,
Plaintiff,
-vs-

No. 6:15-CV-06036 (MAT)
DECISION AND ORDER

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

I.

Introduction
Represented by counsel, Jerri K. Alianell (“plaintiff”) brings

this action pursuant to Titles II and XVI of the Social Security
Act (“the Act”), seeking review of the final decision of the
Commissioner of Social Security (“the Commissioner”) denying her
applications

for

disability

insurance

benefits

(“DIB”)

and

supplemental security income (“SSI”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g). 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. For the reasons discussed below, plaintiff’s motion is
granted

to

the

extent

that

this

matter

is

remanded

to

the

Commissioner for further administrative proceedings consistent with
this Decision and Order.
II.

Procedural History
The record reveals that in September 2011, plaintiff (d/o/b

September 9, 1985) applied for DIB and SSI, alleging disability as
of March 15, 2010. After her application was denied, plaintiff

requested a hearing, which was held before administrative law judge
David S. Pang (“the ALJ”) on February 12, 2013. The ALJ issued an
unfavorable decision on August 23, 2013. The Appeals Council denied
review of that decision and this timely action followed.
III. Summary of the Evidence
A.

Medical Evidence

The

medical

record

reveals

that

plaintiff

suffered

from

various diagnoses, including fibromyalgia, back pain, polycystic
ovary disease, obesity, insomnia, and depression. Plaintiff treated
with Dr. Clifford Hurley beginning in November 2010. Treatment
notes through December 2012 indicate that plaintiff saw Dr. Hurley
for primary care and medication management. These notes do not
contain detailed findings of physical examinations, although the
notes

reflect

that

Dr.

Hurley

diagnosed

plaintiff

with

fibromyalgia. His treatment notes also reflect that plaintiff’s
morbid obesity was considered serious, and in a June 2011 note,
Dr. Hurley opined that it was “half of her problem.” T. 452.
At plaintiff’s second appointment in December 2010, Dr. Hurley
noted that plaintiff complained of “generalized aches and pains all
over.”

T.

620.

He

later

stated

that

he

prescribed

her

Elavil/Amitriptyline which “[h]opefully [would] help with the aches
and pains and the fibromyalgia as well.” Id. Later that month,
Dr. Hurley recorded that he “[thought] that [plaintiff] was . . .
dealing with . . . fibromyalgia,” stating that she was “dealing

2

with a lot of the pain issues and she [was] still having some vague
issues with pain in terms of joint pain and things like that.”
T. 621. The record does not reveal any results of Dr. Hurley’s
physical examinations through that time period. August 2011 X-rays
of plaintiff’s thoracic and lumbosacral spine were negative for any
abnormalities. A left foot X-ray taken later that month was normal.
In

January

2012,

Dr.

Hurley

noted

that

plaintiff’s

psychological medications, which included Abilify and Cymbalta,
were causing “a lot of issues as far as sedation.” T. 447.
Throughout that year, Dr. Hurley’s chart notes indicate that
plaintiff treated with him primarily for medication management, but
again do not note findings of physical examinations, if any were
performed. In late December 2012, plaintiff appeared “basically
looking for more pain meds,” and reporting “having all kinds of
problems.” T. 652. She also reported attempting to lose weight in
order to qualify for gastric bypass surgery.
A sleep study performed in November 2011 indicated decreased
REM sleep and prolonged REM sleep latency, but did not demonstrate
obstructive sleep apnea. The results were consistent with “mild to
moderate

excessive

daytime

sleepiness.”

T.

351.

Dr.

Michael

Yurcheshen, in interpreting the sleep study, stated that he was
“suspicious that her multiple medications could be leading to
daytime sedation,” but noted that depression or fibromyalgia could
contribute to fatigue. T. 358. He also diagnosed chronic insomnia.

3

He instructed plaintiff to keep a regular bedtime and keep a sleep
log.
Treatment notes from Dr. Joanne Wu at Unity Spine Center
indicate that in September 2011, plaintiff’s spine was positive for
posterior tenderness; she exhibited moderate to severe paraspinal
muscle

spasms;

bilateral

sacroiliac

sulci

tenderness

with

paraspinal muscle spasms and gluteal spasms; negative straight leg
raise (“SLR”); bilateral trochanteric region tenderness; and intact
balance and gait. Plaintiff was taking more than ten various
medications. She was noted to weigh 286 pounds with a height of
five feet, two inches.
In November 2012, plaintiff reported to Dr. Wu that her
condition was “about the same” except that her sleep had improved
taking Trazodone. T. 338. On physical examination, she exhibited
posterior tenderness of the spine; bilateral sacroiliac tenderness;
some midline tenderness with paraspinal tenderpoints and “absent
trigger

points.”1

T.

340.

Otherwise,

her

examination

was

essentially normal. Dr. Wu assessed plaintiff as a patient with
“central pain complicated by obesity.” T. 340.
Plaintiff saw Dr. Wu in March 2012, reporting again that her
condition was “about the same.” T. 504. It was noted that she had
failed to appear for five physical therapy appointments, and

1

Fibromyalgia pain is often associated with tenderness in at least 11 of
the 18 “tender” or “trigger” points. See SSR 12-2p, Titles II & XVI: Evaluation
of Fibromyalgia (S.S.A. July 25, 2012).

4

reported that “major depression [was] a barrier.” Id. Her weight
had increased to 306 pounds, for a body mass index (“BMI”) of 54.2.
Physical examination findings, if any, were not recorded.
In April 2012, plaintiff treated with Dr. John Klibanoff, who
noted that plaintiff had limited range of motion in the knees and
reported pain. Physical examination showed mild crepitation in the
right greater than the left, and “some limited mobilization”
medically

bilateral.

In

May

2012,

Dr.

Klibanoff

noted

that

plaintiff reported “pain, joint stiffness, and weakness,” but did
not note any objective physical findings. T. 555. In June 2012,
Dr.

Klibanoff

discomfort,”

noted

“patellofemoral

crepitation

and

mild

as well as pain in the knees. T. 558. Plaintiff was

administered injections for knee pain. Later that month, plaintiff
reported improvement in her knee pain, and Dr. Klibanoff noted that
multiple X-rays of the foot and ankle showed no evidence of
fracture, sublaxation, or dislocation.
Medical records from Greece Obstetrics and Gynecology indicate
that

plaintiff

was

diagnosed

with

polycystic

ovary

syndrome

(“PCOS”). Imaging tests revealed a unilocular cyst on her left
ovary.

Plaintiff

reported

“left

lower

quadrant

discomfort”

associated with the condition, T. 258, and in July 2011 she had an
intrauterine device removed. T. 271. At her hearing, plaintiff
testified that her PCOS caused her pain “once every couple of
months.” T. 15.

5

Mental

health

treatment

notes

from

Unity

Mental

Health,

spanning February 2011 through October 2012, indicate a diagnosis
of

major

depressive

disorder.

On

mental

status

examination,

plaintiff was consistently assessed as unremarkable, with logical
and coherent thought process and good judgment and insight. The
only abnormal findings involved plaintiff’s mood, which was often
noted as anxious or depressed; and her thought processes, which
were

occasionally

noted

as

reflecting

feelings

of

guilt,

helplessness, or worthlessness. The latest treatment note, dated
October 2012, stated that plaintiff reported “doing better and
feel[ing] stable on her current [medications]”; it was further
noted that plaintiff “appear[ed] to be in the maintenance phase of
treatment and require[d] ongoing medication management to meet
identified goals.” T. 603. Treatment notes from psychiatrist Nusrat
Shafiq, spanning February 2011 through January 2012, recorded
similar MSE findings.
B.

Treating Source Opinions

In January 2012, Dr. Hurley completed a fibromyalgia residual
functional capacity (“RFC”) assessment. He opined that plaintiff
suffered from multiple tender points, nonrestorative sleep, chronic
fatigue, numbness and tingling, dysmenorrhea, anxiety, depression,
and chronic fatigue syndrome. According to Dr. Hurley, plaintiff’s
pain was located bilaterally in the lumbosacral spine, thoracic
spine, and knees/ankles/feet. Dr. Hurley opined that plaintiff was

6

capable of low stress jobs and could tolerate moderate stress. She
could sit for up to 30 minutes at one time; stand for 20 to
30 minutes at one time; and sit, stand, and/or walk for less than
2 hours in an in an eight-hour workday. She could occasionally lift
ten pounds or less; occasionally twist but rarely or never stoop,
crouch, or climb ladders or stairs; and had significant limitations
in reaching, handling, and fingering. She would have to be absent
from work for about two days per month.
In May and September 2012, Dr. Hurley completed physical
assessments for determination of employability. He opined that
plaintiff could stand or walk one to two hours per eight-hour
workday; sit for two to four hours per eight-hour workday; and lift
or carry for one to two hours per eight-hour workday.
In

January

questionnaire,

2013,
opining

Dr.
that

Hurley

completed

plaintiff

could

a

physical

sit

for

RFC

about

30 minutes at a time; stand for about 30 minutes at a time; and
sit, stand, and/or walk for less than two hours in an in an eighthour workday. He opined that plaintiff could frequently lift ten
pounds or less; frequently look down, turn head right or left, look
up, and hold her head in a static position; frequently twist;
occasionally stoop; rarely climb stairs; and never crouch, squat,
or climb ladders. According to Dr. Hurley, plaintiff’s impairments
would cause her to miss about four days per month of work.

7

Also in January 2013, Dr. Klibanoff completed a physical RFC
questionnaire. He opined that plaintiff could walk less than one
city block; sit for 30 minutes at a time; stand for 30 minutes at
a time; sit for four hours per eight-hour workday; stand and/or
walk for less than two hours per eight-hour workday; never lift
ten pounds; and rarely lift less than 10 pounds.
C. Consulting Opinions
In December 2011, Dr. Kavitha Finnity completed a psychiatric
evaluation at the request of the state agency. Plaintiff reported
having past visits to the ER for treatment of anxiety, but no
hospitalizations. She reported being in treatment at Unity every
two weeks “for psychotherapy” and every for to six weeks with
Dr. Shafiq “for medication.” T. 372. On MSE, plaintiff appeared
depressed but findings were otherwise normal. Dr. Finnity opined
that plaintiff could “follow and understand simple directions,
perform simple tasks,” “maintain attention and concentration and a
regular schedule,” “learn new tasks and perform complex tasks,” and
“make appropriate decisions.” T. 374. According to Dr. Finnity,
plaintiff “was having difficulty relating with others and dealing
with stress.” T. 374.
Dr.

Karl

examination.

On

Eurenius
physical

performed

a

examination,

consulting
plaintiff

orthopedic
demonstrated

difficulty squatting due to back pain and limited range of motion
of the thoracic and lumbar spine with positive SLR. Her exam was

8

otherwise essentially normal, and it was noted that there were no
trigger points in her cervical spine. Dr. Eurenius opined that
plaintiff had “some” limitations in “prolonged sitting, prolonged
standing, bending, lifting, or carrying due to chronic low back
pain with neuropathic symptoms.” T. 378-79. A lumbosacral X-ray
performed in association with Dr. Eurenius’s exam was negative for
any abnormal findings.
IV. The ALJ’s Decision
The ALJ followed the well-established five-step sequential
evaluation

promulgated

by

the

Commissioner

for

adjudicating

disability claims. See 20 C.F.R. § 404.1520. Initially, the ALJ
found that plaintiff met the insured status requirements of the
Social Security Act through June 30, 2014. At step one, the ALJ
determined that plaintiff had not engaged in substantial gainful
activity since March 15, 2010, the alleged onset date. At step two,
the ALJ found that plaintiff suffered from the following severe
impairments:

fibromyalgia,

oseteoarthritis,
sleepiness,

polycystic

hypertension,

low

back

ovarian
diabetes,

pain,

disease,

bilateral

knee

insomnia/daytime

gastritis/reflux,

morbid

obesity, depression, and anxiety. At step three, the ALJ found that
plaintiff did not have an impairment or combination of impairments
that met or medically equaled a listed impairment. The ALJ found
that plaintiff had mild restrictions in activities of daily living

9

(“ADLs”), and moderate restrictions in social functioning and
concentration, persistence, or pace.
Before proceeding to step four, the ALJ determined that
plaintiff retained the RFC to perform light work as defined in
20 C.F.R. §§ 404.1567(b) and 416.967(b) except that plaintiff could
only occasionally climb ramps and stairs; never climb ladders,
ropes, and scaffolds; occasionally stoop, kneel, crouch, and craw;
would require a sit stand option, where plaintiff would have the
option to change position every half hour, however, “when changing
position, she would not have to move away from the workstation so
she would not be off task”; and plaintiff would be limited to
simple tasks with only occasional interaction with supervisors,
co-workers,

and

determination,

the

the

public.

ALJ

T.

considered

43.
the

In

coming

effects

of

to

his

RFC

plaintiff’s

obesity, concluding that the condition could cause “additional
hardship”

in

standing,

walking,

lifting,

carrying,

climbing,

stooping, crouching, kneeling, and crawling.
After finding that plaintiff could not perform any past
relevant work, the ALJ found that considering plaintiff’s age,
education, work experience, and RFC, there were jobs existing in
significant numbers in the national economy which plaintiff could
perform. Accordingly, he found that she was not disabled.

10

V.

Discussion
A

district

court

may

set

aside

the Commissioner’s

determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhard, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
A.

Treating Physician’s Opinions

Plaintiff contends that the ALJ erred in affording less than
controlling

weight

to

the

opinions

of

treating

physician

Dr. Hurley. More specifically, plaintiff argues that the ALJ should
have attempted to clarify Dr. Hurley’s opinions rather than simply
discredit Dr. Hurley’s assessment, particularly as to Dr. Hurley’s
opinion that plaintiff suffered from fibromyalgia. The Court agrees
that the ALJ did not properly evaluate Dr. Hurley’s treating source
opinions.
In giving little weight to Dr. Hurley’s opinion that plaintiff
suffered from fibromyalgia resulting in significant limitations,
the

ALJ

reasoned

that

this

assessment

was

inconsistent

with

substantial record evidence, including Dr. Hurley’s own treatment
findings

and

plaintiff’s

“reported

full

activities

of

daily

living.” T. 49. In support of his reasoning that Dr. Hurley’s

11

opinions were inconsistent with his own findings, however, the ALJ
cited findings from Dr. Wu, not Dr. Hurley. The ALJ concluded that
these findings “indicated normal hips, pelvis and lumbar spine.” As
described above, plaintiff saw Dr. Wu on three occasions which
appear in the record, and only two of these notes indicate physical
exam findings. Those findings revealed posterior tenderness in the
spine, moderate to severe paraspinal muscle spasms, bilateral
sacroiliac sulci tenderness with paraspinal muscle spasms, gluteal
spasms, bilateral
tenderness

with

trochanteric

paraspinal

region tenderness,

tenderpoints

but

no

and

midline

trigger

point

tenderness. With the possible exception of the notation of no
trigger point tenderness, these notes are not inconsistent with
Dr. Hurley’s opinions. Indeed, Dr. Wu diagnosed plaintiff primarily
with “central pain complicated by obesity,” a finding which was
consistent with Dr. Hurley’s opinions. T. 340.
Dr. Hurley’s own treatment notes, contrary to the ALJ’s
conclusion, also are not inconsistent with his opinions. His
treatment notes do not contain any objective findings whatsoever,
instead consisting of narrative summaries of his treatment of
plaintiff. The notes consistently stated that plaintiff reported
pain and recorded a diagnosis of fibromyalgia. On this record, it
is apparent that the ALJ erred in finding that Dr. Hurley’s
opinions were inconsistent with the substantial evidence of record.
See Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (noting that

12

treating physician’s opinion “will not be deemed controlling”
“[w]hen other substantial evidence in the record conflicts with”
that opinion) (emphasis added). Rather, the record simply did not
contain

sufficient

evidence

from

which

to

conclude

that

Dr. Hurley’s opinion was supported by “well-supported by medically
acceptable clinical and diagnostic techniques and not inconsistent
with other substantial evidence in the record.” Id.
The ALJ specifically stated that he “[found] very little
medical evidence or specific evaluation to support [a finding that
plaintiff’s fibromyalgia was] disabling.” T. 46. The ALJ reasoned
that during plaintiff’s visits to Dr. Wu, “there [were] no exam
findings

suggesting

multiple

tender

points,

muscle

weakness,

swelling, or numbness/tingling.” T. 46. The ALJ neglected to
consider, however, that no findings in the record, other than one
isolated treatment note from Dr. Wu noting “absent trigger points,”
actually found to the contrary. Moreover, Dr. Hurley’s treatment
notes and opinions indicate that he considered plaintiff to suffer
from disabling fibromyalgia, and in fact, he noted in his January
2012 opinion that plaintiff did suffer from criteria necessary to
satisfy a fibromyalgia, including trigger point tenderness. “The
ALJ cannot rely on the absence of evidence, and is thus under an
affirmative duty to fill any gaps in the record.” Rosado v.
Barnhart, 290 F. Supp. 2d 431, 440 (S.D.N.Y. 2003) (emphasis
added). Here, although the record does contain a great deal of

13

medical evidence, there was insufficient evidence for the ALJ to
reject Dr. Hurley’s opinion. See Schaal v. Apfel, 134 F.3d 496, 505
(2d Cir. 1998) (“[E]ven if the clinical findings were inadequate,
it was the ALJ's duty to seek additional information from [the
treating physician] sua sponte.”).
SSR

12-2P

specifically

discusses

the

assessment

of

fibromyalgia. The ruling outlines two sets of diagnostic criteria
for diagnosing fibromyalgia, based on standards from the 1990 ACR
Criteria for the Classification of Fibromyalgia or the 2010 ACR
Preliminary Diagnostic Criteria. The ruling states that when there
is insufficient evidence to conclude that a claimant suffers from
a medically determinable impairment of fibromyalgia or is disabled
as a result of such medically determinable impairment, the agency
has

several

options

insufficiency,
requesting

to

including

additional

take

in

an

recontacting
records,

and

attempt
the

to

resolve

treating

ordering

a

the

physician,
consulting

examination to assess the severity and functional effects of
medically determined fibromyalgia.
Here, although the ALJ found that fibromyalgia was a medically
determinable

impairment,

he rejected

the

treating

physician’s

conclusion that the condition was disabling. Considering this
record, which contained insufficient evidence to determine whether
Dr. Hurley’s opinion was supported by medically acceptable clinical
and

diagnostic

techniques,

the

14

ALJ’s

failure

to

follow

the

procedures

described

in

SSR

12-2P

was

error.

Remand

is

thus

required. See Wiley v. Comm'r of Soc. Sec., 2015 WL 9684924, *7
(N.D.N.Y. Dec. 7, 2015), report and recommendation adopted, 2016 WL
109993 (N.D.N.Y. Jan. 8, 2016) (remanding “for a proper evaluation
of Plaintiff's symptoms in light of her fibromyalgia in accordance
with SSR 12–2p”); see generally Schmelzle v. Colvin, 2013 WL
3327975 *14 (N.D.N.Y. July 2, 2013) (holding that remand to the
Commissioner for further development of the evidence is appropriate
“unless there is conclusive evidence of disability and no apparent
basis to conclude that a more complete record might support the
Commissioner's decision”).
Additionally, the ALJ failed to give “good reasons” for
rejecting Dr. Hurley’s opinions, because as discussed above the
opinions were actually not inconsistent with Dr. Hurley’s own
treatment notes or with other substantial evidence in the record.2
Under these circumstances, the ALJ erred in failing to seek further
clarification from Dr. Hurley as to whether sufficient medical
evidence

existed

supporting

his

2

opinion

that

plaintiff’s

The Court also notes that the ALJ’s citation to plaintiff’s “reported
full activities of living” was not a good reason, as plaintiff’s reports of her
daily activities, most of which she reported she could only do with frequent
breaks, hardly established an ability to work under full-time conditions. See,
e.g., Miller v. Colvin, No. 2015 WL 4892618, *5 (W.D.N.Y. Aug. 17, 2015) (finding
ALJ’s citation to plaintiff’s activities of daily living was not a good reason
where the ALJ “did not explain how the performance of these limited activities
of daily living translates into the ability to perform substantial gainful work
at all exertional levels in a typical competitive workplace environment.”).

15

fibromyalgia, in combination with her other medically determinable
impairments,

resulted

in

disabling

limitations.

See

Mnich

v.

Colvin, 2015 WL 7769236, *19 (N.D.N.Y. Sept. 8, 2015), report and
recommendation adopted, 2015 WL 7776924 (N.D.N.Y. Dec. 2, 2015)
(remanding “so that the ALJ may recontact [the treating physician]
or

assess

the

medical

evidence

with

the

understanding

that

fibromyalgia does not always result in objective findings or
diagnostic

tests”);

Algarin

v.

Barnhart,

2007

WL

528889,

*5

(W.D.N.Y. Jan. 25, 2007) (“[I]f the ALJ had doubts or questions
about the fibromyalgia diagnosis, he should have attempted, in the
first

instance,

to

develop

the

record

further

by

seeking

clarification from [treating sources].”).
On remand, the ALJ is directed to recontact Dr. Hurley for
clarification of his opinion. The ALJ should seek specific evidence
from Dr. Hurley as to whether, and how, the course of his own
treatment of plaintiff supported a finding that her fibromyalgia,
by itself or in combination with her other medically determinable
impairments, resulted in disabling limitations sufficient to meet
the criteria described in SSR 12-2P. See SSR 12-2P (“We will find
that a person has an MDI of FM if the physician diagnosed FM and
provides the evidence we describe in section II.A. or section II.
B., and the physician's diagnosis is not inconsistent with the
other evidence in the person's case record.”).

16

This clarification may consist of additional treatment notes,
or simply a specific explanation from Dr. Hurley, establishing
whether medically acceptable clinical and diagnostic techniques
supported his opinions. See id. (noting that the Administration
“cannot rely upon the physician's diagnosis alone,” but must have
evidence of treatment which documents that “the physician reviewed
the person's medical history and conducted a physical exam,” so it
can be determined whether the treatment was “consistent with the
diagnosis of [fibromyalgia], . . . whether the person's symptoms
have improved, worsened, or remained stable over time, and [to]
establish the physician's assessment over time of the person's
physical strength and functional abilities.”).
These instructions on remand should not be interpreted as
precluding

consideration

of

plaintiff’s

other

medically

determinable impairments, all of which, under the regulations, must
be considered in combination with plaintiff’s fibromyalgia. See,
e.g., Solsbee v. Astrue, 737 F. Supp. 2d 102, 115 (W.D.N.Y. 2010)
(“Plaintiff's

combination

of

fibromyalgia,

back

pain,

musculoskeletal impairments, Chron's disease, sleep apnea, and
obesity

caused

disabling

pain

and

limitations

which

impeded

Plaintiff's ability to work.”).3

3

As described in SSR 12-2p, both sets of diagnostic criteria include, as
an essential criterion, a requirement that other disorders which could cause the
symptoms of fibromyalgia were excluded. This requirement applies to diagnosis of
fibromyalgia as a medically determinable impairment, and not to assessment of
limitations stemming from fibromyalgia. As such, it is distinct from the
Commissioner’s evaluation of disability, which necessarily focuses on a

17

B.

RFC

Plaintiff contends that the ALJ’s RFC finding was unsupported
by

substantial

evidence.

Specifically,

plaintiff

argues

that

Dr. Eurenius’s opinion, which stated that plaintiff had “some”
limitations in “prolonged sitting, prolonged standing, bending,
lifting, or carrying due to chronic low back pain with neuropathic
symptoms,” was too vague to be relied upon in supporting an RFC to
perform light work. T. 378-79. The Court disagrees that, in this
particular case, the use of the phrase “some limitations” was
impermissibly vague. “Although an expert opinion may describe a
claimant's impairments in terms that are so vague as to render the
opinion useless, see Selian v. Astrue, 708 F.3d 409, 421 (2d Cir.
2013), the use of vague phrases by a consultative examiner does not
automatically render an opinion impermissibly vague.” Johnson v.
Colvin, 2015 WL 1300017, *12 (W.D.N.Y. Mar. 24, 2015) (citing
Rosenbauer

v.

Astrue,

2014

WL

4187210,

*16

(W.D.N.Y.

2014)

(collecting cases)). Here, like in Johnson, Dr. Eurenius’s opinion
was supported by a thorough report which described Dr. Eurenius’s
findings upon physical examination.
In any event, upon remand the ALJ must fully reevaluate
plaintiff’s RFC in light of the newly developed record as a whole.

plaintiff’s limitations resulting from all medically determinable impairments in
combination. See Lasitter v. Astrue, 2013 WL 364513, *9 (D. Vt. Jan. 30, 2013)
(“SSR 12–2p does not do away with the requirement that, once the ALJ finds that
the claimant had fibromyalgia, he must determine whether that fibromyalgia, alone
or in combination with other impairments, was disabling.”).

18

In
Dr.

addition

to

Hurley,

the

seeking
ALJ

may

the

evidence

also

seek,

described
as

he

above

deems

from

necessary,

additional records, a consultative exam, or any other opinion
evidence he may find helpful in formulating an RFC determination.
C.

Consideration to Stress-Related Limitations

Finally, plaintiff contends that the ALJ erred in failing to
fully account for her limitations regarding stress. As noted above,
consulting examiner Dr. Finnity stated that plaintiff “was having
difficulty relating with others and dealing with stress.” T. 374.
This statement did not specifically state that plaintiff had workrelated limitations stemming from stress. The record also includes
a statement from Dr. Hurley, in which he opined that plaintiff was
capable of low stress jobs and could tolerate moderate stress.
Ample

notes

of

mental

status

examinations

revealed

no

significant abnormal findings. According to mental health treatment
notes, plaintiff’s mental health condition had improved and she was
stable on medications as of as of October 2012, approximately ten
months after Dr. Finnity’s examination. Under these circumstances,
the ALJ’s RFC finding that plaintiff could perform work “with only
occasional

interaction

with

supervisors,

co-workers,

and

the

public” adequately accounted for any stress-related limitations.
See, e.g,

Steffens

v.

Colvin,

2015

WL

9217058,

*4

(W.D.N.Y.

Dec. 16, 2015) (citing Kotasek v. Comm'r of Soc. Sec., 2009 WL
1584658, *13 (June 3, 2009) (ALJ's RFC finding, which limited

19

contact

with

other

individuals,

was

supported

by

substantial

evidence where medical opinions indicated that plaintiff had stress
stemming from social phobias)).
VI.

Conclusion
For the foregoing reasons, the Commissioner’s motion for

judgment on the pleadings

(Doc. 16) is denied and plaintiff’s

motion (Doc. 11) is granted to the extent that this matter is
remanded to the Commissioner for further administrative proceedings
consistent with this Decision and Order. The Clerk of the Court is
directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

February 5, 2016
Rochester, New York.

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