Gillie v. Colvin
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 11 Commissioner's Motion for Judgment on the Pleadings; reversing Commissioners decision; and remanding the matter for further administrative proceedings consistent with this Decision and Order. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/2/16. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LARRY F. GILLIE,
DECISION AND ORDER
-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Represented by counsel, Larry F. Gillie (“Plaintiff”) brings
this action pursuant to Titles II and XVI of the Social Security
Act, challenging the final decision of the Commissioner of Social
Disability Insurance Benefits (“DIB”) and Supplemental Security
pursuant to 42 U.S.C. § 405(g).
On October 12, 2011, Plaintiff protectively filed applications
for DIB and SSI alleging disability since June 30, 2009, due to
osteoarthrosis, organic mental disorder (chronic brain syndrome),
meniscus, and back pain. After these applications were denied,
administrative law judge Brian Kane (“the ALJ”) on October 18,
2013, in Rochester, New York. Plaintiff appeared with his attorney
and testified, as did impartial vocational expert Peter Manzi (“the
VE”). T.33-69.1 On February 21, 2014, the ALJ issued a decision
finding Plaintiff not disabled. T.14-24. The Appeals Council denied
Plaintiff’s request for review on May 20, 2015, making the ALJ’s
decision the Commissioner’s final decision. T.1-3. This timely
Plaintiff filed a Memorandum of Law, seeking reversal of the
Judgment on the Pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure. Plaintiff did not file a Reply. For the
reasons discussed below, the Commissioner’s decision is reversed
and the matter is remanded for further administrative proceedings.
SUMMARY OF RELEVANT EVIDENCE
On May 11, 2010, an MRI of Plaintiff’s right knee showed a
tear of the posterior horn of the lateral meniscus, an intraarticular cyst, and small joint effusion. At an appointment with
reported difficulty ambulating due to pain. On examination, there
was small joint effusion, some ligamental laxity, pain with flexion
Numbers preceded by “T.” refer to pages from the administrative transcript,
filed electronically by Defendant.
November 22, 2010 revealed mild degenerative changes and possible
small sessile osteochondromas.
Plaintiff saw Dr. Hoilette throughout the relevant period.
From October 30, 2009, to December 13, 2011, the medications and
treatments prescribed by Dr. Hoilette were a knee brace for daily
use; albuterol inhaler for asthma; cyclobenzaprine, Percocet, and
Flexeril for knee pain; Chantix for smoking cessation; Trazodone as
omeprazole for gastro-esophogeal reflux disease (“GERD”).
On September 26, 2011, Dr. Hoilette started Plaintiff on
Cymbalta to address his severe depressive symptoms. Plaintiff was
helplessless and anxiety.
Plaintiff’s knee surgery had been scheduled for September 30,
2010, but it was postponed due to transportation issues. Finally,
on November 3, 2011, Dr. Robert Bronstein performed a right knee
arthroscopy with partial lateral menisectomy to repair Plaintiff’s
torn right lateral meniscus. At a follow-up appointment with
Dr. Bronstein on November 21, 2011, Plaintiff complained of knee
Plaintiff attended physical therapy at URMC OrthopaedicsSports Rehabilitation on eleven occasions between November 21,
2011, and January 23, 2012. See T.418-35. His compliance and
attendance were noted to be “fair.” T.418.
On December 13, 2011, Plaintiff reported to Dr. Hoilette that
he was attending physical therapy but continued to have knee pain.
On exam, Dr. Hoilette observed decreased range of motion in the
right knee secondary to pain.
On January 23, 2012, after a one-month absence, Plaintiff
returned to physical therapy and reported to Jillian Collins, DPT
(“DPT Collins”) that he had done “some dancing activities” since
his last visit. T.421. He reported maximum pain occurring when
dancing, and a sensation that the knee is “popping out.” He
reported minimal pain with walking distances. At the appointment,
examination, he had a “very mildly antalgic gait.” T.421. DPT
Collins noted that Plaintiff was making progress with physical
therapy, and had demonstrated overall improved strength, range of
motion and function. She recommended “strengthening of hip to allow
for proper form with dance movements and take stress off of knees.”
T.421. Overall, DPR Collins felt that Plaintiff was improving; he
had met his long-term goal regarding knee flexion and range of
motion, and was progressing toward his long-term goals regarding
strength, function, and pain control. T.422. He had a “good”
prognosis, would benefit from continued rehabilitation, and had no
therapy, and the clinic was unable to contact him. T.418.
On February 3, 2012, about 10 days after his last physical
therapy visit, Plaintiff saw Dr. Harbinder Toor, a consultative
described his knee pain as “constant, sharp, sometimes 10 out of
10.” On examination, he had an abnormal gait, limping toward the
right side. He had difficulty getting on and off the table and
getting out of the chair. He had right knee flexion and extension
According to Dr. Toor, Plaintiff’s prognosis is “guarded,” and he
has “moderate to severe limitations in standing walking, squatting
and heavy lifting,” and “moderate limitation [in] sitting a long
Also on February 3, 2012, Plaintiff underwent a consultative
psychological examination with Dr. Christine Ransom. T.375-78.
Plaintiff reported that he had been depressed for a while. His
weight loss, frequent crying spells, irritability, low energy, lack
of motivation, lack of interest in his usual activities, wandering
thoughts, and difficulty concentrating. He told Dr. Ransom that he
sleeps a lot and isolates himself by spending a lot of time closed
off in his room and not interacting with friends or family. On
examination, Dr. Ransom noted that Plaintiff’s motor behavior was
lethargic, his speech was slow and halting, his voice had a
moderately dysphoric quality, he displayed simplified expressive
and receptive language skills, his affect was moderately dysphoric,
and his mood was depressed. He had moderately impaired attention
and concentration, as well as moderately impaired immediate and
recent memory, all due to depression and limited intellectual
capacity. T.376-77. He also had difficulty with serial threes and
intellectual functioning appeared to be in the borderline range.
For her medical source statement, Dr. Ransom opined that Plaintiff
can follow and understand simple directions and instructions,
concentration for simple tasks, maintain a simple regular schedule
performing complex tasks, relating adequately with others, and
appropriately dealing with stress due to major depressive disorder
Plaintiff saw his primary care physician, Dr. Hoilette, once
a month during the period from August 2, 2012, from December 3,
2012. Plaintiff informed Dr. Hoilette that he was having continued
pain and some intermittent swelling; he walked with a little bit of
a limp. On September 10, 2012, Plaintiff told Dr. Hoilette that he
has to have another knee surgery to remove an osteochondroma, and
said that “[o]rtho wants to keep him on the percocet at 120 pills
per month.” T.415. In November 2012, Plaintiff newly complained of
worsening headaches that felt like a squeezing sensation on the
Dr. Hoilette that he was still awaiting insurance approval for a
second knee surgery.2
From February 14, 2013, through September 25, 2013, Plaintiff
sought treatment for his depressive symptoms at Unity Mental Health
Nanavati, M.D. Steven Kassirer, MHC Intern, and later Michael
generalized anxiety disorder, PTSD following the death of his
grandmother, with whom he was extremely close, and social phobia.
These conditions were characterized by symptoms of excessive worry,
racing thoughts, sleep disturbance, and social isolation.
THE ALJ’S DECISION
promulgated by the Commissioner for determining disability claims.
At step one, the ALJ found that Plaintiff met the insured status
The Court cannot find any treatment notes in the record around the
timeframe of these comments by Plaintiff to Dr. Hoilette in which a physician had
recommended that Plaintiff undergo another surgery. The notes in the record from
Plaintiff’s orthopedic surgeon, Dr. Bronstein, only cover the period from
November 22, 2010, to November 21, 2011. See T.315-24. There are no other
treatment records from an orthopedist or surgeon in the administrative
transcript. The Court notes that Plaintiff’s attorney has not argued that the
record is incomplete.
requirements of the Act through March 31, 2010, and had not engaged
in substantial gainful activity since June 30, 2009, the alleged
following “severe” impairments: tear of the lateral meniscus of the
disorder; PTSD; and anxiety. The ALJ found Plaintiff’s asthma to be
non-severe because it is well controlled by medication and does not
impose more than a minimal impact upon his ability to perform
At step three, the ALJ determined that Plaintiff does not meet
or medically equal a listed impairment. The ALJ gave particular
consideration to Listings 1.02 (dysfunction of a major joint),
12.04 (affective disorders), and 12.06 (anxiety related disorders).
The ALJ found that in activities of daily living, Plaintiff has no
difficulties; and in maintaining concentration, persistence or
pace, Plaintiff has moderate difficulties. He has experienced no
episodes of decompensation, of extended duration.
The ALJ proceeded to determine Plaintiff’s residual functional
capacity (“RFC”), and concluded that notwithstanding his “severe”
impairments, he retains the ability to perform sedentary work as
defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a) “except [he] .
can lift and/or carry up to twenty-five pounds; can sit
without limitations; is limited to standing and/or walking no more
than two hours in an eight-hour day; . . . must have a break from
work every two hours; and . . . is limited to work that is “rather
simple,” that is, with a ‘specific vocational preparation’ (“SVP”)
level of 3 or below.”
At step four, the ALJ found that Plaintiff, aged 25 years on
the onset date, was a “younger individual age 18-44,” with a
limited education (eleventh grade). Transferability of job skills
was not an issue because Plaintiff had no relevant work. Indeed,
the ALJ noted, Plaintiff “has a very loose connection with the
workforce[,]” not having worked since 2007, about two years before
his alleged onset date in 2009.
At step five, the ALJ relied on the VE’s hearing testimony to
find that, considering Plaintiff’s age, education, work experience,
and RFC, there are jobs in the national economy he can perform,
including such representative positions as products assembler II
(DOT #739.687-030, light, unskilled work, SVP 2); order clerk, food
and beverage (DOT #209.567-014, sedentary, unskilled work, SVP 2);
and addresser (DOT #209.587-010, sedentary, unskilled, work, SVP
2). Accordingly, the ALJ entered a finding of not disabled.
SCOPE OF REVIEW
When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Act, a 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 apply
the correct legal standards is grounds for reversal.” Townley, 748
F.2d at 112.
Plaintiff argues that the RFC assessment is not supported by
substantial evidence because the ALJ failed to properly weigh the
medical opinion evidence and improperly discredited his subjective
record[,]” which means that the RFC determination is based on “bare
medical evidence.” Pl’s Mem. at 13. Plaintiff argues that because
the ALJ did not assign full weight to any particular medical
foundation for determining the RFC.” Id.
The cases Plaintiff cites in support of his argument, such as
Gross v. Astrue, No. 12-CV-6207P, 2014 WL 1806779, at *18 (W.D.N.Y.
situations where there was no opinion evidence; rather, the record
contained bare medical findings without interpretive guidance from
a physician. See id. (“Although there are many treatment notes in
the record, including those from both primary care physicians and
specialists, the records generally contain bare medical findings
and do not address or shed light on how Gross’s impairments affect
his physical ability to perform work-related functions. Indeed, the
only opinion as to Gross’s physical limitations was provided by .
. . a non-treating, non-examining agency employee who does not
qualify as an acceptable medical source.”). Here, in contrast,
there were multiple properly submitted medical opinions that the
determination is unsupported by substantial evidence because it
does “not perfectly correspond with any of the opinions of medical
sources cited in his decision,” Matta v. Astrue, 508 F. App’x 53,
56 (2d Cir. 2013) (unpublished opinion), the Second Circuit does
not impose such a requirement. See id.
(finding that although
ALJ’s opinion did not perfectly correspond with the opinions in the
record, ALJ “was entitled to weigh all of the evidence available to
make an RFC finding that was consistent with the record as a
whole”) (citing Richardson v. Perales, 402 U.S. 389, 399 (1971)
(“We therefore are presented with the not uncommon situation of
conflicting medical evidence. The trier of fact has the duty to
resolve that conflict.”).
The physical aspect of the RFC assessment took account of the
opinions in the record issued by Plaintiff’s primary care physician
and consultative physician Dr. George Alexis Sirotenko, as well as
Plaintiff’s reported activities. For instance, the ALJ’s finding
consistent with consultative physician Dr. Sirotenko’s report,
which included no limitations on sitting, the major functional
§§ 404.1567(a), 416.927(a) (noting that “a sedentary job is defined
as one which involves sitting”). The ALJ’s finding likewise is not
inconsistent with primary care physician Dr. Hoilette’s various
request of the Monroe County Department of Social Services. In none
of these opinions did Dr. Hoilette find Plaintiff to be more than
“moderately limited” in sitting, defined on the form as being able
to sit for 2 to 4 hours in an 8-hour work day. In fact, on December
21, 2010, and January 14, 2013, Dr. Hoilette found “no evidence of
limitations” in sitting, defined on the form as being able to sit
for more than 4 hours in an 8-hour work day. Significantly, the
most restrictive report issued by Dr. Hoilette was on March 13,
2012, which was only 4 months post-surgery. The two subsequent
reports showed improvement in Plaintiff’s functional capabilities:
The January 14, 2013 report contained no limitations for sitting
and estimated that Plaintiff could walk for 2 to 4 hours and stand
for 2 to 4 hours in an 8-hour work day. T.675. While Dr. Hoilette’s
July 9, 2013 report limited Plaintiff to sitting for 2 to 4 hours
in an 8-hour work day, it actually supports an RFC of a greater
exertional level, since Dr. Hoilette also found that Plaintiff
could both walk and stand for 2 to 4 hours each in an 8-hour work
day. T.671. To the extent that Dr. Hoilette appeared to accept
Plaintiff’s subjective statements about his limitations and need
for an additional surgery without corroborating notes from his
orthopedist or supporting objective findings, the ALJ was within
his discretion to discount that aspect of the opinion. See Ratliff
v. Barnhart, 92 F. App’x 838, 840 (2d Cir. 2004) (unpublished opn.)
(“Given that this [treating source] opinion was based solely on
first-hand observations, and in any event provides no evidence as
to Ratliff’s condition in 1991, the ALJ was correct in not giving
[the] opinion controlling weight.”).
Plaintiff argues that the RFC is at odds with the relatively
restrictive report from consultative physician Harbinder Toor,
M.D., issued February 3, 2012. According to Dr. Toor, Plaintiff was
having “constant, sharp” pain, “sometimes 10 out of 10 on the pain
scale.” Plaintiff had trouble getting on and off the examination
table and out of the chair, and walked with an abnormal gait,
limping to the right side. Dr. Toor opined that he had a “guarded”
prognosis, with “moderate to severe limitations standing, walking,
squatting or heavy lifting” and “moderate limitation sitting a long
time.” These observations are inconsistent with notes from treating
January 23, 2012 notes from Plaintiff’s then-physical therapist,
DPT Collins, who had seen him over the course of two months for 11
appointments. At the January 23, 2012 visit, about 10 days before
the consultative examination with Dr. Toor, Plaintiff told DPT
Collins that he had engaged in “some dancing activities” since his
last visit in December 2011. T.421. Plaintiff rated his maximum
pain at a 6-7 out of 10 on the pain scale, and that level of pain
occurred when he was dancing. He said that he could walk distances
with minimal pain. At the appointment, he reported that his pain
was a zero out of 10. T.425. On examination, he had a “very mildly
antalgic gait.” T.421. DPT Collins recommended “strengthening of
[the] hip to allow for proper form with dance movements and take
stress off of knees.” T.421. According to DPT Collins, Plaintiff
rehabilitation, and had no contraindications/precautions. T.421,
425. The Court recognizes that DPT Collins is not an “acceptable
medical source” as defined in the Commissioner’s regulations;
however, she had the benefit of seeing Plaintiff on a fairly
regular basis over the course of several months. See Hernandez v.
Astrue, 814 F. Supp. 2d 168, 183 (E.D.N.Y. 2011) (“[I]t is possible
particularly lengthy treating relationship with the claimant to be
entitled to greater weight than an ‘acceptable medical source’ such
as a treating physician who has rarely had contact with the
claimant.”) (citing Saxon v. Astrue, 781 F. Supp.2d 92, 103–04
(N.D.N.Y. 2011); Anderson v. Astrue, No. 07–CV–4969, 2009 WL
2824584, at *9 (E.D.N.Y. Aug. 28, 2009)).
Since Plaintiff has not established that the physical aspect
evidence, the Court turns next to the mental portion of the RFC.
Plaintiff argues that notwithstanding the ALJ’s restriction of
Plaintiff to “rather simple” work with an SVP (Specific Vocational
Preparation) of “3”, the RFC failed to account for the limitations
assessed by consultative psychologist Dr. Ransom. The Court agrees
that the ALJ does not adequately take into account Dr. Ransom’s
maintain concentration, persistence, and pace, which was supported
by her clinical findings. Also, the ALJ failed to account for the
limitations caused by Plaintiff’s generalized anxiety and social
SVP is defined as the “‘amount of lapsed time required by a
typical worker to learn the techniques, acquire the information,
and develop the facility needed for average performance in a
specific job-worker situation.’” Puente v. Comm’r of Soc. Sec., 130
F. Supp.3d 881, 886 n. 2 (S.D.N.Y. 2015) (quoting O*NET OnLine
“levels” merely correspond to time periods; Level 3 is a time
Id. “‘Using the skill level definitions in 20 [C.F.R. §§] 404.1568
semi-skilled work corresponds to an SVP of 3–4; and skilled work
corresponds to an SVP of 5–9 in the DOT.’” King v. Comm’r of Soc.
Sec., No. 1:12-CV-1686 GLS, 2013 WL 5567112, at *2 (N.D.N.Y.
Oct. 9, 2013) (quoting Social Security Ruling (“SSR”) SSR 00-4p,
65 Fed. Reg. at 75760, 2000 WL 1765299 (S.S.A. Dec. 4, 2000);
brackets in original).
corresponds to semi-skilled work, is consistent with Dr. Ransom’s
opinion regarding Plaintiff’s probable borderline intellectual
functioning. The ALJ’s mental RFC assessment, used at steps 4 and
5 of the sequential evaluation process, omitted the “more detailed
“The DOT has been replaced by an online database called the Occupational
Information Network or the O*NET.” Puente, 130 F. Supp.3d at 886 n. 2 (citing
Dictionary of Occupational Titles 4th Ed., Rev. 1991, U.S. Dep’t of Labor,
assessment [than that made at step 3]” which requires “itemizing
various functions contained in the broad categories found in
paragraphs B and C [of the adult mental disorders listings in 12.00
of the Listing of Impairments, and summarized on the PRTF].”
(quoting SSR 96–8p, 1996 WL 374184, at *4 (S.S.A. Jul. 2, 1996)).
When making findings about a claimant’s mental RFC, an ALJ may not
avoid conducting the “detailed assessment” referenced in SSR 96–8p
unskilled work.” Thompson v. Astrue, No. 10–CV–6576 CJS, 2012 WL
2175781, at *13 (W.D.N.Y. May 30, 2012) (citing Hudson v. Comm’r of
Soc. Sec., No. 5:10–CV–300, 2011 WL 5983342, at *9–10 (D. Vt.
Nov. 2, 2011); other citations omitted). However, the ALJ committed
this error here. See, e.g., Winschel v. Comm’r of Soc. Sec., 631
F.3d 1176, 1180–1181 (11th Cir. 2011) (holding that limiting
claimant to simple, routine tasks or to unskilled work would not,
standing alone, typically suffice to account for a claimant’s
moderate limitations in concentration, persistence, or pace).
Further, the ALJ improperly discredited Dr. Ransom’s opinion
that Plaintiff has moderate difficulty in relating to others and
managing stress. The treatment notes from Plaintiff’s visits with
his mental health therapists document Plaintiff’s anxiety and
perseveration about tragedies and violent events reported in the
apartment, as well as his development of trust problems with people
following his grandmother’s death (which led to an unsuccessful
suicide attempt), and resultant withdrawal from social contact with
friends and family. The ALJ discounted Plaintiff’s symptoms of
social phobia on the basis that Plaintiff was “happy” that his best
mischaracterization of the record; Plaintiff expressed hopefulness
that this would help ease his social isolation. T.458. The ALJ
further found Plaintiff’s allegations of social anxiety undermined
because he said he was going to have a barbeque with friends on the
anniversary of his grandmother’s death to celebrate her life, since
he could not afford to travel to Florida to be with his family on
that date. Again, this is mischaracterization of the record since
Plaintiff only planned to invite two people to the so-called
“party”—his neighbor and his best friend. This certainly does not
establish that Plaintiff is free from symptoms of social phobia or
generalized anxiety disorder.
For the foregoing reasons, the Court cannot find that the
ALJ’s mental RFC assessment is supported by substantial evidence.
Accordingly, remand is required.
Defendant’s Motion for Judgment on the Pleadings is denied,
the Commissioner’s decision is reversed, and the matter is remanded
Decision and Order. Specifically, on remand, the ALJ is directed
re-weigh Dr. Ransom’s consultative psychological report and reassess Plaintiff’s mental RFC in light of her opinion. The ALJ is
directed to obtain up-to-date mental health treatment records for
Plaintiff. Since the Court is remanding this matter, and because it
is unclear whether Plaintiff has or has not been recommended to
undergo a second knee surgery, the Court directs Plaintiff’s
attorney to assist the ALJ in obtaining the records necessary to
answer that question. Depending on what information is gleaned from
Plaintiff’s physicians, it may be necessary for the ALJ to reevaluate the exertional aspect of Plaintiff’s RFC.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
September 2, 2016
Rochester, New York.
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