Laware v. Colvin

Filing 16

DECISION AND ORDER Plaintiff's motion to vacate the ALJ's decision and remand the matter 10 is granted, and the Commissioner's cross-motion for judgment on the pleadings 14 is denied. The matter is remanded for further proceedings , including but not limited to the rendering of a new determination which assesses all of the medical opinions of record, describes the weight afforded to each, and makes an explicit and reasoned application of the treating physician rule. Signed by Hon. David G. Larimer on 11/14/2017. (KAH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
REBECCA ANN LAWARE,

Plaintiff,
DECISION AND ORDER
16-CV-6010L
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

Defendant.
________________________________________________

Plaintiff appeals from a denial of disability benefits by the Commissioner of Social Security
(“the Commissioner”). The action is one brought pursuant to 42 U.S.C. § 405(g) to review the
Commissioner’s final determination.
On September 8, 2011, plaintiff filed applications for a period of disability and disability
insurance benefits under Title II of the Social Security Act. Plaintiff alleged an inability to work
since April 8, 2008. (Dkt. #8-2 at 9).1 Her application was initially denied. Plaintiff requested a
hearing, which was held April 4, 2014 via videoconference before Administrative Law Judge
(“ALJ”) David J. Begley. The ALJ issued an unfavorable decision on August 7, 2014, concluding
that plaintiff was not disabled under the Social Security Act. That decision became the final

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References to pages of the Administrative Transcript (Dkt. #8 et seq.) utilize the internal Bates-stamped numbers
assigned by the parties.
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decision of the Commissioner when the Appeals Council denied review on November 2, 2015
(Dkt. #8-1 at 1-3). Plaintiff now appeals.
The plaintiff has moved pursuant to Fed. R. Civ. Proc. 12(c) for judgment vacating the
ALJ’s decision and remanding the matter for further proceedings, and the Commissioner has cross
moved for judgment dismissing the complaint. For the reasons set forth below, the plaintiff’s
motion (Dkt. #10) is granted, the Commissioner’s cross motion (Dkt. #14) is denied, and the matter
is remanded for further proceedings.
DISCUSSION
An ALJ proceeds though a five-step evaluation in determining whether a claimant is
disabled within the meaning of the Social Security Act. See Bowen v. City of New York, 476 U.S.
467, 470-71 (1986). At step one, the ALJ determines whether the claimant is engaged in
substantial gainful work activity. See 20 CFR §404.1520(b). If so, the claimant is not disabled.
If not, then the ALJ continues to step two, and determines whether the claimant has an impairment,
or combination of impairments, that is “severe,” e.g., that imposes significant restrictions on the
claimant’s ability to perform basic work activities. 20 CFR §404.1520(c). If not, the analysis
concludes with a finding of “not disabled.” If so, the ALJ proceeds to step three.
At step three, the ALJ examines whether the claimant’s impairment meets or equals the
criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4. If the impairment
meets or medically equals the criteria of a listing and meets the durational requirement (20 CFR
§404.1509), the claimant is disabled. If not, the ALJ’s analysis proceeds to step four, and the ALJ
determines the claimant’s residual functional capacity (“RFC”), which is the ability to perform
physical or mental work activities on a sustained basis, notwithstanding limitations for the
collective impairments. See 20 CFR §404.1520(e), (f).
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The ALJ then turns to whether the claimant’s RFC permits performance of the
requirements of the claimant’s past relevant work. If so, the claimant is not disabled. If not,
analysis proceeds to the fifth and final step, wherein the burden shifts to the Commissioner to show
that the claimant is not disabled, by presenting evidence demonstrating that the claimant “retains
a residual functional capacity to perform alternative substantial gainful work which exists in the
national economy” in light of his age, education, and work experience. See Rosa v. Callahan, 168
F.3d 72, 77 (2d Cir.1999). See 20 CFR §404.1560(c).
The Commissioner’s decision that plaintiff is not disabled must be affirmed if it is
supported by substantial evidence, and if the ALJ has applied the correct legal standards. See 42
U.S.C. § 405(g); Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.2002). Substantial evidence is
defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
“The Court carefully considers the whole record, examining evidence from both sides ‘because an
analysis of the substantiality of the evidence must also include that which detracts from its
weight.’” Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (quoting Quinones v. Chater, 117
F.3d 29, 33 (2d Cir.1997)). Still, “it is not the function of a reviewing court to decide de novo
whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999). “Where the
Commissioner’s decision rests on adequate findings supported by evidence having rational
probative force, [this Court] will not substitute [its] judgment for that of the Commissioner.” Veino
v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002).
The same level of deference is not owed to the Commissioner’s conclusions of law. See
Townley v. Heckler, 748 F.2d 109, 112 (2d Cir.1984). This Court must independently determine
if the Commissioner’s decision applied the correct legal standards in determining that the plaintiff
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was not disabled. “Failure to apply the correct legal standards is grounds for reversal.” Townley,
748 F.2d at 112. Therefore, this Court first examines the legal standards applied, and then, if the
standards were correctly applied, considers the substantiality of the evidence. Johnson v. Bowen,
817 F.2d 983, 985 (2d Cir.1987). See also Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir.1998).
Plaintiff’s treatment records reflect a history of complaints of back pain, neck pain, right
shoulder pain, right hand weakness, obesity and anxiety. The ALJ determined that the plaintiff
was capable of performing light work, with the following limitations: no more than occasional
pushing and pulling with the right upper extremity, no climbing of ladders, ropes or scaffolds, no
crawling, no more than occasional climbing of ramps or stairs, and no overhead reaching with the
right upper extremity. Plaintiff can frequently balance, stoop, kneel or crouch. She must avoid
concentrated exposure to extreme temperatures, humidity, vibrations, respiratory irritants and poor
ventilation, slippery and uneven surfaces, hazardous machinery and unprotected heights. She is
also limited to work involving simple, routine and repetitive tasks, with only simple, work-related
decisions and few, if any, workplace changes. She can only perform occupations with no more
than occasional interaction with coworkers, supervisors and the general public. (Dkt. #8-2 at 1314). When presented with this RFC, vocational expert Diane Haller testified that plaintiff could
perform the positions of mail sorter, garment sorter, and linen sorter/grader. (Dkt. #8-2 at 25).
Plaintiff contends, among other things, that the ALJ failed to properly weigh and evaluate
medical opinions from examining physician Dr. Richard DellaPorta, and failed – erroneously and
without any explanation – to incorporate portions of the opinion of treating osteopathic physician
Dr. Matthew Grier with plaintiff’s RFC, even while claiming to have given it “great” weight.
Dr. DellaPorta examined plaintiff and rendered opinions as to her capacity for work on
three separate occasions – in January 2005, December 2007 and May 2008. Although the ALJ
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made brief reference to Dr. DellaPorta’s May 22, 2008 opinion and implicitly declined to credit
portions of it (e.g., no repetitive motion of the neck, no lifting more than 15 pounds of above
shoulder level) by omitting them from his RFC findings, he did not specify the weight it was given,
or explain why parts of it were apparently rejected.
Dr. Grier, a supervising physician at the New York Physical Medicine Center Center who
treated plaintiff as well as supervised other medical providers who treated her, provided an opinion
as to her RFC. (Dkt. #8-9 at 1029-34). The ALJ stated that he gave Dr. Grier’s opinion “significant
weight,” but provided no explanation as to why his RFC did not incorporate that portion of Dr.
Grier’s opinion that stated that plaintiff would suffer from concentration deficits due to pain, would
likely miss at least 2 days of work per month, and would likely be off-task for up to 25% of the
workday on “bad days.”
A treating physician’s opinion is entitled to controlling weight if it is well-supported by
medical findings, and is not inconsistent with other substantial evidence. See Rosa v. Callahan,
168 F.3d 72, 78 (2d Cir. 1999). If an ALJ opts not to afford controlling weight to the opinion of
a treating physician, the ALJ must consider: (1) the examining relationship; (2) the extent of the
treatment relationship; (3) medical support for the opinion: (4) consistency; and (5) the physician’s
specialization, along with any other relevant factors. 29 C.F.R. §404.1527(d)(2). An ALJ’s failure
to apply these factors and provide reasons for the weight given to the treating physician’s report is
reversible error. See Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999).
Here, the ALJ failed to explain the weight (if any) afforded to the opinions of examining
physician Dr. DellaPorta, or to sufficiently explain his rationale for implicitly declining to credit
portions of treating physician Dr. Grier’s opinion (by conspicuously omitting them from his RFC
determination), even while purporting to give the opinion “great” weight. As such, the Court is
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unable to determine whether the ALJ duly considered all of the medical opinions of record, and/or
properly applied the treating physician rule.
While the Commissioner has labored to explain the various chains of reasoning which
might have underpinned the ALJ’s conclusions, it is well settled that post hoc rationalizations are
not an appropriate substitute for an ALJ’s duty to support his conclusions by reference to
substantial evidence.

See Martinez v. Colvin, 2016 U.S. Dist. LEXIS 149196 at *22-*23

(W.D.N.Y. 2016). Since the Court “may not assess objections as to ‘substantial evidence’ where
an ALJ decision is infected with legal error,” Wider v. Colvin, 2017 U.S. Dist. LEXIS 46766 at
*22 (E.D.N.Y. 2017), remand is required. See, e.g., Stern v. Colvin, 2017 U.S. Dist. LEXIS
120024 at *58 (S.D.N.Y. 2017); Cardillo v. Colvin, 2017 U.S. Dist. LEXIS 43860 at *38-*37
(N.D.N.Y. 2017).
CONCLUSION
For the foregoing reasons, plaintiff’s motion to vacate the ALJ’s decision and remand the
matter (Dkt. #10) is granted, and the Commissioner’s cross motion for judgment on the pleadings
(Dkt. #14) is denied. The matter is remanded for further proceedings, including but not limited to
the rendering of a new determination which assesses all of the medical opinions of record,
describes the weight afforded to each, and makes an explicit and reasoned application of the
treating physician rule.
IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
November 14, 2017.
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