Jones v. Colvin
DECISION AND ORDER granting 9 Motion for Judgment on the Pleadings; denying 13 Motion for Judgment on the Pleadings. Plaintiff's application for judgment on the pleadings [#9] is granted, and Defendant's cross-motion [#13] is denied. This matter is remanded to the Commissioner for further administrative proceedings, pursuant to 42 U.S.C. § 405(g), sentence four. The Clerk of the Court is directed to close this action.Signed by Hon. Charles J. Siragusa on 5/22/17. (KAP)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
For the Plaintiff:
Justin M. Goldstein
Kenneth R. Hiller
Law Offices of Kenneth Hiller
60000 North Bailey Avenue, Suite 1A
Amherst, New York 14226
For the Defendant:
Susan J. Reiss
Social Security Administration
Office of General Counsel
26 Federal Plaza, Room 3904
New York, New York 10278
Kathryn L. Smith, A.U.S.A.
Office of the United States Attorney
for the Western District of New York
100 State Street
Rochester, New York 14614
This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final
determination of the Commissioner of Social Security (“Commissioner” or “Defendant”),
which denied the application of Sabrina Jones (“Plaintiff”) for Disability Insurance
Benefits and Supplemental Security Income Benefits. Now before the Court is
Plaintiff’s motion (Docket No. [#9]) for judgment on the pleadings and Defendant’s
cross-motion [#13] for judgment on the pleadings. Plaintiff’s application is granted and
Defendant’s application is denied.
The reader is presumed to be familiar with the parties’ submissions, which
contain detailed recitations of the pertinent facts. The Court has reviewed the
administrative record [#7] and will offer only a brief summary of those facts.
On November 26, 2012, Plaintiff filed for benefits, claiming to have become
disabled from working on June 9, 2011. Plaintiff stated that her impairments were
physical in nature.1 In that regard, the record indicates that on June 9, 2011, Plaintiff
was working as a housekeeper2 at Strong Memorial Hospital, when she tripped over her
cleaning-supply cart and fell to the floor, resulting in pain in her left knee, left hip and
left thumb. See, e.g., (181, 223, 234). Plaintiff described the impairment as “a burning
and aching feeling in [her] hip and knee and [an “aching feeling” in her] thumb.” (234).
Plaintiff subsequently added depression to this list of impairments. In that
regard, Plaintiff stated that she feels depressed because she cannot continue working
in her chosen field as a cleaner, due to her physical pain. (46, 50-51). Although Plaintiff
has not worked as a cleaner since her accident, she subsequently became certified as
a daycare provider, and cares for three children in her home, whose ages are one,
When Plaintiff applied for benefits, she listed only physical ailments (“Left thumb, hip and knee
injuries.”), and stated that she had no appointments scheduled for any mental or emotional conditions.
Plaintiff has worked primarily as a housekeeper, often in hospitals, and as a patient care
seven and ten. (40).
Generally, the medical evidence shows that Plaintiff received conservative
medical care following her accident, and that her injuries have improved, but that she
still claims to experience disabling pain. Plaintiff’s hip and knee injuries were treated
with rest, pain treatments and physical therapy, while her thumb injury required surgery.
For her pain, Plaintiff uses ibuprofen, lidoderm patches and a transcutaneous electric
nerve stimulation (“TENS”) unit, as needed.
On December 16, 2011, Brian Giordano, M.D. (“Giordano”) reported that Plaintiff
continued to have tenderness upon palpation over her left hip joint, but that she had full
“pain free” movement of the hip. (177). On January 10, 2012, Plaintiff told Giordano
that her knee pain had improved overall, and Giordano noted that after exhausting “all
conservative measures” “her [knee] symptoms [were] manageable for her.” (175).
Plaintiff stated that the knee bothered her “occasionally with kneeling, sitting for
prolonged periods of time or strenuous activities.” (175). Giordano reported that
Plaintiff was “walking with a minimally antalgic gait, not using an assistive device.”
(175). On January 30, 2012, Giordano reported that Plaintiff was complaining of pain
in the left knee and hip, but that she was still capable of working light duty, with lifting
restrictions. (169). On October 17, 2012, Giordano indicated that Plaintiff was in no
acute distress, and had only “mild” limitations in her ability to move her left hip and left
knee joints. (156). On October 15, 2012, Giordano indicated that Plaintiff had reached
maximum medical improvement, with only mild residual limitations. (153). Giordano
noted that Plaintiff was using “conservative modalities” to treat her pain, and that he
had advised her to follow up with him as needed. (153).
Plaintiff’s thumb injury consisted of a ligament injury that was initially treated nonoperatively. (165). Plaintiff subsequently developed “trigger thumb,” and on December
22, 2011, she had surgery. On July 12, 2012, John Elfar, M.D. (“Elfar”) reported that
Plaintiff had reached maximum medical improvement following surgery on her thumb
six months earlier. (160). Elfar stated that the surgery had “largely resolved” Plaintiff’s
trigger thumb condition. (160). Plaintiff reported that her pain was “a lot less” than
before the surgery, and that she was “doing well overall.” (160). Elfar stated that,
“[o]verall, she has excellent use of her thumb.” (160). A nurse practitioner noted that
Plaintiff “ha[d] good range of motion in her thumb,” and no pain. (164). The same nurse
practitioner indicated that any disability relating to Plaintiff’s thumb was “mild.” (165).
On April 3, 2012, Andre Lefebvre, M.D. (“Lefebvre”) issued a report that
summarized the various treatments that Plaintiff received following her accident, as well
as his own physical examination of Plaintiff. (180-192). At the conclusion of the report,
Lefebvre opined that while Plaintiff still had some physical limitations relating to the
accident, they were temporary, and that Plaintiff retained the ability to work. (191).
On February 25, 2014, a hearing was conducted before an Administrative Law
Judge (“ALJ”). Plaintiff appeared without a representative, and the ALJ explained to
her that she had the right to a representative. The ALJ stated that if Plaintiff chose to
proceed pro se, the ALJ herself would “obtain the necessary medical and other
evidence.” (30). Plaintiff elected to represent herself. (30).
Plaintiff testified that she took ibuprofen as needed for her hip and knee pain,
and also used lidoderm patches and a TENS unit. (48, 50). Plaintiff indicated that
those treatments were helpful, but did not completely alleviate her pain. (50). Plaintiff
stated that she stopped attending counseling sessions for depression in 2012, and that
she was not currently taking medication for depression. (46-51). Plaintiff stated,
though, that her doctor planned to place her back on depression medication at a later
As the ALJ was reviewing the evidence that had been submitted, she stated, “we
don’t have all current medical evidence,” and told Plaintiff that she would “request
updated medical records from Highland Family Medicine so that we can get additional
evidence[.]” (32-33, 38). In that regard, Plaintiff had indicated that she continued to
receive treatment from Highland Family Medicine, but the ALJ observed that the file
was missing treatment notes from December 2012 onward. (38-39). The ALJ told
Plaintiff that she would request additional records from Highland Family Medicine, and
would provide Plaintiff with a copy of whatever was received, and that Plaintiff would
have the opportunity to “to request a supplemental hearing.” (66).
Plaintiff indicated that, apart from Highland Family Medicine, she had not
received any other treatment since 2012:
Q. Other than Highland Family Medicine, have you receive[d] any other
treatment through 2013 or to the present?
Q. Okay. Have you gone to any emergency rooms or anything like that?
(38-39). Plaintiff noted that her workers’ compensation case had remained pending
until May 2013, when it was settled, but she did not indicate that she had been seen by
any workers’ compensation doctors during 2013 or 2014. (43).
Highland Family Medicine is a department of Highland Hospital, which is under
the umbrella of the University of Rochester Medical Center (“URMC”). Presently, the
URMC website indicates that medical records pertaining to treatment at Highland
Hospital must be requested from one address, while records pertaining to “clinic or
office visits” must be requested from a different address.3 Specifically, the address for
Highland Hospital is 1000 South Avenue, Box 55, Rochester, New York 14620, while
the current address for Highland Family Medicine is 777 South Clinton Avenue,
Rochester, NY 14620. However, some of the earlier records from Highland Family
Medicine in the record, from 2010-2012, bear the same address as Highland Hospital,
which is 1000 South Avenue, Box 55, Rochester NY 14620. (Exhibit 11F, 492-505).
The ALJ requested additional medical records from Highland Family Medicine, but sent
the request to the Highland Hospital address, which evidently was incorrect. The ALJ
subsequently received a response, indicating that were no treatment records for Plaintiff
during the period requested. However, the ALJ did not notify Plaintiff of that fact.
On September 24, 2014, the ALJ issued a written decision denying Plaintiff’s
claim for benefits. (10-21). Applying the familiar five-step sequential analysis used for
evaluating disability claims, the ALJ found at the first three steps, respectively, that
Plaintiff had not engaged in substantial gainful activity since June 9, 2011; that she had
severe impairments consisting of left knee dysfunction (meniscal sprain), left hip
dysfunction(mild valgus deformity) and partial tear of ligament in left thumb with surgical
repair; and that none of those impairments met or medically equaled a listed
impairment. (12-14). The ALJ also found that Plaintiff had non-severe impairments
including depression and anxiety. (13). Prior to reaching the fourth step of the
sequential analysis, the ALJ found that Plaintiff had the residual functional capacity
(“RFC”) to perform less than the full range of sedentary work. More specifically, the
ALJ found that Plaintiff could perform all aspects of sedentary work, except that she
needed to be able to change positions periodically. (15). The ALJ indicated that
Plaintiff’s alleged pain and depression would not interfere with her mental ability to
perform work. (15).
On January 26, 2016, Plaintiff commenced this action. On December 29, 2016,
Plaintiff filed the subject motion [#9] for judgment on the pleadings, and on April 12,
2017, Defendant filed the subject cross-motion [#13] for judgment on the pleadings. On
May 11, 2017, counsel for the parties appeared before the undersigned for oral
STANDARDS OF LAW
42 U.S.C. § 405(g) states, in relevant part, that “[t]he findings of the
Commissioner of Social security as to any fact, if supported by substantial evidence,
shall be conclusive.” The issue to be determined by this Court is whether the
Commissioner’s conclusions “are supported by substantial evidence in the record as a
whole or are based on an erroneous legal standard.” Schaal v. Apfel, 134 F.3d 496,
501 (2d Cir. 1998). 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.” Id.
Plaintiff contends that the ALJ erred in various respects, each of which the Court
will consider below.
Application of the Grids
Rule 201.14 of the Medical-Vocational Guidelines (“Grids”) indicates that a
person with a maximum sustained work capacity of sedentary work, who is “closely
approaching advanced age,” who is a “high school graduate or more,” and whose past
work was “skilled or semiskilled – skills not transferable,” should be found disabled.4
The term “closely approaching advanced age” means someone who is between the
ages of 50 and 54. 20 C.F.R. § 404.1563(d). On the other hand, someone under age
50 (considered a “younger person,” 20 C.F.R. § 404.1563(c)), who is limited to
sedentary work, who is a “high school graduate or more,” and whose past work was
“skilled or semiskilled – skills not transferable,” is considered not disabled under the
However, the regulations indicate that these rules will not be applied
“mechanically in borderline situation”:
We will not apply the age categories mechanically in a borderline
situation. If you are within a few days to a few months of reaching an older
age category, and using the older age category would result in a
determination or decision that you are disabled, we will consider whether
to use the older age category after evaluating the overall impact of all the
factors of your case.
20 C.F.R. § 404.1563(b). Some courts have interpreted the phrase “within a few days
to a few months of reaching an older age category” to mean up to six months of
Code of Federal Regulations, Appendix 2 to Subpart P of Part 404, Table 1, Rule 201.14
Code of Federal Regulations, Appendix 2 to Subpart P of Part 404, Table 1, Rule 201.21
reaching an older age category, while other courts have held that three months is the
outer limit. Compare, Smolinski v. Astrue, No. 07-CV-386S, 2008 WL 4287819, at *4
(W.D.N.Y. Sept. 17, 2008) (“Among the district courts in the Second Circuit, three
months appears to delineate the outer limits of ‘a few months.’”) (citations omitted) with
Rodriguez v. Comm'r of Soc. Sec., No. 15-CV-6596 (ALC), 2016 WL 5660410, at *8
(S.D.N.Y. Sept. 30, 2016) (“Although the regulations do not clearly define the outer
limits of a borderline situation, several courts have held that a period of up to six
months is within the rule[.]”) (citation omitted).
In the instant case, the ALJ had to decide whether, for purposes of disability
insurance benefits, Plaintiff was disabled on or before her date last insured, December
31, 2014, and whether, for purposes of SSI benefits, Plaintiff was disabled at any time
between the date of her application, November 26, 2012, and the date of the ALJ’s
decision, September 24, 2014.6 At all relevant times, Plaintiff met the education and
work experience requirements of Grid Rule 201.14. However, as of December 31,
2014, Plaintiff, who was born in November 1965, had just turned 49, and was a
“younger person” for purposes of the grids. Therefore, Plaintiff would be classified as
“not disabled” under the grids, Rule 201.21. Plaintiff was not a “borderline situation,”
since she would not turn 50 until more than a year after the date of the ALJ’s decision.
Accordingly, the ALJ did not err in her application of the grids.
Plaintiff nevertheless contends that the Appeals Council erred by failing to apply
See, Frye ex rel. A.O. v. Astrue, 485 F. App'x 484, 485 n.1 (2d Cir. Jun. 13, 2012) (Noting that
the relevant time period for an SSI benefits application is “the date the SSI application was filed, to...the
date of the ALJ's decision”).
Grid Rule 201.14 to find her disabled. In that regard, Plaintiff argues that the Appeals
Council did not issue its decision until December 3, 2015, by which time she had turned
50, which put her in the category of “closely approaching advanced age.” Plaintiff
contends that the Appeals Council actually should have treated her case as a
“borderline situation,” and found her disabled six months earlier, as of the date that she
turned forty-nine-and-a-half. According to Plaintiff, “remand is required solely for
calculation of benefits as of May 28, 2015.”7
The Government responds that this argument is incorrect, since the relevant
date, for determining Plaintiff’s age, is the date of the adjudication by the ALJ, not by
the Appeals Council. According to the Commissioner, Plaintiff’s age as of the date of
the Appeals Council decision is irrelevant.
The Court agrees with the Commissioner that, in the instant case, Plaintiff’s age
as of the date of the Appeals Council decision is not the proper age to use when
applying the grids. In this regard, the Appeals Council declined to review the ALJ’s
decision, and therefore the date of the Commissioner’s final decision is the date of the
ALJ’s decision, which is September 24, 2014. At that time, Plaintiff was 48 years old.
Therefore, Plaintiff’s argument that she was entitled to be found disabled under Grid
Rule 201.14, or that this was a “borderline situation,” lacks merit. See, Russell v.
Bowen, 856 F.2d 81, 83-84 (9th Cir. 1988) (Rejecting claimant’s argument that the
relevant date, for purposes of applying the grids, was the date of the Appeals Council’s
decision, because, where the Appeals Council declines to review an ALJ’s
Pl. Memo of Law [#9-1] at p. 15.
determination, the ALJ’s determination is the Commissioner’s final determination, and
the date of that determination is the correct one to use for purposes of determining the
claimant’s age when applying the grids: “[P]etitioner argues that he was 60 years 2
months before the Appeals Council decision was rendered. [However,] [t]he
Secretary’s position is correct. First, at the time of the final decision, petitioner was not
yet 60. Second, this is not a borderline case. Petitioner was . . . in fact closer to age 59
than to age 60.”) (emphasis added); accord, Knoblauch v. Colvin, No.
3:13–cv–02598–GBC, 2015 WL 1471564 at *9 (M.D.Pa. Mar. 31, 2015) (Where
Appeals Council denies review, relevant date for purposes of determining the claimant’s
age, when applying the grids, is the date of the ALJ’s final decision); Meyer v. Astrue,
No. CV 12-89-M-DLC-JCL, 2013 WL 1615893, at *8 (D. Mont. Feb. 22, 2013) (“When
the Appeals Council denied Meyer's request for review, the ALJ's decision became the
Commissioner's final decision for purposes of judicial review. In such a case, the date
of the ALJ's decision is the relevant date for purposes of identifying the claimant's age
category and applicable grid rule.”) (citation omitted), report and recommendation
adopted, No. CV 12-89-M-DLC-JCL, 2013 WL 1615869 (D. Mont. Apr. 15, 2013).
Development of the Record
Plaintiff next maintains that the ALJ failed to develop the record by obtaining
evidence, covering the period from December 2012 up until the hearing, from three
sources: Genesee Mental Health, Highland Family Medicine, and the Workers’
Compensation doctors. Further, Plaintiff contends that the ALJ failed to notify her
when the request for records from Highland Family Medicine was returned unsatisfied.
Plaintiff maintains that these errors require a remand. The Court agrees that a remand
is required, though not all of Plaintiff’s arguments on this point are valid.
“It is the rule in our circuit that the social security ALJ, unlike a judge in a trial,
must on behalf of all claimants affirmatively develop the record in light of the essentially
non-adversarial nature of a benefits proceeding.” Lamay v. Commissioner of Soc. Sec.,
562 F.3d 503, 508-509 (2d Cir. 2009) (citation and internal quotation marks omitted). In
that regard, the regulations indicate in pertinent part:
Development. Before we make a determination that you are not disabled,
we will develop your complete medical history for at least the 12 months
preceding the month in which you file your application unless there is a
reason to believe that development of an earlier period is necessary or
unless you say that your disability began less than 12 months before you
filed your application. We will make every reasonable effort to help you
get medical evidence from your own medical sources and entities that
maintain your medical sources' evidence when you give us permission to
request the reports.
20 C.F.R. § 416.912(b)(1). “Where the claimant is appearing pro se the ALJ has ‘a
heightened duty to develop the record in order to ensure a fair hearing.’” Warren v.
Astrue, No. 12-CV-06043, 2013 WL 425938, at *2 (W.D.N.Y. Feb. 1, 2013) (quoting
Ericksson v. Comm'r of Soc. Sec., 557 F.3d 79, 83 (2d Cir.2009)). However, “where
there are no obvious gaps in the administrative record, and where the ALJ already
possesses a complete medical history, the ALJ is under no obligation to seek additional
information in advance of rejecting a benefits claim.” Swiantek v. Comm'r of Soc. Sec.,
588 F. App'x 82, 84 (2d Cir. 2015) (citation and internal quotation marks omitted).
Preliminarily, the Court does not agree that the ALJ had a duty to request
additional records from Plaintiff’s Workers’ Compensation doctors. In that regard, the
record already contains records from those doctors (including Giordano) covering the
period from Plaintiff’s injury through December 2012. Moreover, the ALJ specifically
asked Plaintiff whether she had been seen by any doctors between December 2012
and the date of the hearing, and she indicated that she had been seen only by staff at
Highland Family Medicine. (38-39). Accordingly, the ALJ did not err by failing to seek
additional records from the Workers’ Compensation doctors.
As for the ALJ’s alleged failure to develope the record regarding Plaintiff’s
treatment at Genesee Mental Health, the Court notes that the record does not contain
any records from that treatment provider. However, it appears that the ALJ might not
have understood that Plaintiff was also receiving counseling through Genesee Mental
Health in addition to the treatment that she was receiving at Highland Family Medicine.
(13) (ALJ’s decision notes that Plaintiff received mental health treatment “from her
primary care provider.”). In that regard, during the hearing, Plaintiff testified that she
had received “mental health counseling or treatment . . . for depression,” but did not
mention Genesee Mental Health by name. (51). Moreover, in her written submissions,
Plaintiff indicated that she was receiving treatment for depression, anxiety and
adjustment disorder through the office of her primary care physician at Highland Family
Medicine (279, 284), and the record contains numerous treatment notes from that office
referencing Plaintiff’s condition. (See, e.g., 335, 469, 475, 494-496, 498, 503).
Plaintiff nevertheless contends that the ALJ should have obtained records from
Genesee Mental Health, since some of the office notes from Highland Family Medicine
reference the fact that Plaintiff was attending counseling at Genesee Mental Health.
(335, 462). The Court does not necessarily agree that the ALJ’s failure to catch such
passing references in a medical record that otherwise appeared complete would require
remand. See, Herrera v. Colvin, No. 14 CIV. 7802 (RWS), 2016 WL 1298990, at *7
(S.D.N.Y. Mar. 31, 2016) (“Herrera suggests that the ALJ had a duty to further develop
the record because she obliquely referenced a therapist at the hearing, but in this case,
with a complete medical history and no obvious gaps in the record, the ALJ was not
required to seek further information before reaching a determination on disability.”).
However, because the matter is being remanded anyway for reasons discussed below,
the ALJ should, on remand, obtain records from Genesee Mental Health.
Continuing on, the Court agrees that the matter must be remanded because the
ALJ failed to obtain additional records from Highland Family Medicine, and failed to
notify Plaintiff when the record request was returned unfulfilled. “The duty of an ALJ to
develop the record is particularly important when obtaining information from a
claimant's treating physician due to the treating physician provisions in the regulations.”
Dickson v. Astrue, No. 1:06-CV-0511 NAM/GHL, 2008 WL 4287389, at *13 (N.D.N.Y.
Sept. 17, 2008) (citations and internal quotation marks omitted). Moreover, an ALJ is
supposed to proffer evidence received after the hearing to the claimant, and to offer the
claimant an opportunity for a supplemental hearing concerning the proffered evidence.
HALLEX I-2-7-1(B)-(C). Further, the ALJ must offer the claimant a supplemental
hearing on the proffered evidence if he told the claimant that the claimant would be
given such an opportunitiy. HALLEX I-2-7-1(C) (“[I]f the ALJ offered the right to a
hearing on the proffered evidence, even in error, the ALJ must grant any request for a
Here, the ALJ told Plaintiff both that she would obtain updated medical records
from Highland Family Medicine, and that she would provide the same to Plaintiff and
allow Plaintiff a supplemental hearing if Plaintiff wanted one. However, the ALJ sent
the records request to an incorrect address, and therefore failed to carry out her
obligation to develop the record.8 Then, the ALJ failed to notify Plaintiff of the medical
provider’s response that no such records existed, or to offer the Plaintiff a supplemental
hearing. These failures were contrary to the ALJ’s duties under the HALLEX, and to the
ALJ’s statements to Plaintiff at the hearing. See, Cespedes ex rel. Cespedes v.
Barnhart, No. 00 CIV. 7276 (GEL), 2002 WL 1359728, at *5 (S.D.N.Y. June 21, 2002)
(“Given the fact that the ALJ herself attempted, but failed, to obtain Ariel's 1998 school
records and, in addition, later represented to plaintiff that she would postpone decision
pending receipt of Ariel's 1999 school records, it cannot be said that the ALJ met her
duty to diligently develop the record.”). Accordingly, the Court agrees with Plaintiff that
a remand is necessary.
Plaintiff further contends that the ALJ erred by failing to obtain a consultative
report regarding the effect, if any, of Plaintiff’s depression and anxiety on her ability to
work, because “there is no medical opinion, examining or treating, addressing Plaintiff’s
mental function.”9 Plaintiff therefore argues that the ALJ’s determination, that Plaintiff’s
mental impairments are not “severe, is “unsupported.”10
While Plaintiff contends that the ALJ should have obtained a consultative report,
Of course, it appears unlikely that the ALJ realized that the request had been sent to the wrong
address; in that regard, the response that the ALJ received did not indicate that it had been sent to the
wrong place, but rather, it merely indicated that there were no records for the relevant period.
Nevertheless, the fact remains that the ALJ failed to develop the record.
Pl. Memo of Law [#9-1] at p. 20.
Pl. Memo of Law [#9-1] at p. 20.
some courts define “medical opinion” more broadly than Plaintiff. See, e.g., Sickles v.
Colvin, No. 12-CV-774 MAD/CFH, 2014 WL 795978, at *4 (N.D.N.Y. Feb. 27, 2014) (“A
medical opinion, for purposes of an ALJ's disability determination, is defined as
evidence, submitted to or obtained by the ALJ, containing “statements from physicians
and psychologists or other acceptable medical sources that reflect judgments about the
nature and severity of [the claimant's] impairment(s), including [ ] symptoms, diagnosis
and prognosis,” the claimant's capabilities despite the impairment(s), and any physical
or mental restrictions. 20 C.F.R. § 404.1527. The regulatory language provides ample
flexibility for the ALJ to consider a broad array of evidence as ‘medical opinions.’ See
20 C.F.R. § 404.1527. As such this Court agrees . . . that the impressions indicated by
the examining physicians within treatment and progress notes, found in exhibits 1F–4F,
constitute the medical opinion of treating physicians.”) (footnote omitted). Here, for
example, the ALJ relied, in part, upon a treating doctor’s description, within
treatment/progress notes, of Plaintiff’s depression as “mild.” (13, 498).
Moreover, it is not necessarily an error for an ALJ to make an RFC determination
without the aid of a medical opinion:
[I]t is not per se error for an ALJ to make the RFC determination absent a
medical opinion. In Tankisi v. Commissioner of Social Security, the
Second Circuit expressly rejected the argument Lewis makes here, that
the lack of a medical opinion is a fatal error requiring remand. 521 Fed.
Appx. 29, 2013 WL 1296489 (2d Cir.Apr. 2, 2013). The Circuit Court held
that remand is not necessary where “the record contains sufficient
evidence from which an ALJ can assess the petitioner's residual
functional capacity.” 521 Fed. Appx. At 34. In Tankisi, the record was
found sufficient where, although the record contained no formal opinion, it
did include a physician's assessment of the plaintiff's limitations. Id. In
other circumstances, especially where the medical evidence shows
relatively minor physical impairments, “an ALJ permissibly can render a
common sense judgment about functional capacity even without a
physician's assessment.” House v. Astrue, 2013 U.S. Dist. LEXIS 13695,
2013 WL 422058 at *4 (N.D.N.Y. Feb.1, 2013) (internal quotation
Lewis v. Colvin, No. 13-CV-1072S, 2014 WL 6609637, at *6 (W.D.N.Y. Nov. 20, 2014).
Although, some courts have held than an ALJ cannot make a similar “common sense
judgment about functional capacity” involving mental impairments. See, Nasci v. Colvin,
No. 6:15-CV-0947(GTS), 2017 WL 902135, at *9 (N.D.N.Y. Mar. 7, 2017) (“The Court
recognizes that, where the medical evidence shows relatively little physical impairment,
an ALJ permissibly can render a common sense judgment about functional capacity
even without a physician's assessment. However, that is not the case in the present
matter. The Social Security Rulings underscore the highly complex and individualized
nature of mental impairments, which may impact both exertional and nonexertional
work functions.”) (citations omitted).
Nevertheless, since the case is already being remanded, on remand the ALJ
should clarify the basis for her determination that Plaintiff’s mental impairments are not
severe. If, at the time the ALJ issues a new decision, there is still no treating medical
source opinion concerning the limitations imposed by such mental impairments, the ALJ
should explain any decision to forego obtaining a consultative opinion.
Evaluation of the Medical Evidence
Plaintiff next contends that the ALJ erroneously relied upon her own medical
judgment when making her RFC determination. On this point, Plaintiff correctly notes
that the ALJ did not give controlling weight to any of the medical opinions of record.
Rather, the ALJ gave only “some weight” or “limited weight” to all of the medical
opinions. (17-19). Plaintiff argues, therefore, that the ALJ must have relied upon the
raw medical data to form her own medical opinion, which is impermissible, and which
means that the RFC determination is not supported by substantial evidence. For
example, Plaintiff indicates that the ALJ’s decision to disregard the opinion of Dr.
Mendoza and Nurse Practitioner Maletzke,11 that Plaintiff can stand and/or walk less
than two hours per day, and sit less than six hours per day (428), is not supported by
substantial evidence. On this point, the Court understands Plaintiff to mean that the
ALJ did not explain what medical opinion she was relying upon to find that Plaintiff
actually can stand and/or walk up to two hours per day and sit up to six hours per day.
The Court agrees that upon remand the ALJ should explain what medical
opinions she relied upon in formulating the RFC, in light of her decision to give only
“some” or “limited” weight to all of the medical opinions. Moreover, to the extent that
the ALJ continues to find some of the opinions are entitled to little weight because they
are vague (e.g, Dr. Eurenius) or equivocal ( e.g., Dr. Giordano), the ALJ should
consider whether it is necessary to seek clarification from the doctors.
Evaluation of Plaintiff’s Credibility
Finally, Plaintiff contends that the ALJ improperly evaluated her credibility. In
particular, Plaintiff makes two primary arguments: First, that the ALJ failed to properly
develop the record, and then used gaps in the record to discredit Plaintiff; and second,
that the ALJ misstated the facts in the record. The Court has already addressed the
It does not appear to the Court that Dr. Mendoza actually endorsed this report. Rather, it
appears that Nurse Practitioner Maletzke signed the report “for” or “on behalf of” Dr. Mendoza. (429)
issue of development of the record above, and to the extent that the ALJ failed to
develop the record it may have affected her credibility determination.
As for her contention that the ALJ misstated facts when evaluating credibility,
Plaintiff alleges that the ALJ improperly drew negative inferences from her findings that
Plaintiff did not need a cane; that Plaintiff was able to perform her activities of daily
living; and that Plaintiff pursued only conservative medical treatment. Plaintiff seems to
argue that she needs a cane to ambulate, that she cannot perform activities of daily
living, and that her medical treatment has not been conservative. However, the Court
does not agree that the ALJ misstated the record concerning these points. For
example, the record is replete with evidence that Plaintiff can ambulate without a cane.
(See, e.g., 183). Similarly, contrary to Plaintiff’s testimony that she has very limited
daily activities, there is other evidence that Plaintiff can perform typical daily activities
(40, 18312, 281), including Plaintiff’s acknowledgment that she is still able to provide
daycare for three young children. Moreover, there was nothing improper about the ALJ
describing Plaintiff’s treatments -- consisting primarily of Ibuprofen and a TENS unit -as conservative. As noted above, Dr. Giordano similarly characterized Plaintiff’s
treatments as conservative. (153, 175); see, also, Knorr v. Colvin, No.
6:15-CV-06702(MAT), 2016 WL 4746252, at *14 (W.D.N.Y. Sept. 13, 2016)
(Characterizing “physical therapy, a TENS unit, NSAIDs, opioid analgesics, muscle
relaxants, anti-convulsant medications, palliative injections, [and] chiropractic
“She is able to dress and undress herself. She is able to perform her hygienic care. She does
not wear any braces or use any ambulatory assistive devices. She is able to go up and down stairs. She
is able to squat and kneel. She is able to drive. . . . She lives by herself in the house. She performs her
own chores by pacing herself. Outdoor activities consist of going to the grocery store.”
adjustments” as “conservative treatments.”).
Plaintiff’s application for judgment on the pleadings [#9] is granted, and
Defendant’s cross-motion [#13] is denied. This matter is remanded to the
Commissioner for further administrative proceedings, pursuant to 42 U.S.C. § 405(g),
sentence four. The Clerk of the Court is directed to close this action.
Dated: Rochester, New York
May 22, 2017
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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