Leavy v. Colvin
ORDER granting 13 Motion for Judgment on the Pleadings; denying 14 Motion for Judgment on the Pleadings. Signed by Hon. Jonathan W. Feldman on 09/20/2017. (JKT)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
GREGORY ALAN LEAVY,
DECISION & ORDER
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
commenced this action pursuant to 42 U.S.C.
405(g) seeking review
of the decision of the Commissioner of Social Security denying his
parties' competing motions for judgment on the pleadings pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure.
## 13, 14.
On April 14, 2017, a hearing was held and argument was heard
from counsel on the motions.
Docket## 17, 18.
At the conclusion
of the hearing, the Court granted plaintiff's motion (Docket# 13)
and denied the Commissioner's motion (Docket# 14), remanding the
case for further proceedings.
The following Decision and Order
serves to briefly confirm the Court's oral ruling.
At the time of his hearing, plaintiff was a 61 year old former
construction worker with a history of lumbar disc disease with Tl2
The ALJ determined that plaintiff had the residual
functional capacity to perform the full range of medium work.
RFC finding was not supported by substantial evidence.
The medical record in this case was limited to two opinions.
The first came from Dr. Shivender K.
a board certified
treatment notes demonstrate that plaintiff's compression fracture
generated significant back pain and difficulty standing, sitting,
pulling, pushing, and lifting.
AR. at 203-06, 230, 235-36.
examining plaintiff on March 25,
could not pull,
Thakur opined that
who examined plaintiff on a single occasion,
The second opinion was from Dr. Elizama
at the request of the Commissioner.
opinion was similar to Dr. Thakur's,
Montalvo 1 s
finding that plaintiff had
~moderate limitation for bending, lifting, carrying, pushing, and
AR. at 210.
Plaintiff appeared prose at a hearing before ALJ Withum on
May 16, 2014.
AR. at 21-23.
The hearing was conducted by video
conference and was very brief.
The ALJ hardly questioned plaintiff
about his limitations in sitting, standing, and lifting, and asked
him nothing about his abilities to carry, push, or reach.
The ALJ presented the testifying vocational expert with
only one hypothetical,
which included the full
scope of medium
work and made no reference to any of the limitations mentioned by
either Drs. Montalvo or Thakur.
AR. at 41.
The ALJ's decision found plaintiff fully capable of medium
work, which means she found plaintiff to have the ability to sit
for up t o six hours a day and stand for two hours a day.
at 12 (citing 20 C.F.R. § 404.1567(c)).
In determining this RFC,
the ALJ decided not to "assign significant weight" to the opinions
cryptically reasoned that Dr. Montalvo's use of the terms "mild"
determining the claimant's"
and that Dr.
to standing no more
than fifteen or twenty
minutes and pulling, pushing and lifting no more than twenty-five
pounds was "inconsistent with the relatively unremarkable physical
The ALJ's dismissive treatment of the medical evidence in
Both the treating doctor and the
supported limitations in his abilities to sit, stand, lift, push
treating physician specifically
requirements of medium work.
The treating physician rule,
forth in the Commissioner's own regulations,
"mandates that the
controlling weight if it is well supported by medical findings and
not inconsistent with other substantial record evidence."
416. 927 (d) (2)
your treating sources.").
we give more weight to opinions from
Where, as here, an ALJ gives a treating
physician opinion something less than "controlling weight," she
consistently instructed that the failure to provide good reasons
for not crediting the opinion of a plaintiff's treating physician
See Schaal v.
134 F.3d 496,
1998); see also Green-Younger v. Barnhart, 335 F.3d 99,
( "The SSA recognizes a
deference to the views of the physician who has engaged in the
primary treatment of the claimant.") ; Halloran v. Barnhart,
(2d Cir. 2004)
("We do not hesitate to
remand when the Commissioner has not provided 'good reasons'
the weight given to a treating physician[']s opinion and we will
continue remanding when we encounter opinions from ALJs that do
not comprehensively set forth reasons for the weight assigned to
a treating physician's opinion.").
Our circuit has also been blunt on what an ALJ must do when
deciding not to give controlling weight to a treating physician:
To override the opinion of the treating physician, we
have held that the ALJ must explicitly consider, inter
alia: (1) the frequency, length, nature, and extent of
treatment; (2) the amount of medical evidence supporting
the opinion; (3) the consistency of the opinion with the
remaining medical evidence; and,
physician is a specialist. After considering the above
factors, the ALJ must comprehensively set forth his
The failure to provide good
reasons for not crediting the opinion of a claimant's
treating physician is a ground for remand.
The ALJ is
not permitted to substitute his own expertise or view of
the medical proof for the treating physician's opinion
or for any competent medical opinion.
Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015)
(internal citations, quotations and alterations omitted); see also
Burgess v. Astrue,
537 F.3d 117, 129
(2d Cir. 2008)
must comprehensively set forth his reasons for the weight assigned
treating physicians opinion.
Failure to provide such good
reasons for not crediting the opinion of a
physician is a ground for remand.")
Here, the ALJ engaged in none of the required analysis, and
assigned to the opinions of either the treating physician or the
The failure to provide "'good reasons' for
not crediting the opinion of a claimant's treating physician is a
ground for remand."
Snell v. Apfel, 177 F.3d 128, 133
1999); see also Schaal v. Apfel, 134 F.3d at 505 ("Commissioner's
constituted legal error.").
apparently affording no
While an ALJ is free choose between
properly submitted medical opinions,
she may not substitute her
own lay opinion for those of medical experts.
Balsamo v. Chater,
142 F.3d 75, 81 (2d Cir. 1998); see also Halloran v. Barnhart, 362
F. 3d at 33
( "We do not hesitate to remand when the Commissioner
has not provided 'good reasons
for the weight given to a treating
opinion and we will continue remanding when we
encounter opinions from ALJs that do not comprehensively set forth
The failure of the ALJ to ask the vocational expert
a single hypothetical question that incorporated the exertional
limitations found by Dr. Thakur and Dr. Montalvo only compounded
the error and deprived plaintiff of a fair hearing.
remand is required.
(2d Cir. 2014)
See McIntyre v. Colvin, 758 F.3d 146, 151-52
(an ALJ may rely on a vocational expert's testimony
at Step Five so long as it "accurately reflect[s] the limitations
Commissioner of Social Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)
( "In order
the ALJ must pose a hypothetical question
which comprises all of the claimant's impairments.").
It is also the duty of the ALJ to develop the administrative
a claimant is unrepresented,
Circuit has stated that "the ALJ is under a heightened duty 'to
explore for all the relevant facts.'"
Cruz v. Sullivan, 912 F. 2d
(quoting Echevarria v.
of Health and
Human Serv., 685 F.2d 751, 755 (2d Cir. 1982) (additional quotation
If, on remand,
Montalvo or Dr.
the ALJ believes the opinions of Dr.
"inconsistent" with physical findings, then the ALJ shall contact
the doctors or otherwise develop the record further in order to
provide the clarity necessary to make a reasoned decision supported
by substantial evidence. 1
Based on the reasons stated on the record and above,
pleadings (Docket# 13) is granted, and the Commissioner's motion
for judgment on the pleadings (Docket# 14) is denied.
is remanded for further proceedings consistent with this Decision
September 20, 2017
Rochester, New York
a full and complete record is critically important
here because plaintiff meets the advanced age requirement, and an
RFC of light work may warrant a finding of disabi li ty under the
Medical Vocational Guidelines ("Grid Rules").
See MedicalVocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P, App. 2 §§
202.01 et seq.; see also Draegert v. Barnhart, 311 F.3d 468, 47273 ( 2d Cir. 2 O02) (applying the Grid Rules as related to an
individual of advanced age capable of sedentary or light work).
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