Muhammad v. Colvin

Filing 16

DECISION AND ORDER granting 12 Plaintiff's Motion for Judgment on the Pleadings to the extent that the Commissioners decision is reversed, and the matter is remanded for further administrative proceedings consistent with this Decision and Order; denying 14 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 10/26/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
EURYLLESE V. MUHAMMAD,
Plaintiff,

No. 6:16-cv-06369(MAT)
DECISION AND ORDER

-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

I. Introduction
Represented by counsel, Euryllese V. Muhammad (“Plaintiff”)
instituted this action pursuant to Title II of the Social Security
Act (“the Act”), seeking review of the final decision of the Acting
Commissioner of Social Security (“the Commissioner”)1 denying her
application for Disability Insurance Benefits (“DIB”). The Court
has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c).
II. Procedural History
Plaintiff

protectively

filed

Title

II

and

Title

XVI

applications on May 10, 2012, and May 29, 2012, respectively,
alleging disability beginning February 19, 2011, due to depression,
anxiety, and a back injury (bulging disc). (T.126, 277-80, 296,

1

Nancy A. Berryhill became the Acting Commissioner of Social Security on
January 20, 2017. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil
Procedure, Nancy A. Berryhill should be substituted, therefore, for Acting
Commissioner Carolyn W. Colvin as Defendant in this suit. No further action need
be taken to continue this suit by reason of the last sentence of section 205(g)
of the Social Security Act, 42 U.S.C. § 405(g).

327).2

316,

These

claims

were

denied

initially

and

on

reconsideration. (T.158, 170-76). Plaintiff requested a hearing,
which was

conducted

via

videoconference

on

May

22,

2014, by

Administrative Law Judge Joseph L. Brinkley (“the ALJ”). (T.11357). Plaintiff appeared with her attorney in Rochester, New York,
and testified. Ruth I. Horvath, an impartial vocational expert
(“the VE”), also testified. At the hearing, Plaintiff’s attorney
amended the alleged onset date to January 30, 2012.
On August 15, 2014, after considering the claim de novo and
applying

the

five-step

sequential

evaluation,

see

20

C.F.R.

§§ 404.1520, 416.920, the ALJ issued an unfavorable decision.
(T.82-101).

The

ALJ

found

that

despite

Plaintiff’s

“severe”

impairments,3 Plaintiff retains the residual functional capacity
(“RFC”)

to

perform

sedentary

work,

as

defined

in

20

C.F.R.

§§ 404.1567(a) and 416.967(a), with a number of limitations,
including,

only

occasional

lifting/reaching

overhead

with the

bilateral upper extremities, operating foot and leg controls with
the bilateral lower extremities, climbing ramps/stairs, balancing,
kneeling,

and

stooping;

no

crawling,

crouching,

or

climbing

ladders, ropes, or scaffolds; and only unskilled work limited to
frequently engaging in superficial contact with the general public,

2

Citations to “T.” in parentheses refer to pages from the transcript of the
certified administrative record.
3

Spinal disorders with radiculitis, right foraminal stenosis, lumbar
radiculopathy, patellofemoral syndrome, iron-deficiency anemia, asthma,
depression, bipolar disorder, and panic disorder with agoraphobia. (T.88).

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occasionally engaging in team/tandem work, and low stress jobs that
by their inherent nature do not require high volume production
quotas and/or fast paced assembly lines. (T.89-95). In light of her
RFC limiting her to unskilled, sedentary work, Plaintiff could not
perform her past relevant work (“PRW”) as a social services aide,
a case aide, a customer service representative, and an emergency
medical technician. At step five, the ALJ noted that Plaintiff was
a younger individual age 18-44, with at least a high school
education. Based on the VE’s testimony, the ALJ found that there
are jobs that exist in significant numbers in the national economy
that

Plaintiff

experience,

can

and

perform,

RFC,

such

given
as

her

ticket

age,

education,

checker

and

work

sorter.

Accordingly, the ALJ entered a finding of not disabled.
Plaintiff timely requested review by the Appeals Council, and
submitted additional medical records for consideration. The Appeals
Council denied Plaintiff’s request for review on April 6, 2016
(T.1-7), making the ALJ’s decision the final decision of the
Commissioner.
Plaintiff

timely

instituted

this

action.

Plaintiff

and

Defendant have cross-moved for judgment on the pleadings pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure. The Court
will discuss the record evidence further below, as necessary to the
resolution of the parties’ contentions.

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For the reasons discussed below, the Commissioner’s decision
is reversed, and the matter is remanded for further administrative
proceedings consistent with this Decision and Order.
III. Discussion
A.

Plaintiff’s Point I: New Evidence Submitted to Appeals
Council Requires Remand

As noted above, iIn connection with her request for review to
the Appeals Council, Plaintiff submitted records concerning ongoing
treatment Plaintiff received for her back and knee conditions from
the following providers: Unity Spine Center for the period from May
30, 2014, to July 3, 2014; Dr. Sarah Bolduc at Unity Family
Medicine for the period from September 17, 2014, to September 22,
2014 (T.20-30); Unity Hospital at Parkridge for the period from
September 17, 2014, to September 18, 2014 (T.31-60); Dr. Anthony
Petraglia at Unity Neurosurgery for the period from September 8,
2014, to September 17, 2014 (T.61-75); and University Orthopedics
at Chili for August 27, 2014, and September 12, 2014 (T.76-79). The
last of these records indicate that Dr. Petraglia performed a right
lateral lumbar laminectomy surgery at the L3-L4 level on September
17, 2014, to relieve the disc herniation compression at her right
L3 nerve root. (T.25-60, 69-75).
The Appeals Council declined to review Plaintiff’s case,
finding that these records were “new information about a later
time.” (T.2). Plaintiff here argues that this was legal error
because the records rejected were new and material evidence that
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should have been evaluated with the ALJ’s determination at the
agency level. Because the Court is remanding the matter on an
alternative ground, as discussed below, it need not reach the
merits of this contention. On remand, the new evidence will be part
of the record reviewed by the ALJ.
B.

Plaintiff’s Point II:
Substantial Evidence.

The

RFC

is

Unsupported

by

Plaintiff contends that remand is warranted because the RFC is
not

supported

by

substantial

evidence

due

to

the

ALJ’s

mischaracterization of parts of the record, misapplication of the
Commissioner’s Regulations on weighing evidence, and reliance on a
selective reading of the record and “cherry-picking” of evidence
that supported the Commissioner’s position. (See Plaintiff’s Brief
(Dkt #12-1) at 17-22).
The Court turns first to Plaintiff’s claim that the ALJ
characterized various physicians’ clinical findings as medical
“opinions.”

In his discussion of the medical records, the ALJ

indicated that Drs. Sarah Bolduc and Joanna Wu both had offered
“medical opinion[s].” For instance, the ALJ noted that
[i]n August 2013, [Plaintiff] reported taking Naproxen
for the back pain and some right leg weakness, and that
the mediation [sic] made her drowsy. She admitted,
however, the back pain was not as severe as an episode
she had a year prior. (17F) I am affording Dr. Bolduc’s
medical opinion regarding the claimant’s back condition
great weight in that he [sic] treated her over a period
of time, and it appears that his [sic] opinion/finding is
consistent with the examination findings, showing that
the claimant appeared to make some improvement despite
her complaints of pain.

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(T.91). The ALJ purported to give these so-called “opinions” “great
weight.”

(T.91,

92,

93).

Plaintiff

is

correct

that

the

ALJ

mischaracterized the nature of the evidence he was discussing in
the passage quoted above.
In

POMS

24503.005,4

DI

which

deals

with

Categories

of

Evidence, the Commissioner defines a “[m]edical opinion,” for an
adult claimant who filed before March 27, 2017, as “a statement
from an acceptable medical source (AMS) that reflects judgments
about

the

nature

and

severity

of

a

claimant’s

impairments,

including symptoms, diagnosis and prognosis, what the claimant can
still do despite impairments, and the claimant’s physical or mental
restrictions.” Plaintiff’s statement to Dr. Bolduc “admitt[ing] .
. . the back pain was not as severe” as it was a year ago is, quite
clearly, not

a

medical

opinion,

or

even

a

clinical

finding,

rendered by Dr. Bolduc. Simply because a statement appears in an
acceptable medical source’s notes does not automatically transform
it into a “medical opinion.”
Significantly, the record lacks a physical RFC assessment from
Drs. Bolduc or Wu, or any of Plaintiff’s other treating physicians.
However, to bolster his interpretations of the purported “opinions”
of Dr. Bolduc and Dr. Wu, the ALJ emphasized that these doctors
“did not provide functional limitations” or “preclude” Plaintiff
from

working

during

the

relevant

period.

(T.91-92).

This

is

4

Available at https://secure.ssa.gov/poms.nsf/lnx/0424503005 (last accessed
Oct. 16, 2017).

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problematic.

The ALJ’s interpretation of the treatment records of

Dr. Bolduc and Dr. Wu as “opinions”, while also stating that these
records were missing opinions on Plaintiff’s functional capacity,
is internally inconsistent and confusing. Moreover, the lack of
clarity precludes meaningful appellate review by this Court. See,
e.g., Poles v. Colvin, No. 14-CV-06622 MAT, 2015 WL 6024400, at *5
(W.D.N.Y.

Oct.

15,

2015)

(remanding

because

“in

addition

to

committing multiple errors in characterizing the medical evidence,
the ALJ arrived at internally inconsistent conclusions”).
The ALJ also relied on the absence of treating source opinions
to diminish Plaintiff’s credibility, stating that “during the
relevant period, it does not appear that any physician precluded
the

claimant

from

work

or

gave

the

claimant

such

severe

restrictions that she should be precluded from work.” (T.95).
Courts in this Circuit have held that “‘an ALJ may not rely, as
fact-finders in adversarial proceedings customarily do, on the
absence

of

probative

evidence

supporting

the

opinions

of

a

claimant’s expert, without making an affirmative effort to fill any
gaps in the record before him.’” Sanchez v. Barnhart, 329 F.
Supp.2d 445, 450 (S.D.N.Y. 2004) (quoting Thomas v. Barnhart, No.
01 Civ. 518, 2002 WL 31433606, at *4 (S.D.N.Y. Oct. 30, 2002);
emphasis in original); Ubiles v. Astrue, No. 11-CV-6340T MAT, 2012
WL 2572772, at *10 (W.D.N.Y. July 2, 2012) (“The ALJ referenced the
consultative examinations with those specialists and apparently
penalized Plaintiff for their absence, stating that ‘there are no

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consultative reports in the exhibit file.’ This . . . cannot be
harmless error because the ALJ relied on perceived gaps in the
medical evidence to find Plaintiff not disabled. . . . . The ALJ
also relied on these gaps in the record to discredit Plaintiff’s
subjective complaints of pain and physical limitations. . . .”)
(internal citations omitted).
The Commissioner argues that an ALJ does not necessarily need
to have a medical opinion in order to make an RFC determination. In
Monroe v. Comm’r of Soc. Sec., No. 16-1042-CV, 2017 WL 213363, at
*3 (2d Cir. Jan. 18, 2017), on which the Commissioner relies, the
Second Circuit concluded that the RFC assessment was supported by
substantial evidence, despite the ALJ’s rejection of a treating
physician’s opinion, because the ALJ “reached her RFC determination
based on

[the

treating

physician’s]

contemporaneous

treatment

notes.” Id. at *3. Those notes, the Circuit explained, provided
evidence

“relevant

substantial

gainful

to

[the

activity”

claimant’s]
as

well

ability
as

to

“relevant

perform
to

her

functional capacity.” Id. However, “Monroe is distinguishable from
this case because the ALJ here did not discuss treatment notes with
any vocational or functional relevance when he formulated the RFC.”
Morales v. Colvin, No. 3:16-CV-0003(WIG), 2017 WL 462626, at *3 (D.
Conn. Feb. 3, 2017). Instead, the ALJ erroneously characterized the
treatment records of Dr. Bolduc and Dr. Wu—which did not provide
any insight on Plaintiff’s functional limitations—as opinions.
Then, incongruously, he drew an adverse credibility inference

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against Plaintiff by asserting that the medical record lacked any
opinions
functional

from

her

treating

limitations.

Thus,

sources

that

contrary

to

she

had

disabling

the

Commissioner’s

contention, these errors by the ALJ in interpreting the record, are
not harmless.
While in some circumstances, an ALJ may make an RFC finding
without treating source opinion evidence, the RFC assessment will
be sufficient only when the record is “clear” and contains “some
useful assessment of the claimant’s limitations from a medical
source.” Staggers v. Colvin, No. 3:14-cv-717(JCH), 2015 WL 4751123,
at *3 (D. Conn. Aug. 11, 2015); see also Monroe, 2017 WL 213363, at
*3 (when a record “contains sufficient evidence from which an ALJ
can assess the claimant's residual functional capacity, a medical
source statement or formal medical opinion is not necessarily
required.”) (internal quotation marks and citations omitted). Here,
as discussed above, the ALJ critiqued the quality of the medical
evidence based on a lack of functional assessments by Plaintiff’s
treating sources. That evidentiary deficiency was caused by the
ALJ’s failure to fulfill his obligation to the develop the record.
See Hooker v. Colvin, No. 13-CV-81-JTC, 2014 WL 1976958, at *7
(W.D.N.Y.

May 15,

2014)

(“[T]he

ALJ

is

under

an

affirmative

obligation to address evidentiary gaps in the administrative record
by recontacting treating sources in order to obtain more detailed
information regarding the existence, nature, and severity of the
claimed disability.”) (citing, inter alia, 20 C.F.R. § 416.912(d);

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other citation omitted); Rodriguez ex rel. Silverio v. Barnhart,
2003 WL 22709204, at *3 (E.D.N.Y. Nov. 7, 2003) (“SSR 85–16 affirms
the Commissioner’s recognition” the the ALJ’s duty to develop the
record is a “‘bedrock principle of Social Security law’”). Remand
is required for development of the record to obtain real opinion
evidence from one or more of Plaintiff’s treating sources.
IV.

Conclusion
For

the

foregoing

reasons,

the

Court

finds

that

the

Commissioner’s decision was the product of legal error and is not
supported by substantial evidence. Accordingly, Defendant’s motion
for judgment on the pleadings is denied, and Plaintiff’s motion for
judgment on the pleadings is granted to the extent that the
Commissioner’s decision is reversed, and the matter is remanded for
further administrative proceedings consistent with this Decision
and Order. In particular, the ALJ is directed to request physical
RFC

assessments

from

one

or

more

of

Plaintiff’s

treating

physicians.
SO ORDERED.
S/Michael A. Telesca

HON. MICHAEL A. TELESCA
United States District Judge
Dated:

October 26, 2017
Rochester, New York.

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