Ramos v. Colvin

Filing 15

DECISION AND ORDER granting 9 Plaintiff's Motion for Judgment on the Pleadings and remanding the matter solely for calculation and payment of benefits; denying 13 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 11/15/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RICHARD B. RAMOS,
No. 6:16-cv-06569(MAT)
DECISION AND ORDER

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

Represented by counsel, Richard B. Ramos (“Plaintiff”) brings
this action pursuant to Title II of the Social Security Act (“the
Act”),

seeking

Commissioner

review
of

of

Social

the

final

Security

decision

of

the

(“Defendant”

or

Acting
“the

Commissioner”)1 denying his application for disability insurance
benefits (“DIB”). The Court has jurisdiction over this matter
pursuant to 42 U.S.C. §§ 405(g), 1383(c).
PROCEDURAL STATUS
On December 5, 2012, Plaintiff filed a Title II application
for DIB, alleging a disability onset date of April 25, 2011. The
claim

was

denied

initially

and

on

reconsideration.

Plaintiff

requested a hearing, which was held via videoconference before
administrative law judge Angela Miranda (“the ALJ”) on May 22,
1

Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of
Social Security on January 23, 2017. The Clerk of the Court is instructed to
amend the caption of this case pursuant to Federal Rule of Civil Procedure 25(d)
to reflect the substitution of Acting Commissioner Berryhill as the defendant in
this matter.

2014. Plaintiff appeared with his attorney in Rochester, New York,
and testified, as did impartial vocational expert Linda Ebersold
(“the VE”). On November 15, 2014, the ALJ issued an unfavorable
decision. (T.18-31).2
Plaintiff’s request for review was denied by the Appeals
Council on June 16, 2016, making the ALJ’s decision the final
decision of the Commissioner. Plaintiff then timely commenced this
action.
Presently before the Court are the parties’ competing motions
for judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure. For the reasons discussed below, the
Commissioner’s decision is reversed and the matter remanded solely
for calculation and payment of benefits.
THE ALJ’S DECISION
The

ALJ

applied

the

five-step

sequential

evaluation

promulgated by the Commissioner for adjudicating disability claims.
See 20 C.F.R. § 404.1520(a).
At step one, the ALJ found that Plaintiff meets the insured
status requirements of the Act through December 31, 2016. The ALJ
found that Plaintiff’s earnings record supported a finding that he

2

Citations to “T.” in parentheses refer to pages from the certified
transcript of the administrative record, submitted by the Commissioner in
connection with her answer to the complaint.

-2-

had not engaged in substantial gainful activity since April 25,
2011,3 the alleged onset date.
At

step

two,

the

ALJ

determined

that

Plaintiff

has

the

following “severe” impairments: osteoarthritis of the left knee and
residual effect of surgically corrected torn meniscus, degenerative
disc disease (“DDD”) of the lumbar spine, obesity, anxiety, and
depression. The ALJ found that Plaintiff’s

hypertension, edema,

and sinus tachycardia are well-controlled by medication and not
“severe.”

As

to

Plaintiff’s

alleged

shoulder

dysfunction,

resulting from a fall, the ALJ found that it is not a medically
determinable impairment, giving the absence of objective medical
evidence to diagnose the condition and lack of treatment to address
it.
At step three, the ALJ considered Plaintiff’s impairments and
found that, singly or in combination, they do not meet or medically
equal the severity of a listed impairment. In particular, the ALJ
considered Listing 1.02, and found that the record failed to show
that Plaintiff’s osteoarthritis of the left knee has caused gross
anatomical

deformity

resulting

in

an

inability

to

ambulate

effectively. The ALJ also considered Listing 1.04, and found that
the record failed to show that Plaintiff’s DDD of the lumbar spine

3

Plaintiff last worked for 11 years as a laborer; his employment ended after
a fall at work on April 27, 2011, in which he twisted his left knee. Following
multiple imaging studies, he underwent arthroscopic surgery on his left knee in
August of 2011.

-3-

causes evidence of nerve root compression, spinal arachnoiditis or
pseudoclaudication. The ALJ also found that Plaintiff’s mental
impairments do not meet or equal Listings 12.04 and 12.06 because
Plaintiff only has “mild” restrictions in activities of daily
living

and

maintaining

social

functioning;

concentration,

“moderate”

persistence,

or

limitations
pace;

and

in
has

experienced no episodes of decompensation.
Prior to proceeding to step four, the ALJ noted that Plaintiff
is 6'2" and 320 pounds, which yields a body mass index of 41.1 and
places him in the “obese” range. The ALJ accordingly factored
Plaintiff’s obesity into the residual functional capacity (“RFC”)
assessment. The ALJ then determined that Plaintiff has the RFC to
occasionally lift and carry 10 pounds and to frequently lift and
carry less than 10 pounds; stand and/or walk for 2 hours in an
8-hour workday; sit for 6-8 hours in an 8-hour workday and may
require the ability to change positions while at work, but this can
be met at normal break or meal periods or without leaving the
workstation; perform unlimited pushing and pulling up to his
capacity

for

lifting

and

carrying;

occasionally

operate

foot

controls; occasionally climb stairs and ramps; occasionally stoop,
kneel, crouch, and crawl; frequently balance; understand, remember
and carry out simple, routine tasks; use common sense understanding
to carry out instructions, to deal with several concrete variables
in standardized situations, and to do these tasks consistently with

-4-

the demands of a normal workday schedule; appropriately interact
with coworkers, supervisors, and the general public; identify and
avoid normal workplace hazards; and adapt to routine changes in the
workplace.
At step four, the ALJ determined that Plaintiff was 41 yearsold on the onset date, with a limited education and the ability to
communicate in English. In light of his RFC, the ALJ found,
Plaintiff cannot perform his past relevant work as a building
maintenance repairer (Dictionary of Occupational Titles (“DOT”)
899.381-010, medium work but actually performed as heavy work, with
a specific vocational and preparation (“SVP”) of 7); and a door
keeper (DOT 329.683-010, medium work, SVP of 2).
At step five, the ALJ relied on the VE’s testimony to find
that there are other jobs that exist in significant numbers in the
national

economy

and

state-wide

that

Plaintiff

can

perform,

including food and beverage clerk (DOT 209.567-014, sedentary work,
SVP of 2); surveillance systems monitor (DOT 379.367-010, sedentary
work, SVP of 2); and addresser (DOT 209.587-010, sedentary work,
SVP of 2). The ALJ accordingly 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.

-5-

See 42 U.S.C. § 405(g) (the Commissioner’s findings “as to any
fact, if supported by substantial evidence, shall be conclusive”).
Although the reviewing court 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),
“[i]f there is substantial evidence to support the [Commissioner’s]
determination, it must be upheld.” Selian v. Astrue, 708 F.3d 409,
417 (2d

Cir.

substantial

2013).

“The

evidence

conclusions of law.”

does

deferential
not

apply

standard
to

the

of

review

for

Commissioner’s

Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir.

2003) (citing Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)
(stating that “[f]ailure to apply the correct legal standards is
grounds for reversal”).
DISCUSSION
I.

Mental Aspect of RFC Assessment Unsupported by Substantial
Evidence and Erroneous Weighing of Consultative Psychologist’s
Opinion (Plaintiff’s Point A)
Plaintiff contends that the “ALJ failed to analyze how his

inability to tolerate work stress would impact his ability to work
on ‘a regular and continuing basis[.]’” (Plaintiff’s Brief at 9-10
(citing, inter alia, Social Security Ruling (“SSR”) 85-15, TITLES II
AND

XVI: CAPABILITY TO DO OTHER WORK—THE MEDICAL-VOCATIONAL RULES AS A FRAMEWORK

FOR

EVALUATION SOLELY NONEXERTIONAL IMPAIRMENTS, 1985 WL 56857 (S.S.A.

1985); SSR 96-8P, POLICY INTERPRETATION RULING TITLES II AND XVI: ASSESSING
RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, 1996 WL 374184 (S.S.A. July

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2, 1996)). Plaintiff claims that the ALJ erred in failing to make
an individualized assessment of his ability to handle work-place
stress. (Id. (citing Allen v. Barnhart, 417 F.3d 396, 406-07
(3d Cir. 2005) (“Looking at the record before us, we cannot help
but note that certain aspects of Allen’s mental disorder—including
response to supervision, stress, and the like—would more likely be
subjected to an individualized assessment.”)).
Plaintiff correctly points out that “[a]ny impairment-related
limitations created by an individual’s response to demands of work
. . . must be reflected in the RFC assessment.” SSR 85-15 1985 WL
56857, at *6. Here, consultative psychologist Dr. Yu-Ying Lin
opined in his report (T.435-38) that Plaintiff
can follow and understand simple directions and
instructions. He can perform simple tasks independently.
He cannot maintain attention and concentration. He is
able to maintain a regular schedule. He can learn new
tasks. He can perform complex tasks with supervision. He
can make appropriate decisions. He can relate adequately
with others. He cannot appropriately deal with stress.
Difficulties are caused by stress-related problems.
(T.438) (emphases supplied). The ALJ assigned “some weight” to the
portion of Dr. Lin’s report “which determined that the [Plaintiff]
can follow and understand simple directions and instructions and
can perform simple tasks independently. Dr. Lin further determined
that the claimant can maintain a regular schedule, make appropriate
decisions and relate adequately with others.” (T.29 (citation
omitted)).

-7-

The ALJ did not discuss the weight given to the aspect of
Dr.

Lin’s

medical

source

statement

pertaining

to

Plaintiff’s

ability to deal with stress. This indicates that the ALJ improperly
cherry-picked from Dr. Lin’s opinion only the information that
purportedly buttresses his RFC assessment. Beck v. Colvin, No.
6:13-CV-6014 MAT, 2014 WL 1837611, at *13 (W.D.N.Y. May 8, 2014)
(citing Rodriguez v. Astrue, No. 12–CV–4103, 2013 WL 1282363, at
*16 (E.D.N.Y. Mar. 28, 2013) (“Given the ALJ’s duty to consider
Rodriguez’s account of her limitations against the background of
the full record, and his obligation to develop that record where
necessary,

the

ALJ’s

selective

reading

of

the

evidence

was

improper.”); further citation omitted)).
The Commissioner counters by pointing to Dr. Lin’s comment at
the end of his report that “[t]he results of the examination appear
to be consistent with psychiatric problems, but in itself this does
not appear to be significant enough to interfere with [Plaintiff]’s
ability to function on a daily basis.” (T.438; emphasis supplied).
The Commissioner argues that this constitutes substantial evidence
for the mental portion of the RFC assessment and shows that Dr. Lin
did not believe Plaintiff was precluded from full-time employment.
However, such an explanation was not given by the ALJ, and “this
Court is not permitted to accept the Commissioner’s post-hoc
rationalizations for the ALJ’s determination.” Marthe v. Colvin,
No. 6:15-CV-06436(MAT), 2016 WL 3514126, at *8 (W.D.N.Y. June 28,

-8-

2016) (citing Petersen v. Astrue, 2 F. Supp.3d 223, 234 (N.D.N.Y.
2012) (“[T]his Court may not ‘create post-hoc rationalizations to
explain
treatment

the
is

Commissioner’s
not

apparent

treatment

of

from

Commissioner’s

the

evidence

when

that

decision

itself.’”) (quotation omitted; citing, inter alia, Melville v.
Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (“Nor may [the Court]
properly affirm an administrative action on grounds different from
those considered by the agency.”)). Furthermore, this statement,
compared to the specific limitations assigned by Dr. Lin in the
preceding paragraph, is vague. It simply refers to Plaintiff’s
“ability to function on a daily basis” and does not specify the
context

of

environment)

functioning
and

could

(e.g.,
equally

competitive
refer

to

full-time

Plaintiff’s

work
daily

functioning in his current situation (unemployed and living a
fairly structured life).
II.

Error in Weighing Treating Physician’s Opinion (Plaintiff’s
Point B)
Plaintiff contends that the ALJ committed reversible error in

his weighing the

pain limitation questionnaire

provided by his

treating physician, Dr. Clifford Ameduri, on February 23, 2014.
Dr. Ameduri opined, in relevant part, that pain would interfere
with Plaintiff’s concentration, persistence or pace, and would
negatively impact his productivity by greater than 20-25% on a “bad
day.” (T.625). Dr. Ameduri estimated that Plaintiff would miss work
at least 2 full days per month due to his pain. (Id.).
-9-

When determining how much weight to afford any medical opinion
in the record, “[r]egardless of its source,” an ALJ must consider
certain factors, including “(i) the frequency of examination and
the length, nature and extent of the treatment relationship; (ii)
the evidence in support of the . . . opinion; (iii) the consistency
of the opinion with the record as a whole; (iv) whether the opinion
is from a specialist; and (v) other factors brought to the Social
Security

Administration’s

attention

that

tend

to

support

or

contradict the opinion.” Halloran v. Barnhart, 362 F.3d 28, 32
(2d Cir. 2004); 20 C.F.R. §§ 404.1527(c), 416.927(c). The Second
Circuit does not require ALJs to review explicitly each factor
provided in 20 C.F.R. § 404.1527(c), so long as the reviewing court
can “conclude that the ALJ applied the substance of the treating
physician rule . . . and provide[d] ‘good reasons’ for the weight
[the ALJ] gives to the treating source’s opinion.” Halloran, 362
F.3d at 32.
Here, the ALJ assigned “[s]ome weight” to Dr. Ameduri’s
opinion. The ALJ agreed with Dr. Ameduri’s statement that Plaintiff
“could lift and carry up to 10 pounds, occasionally engage in the
operation of foot controls and occasionally climb stairs and
ramps[.]” (T.28). However, the ALJ stated, “only some weight is
given” to Dr. Ameduri’s opinion “as [the doctor] further determined
that [Plaintiff] can never engage in work involving balancing,
stooping, kneeling, crouching or crawling and can occasionally

-10-

engage

in

pushing

and

pulling”

and

“further

determined

that

[Plaintiff]’s pain restricts him from performing his past work and
interferes with his concentration, persistence and pace” and “would
cause [him] to miss work at least two full days per month, would
likely cause significant interference with social relationships at
work and . . . will negatively impact productivity by greater than
20-25 percent.” (T.28 (citation omitted)). The ALJ stated that “the
evidence as a whole does not support this determination, as it
contrasts sharply with the other evidence of record, which renders
it less persuasive.” (T.28-29). This circular explanation does not
constitute a “good reason” for discounting Dr. Ameduri’s treating
source opinion that Plaintiff can never balance, stoop, kneel,
crouch, or crawl; can occasionally engage in pushing and pulling;
and

is

highly

limited

with

regard

to

his

productivity

and

attendance due to pain. See, e.g., Wilson v. Colvin, 213 F. Supp.3d
478, 487–88 (W.D.N.Y. 2016) (“The Court is unable to discern what
evidence (apart from the ‘modest’ MRI findings) the ALJ found to be
contradictory to Dr. Harris’ opinions, because the ALJ concluded
without

explanation

that

Dr.

Harris’

opinions

were

‘wholly

inconsistent with the entire record.’ This does not constitute a
‘good reason’ to reject a treating source opinion.”) (citations
omitted).
Here, Dr. Ameduri’s opinion that Plaintiff is precluded from
balancing,

stooping,

kneeling,

crouching,

-11-

or

crawling

is

not

inconsistent with his own treatment notes. On March 15, 2013,
Dr.

Ameduri

saw

Plaintiff

at

Rochester

Brain

and

Spine

for

evaluation of his back pain, which Plaintiff described as radiating
down his left buttock into his sciatic notch. (T.478) Plaintiff
rated the pain as a 7 on a scale of 1 to 10, and Dr. Ameduri
observed paraspinal spasm in the deep paraspinal muscles L4, L5,
and S1, as well as positive straight leg raise on the left for back
pain

at

Plaintiff

30

degrees.

walked

(T

with

479)
a

Dr.

Ameduri

“markedly

also

antalgic

observed

gait.”

that

(T.479).

Diagnoses were backache, intervertebral disc degeneration (lumbar),
and neuritis or radiculitis (thoracic or lumbosacral). (T.479-80)
Dr. Ameduri ordered a lumbar spine MRI and an EMG evaluation of the
left lower extremity. (T.480). After an EMG study dated April 11,
2013, showed mild bilateral S1 radiculopathy (T. 489), Plaintiff
received an interlaminar lumbar epidural steroid injection on
May 29,

2013.

(T.511).

However,

on

June

27,

2013,

Plaintiff

reported that the epidural injection provided only temporary relief
and he was discouraged by the results. (T.572).
Nor is Dr. Ameduri’s opinion inconsistent with the January 22,
2013 opinion of consultative physician Dr. Karl Eurenius (T.439442),

which

the

ALJ

gave

almost

no

weight.

On

examination,

Dr. Eurenius observed clinical signs of back pain and knee pain.
Plaintiff’s lumbar spine showed flexion to 30 degrees with pain and
tenderness in the low-mid back; he could only extend zero degrees

-12-

without

pain;

lateral

flexion

and

rotation

were

limited

to

approximately 20 degrees in each direction with pain in the low-mid
back; supine straight-leg raising (“SLR”) was positive at 30
degrees bilaterally with pain in the low-mid back; sitting SLR was
positive at 90 degrees bilaterally with pain in the ipsilateral
knee; and both knees were thickened and tender, just medially and
below the patella bilaterally. Dr. Eurenius noted that Plaintiff
walked with a limp favoring the left leg, has difficulty walking on
toes due to bilateral knee pain and back pain, and can squat only
one quarter of the way due to primarily left, and to a lesser
extent, right knee pain. Dr. Eurenius also observed that Plaintiff
uses a cane “which he holds in the right arm” and “uses . . .
primary [sic] for pain.” (T.441). Dr. Eurenius noted that the cane
was provided by Dr. Maloney and “seem[ed] to be helpful and
possibly necessary in relieving pain while walking.” (Id.).
Dr. Ameduri’s assessment regarding the limiting effects of
Plaintiff’s pain on his productivity and attendance was congruent
with the aspects of Dr. Lin’s medical source statement that the ALJ
ignored, namely, that Plaintiff cannot maintain attention and
concentration and cannot appropriately deal with stress. During his
clinical examination, Dr. Lin noted that Plaintiff’s aspect and
mood were dysphoric. Plaintiff’s attention and concentration were
moderately due to anxiety in the evaluation and possibly cognitive
change, in that Plaintiff could perform simple and calculation, but

-13-

answered 20, 17, 14, 11, 8, to serial 3s. Dr. Lin indicated that
Plaintiff’s recent and remote memory skills also appeared to be
impaired due to nervousness in the evaluation and possibly reported
cognitive change.4
The ALJ also improperly speculated that Dr. Ameduri’s opinion
was tainted by bias in Plaintiff’s favor, stating that “as a
treating source, the treating physician was possibly sympathetic to
[Plaintiff] and appeared to have relied heavily on the subjective
reports of symptoms and limitations provided by [Plaintiff].”
(T.29). See SSR 82-62, TITLES II AND XVI: A DISABILITY CLAIMANT’S CAPACITY
TO

DO PAST RELEVANT WORK, IN GENERAL, 1982 WL 31386, at *4 (S.S.A. 1982)

(“The rationale for a disability decision must be written so that
a clear picture of the case can be obtained. . . . Reasonable
inferences

may

be

drawn,

but

presumptions,

speculations

and

suppositions should not be substituted for evidence.”).
III. Erroneous Credibility Assessment (Plaintiff’s Point C)
Plaintiff argues that the ALJ did not provide any valid or
legitimate reasons for his credibility finding.
Defendant responds that the ALJ “set forth the legal standard used
to determine the credibility of subjective complaints (T.24-25),
specifically

listed

Plaintiff’s

subjective

complaints

(T.25),

4

Plaintiff reported to Dr. Lin that he was having short-term memory
difficulties, concentration difficulties, some receptive language difficulty, and
word finding difficulties since approximately one year prior to the consultative
examination. (T.439).

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recounted the medical evidence (T.25-29), assigned weight to the
medical assessments (Tr. 28-29), and then concluded that “[a]fter
careful consideration

of

statements

the

concerning

the

evidence,

intensity,

.

.

.

the

persistence

claimant’s

and

limiting

effects of these symptoms are not entirely persuasive for the
reasons explained in this decision,” and “[b]ased on the entire
record, including the testimony of the claimant, . . . the evidence
fails to support the claimant’s assertions of total disability.”
(T.29).
Defendant is mistaken as to what constitutes a sufficiently
specific credibility analysis that allows “intelligible plenary
review of the record[,]” Williams on behalf of Williams v. Bowen,
859

F.2d

255,

considering

260-61

Plaintiff’s

(2d

Cir.

1988).

credibility

in

Here,
light

“[r]ather
of

the

than

required

regulatory factors, see 20 C.F.R. § 416.929(c)(3)(i)-(vii), the ALJ
merely summarized the medical evidence in the record without
meaningful analysis of how the medical evidence detracted from
Plaintiff’s credibility.” Harris v. Colvin, 149 F. Supp. 3d 435,
449

(W.D.N.Y.

2016)

(citing

Kerr

v.

Astrue,

No.

09–CV–01119(GLS)(VEB), 2010 WL 3907121, at *4 (N.D.N.Y. Sept. 7,
2010)

(“[T]he

ALJ’s

discussion

of

the

factors

was

simply

a

recitation of Plaintiff’s testimony without any meaningful analysis
of how those factors detracted from her credibility. . . .”)
(further citation omitted)).

-15-

In

addition,

the

ALJ

unfairly

discredited

Plaintiff’s

credibility on the basis that “the objective findings in this case
fail to provide strong support for [his] allegations of disabling
symptoms and limitations.” (T.25). When the ALJ purported to
“[m]ore specifically” explain her finding concerning the objective
findings, she stated conclusorily that “the medical findings do not
support the existence of limitations greater than the above listed
residual

functional

capacity.”

(T.25).

This

type

of

circular

reasoning has been consistently rejected by courts in this Circuit.
See Ubiles v. Astrue, No. 11-CV-6340T MAT, 2012 WL 2572772, at *12
(W.D.N.Y. July 2, 2012) (“It is erroneous for an ALJ to find a
claimant’s statements not fully credible because those statements
are inconsistent with the ALJ’s own RFC finding.”) (collecting
cases).
Again, the ALJ erroneously parsed the record and ignored
evidence supportive of Plaintiff’s claim, in particular, results of
objective testing performed by clinical psychologist Dr. Michael J.
Kuttner on February 21, 2013, in connection with Plaintiff’s
Worker’s

Compensation

claim.

Dr.

Kuttner’s

impression,

after

conducting a behavioral pain management evaluation of Plaintiff,
was

that

he

work-related

was

having

injury,”

a

and

“difficult
to

date

time

had

in

not

managing
“responded

his
to

conservative management of his pain.” (T.474). Dr. Kuttner assessed
Plaintiff as “having high levels of misery,” and that he is

-16-

“suffering the cognitive response to prolonged physical pain which
increases

negative

affective

states

and

pain

levels.”

(Id.).

Dr. Kuttner stated that Plaintiff was responding to the workinjury-related loss of functional capacity and endurance pain with
an increase in and depression, which consequently were increasing
his pain levels and decreasing his tolerance of pain. (T.475).
Dr.

Kuttner

diagnosed

Plaintiff

with

pain

disorder

with

psychological and medical components (ICD-9-CM Diagnosis Code (“ICD
Code”) 307.89), knee pain (ICD Code 719.46), and low back pain (ICD
Code 724.2). Thus, contrary to the ALJ’s finding, there were
objective

findings,

from

an

independent

medical

examiner,

supporting the severity of Plaintiff’s pain. That there was a
psychological aspect to Plaintiff’s subjective estimation of his
pain does not give the ALJ license to discredit his testimony. See,
e.g., O’Donnell v. Barnhart, 318 F.3d 811, 818 (8th Cir. 2003)
(“Several

doctors

suggested

that

O’Donnell

might

have

been

magnifying her pain due to a psychogenic overlay. However, even if
true, that would not be a reason to discredit her allegations.

An

‘ALJ cannot simply ignore . . . medical evidence that [claimant]
suffers from pain having its origin in a psychological disorder.’”)
(quoting Mellon v. Heckler, 739 F.2d 1382, 1383 (8th Cir. 1984) (in
turn quoting Reinhart v. Sec’y, 733 F.2d 571, 572-73 (8th Cir.
1984); ellipsis and alteration in original)). Here, the record,
including clinical observations by Dr. Eurenius and Dr. Ameduri,

-17-

discussed above, and objective psychological testing, indicates
that Plaintiff’s pain disorder had both medical and psychological
components. Nonetheless, even in cases where doctors have been
unable to identify a specific physical cause for the amount of pain
claimed by a claimant, but it was obvious that the claimant was
experiencing great pain, courts have assigned error to ALJs who
ignore

evidence

that

the

claimant’s

pain

originates

in

a

psychological disorder. See id.; see also Carradine v. Barnhart,
360 F.3d 751, 755 (7th Cir. 2004) (“[The ALJ] failed to take
seriously the possibility that the pain was indeed as severe as
Carradine said but that its origin was psychological rather than
physical.”).
In addition, the ALJ found that Plaintiff’s daily activities
were inconsistent with Dr. Ameduri’s opinion and Plaintiff’s own
subjective complaints of pain.

According to the ALJ, Plaintiff’s

daily activities “are not limited to the extent one would expect,
given

the

complaints

of

disabling

symptoms

and

limitations.”

(T.28). The ALJ noted that Plaintiff testified that he is able to
prepare simple meals, has a driver’s license and is able to drive
himself to doctor appointments, has no problems taking care of his
personal needs, is able to perform light laundry, enjoys watching
sports and reading, and enjoys spending time with his parents and
visitors on a daily basis. (Id.). “A claimant’s participation in
the activities of daily living will not rebut his or her subjective

-18-

statements of pain or impairment unless there is proof that the
claimant engaged in those activities for sustained periods of time
comparable to those required to hold a sedentary job.” Polidoro v.
Apfel, No. 98 CIV. 2071(RPP), 1999 WL 203350, at *8 (S.D.N.Y. Apr.
12, 1999) (citing Carroll v. Sec’y of Health and Human Servs., 705
F.2d 638, 643 (2d Cir. 1983). “There is nothing inherent in these
activities that proves Plaintiff has the ability to perform ‘[t]he
basic mental demands of competitive, remunerative, unskilled work[,
which] include the abilities (on a sustained basis)[,]’ SSR 85-15,
much less to do so ‘8 hours a day, for 5 days a week, or an
equivalent work schedule[,]’” Harris v. Colvin, 149 F. Supp.3d 435,
445 (W.D.N.Y. 2016) (quoting SSR 96–8p, 1996 WL 374184, at *2).
IV.

Remedy
Under 42 U.S.C. § 405(g), the district court has the power to

affirm, modify, or reverse the ALJ’s decision with or without
remanding for a rehearing. The standard for directing a remand for
calculation

of

benefits

is

met

when

the

record

persuasively

demonstrates the claimant’s disability, Parker v. Harris, 626 F.2d
225, 235 (2d Cir. 1980), and where there is no reason to conclude
that the additional evidence might support the Commissioner’s claim
that the claimant is not disabled, Butts v. Barnhart, 388 F.3d 377,
385–86 (2d Cir. 2004). As discussed above, the ALJ erred in
applying the treating physician rule to the opinion offered by
brain and spine specialist Dr. Ameduri, and failed to explain

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satisfactorily why his opinions were not afforded controlling
weight. The ALJ also cherry-picked the record in assessing the
opinions of consultative psychologist Dr. Lin and consultative
physician Dr. Eurenius; in fact, the ALJ did not give more than
some weight to any of the opinions offered by the acceptable
medical sources who actually examined Plaintiff. In evaluating
Plaintiff’s

credibility,

the

ALJ

committed

multiple

errors,

including ignoring the results of objective testing to assess the
severity of Plaintiff’s pain disorder. Had these legal errors not
occurred,

and

had

deference

been

given

to

the

opinion

of

Plaintiff’s treating back specialist, a finding of disability is
compelled. See Spielberg v. Barnhart, 367 F. Supp.2d 276, 283
(E.D.N.Y. 2005) (“[H]ad the ALJ given more weight to the treating
sources, he would have found plaintiff disabled. . . .”). In the
present case, further administrative proceedings would serve no
purpose. Accordingly, remand for the calculation of benefits is
warranted. See Parker, 626 F.2d at 235.
CONCLUSION
For

the

foregoing

reasons,

the

Court

finds

that

the

Commissioner’s decision is legally erroneous and unsupported by
substantial evidence. Accordingly, Plaintiff’s motion for judgment
on the pleadings is granted to the extent that the Commissioner’s
decision is reversed and the matter remanded solely for calculation
and payment of benefits. Defendant’s motion for judgment on the

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pleadings is denied. The Clerk of Court is directed to close this
case.
IT IS SO ORDERED.
S/Michael A. Telesca
_______________________________
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

November 15, 2017
Rochester, New York.

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