Kenning v. Colvin

Filing 15

DECISION AND ORDER granting [11-2] Motion for Judgment on the Pleadings and denying 13 Motion for Judgment on the Pleadings. Plaintiff's motion for judgment on the pleadings is granted to the extent that this matter is remanded for further administrative proceedings. Defendant's motion for judgment on the pleadings is denied. The Clerk of the Court is directed to close this case. Signed by Hon. Michael A. Telesca on 11/20/2017. (CDH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JEBEDIAH CHARLES KENNING,
Plaintiff,
-vs-

No. 6:16-cv-06778-MAT
DECISION AND ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

I.

Introduction
Represented by counsel, Jebediah Charles Kenning (“Plaintiff”)

brings this action pursuant to Titles II and XVI of the Social
Security Act (“the Act”), seeking review of the final decision of
the Acting Commissioner of Social Security1 (“Defendant” or “the
Commissioner”) denying his applications for disability insurance
benefits

(“DIB”)

and

Supplemental

Security

Income

(“SSI”).

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 set forth below,

Plaintiff’s motion is granted and Defendant’s motion is denied.
II.

Procedural History
On June 24, 2013, Plaintiff, a then-thirty-four year old

former driver, salesperson and market development manager, filed

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.

for DIB and SSI, alleging disability beginning October 31, 2011 due
to herniated and bulging discs in the lumbar spine, degenerative
disc disease in the lumbar spine, anxiety and depression (T. 14647, 234-35, 246, 254, 259).2

Plaintiff’s application was denied on

September 16, 2013 (T. 150-53), and he timely requested a hearing
before an administrative law judge (“ALJ”).
hearing on May 7, 2015 (T. 85-128).

ALJ Brian Kane held a

On June 18, 2015, the ALJ

issued a decision in which he found Plaintiff was not disabled as
defined in the Act (T. 45-56).

On October 5, 2016, the Appeals

Council denied review leaving the ALJ’s decision as the final
agency decision (T. 1-6). This action followed. The Court assumes
the parties’ familiarity with the facts of this case and will not
repeat them here.

The Court will discuss the record further as

necessary to the resolution of the parties’ contentions.
III.

The ALJ’s Decision
Initially, the ALJ found that Plaintiff met the insured status

requirements of the Act through June 30, 2012 (T. 50).3
one

of

the

five-step

sequential

evaluation,

see

20

At step
C.F.R.

§§ 404.1520 and 416.920, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since October 31, 2011

2

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

To be entitled to DIB, a claimant must be insured. See 42 U.S.C.
§§ 423(a)(1)(A), 423(c). Plaintiff’s date last insured was June 30, 2012 (Tr.
139).

2

(Id.).

At step two, the ALJ found that Plaintiff had the severe

impairment of degenerative disc disease of the lumbar spine (20
C.F.R. §§ 404.1520(c) and 416.920(c)) (Id.).

At step three, the

ALJ found that Plaintiff did not have an impairment or combination
of impairments that met or medically equaled the severity of a
listed impairment (T. 52). Before proceeding to step four, the ALJ
found that Plaintiff retained the residual functional capacity
(“RFC”) to perform sedentary work, as that term is defined in 20
C.F.R. §§ 404.1567(a) and 416.967(a) (T. 25) with the following
limitations: (1) lift and carry up to 20 pounds; (2) sit for six
hours; (3) stand and walk a total of two hours; and (4) receive a
break every hour of five minutes or less (T. 52).

At step four,

the ALJ found that Plaintiff was capable of performing past
relevant work as a merchandise manager, which does not require the
performance of work-related activities precluded by the claimant’s
RFC. (T. 55).

Accordingly, the ALJ found that Plaintiff was not

disabled from October 31, 2011 through the date of his decision (T.
55).
IV.

Scope of Review
A

district

court

may

set

aside

the

Commissioner’s

determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error.

42 U.S.C. § 405(g); see also

Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means ‘such relevant evidence as a reasonable
3

mind might accept as adequate to support a conclusion.’”
Chater, 221 F.3d 126, 131 (2d Cir. 2000).

Shaw v.

“The deferential

standard of review for substantial evidence does not apply to the
Commissioner’s conclusions of law.”

Byam v. Barnhart, 336 F.3d

172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109,
112 (2d Cir. 1984)).
V.

Discussion
Plaintiff makes the following arguments in support of his

motion for judgment on the pleadings: (1) the ALJ’s RFC finding was
not supported by substantial evidence because the ALJ rejected the
only medical source statement as insufficiently specific; and (2)
the ALJ’s RFC finding was not supported by substantial evidence
because the only medical source opinion found that Plaintiff had
mild to moderate limitations with prolonged sitting, and, contrary
to the medical source statement, the ALJ found in the RFC that he
could sit continuously for six hours.

For the reasons discussed

below, the Court finds that the ALJ’s RFC finding was not supported
by substantial evidence because the ALJ rejected the only medical
source statement presented and, accordingly, remand is required.
A.

RFC
1.

Absence of Medical Opinion

Plaintiff argues that the Court should remand his case to the
ALJ

because

the

ALJ’s

RFC

determination

is

not

supported

by

substantial evidence (Docket 11-3 at 12). Specifically, Plaintiff
contends that the ALJ discounted the only expert medical opinion in
4

the record concerning Plaintiff’s limitations, which resulted in an
RFC based on bare medical findings (Docket 11-3 at 12-15).
Commissioner

contends

that

the

RFC

was

based

on

The

substantial

evidence in the medical record, and the ALJ thus had no duty to
further develop the medical record (Docket 13 at 12-16).
Here, consultative physician Dr. Nikita Dave issued the only
expert medical opinion in the record on August 29, 2013 (T. 46871).

Plaintiff, then-thirty-four years old, reported to Dr. Dave

that

he

had

a

history

of

low

back

pain

unspecified incident in 2008 (T. 468).

resulting

from

an

He claimed his pain was

aggravated by prolonged sitting, standing, and lifting more than a
gallon of milk, with periodic acute flare ups lasting several days,
with the last flare up occurring more than two years earlier in
2011 (T. 468).

Upon examination, Dr. Dave found that Plaintiff’s

cervical spine showed full flexion extension, lateral flexion
bilaterally and full rotary movement bilaterally (T. 470).

There

was no scoliosis, kyphosis, or abnormality in the thoracic spine
(Id.).

Plaintiff’s lumbar spine was different, however, with a

flexion of thirty degrees, zero degree extension, left lateral
flexion

five

degrees

and

painful,

right

lateral

flexion

ten

degrees, and rotation ten to fifteen degrees bilaterally (Id.).
Plaintiff also had tenderness in the middle at the L2 spinous
process and the L3 vertebra (Id.).

Plaintiff had a “slightly

exaggerated” straight leg raise of about 70-75 degrees (Id.).
Plaintiff’s range of motion was full in the shoulders, elbows,
5

forearms, wrists, hips, knees, and ankles bilaterally (Id.). There
was

no

evidence

of

thickening (Id.).

subluxations,

contractures,

ankylosis,

or

Joints were stable and nontender, and there was

no redness, heat, swelling, or effusion (Id.).

In his medical

source statement, Dr. Dave opined that Plaintiff had mild-tomoderate limitations in prolonged sitting, standing, and walking,
and more moderate limitations for lifting, carrying, pushing and
pulling of heavy objects, and repetitive bending forward through
the lumbar spine. (T. 471).
On May 4, 2015, Plaintiff’s attorney, Justin M. Goldstein,
submitted a Prehearing Memorandum to the ALJ, objecting to Dr.
Dave’s

medical source statement as vague and ambiguous because it

“fail[ed] to quantify the claimant’s abilities and limitations” (T.
318).

Plaintiff’s attorney noted his objection again at the

hearing (T. 88).
Plaintiff’s

In his decision, the ALJ appeared to agree with

attorney,

representative

[for

explaining
claimant],

that
the

“[a]s

stated

limitations

consultative examiner are not specific” (T. 54).

by

from

the
the

However, rather

than ordering a new consultative examination or asking Dr. Dave to
clarify the only medical source statement in the record, the ALJ
purportedly accorded Dr. Dave’s limitations “some weight” (Id.).
Cf.

Planteny-Martinez

v.

Colvin,

6:15-cv-06371(MAT),

2016

WL

3355438, at *2 (W.D.N.Y. 2016) (where ALJ discounted only medical
source statement in record, ALJ directed Plaintiff’s counsel, who
had objected to medical source statement, to prepare and submit
6

interrogatories to doctor for further clarification of opinion).
However, in the very next sentence the ALJ entirely discounted the
opinion,

explaining

that

Dr.

Dave’s

examination

proved

that

“claimant did not have problems ambulating and still had good
strength despite a reduced range of motion” (T. 54).

Nothing else

in the ALJ’s decision suggests that the ALJ accounted for the
limitations identified by Dr. Dave in formulating the RFC.
Pursuant to Social Security Ruling (“SSR”) 83-10, residual
functional capacity is defined as “[a] medical assessment of what
an individual can do in a work setting in spite of the functional
limitations and environmental restrictions imposed by all of his or
her medically determinable impairment(s).”
31251,

at

*7

(S.S.A.

1983).

“As

SSR 83-10, 1983 WL

explicitly

stated

in

the

regulations, RFC is a medical assessment; therefore, the ALJ is
precluded from making his assessment without some expert medical
testimony or other medical evidence to support his decision.” Gray
v. Chater, 903 F. Supp. 293, 301 (N.D.N.Y. 1995) (citing 20 C.F.R.
§ 404.1513(c), (d)(3)); Martin v. Shalala, No. 91–CV–0730E, 1994 WL
263818, at *4 (W.D.N.Y. June 13, 1994)).
The Commissioner therefore does not carry his “burden of
demonstrating that a claimant can perform at a certain exertional
level” if “the ALJ has failed to point to at least ‘some expert
medical

testimony

or

other

medical

evidence

to

support

his

decision,’” or otherwise “based the decision ‘on a negative finding
that nothing in the record militated against the conclusion that
7

[the claimant] could perform such work.’”

Irizarry v. Callahan,

No. 97 Civ. 6093(DLC), 1998 WL 556157, at *8 (S.D.N.Y. Aug. 31,
1998) (quoting Sobolewski v. Apfel, 985 F. Supp. 300, 314 (E.D.N.Y.
1997) (explaining that “the burden of proof is on the Commissioner
to

offer

positive

evidence

that

[the

claimant]

can

perform

sedentary work, and the burden is not carried merely by pointing to
evidence

that

is

consistent

with

his

otherwise

unsupported

assertion”)).
Here, Dr. Dave’s opinion was the only one in the medical
record regarding Plaintiff’s extertional limitations. However, the
ALJ entirely discounted the opinion because it was “vague” and yet
failed to seek clarification from Dr. Dave or otherwise order a new
consultative examination.

This left the ALJ’s RFC assessment

unsupported by any medical opinion evidence. See, e.g., Cestare v.
Colvin, No. 15-CV-6045P, 2016 WL 836082, at *2 (W.D.N.Y. 2016)
(“Having reviewed the ALJ’s decision, I agree with Cestare that the
ALJ’s mental RFC assessment appears to be based upon the ALJ’s lay
interpretation of the medical records without reliance upon any
medical opinion.

In her decision, the ALJ explicitly accorded

‘little’ or ‘very little’ weight to Jamison’s opinions, and nothing
suggests that the ALJ accounted for the limitations identified by
Jamison in formulating the RFC.”); DiVetro v. Commissioner of
Social Sec., No. 5:05–CV–830(GLS/DEP), 2008 WL 3930032, at *12–13
(N.D.N.Y. Aug. 21, 2008) (“[N]either state agency consultant who
rendered assessments stated that plaintiff can sit for a full eight
8

hours.

While [the consultative physician] opined that plaintiff

has no ‘gross limitation’ in her ability to sit, he did not
elaborate, nor did he particularly state that she can sit for an
entire workday. Simply stated, the record lacks any assessment from
either a treating source or a consultant supporting a finding of
plaintiff’s ability to sit for eight hours in a given workday.”).
This case is therefore distinguishable from Monroe v. Comm’r
of Soc. Sec., 676 F. App’x 5, 9 (2d Cir. 2017) and Pellam v.
Astrue, 508 F. App’x 87, 90 (2d Cir. 2013)

which the Commissioner

references in support of his argument that the Second Circuit has
recognized the proposition that an ALJ could reject the only
medical source statement in the record and still formulate an RFC
assessment based on other record evidence like treatment notes and
activities of daily living (Docket 13 at 13).

In Monroe, the

Second Circuit concluded that the ALJ did not err by formulating an
RFC without a medical source opinion because the opinion was a
“post-hoc” opinion based on a medical record relied on by the ALJ,
containing years of treatment notes, “contemporaneous medical
assessments . . . relevant to [the plaintiff’s] ability to perform
sustained gainful activity” and “well-documented notes relating to
[the plaintiff’s] social activities relevant to her functional
capacity.”

676 F. App’x at 8-9.

In Pellam, the Second Circuit

concluded that the ALJ formally rejected the consultive examiner’s
opinion because the consutlative examiner only saw the plaintiff
once

and

the

findings

were
9

“inconsistent

with

nearly

contemporaneous medical records.”

508 F. App’x at 90.

Moreover,

as the Second Circuit explained, the ALJ’s RFC was nevertheless
consistent in “all relevant ways” with the consultative examiner’s
assessment of the plaintiff.

Id.

The absence of an RFC assessment from any medical source left
a clear gap in the record, which the ALJ was under a regulatory
obligation

to

fill.

See,

e.g.,

Crawford

v.

Astrue,

No.

13–CV–6068P, 2014 WL 4829544, at *20 (W.D.N.Y. Sept. 29, 2014)
(“[W]here the medical findings in the record merely diagnose [the]
claimant’s exertional impairments and do not relate those diagnoses
to

specific

residual

functional

capabilities

.

.

.

[,

the

Commissioner] may not make the connection himself.” (alterations in
original) (quoting Deskin v. Comm’r of Soc. Sec., 605 F. Supp. 2d
908, 912 (N.D. Ohio 2008)).
The Court therefore finds that, under the circumstances of
this

case,

the

ALJ’s

necessitates remand.

failure

to

further

develop

the

record

See, e.g., Cestare, 2016 WL 836082, at *2

(remanding where ALJ reviewed and discussed treatment records, but
did not “rely upon any medical source statement or a consultative
examination report to assist her in translating the treatment notes
into

an

assessment

of

[plaintiff’s]

mental

capacity

for

work-related activities” but instead “used her own lay opinion to
determine [plaintiff’s] mental RFC.”).
On remand, the ALJ is instructed to seek clarification from
Dr. Dave as to the meaning of the terms “mild to moderate” and
10

“moderate” in his August 29, 2013 medical source statement in light
of the physical exertion requirements of sedentary and light work
specified in 20 C.F.R. §§ 404.1567, 416.967; SSR 96-9p, 1996 WL
374185 (S.S.A. 1996) (elaborating on sedentary work); and SSR 8310, 1983 WL 31251 (S.S.A. 1983) (addressing meaning of sedentary
and light work).

In the event that Dr. Dave is unavailable, the

ALJ

a

shall

providing

order
a

new

medical

instructions above.

consultative

source

examination

statement

of

consistent

Plaintiff
with

the

The ALJ is instructed to consider this new

medical source statement along with the entire medical record in
formulating the RFC, offering reasoning supported by evidence in
the record in order to permit intelligible, plenary review of the
findings.
2.

Mild to Moderate
Sedentary Work

Limitations

in

Sitting

and

Plaintiff also argues that the ALJ’s RFC finding that he could
sit

for

six

hours,

consistent

with

supported by substantial evidence.

sedentary

work,

was

not

The ALJ failed to explain how

the RFC was consistent with Dr. Dave’s medical source statement
finding

that

Plaintiff

had

mild

to

prolonged sitting (Docket 11-3 at 16).

moderate

limitations

for

Upon remand, after the

required additional development of the record, the ALJ shall
reconsider, in formulating the RFC, whether the subsequent medical
source statement supports Plaintiff being able to “sit for a total

11

of 6 hours in an 8-hour work day.”

SSR 96-9p; see 20 C.F.R.

§§ 404.1567, 416.967.
VI.

Conclusion
For the foregoing reasons, Plaintiff’s motion for judgment on

the pleadings (Docket No. 11-2) is granted to the extent that this
matter is remanded to the Commissioner for further administrative
proceedings

consistent

with

this

Decision

and

Order.

The

Commissioner’s motion for judgment on the pleadings (Docket No. 13)
is denied.

The Clerk of the Court is directed to close this case.

ALL OF THE ABOVE IS SO ORDERED.

s/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge

Dated:

November 20, 2017
Rochester, New York.

12