Hurley v. Colvin

Filing 16

DECISION AND ORDER granting 12 Plaintiff's Motion for Judgment on the Pleadings to the extent the Commissioners decision is reversed, and the matter is remanded for further administrative proceedings consistent with this Decision and Order. T he Court directs that these pleadings be completed within six months of the date of this decision; and denying 13 Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 3/12/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SCOTT J. HURLEY,
Plaintiff,

No. 6:17-cv-06031(MAT)
DECISION AND ORDER

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

INTRODUCTION
Scott J. Hurley (“Plaintiff”), represented by counsel, 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

Security

(“Defendant”

or

“the

Commissioner”),1 denying his applications for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). The
Court has jurisdiction over the matter pursuant to 42 U.S.C.
§§ 405(g), 1383(c).
PROCEDURAL STATUS
On March 4, 2013, Plaintiff protectively filed for SSI; on
March 5, 2013, Plaintiff filed an application for DIB. In both
applications, Plaintiff alleged an onset date of November 26, 2011,

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).

and alleged disability based on a history of a heart attack, liver
failure

(diagnosed

November

2010),

shortness

of

breath

upon

activity, and memory problems. (T.76).2 These claims were denied
initially on July 2, 2013, and Plaintiff requested a hearing. A
hearing was conducted on February 17, 2015, in Rochester, New York
by an administrative law judge (“ALJ”). Plaintiff appeared with his
attorney and testified. An impartial vocational expert (“VE”) also
testified.
The ALJ issued an unfavorable decision (T.14-19) on April 24,
2015,

finding

impairments

of

that

Plaintiff,

cirrhosis

of

the

notwithstanding
liver

and

his

alcohol

severe

abuse

in

remission, has the residual functional capacity (“RFC”) to perform
sedentary

work

as

defined

in

20

C.F.R.

§§

404.1567(a)

and

416.967(a) with the following limitations: he can occasionally
climb

ramps,

stairs,

ladders,

ropes,

and

scaffolds;

can

occasionally balance, stoop, kneel, crouch and crawl; and is
limited to simple tasks. Based on the VE’s testimony, the ALJ
determined that Plaintiff cannot perform any of his past relevant
work (automobile self-service station attendant and groundskeeper,
industrial/commercial,
level). However,
significant

the

numbers

both
VE

that

performed

identified
a

person

at
other
with

the

light

jobs

exertional

that

Plaintiff’s

exist in
RFC

and

2

Citations to “T.” in parentheses refer to pages from the certified
transcript of the administrative record. (Dkt #9).

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vocational

profile

can

perform,

including

the

positions

of

addresser and order clerk. Therefore, the ALJ found that Plaintiff
has not been under a disability from November 26, 2011, through the
date of his decision.
The Appeals Council denied Plaintiff’s request for review on
November 18, 2016, making the ALJ’s decision the final decision of
the Commissioner. Plaintiff then timely commenced this action.
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). The
district court must accept the Commissioner’s findings of fact,
provided that such findings are supported by “substantial evidence”
in the record. See 42 U.S.C. § 405(g) (the Commissioner’s findings
“as to any fact, if supported by substantial evidence, shall be
conclusive”). “Substantial evidence means ‘such relevant evidence
as

a

reasonable

mind

might

accept

as

adequate

to

support

a

conclusion.’” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)
(quotation

omitted).

The

reviewing

court

nevertheless

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). “The deferential standard of

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review

for

substantial

evidence

does

Commissioner’s conclusions of law.”

not

apply

to

the

Byam v. Barnhart, 336 F.3d

172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109,
112 (2d Cir. 1984)).
DISCUSSION
Plaintiff’s Point I: RFC Not Supported by Substantial Evidence Due
to Conflicts with the Medical Opinions Relied on by the ALJ
In the present case, as the ALJ acknowledged, there were no
medical opinions from treating providers. Consultative physician
Dr. Karl Eurenius examined Plaintiff on April 26, 2013, and issued
a

report.

(T.461-63).

Plaintiff

reported

a

history

of

liver

failure; he had been a heavy drinker and had been brought to the
hospital
underwent

with

dizziness,

ascites,

ascites drainage.

A

CT

and

jaundice

scan of

his

for

which

abdomen

he

showed

inflamed appendix, portal hypertension, and varices,3 and he was
told he would probably need a liver transplant. Since discharge,
Plaintiff’s complaints included very poor short-term memory and
shortness of breath on exertion including shortness of breath with
less than one block of walking or one flight of stairs. Plaintiff
reported he cooked two or three times a week; cleaned as needed;
did laundry twice a week; shopped once a week; dressed and showered

3

In individuals who have cirrhosis, high blood pressure in the
veins that carry blood from the intestines to the liver (portal hypertension)
causes, inter alia, enlarged portal veins (varices), which attempt to
accommodate blocked blood flow through the liver.
See https://www.webmd.com/a-to-z-guides/tc/variceal-bleeding-as-a-complication
-of-cirrhosis-topic-overview (last accessed Mar. 9, 2018).

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daily; and spent his days watching television and listening to the
radio. On examination, Plaintiff had a normal gait and could heeltoe walk. Plaintiff could squat only half-way with some pain felt
in his abdomen. He had no jaundice but multiple spider angiomata on
his shoulders. Dr. Eurenius noted that Plaintiff’s abdomen was
somewhat distended and “very tense;” he could not feel Plaintiff’s
liver or spleen. There was “some shifting” and “dullness” but no
bruits. Plaintiff had full lumbar flexion, extension and rotation,
although

full

flexion

did

cause

pain

in

the

mid-abdomen.

Plaintiff’s straight leg raise test at 60 degrees bilaterally
caused

pain

in

the

abdomen.

Dr.

Eurenius

diagnosed

probable

end-stage liver disease with ascites, status post-alcohol and liver
disease indicating a transplant candidate (per Plaintiff). For his
medical source statement, Dr. Eurenius opined that Plaintiff was
“limited in all exertional activities, including walking, climbing,
lifting and carrying due to shortness of breath of uncertain
etiology;” “moderately limited in lifting, carrying and kneeling
due to ascites;4” and “may be moderately limited in following
directions due to poor short-term memory.” (T.463).

4

Ascites are a common condition in individuals with severe liver
disease and occurs when pressure builds up in the veins of the liver, blocking
blood flow in the liver, which, over time prevents the kidneys from removing
excess salt from the body. This, in turn, causes fluid to build and to cause
the abdomen to swell and protrude. Symptoms include shortness of breath,
nausea, indigestion, and vomiting.
See https://www.webmd.com/digestive-disorders/ascites-medref (last accessed
Mar. 9, 2018).

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On July 1, 2013, State agency review consultant Dr. Jack
Bankhead reviewed Plaintiff’s medical records and issued a physical
RFC assessment. (T.76-86). In the section headed, “Findings of Fact
and Analysis of Evidence,” Dr. Bankhead noted that Plaintiff was a
young man but with significant liver disease and a prior heart
attack. He had been sober since November 2010, and his liver
disease

although

advanced,

was

stable,

and

he

was

not

on

a

transplant list at present. Dr. Bankhead’s findings were that
Plaintiff

has

significant

portal

hypertension

and

abdominal

firmness with distention, which impact full lumbar range of motion
and

breathing;

and

“reasonable”

allegations

of

fatigue.

Dr. Bankhead indicated that based on these findings, Plaintiff is
“capable of walking/standing slightly less than 2 hours,” sitting
for 6 hours, and lifting less than 10 pounds occasionally. (T.80).
However, in the section of Dr. Bankhead’s report headed,
“Residual

Functional

Capacity,”

Dr.

Bankhead

indicated

that

Plaintiff could occasionally lift and/or carry (including upward
pulling) 20 pounds; frequently lift and/or carry (including upward
pulling) 10 pounds; sit for a total of about 6 hours in an 8-hour
day; stand and/or walk for a total of about 6 hours in an 8-hour
day with unlimited ability to push and pull; can frequently climb
ramps,

stairs,

balance,

stoop,

kneel

and

crouch;

and

can

occasionally climb ladders, ropes, scaffolds and crawl; should
avoid

concentrated

exposure

to

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extreme

cold,

heat,

wetness,

humidity, fumes, odors, dusts, gases, poor ventilation and hazards
(machinery/heights); but can have unlimited noise and vibration
exposure. (T.82-83).
The ALJ afforded Dr. Bankhead’s opinion “some weight” and
Dr.

Eurenius’s

opinion

“significant

weight.”

With

regard

to

Dr. Eurenius, the ALJ explained,
I afford significant weight to his opinion on the
claimant’s exertional limitations. This portion of the
opinion is consistent with his examination findings,
showing the claimant experiences some abdominal pains
with movements of the spine and with movements like
squatting. In addition, Dr. Eurenius’ opinion that the
claimant has moderate limitations due to poor short-term
memory is consistent with the claimant’s allegations. .
. .
(T.16).

Plaintiff argues that Dr. Eurenius’s opinion contradicted

the RFC assessment and was, in part, too vague to constitute
substantial

evidence.

Therefore,

Plaintiff

argues,

the

ALJ

improperly substituted his own lay opinion as the basis for the
RFC, rather than relying a medical opinion.
As
Dr.

discussed

Eurenius’s

further

opinion

was

below,

the

vague

and

Court
does

not

finds

that

constitute

substantial evidence to support the RFC issued by the ALJ. As an
initial matter, the Court notes that the ALJ’s decision lacks a
function-by-function

assessment

of

Plaintiff’s

functional

limitations before. SSR 96-8p directs that an “RFC assessment must
first

identify

the

individual’s

functional

limitations

or

restrictions and assess his or her work-related abilities on a

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function-by-function basis;” it is “[o]nly after that may RFC be
expressed in terms of the exertional levels of work . . . .” SSR
96–8p, 1996 WL 374184, at *1 (S.S.A. July 2, 1996). This analysis
requires assessing a claimant’s ability “to perform each of seven
strength demands: [s]itting, standing, walking, lifting, carrying,
pushing,

and

pulling.

Each

function

must

be

considered

separately[.]” Id. (quoting SSR 96–8p, 1996 WL 374184, at *5).
Here, the ALJ failed to make such a function-by-function finding.
Nor did he mention any of the exertional requirements of
work.

Cf.

light

Ferguson v. Colvin, No. 1:12-CV-0033 MAT, 2014 WL

3894487, at *8 (W.D.N.Y. Aug. 8, 2014) (reversing based on failure
to follow SSR 96-8p’s instruction to perform a function-by-function
analysis; even though the ALJ mentioned the lifting requirements of
light work, and acknowledged that a job is in the light category
when it requires a good deal of walking and standing, the ALJ did
not discuss claimant’s documented limitations in these exertional
areas). “Because a failure to separately assess a claimant’s
capacity to perform the relevant strength demands can ‘result in
the adjudicator overlooking some of an individual’s limitations or
restrictions[,]’ which can in turn ‘lead to an incorrect use of an
exertional category . . . and an erroneous finding that the
individual is not disabled,’ SSR 96–8p, 1996 WL 374184, at *4, this
error is a . . . basis for remand.” Ferguson, 2014 WL 3894487, at

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*8 (citing McClaney v. Astrue, No. 10–CV–5421(JG)(JO), 2012 WL
3777413, at *11 (E.D.N.Y. Aug. 10, 2012)).
Turning to the ALJ’s analysis of the opinion evidence in
support of the RFC assessment, the Court notes that under SSR
83-10, RFC is defined as follows: “[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). . . .” SSR 83-10, 1983 WL
31251,

at

*7

“[e]xertional

(S.S.A.

1983).

[a]ctivity”

as

SSR

83-10

“[o]ne

of

goes
the

on

to

primary

define
strength

activities (sitting, standing, walking, lifting, carrying, pushing,
and pulling) defining a level of work.” Id. at *5. According to
Dr. Eurenius, Plaintiff is “limited,” to an unspecified degree, “in
all exertional activities, including walking, climbing, lifting and
carrying due to shortness of breath of uncertain etiology[.]” (Id.
(emphases supplied)). However, Dr. Eurenius then gives a quantified
limitation regarding two of the previously identified activities,
noting that Plaintiff is “moderately limited in lifting, carrying
and kneeling due to ascites.” (Id. (emphases supplied)). The
Commissioner’s regulations do not define the term “moderate.” E.g.,
Figueroa v. Astrue, No. ED CV 10-385-E, 2010 WL 3789576, at *2 n.
3 (C.D. Cal. 2010) (citation omitted).
The

Commissioner

argues

that

Dr.

Eurenius’s

opinion

is

reflected in the RFC finding limiting Plaintiff to the performance

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of sedentary work—the least exertionally demanding level of work.
Plaintiff’s argues that Dr. Eurenius’s opinion is highly ambiguous
and vague. The Court agrees with Plaintiff. It is unclear whether
Dr. Eurenius’s opinion is consistent with the RFC because it does
not quantify the doctor’s limitations on the main exertional
activities. See, e.g., Andrews v. Colvin, No. 13 CIV.2217 RWS, 2014
WL 3630668, at *11 (S.D.N.Y. July 22, 2014) (consultative physician
stated Plaintiff had “moderate limitations to squatting, lifting
and carrying, pushing and pulling secondary to back pain”; court
found

“the

ALJ

erred

in

relying

on

the

doctor’s

vague,

non-specified notes regarding Plaintiff’s ability to squat, lift,
carry, push and pull”) (citing Selian v. Astrue, 708 F.3d 409, 421
(2d Cir. 2013)); Burton v. Colvin, No. 6:12-CV-6347 MAT, 2014 WL
2452952, at *10 (W.D.N.Y. June 2, 2014) (“Dr. Toor's assessment of
a “mild-to-moderate” limitation on a whole range of different
physical activities [i.e., sitting, standing, walking, bending, and
lifting], without more, is too vague to be meaningful or to provide
substantial evidence to support the ALJ’s RFC analysis.”) (citing
Minor v. Astrue, No. 11–CV–06556–MAT, 2012 WL 5948952, *4 (W.D.N.Y.
Nov.28, 2012) (“Although [the consultative examiner] gave the
opinion that [claimant] had only ‘moderate’ limitations in her
lumbar spine mobility and ‘mild’ limitations in prolonged standing,
walking, and using stairs, inclines and ladders, these opinions do
not constitute ‘substantial evidence’”) (citing Curry v. Apfel, 209

-10-

F.3d

117,

123

(2d

Cir.

2000)

(holding

that

opinions

from

consultative examiner that a claimant has “mild” or “moderate”
limitations, “without additional information”, are “so vague as to
render

[the

opinions]

useless”);

other

citation

omitted)).

“Ambiguous evidence . . . triggers the ALJ’s duty to ‘conduct an
appropriate inquiry.’” Tonapetyan v. Halter, 242 F.3d 1144, 1150
(9th Cir. 2001) (quotation omitted).
It is also unclear how the ALJ weighed Dr. Bankhead’s opinion.
With regard to Dr. Bankhead, the ALJ referenced the “Residual
Functional Capacity” portion of the report (T.82-83), and accorded
it “some weight” because it “is not generally consistent with the
overall medical evidence of record” Dr. Bankhead “did not treat or
examine the claimant.” (T.17). As noted above, Dr. Bankhead’s
notations regarding Plaintiff’s limitations in standing/walking and
lifting/carrying appear to be internally inconsistent, depending on
the section of the report in which they are located. (Contrast T.80
with T.82-83).
Remand is required for clarification of Dr. Eurenius’s opinion
and Dr. Bankhead’s opinion, as well as performance of a functionby-function assessment under SSR 96-8p.
Plaintiff’s Point II: Credibility Assessment Not Supported by
Substantial Evidence
Plaintiff
evaluation
boilerplate

of

argues
his

that

the

ALJ

credibility

statements

about

why
-11-

provided

since

the

Plaintiff’s

an

insufficient

decision
daily

contains
activities

undermined his subjective complaints. The ALJ simply stated that
while

Plaintiff’s

medically

determinable

impairments

could

reasonably be expected to cause his alleged symptoms, Plaintiff’s
statements

concerning

the

intensity,

persistence

and

limiting

effects of these symptoms were not entirely credible for the
reasons discussed in the decision. The three reasons offered by the
ALJ were that

Plaintiff

engaged

in

daily

activities

such

as

self-care and completing household chores; he had not received any
medical treatment in approximately two years despite having medical
insurance; and the record was devoid of medical opinions from
treating or examining physicians indicating that Plaintiff “was
disabled.” (T.17).
“If the ALJ decides to reject subjective testimony concerning
pain

and

other

symptoms,

he

must

do

so

explicitly

and

with

sufficient specificity to enable the Court to decide whether there
are legitimate reasons for the ALJ’s disbelief and whether his
determination is supported by substantial evidence.” Brandon v.
Bowen, 666 F. Supp. 604, 608 (S.D.N.Y. 1987) (citing, inter alia,
Valente v. Sec’y of Health and Human Servs., 733 F.2d 1037, 1045
(2d Cir. 1984); footnote omitted).

Although a claimant’s daily

activities are relevant in evaluating his complaints of pain,
20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(3)(i), Plaintiff “was
performing

these

‘daily

activities’

at

home,

on

[his]

own

schedule—not in the context of a competitive work environment where

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[he] would not be able to take breaks or rest as needed.” However,
Plaintiff was performing these “daily activities” at home, on her
own schedule-not in the context of a competitive work environment
where she would not be able to take breaks or rest as needed.”
Burton v. Colvin, No. 6:12-CV-6347 MAT, 2014 WL 2452952, at *12
(W.D.N.Y. June 2, 2014). Furthermore, Plaintiff did not testify
that he did laundry or housework every day, and he indicated that
he had help from his mother and brother. In any event, “performance
of daily activities is not necessarily a clear and convincing
reason to discredit a [claimant’s] testimony.” Provencio v. Astrue,
No. CV 11–141–TUC–BPV, 2012 WL 2344072, at *12 (D. Ariz. June 20,
2012) (citing Webb v. Barnhart, 433 F.3d 683, 687–88 (9th Cir.
2005)); see also Snyder v. Barnhart, 212 F. Supp.2d 172, 179
(W.D.N.Y. 2002) (finding error where “the ALJ focused heavily on
the [claimant]’s admitted daily capabilities, including driving
herself to appointments, cooking for her family, doing light
laundry, and grocery shopping with the aid of her fiancé in
carrying the grocery bags”). A claimant “‘need not be an invalid to
be found disabled’ under the Social Security Act.” Balsamo v.
Chater, 142 F.3d 75, 81 (2d Cir. 1998) (quoting Williams v. Bowen,
859 F.2d 255, 260 (2d Cir. 1988)). The Court finds that the ALJ
failed

to

explain

how,

in

a

manner

sufficient

to

allow

meaningful appellate review, Plaintiff had the ability to

for

engage

in any of these activities for sustained periods comparable to

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those required to hold a sedentary job. Starzynski v. Colvin,
No. 1:15-CV-00940(MAT), 2016 WL 6956404, at *4 (W.D.N.Y. Nov. 29,
2016) (citing Meadors v. Astrue, 370 F. App’x 179, 184 (2d Cir.
2010) (unpublished opn.) (“Because we agree that the ALJ did not
properly evaluate the [the claimant]’s testimony regarding her
pain, we are unable to give his calculation of [the claimant]’s RFC
meaningful review.”).
With regard to Plaintiff’s limited recent medical treatment,
the ALJ failed to consider Plaintiff’s explanation for this.
Plaintiff testified he had not sought any medical treatment in a
couple of years “because two years ago, [he] was pretty much
exactly the same as [he was] now.” (T.40).5 He further testified
that when he last obtained medical treatment, he was not told about
any further suggested treatment and was instructed to return if his
symptoms changed. (T.42).
Lastly, the absence of medical opinions that Plaintiff “is
disabled”

is a

red

herring.

Had there

been

medical

opinions

asserting that Plaintiff “is disabled,” and had Plaintiff argued
that they were entitled to significant weight, the Commissioner
certainly would have argued that, as statements regarding the
ultimate question reserved to the Commissioner, they were entitled
to no special significance. See, e.g., Newbury v. Astrue, 321 F.
5

This is corroborated by State agency review consultant Dr. Bankhead’s
observation that Plaintiff’s liver disease, although significant and severe, was
“stable.” (T.80).

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App’x 16, 18 (2d Cir. 2009) (unpublished opn.) (“[Treating source]
Dr. Grace’s conclusions that Newbury was ‘disabled’ and lacked
‘residual functional capacity’ are not entitled to controlling
weight.”) (citing Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999)
(“Reserving the ultimate issue of disability to the Commissioner
relieves the Social Security Administration of having to credit a
doctor’s finding of disability. . . .”)).
CONCLUSION
For the reasons discussed above, the Commissioner’s decision
is unsupported by substantial evidence and contains legal errors.
Therefore, Plaintiff’s motion for judgment on the pleadings is
granted to the extent the Commissioner’s decision is reversed, and
the matter is remanded for further administrative proceedings
consistent with this Decision and Order. The Court directs that
these pleadings be completed within six months of the date of this
decision. The Commissioner’s motion for judgment on the pleadings
is denied. The Clerk of Court is directed to close this case.
SO ORDERED.
S/Michael A. Telesca
______________________________
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

March 12, 2018
Rochester, New York.

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