Biro v. Berryhill

Filing 19

DECISION AND ORDER granting in part 12 Motion for Judgment on the Pleadings; denying 16 Motion for Judgment on the Pleadings. Signed by Hon. Elizabeth A. Wolford on 09/28/2018. (CDH)-CLERK TO FOLLOW UP-

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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF NEW YORK

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LASZLO BIRO,

Plaintiff,

DECISION AND ORDER

V.

6:I7-CV-06098 EAW

COMMISSIONER OF SOCIAL SECURITY,'
Defendant.

INTRODUCTION

Represented by counsel, Plaintiff Easzlo Biro ("Plaintiff) brings this action
pursuant to Title XVI of the Social Security Act (the "Act"), seeking review of the final
decision of the Commissioner of Social Security (the "Commissioner," or "Defendant")
denying his application for supplemental security income ("SSI"). (Dkt. I). This Court

has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). Presently before the Court

are the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. (Dkt. 12; Dkt. 16). For the reasons discussed below,
Plaintiffs motion (Dkt. 12) is granted in part, the Commissioner's motion (Dkt. 16) is
denied, and the matter is remanded to the Commissioner for further administrative

proceedings consistent with this Decision and Order.

'

As of the date of this Decision and Order, Nancy A. Berryhill, the Defendant named

by Plaintiff in this matter, is no longer the Acting Commissioner of Social Security. No
successor has been named in her place. The Clerk of Court is therefore instructed to
substitute the "Commissioner of Social Security" as the Defendant, in accordance with
Federal Rule of Civil Procedure 25(d).
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BACKGROUND

Plaintiff initially filed an application for SSI on March 29, 2007. (Dkt. 8-8 at 15).^
This application was granted, and Plaintiff began receiving SSI benefits. {Id.). However,
in 2009, Plaintiff was convicted of driving while intoxicated and incarcerated for
approximately 18 months. {Id.). As a result of this incarceration. Plaintiffs SSI benefits

were suspended. {Id.).^
Plaintiff protectively filed a new application for SSI on March 30, 2011, alleging
disability from March 29, 2007, due to gout, severe lower back pain, hypertension,
pancreatitis, and anxiety. (Dkt. 8-6 at 2-3). Plaintiffs application was initially denied on
July 12, 2011. (Dkt. 8-4 at 2-5). At Plaintiffs request, a hearing on his claim was held

before an administrative law judge ("ALJ"), and on September 26, 2012, the ALJ issued
an unfavorable decision. (Dkt. 8-2 at 12-28). The Appeals Council denied Plaintiffs
request for review on December II, 2013 {Id. at 2-4), and an action was commenced in
this court. See Civil Action No. 6:14-CV-06061. Pursuant to a stipulation between
Plaintiff and the Commissioner, the court remanded the matter for further administrative

proceedings. (Dkt. 8-9 at 27).

On remand, the Appeals Council vacated the Commissioner's prior decision and
remanded the case to the ALJ to: (1) further develop the record regarding Plaintiffs

^

When referencing the page number(s)ofdocket citations in this Decision and Order,

the Court will cite to the CM/ECF-generated page numbers that appear in the upper
righthand comer of each document.

^

The Act "requires the termination of eligibility for SSI benefits after a claimant is

ineligible for 12 consecutive months." Singletary v. Astrue, No. ll-CV-6055, 2012 WL
3204071, at *1 (W.D.N.Y. Aug. 3, 2012).
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impairments;(2) give further consideration to treating and nontreating source opinions;
and(3)further evaluate Plaintiffs subjective complaints in accordance with the applicable
regulations. {Id. at 27-28).

A remand hearing was held before ALJ John P. Ramos on January 26, 2016. (Dkt.
8-8 at 78-118). On April 18, 2016, ALJ Ramos issued an unfavorable decision. {Id. at 14-

48). The Appeals Council declined to assume jurisdiction, rendering ALJ Ramos' decision
the Commissioner's final determination. {Id. at 2).
LEGAL STANDARD
I.

District Court Review

"In reviewing a final decision ofthe [Social Security Administration ("SSA")], this
Court is limited to determining whether the SSA's conclusions were supported by
substantial evidence in the record and were based on a correct legal standard." Talavem

V. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quotation omitted); see also 42 U.S.C.
§ 405(g). The Act holds that a decision by the Commissioner is "conclusive" if it is
supported by substantial evidence. 42 U.S.C. § 405(g). "Substantial evidence means more
than a mere scintilla. It means such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion." Moran v. Astrue, 569 F.3d 108, 112(2d Cir. 2009)
(quotation omitted). It is not the Court's function to "determine de nova whether [the

claimant] is disabled." Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quotation

omitted); see also Wagner v. Sec'y ofHealth & Human Servs., 906 F.2d 856, 860(2d Cir.
1990) (holding that review of the Secretary's decision is not de novo and that the

Secretary's findings are conclusive ifsupported by substantial evidence). However,"[t]he
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deferential standard of review for substantial evidence does not apply to the
Commissioner's conclusions oflaw." Byam v. Barnhart, 336 F.3d 172, 179(2d Cir. 2003)
(citing Townley v. Heckler, 748 F.2d 109, 112(2d Cir. 1984)).
II.

Disability Determination

An ALJ follows a five-step sequential evaluation to determine whether a claimant

is disabled within the meaning of the Act. See Parker v. City ofNew York, 476 U.S. 467,
470-71 (1986). At step one, the ALJ determines whether the claimant is engaged in
substantial gainful work activity. See 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, the

claimant is not disabled. If not, the ALJ proceeds to step two and determines whether the
claimant has an impairment, or combination of impairments, that is "severe" within the

meaning of the Act, in that it imposes significant restrictions on the claimant's ability to
perform basic work activities. Id. §§ 404.1520(c), 416.920(c). If the claimant does not

have a severe impairment or combination of impairments, the analysis concludes with a
finding of"not disabled." If the claimant does have at least one severe impairment, the
ALJ continues to step three.
At step three, the ALJ examines whether a claimant's impairment meets or
medically equals the criteria of a listed impairment in Appendix I of Subpart P of
Regulation No.4(the "Listings"). Id. §§ 404.1520(d),416.920(d). Ifthe impairment meets
or medically equals the criteria of a Listing and meets the durational requirement {id.
§§ 404.1509,416.909), the claimant is disabled. If not, the ALJ determines the claimant's

residual functional capacity ("RFC"), which is the ability to perform physical or mental

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work activities on a sustained basis, notwithstanding limitations for the collective
impairments. See id. §§ 404.1520(e), 416.920(e).
The ALJ then proceeds to step four and determines whether the claimant's RFC

permits the claimant to perform the requirements of his or her past relevant work. Id.
§§ 404.1520(f), 416.920(f). Ifthe claimant can perform such requirements, then he or she
is not disabled. If he or she cannot,the analysis proceeds to the fifth and final step, wherein
the burden shifts to the Commissioner to show that the claimant is not disabled. Id.

§§ 404.1520(g), 416.920(g). To do so, the Commissioner must present evidence to
demonstrate that the claimant "retains a residual functional capacity to perform alternative
substantial gainful work which exists in the national economy" in light of the claimant's
age, education, and work experience. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999)
(quotation omitted); see also 20 C.F.R. § 404.1560(c).
DISCUSSION
I.

The ALJ's Decision

In determining whether Plaintiff was disabled, the ALJ applied the five-step
sequential evaluation set forth in 20 C.F.R. §§ 404.1520 and 416.920. At step one,the ALJ
determined that Plaintiff had not engaged in substantial gainful work activity since March
30, 2011, the alleged onset date. (Dkt. 8-8 at 18).

At step two, the ALJ found that Plaintiff suffered fi*om the severe impairments of

degenerative disc disease of the cervical and lumbar spine, degenerative joint disease of
the left knee, history ofgout, asthma, and panic disorder with agoraphobia. {Id.). The ALJ
further found that Plaintiff had the non-severe impairments of hypertension.

hyperlipidemia, duodenal cancer, pancreatitis, digestive disorders, and obesity. {Id. at 1920). The ALJ also concluded that Plaintiffs claimed enlarged liver and borderline diabetes
did not constitute medically determinable impairments. {Id. at 21).

At step three, the ALJ found that Plaintiff did not have an impairment or
combination ofimpairments that met or medically equaled the severity of any Listing. {Id.
at 25-26). The ALJ particularly considered the criteria of Listings 1.02, 1.03, 1.04, 12.02,
12.04, 12.06, 12.09, and 14.09 in reaching his conclusion. {Id. at 21-22).

Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC
to perform sedentary work as defined in 20 C.F.R. §§ 416.967(a), with the additional
limitations that Plaintiff:

should avoid frequent pushing and pulling with either upper extremity; can
occasionally perform postural activities, such as bending,stooping, kneeling,
crouching, and crawling; may need the use of a cane to ambulate, but retains
the ability to carry small objects such as files in his free hand; and should
avoid exposure to concentrated respiratory irritants or extremes of
temperature. The claimant also retains the ability to understand and follow
simple instructions and directions; can perform simple tasks with supervision
and independently; can maintain attention/concentration for simple tasks;
can regularly attend to a routine and maintain a schedule; can relate to and
interact with others to the extent necessary to carry out simple tasks, but
should avoid work requiring more complex interaction or joint efforts with
others to achieve work goals and should not have interaction with the public;
and can handle reasonable levels of simple work-related stress in that he can
make simple decisions directly related to the completion of his tasks, work
in a position where he is not responsible for the work of others, and in work
that involves little change in daily routine, work duties, or processes.
{Id. at 24). At step four, the ALJ found that Plaintiff had no past relevant work. {Id. at 39).

At step five, the ALJ relied on the testimony of a vocational expert ("VE") to
conclude that, considering Plaintiffs age, education, work experience, and RFC, there
were jobs that exist in significant numbers in the national economy that Plaintiff could
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perform, including the representative occupations of document preparer, addresser, and
touch-up screener. {Id. at 39-41). Accordingly, the ALJ found that Plaintiff was not
disabled as defined in the Act. {Id. at 41-42).
II.

Remand of this Matter for Further Proceedings is Necessary

Plaintiff asks the Court to reverse the Commissioner's decision, arguing that:(1)the

ALJ's RFC finding was unsupported by substantial evidence, because the ALJ relied upon
a medical opinion predating Plaintiffs 2013 knee injury; and(2)the ALJ improperly relied
on a questionnaire completed in 2011 in assessing the credibility of Plaintiffs subjective
complaints. For the reasons set forth below, the Court finds that the ALJ's assessment of

Plaintiffs RFC was unsupported by substantial evidence and that this error necessitates

remand for further administrative proceedings.
A.

Assessment of PlaintifFs RFC

In deciding a disability claim, an ALJ is tasked with "weigh[ing] all ofthe evidence
available to make an RFC finding that [is] consistent with the record as a whole." Matta
V. Astrue, 508 F. App'x 53, 56 (2d Cir. 2013). An ALJ's conclusion need not "perfectly

correspond with any of the opinions of medical sources cited in his decision." Id.
However,an ALJ is not a medical professional, and "is not qualified to assess a claimant's
RFC on the basis of bare medical findings." Ortiz v. Colvin, 298 F. Supp. 3d 581, 586
(W.D.N.Y. 2018)(quotation omitted). "[A]s a result[,] an ALJ's determination of RFC

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without a medical advisor's assessment is not supported by substantial evidence." Dennis
V. Colvin, 195 F. Supp. 3d 469,474(W.D.N.Y. 2016)(quotation omitted).

Of particular relevance to this case, "medical source opinions that are conclusory,
stale, and based on an incomplete medical record may not be substantial evidence to
support an ALJ finding." Camille v. Colvin, 104 F. Supp. 3d 329, 343(W.D.N.Y. 2015).
"A medical opinion may be stale if it does not account for the claimant's deteriorating
condition."

Carney v. Berryhill, No. 16-CV-269-FPG, 2017 WL 2021529, at *6

(W.D.N.Y. May 12, 2017). However, a medical opinion is not necessarily stale simply
based on its age. A more dated opinion may constitute substantial evidence if it is
consistent with the record as a whole notwithstanding its age. See Andrews v. Berryhill,
No. 17-CV-6368(MAT),2018 WL 2088064, at *3(W.D.N.Y. May 4, 2018)
(ALJ did not

err in relying on dated opinions where there was no indication the plaintiffs "condition
bad significantly deteriorated after the issuance of...[the] opinions such that they were
rendered stale or incomplete").

Here, Plaintiff argues that the ALJ's RFC finding was not supported by substantial
evidence because it was based on the stale medical opinion of consultative examiner Dr.

Harbinder Toor and otherwise unsupported by any competent medical opinion. The Court
agrees, for the reasons discussed below.
Dr. Toor examined Plaintiff on June 21,2011, shortly after bis application was filed

and nearly five years before the ALJ issued bis decision. (Dkt. 8-7 at 182-85). Dr. Toor

performed a physical examination ofPlaintiff, during which Plaintiffbad a normal gait and
stance, used no assistive devices, and was able to rise from a chair without difficult. {Id.
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at 183). Plaintiff did have slight difficulty getting on and off the examination table and

walking on his heels and toes, and was able to squat to only 50% of full. {Id.). Plaintiff
had slight discomfort in his knees bilaterally, but exhibited a full range of motion. {Id. at
184). Based on this examination. Dr. Toor opined that Plaintiffhad "moderate"limitations

in standing, walking, sitting, bending, lifting, pushing, and pulling. {Id. at 185).
More than two years after Dr. Toor's examination, in September 2013, Plaintiff
twisted his left knee and fell. {See Dkt. 8-13 at 237). Plaintiff was determined to have a
tear of the medial cartilage or meniscus of his left knee and underwent a left knee
arthroscopy on October 17, 2013. {Id. at 108-110). Plaintiff continued to suffer left knee

pain in 2013 and 2014. {See, e.g., Dkt. 8-14 at 47, 66). In July 2014, he reported that he
had experienced only a 50% improvement in his symptoms since his surgery. {Id. at 66).
In August 2014, Plaintiff was instructed to begin wearing a left knee brace. {Id. at
78). Plaintiffs treating physician's assistant noted that Plaintiff might require a total knee
replacement if his symptom continued to worsen. {Id.).
In November 2015, Plaintiff again complained of significant left knee pain and
asked his treatment providers about possible options to alleviate it. {Id. at 127). An x-ray
of Plaintiffs left knee was taken and showed tricompartmental joint disease, most
advanced in the medial compartment, and a small effusion. {Id. at 108). On December 20,

2015, Plaintiff reported to his physician that his knee pain continued to worsen and that he
was experiencing swelling, occasional popping, and clicking.

{Id. at 151).

On

examination. Plaintiff had a limited range of motion in his left knee, with positive pain and
crepitus on patellofemoral grind testing and positive pain over the patellar tendon. {Id. at
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152). Plaintiff declined further conservative care and expressed interest in a second
arthroscopy. {Id. at 153).

A second arthroscopy was performed on Plaintiffs left knee on January 21, 2016.
{Id. at 207-208). Plaintiffs post-operative diagnoses were chondral defect medial femoral

condyle, posterior horn root tear lateral meniscus, lateral osteophyte in notch causing
impingement, and patellofemoral degenerative changes. {Id. at 207). In February 2016,
Plaintiff reported he was continuing to experience knee pain post-surgery. {Id. at 172).
In assessing Plaintiffs RFC, the ALJ accorded "significant weight" to Dr. Toor's

2011 opinion, stating that it was "generally supported by the objective medical evidence[.]"
(Dkt. 8-8 at 30). The ALJ acknowledged that there had been a "worsening of[Plaintiffs]
left knee disorder following an injury in September 2013," but concluded that "greater
exertional and non-exertional limitations [than identified by Dr. Toor] are not supported

by the objective clinical and laboratory findings from various treating and examining
sources." {Id.).

The Court finds the ALJ's consideration ofPlaintiffs knee impairment unsupported
by substantial evidence. First, Dr. Toor's opinion, which was rendered nearly five years

before the ALJ's decision and before Plaintiffs September 2013 knee injury and two
subsequent surgeries, was stale and not based on the complete medical record. See, e.g.,

Pagano v. Comm'r of Sac. Sec., No. 16-CV-6537-FPG, 2017 WL 4276653, at *5
(W.D.N.Y. Sept. 27, 2017)("[A]s the ALJ pointed out himself. Dr. Miller's opinion was

rendered before [the plaintiffs] ankle surgery and therefore does not account for his

deteriorating condition. A stale medical opinion, like one that is rendered before a surgery,
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is not substantial evidence to support an ALJ's finding.")(citations omitted); Girolamo v.

Colvin, No. 13-CV-06309 MAT,2014 WL 2207993,at *8(W.D.N.Y. May 28,2014)
(ALJ
erred in assigning "great weight" to medical source statement that was "based on an

incomplete record" because it was rendered before the plaintiffs "surgery and related
diagnostic testing"). Accordingly, Dr. Toor's opinion cannot provide substantial evidence
for the ALJ's findings.

The ALJ also did not rely on any other competent medical opinion in considering
Plaintiffs left knee condition. Only two opinions of record were issued after Plaintiffs
September 2013 injury. First, nurse practitioner("NP")Aileen Colunio issued an opinion

on February 12, 2016, stating that she had "never been provided medical evidence that
would suggest [Plaintiff] is disabled." (Dkt. 8-13 at 305-306). However,NP Colunio, who
worked for a pain management clinic, acknowledged that she had not treated Plaintiff for

his knee and ankle pain. {Id. at 305). Accordingly, NP Colunio's opinion does not provide

any meaningful information regarding the impact of Plaintiffs knee condition on his
functional limitations. Second, physician's assistant Diane Legendre issued an opinion on

September 15, 2014, in which she stated that Plaintiffs conditions, which were chronic
and not expected to improve, prevented him from working. {Id. at 111). The ALJ gave

this opinion "little weight," stating that it was not supported by the clinical findings of
record. (Dkt. 8-8 at 32). It is therefore clear that the ALJ could not have relied on either

ofthese opinions in assessing Plaintiffs RFC in light ofhis worsening left knee symptoms.
Defendant contends that the ALJ's RFC finding was supported by the "voluminous
medical record," including "extensive progress notes" and "diagnostic testing."(Dkt. 16 at
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27). However, as the Court noted above, an ALJ may not "ma[ke] an RFC determination

in the absence ofsupporting expert medical opinion[.]" Henningsen v. Comm 'r ofSoc. Sec.
Admin., Ill F. Supp. 3d 250,271 (E.D.N.Y. 2015)(quotation omitted). This is not a case
in which Plaintiff had only minor impairments such that the ALJ "was within [his]
discretion to make a'common sense judgment' concerning [Plaintiffs] limitations, and no
medical opinion evidence was necessary." Lilley v. Berryhill, 307 F. Supp. 3d 157, 161
(W.D.N.Y. 2018). As detailed above. Plaintiffs knee impairment, as exacerbated by his
September 2013 injury, was sufficiently severe that it necessitated two surgeries. Under
these circumstances, it was necessary for the ALJ to rely upon a medical source's opinion
in considering the limitations, if any, associated with this impairment. See Perkins v.

Berryhill, No. 17-CV-6327-FPG,2018 WL 3372964,at *4(W.D.N.Y.July 11,2018)
(ALJ
cannot render a common-sense judgment about a claimant's functional capacity where the
record "contain[s] complex medical findings and do[es] not suggest only minor
impairment).

Because the ALJ in this matter failed to rely on any competent medical opinion in
assessing Plaintiffs RFC following his September 2013 knee injury and subsequent

surgeries, his decision was unsupported by substantial evidence. Remand of this matter
for further administrative proceedings, during which the record can be appropriately

developed (including by obtaining an updated fiinction-by-function medical assessment of
Plaintiff), is necessary.

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B.

PlaintifFs Remaining Argument

Plaintiff also argues that the ALJ improperly relied on a questionnaire from 2011 in
assessing the eredibility of his subjeetive eomplaints. However, beeause the Court has
already determined, for the reasons previously diseussed, that remand of this matter for
further administrative proeeedings is necessary, the Court declines to reach this issue. See,
e.g., Bellv. Colvin, No. 5:15-CV-01160(LEK),2016 WL 7017395, at *10(N.D.N.Y. Dee.
1, 2016) (declining to reach arguments "devoted to the question whether substantial
evidence supports various determinations made by [the] ALJ" where the court had already
determined remand was warranted); Morales v. Colvin, No. 13 CIV. 06844 LGS DF,2015
WL 2137776, at *28 (S.D.N.Y. May 4, 2015) (the court need not reach additional

arguments regarding the ALJ's factual determinations "given that the ALJ's analysis may
change on these points upon remand").
CONCLUSION

For the foregoing reasons. Plaintiffs motion for judgment on the pleadings
(Dkt. 12) is granted to the extent that the matter is remanded for further administrative

proeeedings. Defendant's motion for judgment on the pleadings (Dkt. 16) is denied. The
Clerk of Court is directed to enter judgment and close this ease.
SO ORDLRED.

euzabe^^aT^^^

Uriilfid:^tates District Judge

Dated: September 28, 2018
Rochester, New York

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