Falbru v. Berryhill

Filing 15

DECISION AND ORDER granting 9 Plaintiff's Motion for Judgment on the Pleadings to the extent that this matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order. In light of the fact that Plaintiffs applications were initially filed in March 2013 (over five years ago), on remand, the administrative proceedings shall be conducted on an expedited basis, to be completed no later than December 31, 2018; and denying 12 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 3/30/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DWAYNE FALBRU,
Plaintiff,
-vs-

No. 6:17-CV-06314 (MAT)
DECISION AND ORDER

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

I.

Introduction
Represented by counsel, plaintiff Dwayne Falbru (“Plaintiff”)

brings this action pursuant to Titles II and XVI of the Social
Security Act (the “Act”), seeking review of the final decision of
defendant

the

“Commissioner”

Acting
or

Commissioner

“Defendant”)

of

denying

Social
his

Security

(the

applications

for

disability insurance benefits (“DIB”) and supplemental security
income

(“SSI”).

The

Court

has

jurisdiction

over

this

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. For the reasons
discussed below, Plaintiff’s motion is granted to the extent that
this

case

is

remanded

to

the

Commissioner

for

further

administrative proceedings consistent with this Decision and Order,
and the Commissioner’s motion is denied.

II.

Procedural History
Plaintiff protectively filed applications for DIB and SSI in

March 2013, alleging disability as of February 12, 2013 due to
degenerative disc disease and lower back problems.

Administrative

Transcript (“T.”) 67, 164-70. Plaintiff’s application was initially
denied.

T. 95-110. At Plaintiff’s request, a hearing was held

before administrative law judge (“ALJ”) Brian Kane on February 26,
2015.

T. 40-66.

decision.

On April 6, 2015, the ALJ issued an unfavorable

T. 19-35. On March 21, 2017, the Appeals Council denied

Plaintiff’s request for review, making the ALJ’s determination the
Commissioner’s final decision.

T. 1-6.

This action followed.

III. 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, 416.920. Initially, the ALJ determined that Plaintiff
met the insured status requirements of the Act through March 31,
2014.

T. 24. At step one of the five-step sequential evaluation,

the ALJ determined that Plaintiff had not engaged in substantial
gainful activity since the alleged onset date.

Id.

At step two,

the ALJ found that Plaintiff suffered from the severe impairments
of degenerative disc disease and resultant low back pain.

Id.

The

ALJ further found that Plaintiff suffered from the non-severe
impairments of migraines, gastroesophageal reflux disease, sleep
problems, and depression.

T. 24-25.
2

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 any listed impairment. T. 26. The ALJ
particularly considered Listing 1.04 (disorders of the spine) in
reaching this determination.

Id.

Before proceeding to step four, the ALJ determined that
Plaintiff retained the RFC to perform the full range of light work
as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b).

T. 27.

At step four, the ALJ found that Plaintiff was capable of
performing his past relevant work as a fast food worker.

T. 29.

In the alternative, at step five, the ALJ relied on the testimony
of a vocational expert to conclude that, considering Plaintiff’s
age, education, work experience, and RFC, there were jobs that
exist in significant numbers in the national economy that Plaintiff
could

perform.

T.

29-30.

Accordingly,

the

Plaintiff was not disabled as defined in the Act.
IV.

ALJ

found

that

T. 30.

Discussion
A.
A

Scope of Review
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.” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000) (internal quotation
omitted).

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. 2013). “The deferential standard
of

review

for

substantial

evidence

Commissioner’s conclusions of law.”

does

not

apply

to

the

Byam v. Barnhart, 336 F.3d

172, 179 (2d Cir. 2003).
Here, Plaintiff contends that the ALJ’s RFC finding was not
supported by substantial evidence. In particular, Plaintiff argues
that

the

ALJ

improperly

relied

on

his

own

lay

opinion

in

determining that Plaintiff was capable of performing light work,
rather than relying on competent medical opinion.

Plaintiff

further argues that the ALJ erred at step two when he found that
Plaintiff’s migraines and depression were not severe impairments.
For the reasons discussed below, the Court finds that remand of
this matter for further administrative proceedings is appropriate.
B.

Assessment of Plaintiff’s Physical Limitations

Plaintiff’s first argument is that the ALJ erred in finding
that he was capable of the full range of light work without any
additional limitations. Plaintiff points out that the sole medical

4

source

statement

in

the

record

that

assessed

Plaintiff’s

capabilities on a function-by-function basis was the opinion of
consultative examiner Dr. Harbinder Toor.

Dr. Toor examined

Plaintiff on May 23, 2013, and found on physical examination that
his lumbar spine had forward flexion of 20 degrees, extension of
zero degrees, lateral flexion of 30 degrees bilaterally, and
rotation of 30 degrees bilaterally.

T. 327-28.

Straight leg

raising tests were positive bilaterally at 20 degrees in both a
sitting and supine position.

T. 328.

Dr. Toor opined that

Plaintiff had moderate to severe limitations in standing, walking,
bending, and lifting.

Id.

He further opined that Plaintiff had a

moderate limitation in “sitting for a long time.”

Id.

In his decision, the ALJ stated that he had not afforded
Dr.

Toor’s

opinion

“any

great

weight”

because

he

found

it

“inconsistent with the claimant’s stated activities of daily living
as well as his current work activity.”

T. 29.

Plaintiff argues,

and the Court agrees, that this cursory statement by the ALJ is an
insufficient

explanation

of

his

decision

to

reject

the

sole

functional analysis of record.
Under the Commissioner’s regulations, an ALJ is required to
“evaluate

every

§ 416.927(c).

medical

opinion

[he]

receives.”

20

C.F.R.

Unless the ALJ affords controlling weight to the

opinion of a claimant’s treating physician, he must consider the
factors set forth in the regulations and “explain in the decision
the

weight

given

to

the

opinions.”
5

Duell

v.

Astrue,

No. 8:08-CV-969, 2010 WL 87298, at *5 (N.D.N.Y. Jan. 5, 2010)
(internal quotation omitted); see also Hatcher v. Astrue, 802
F.

Supp.

2d

472, 476

(W.D.N.Y.

2011)

(“The

ALJ

must .

.

.

articulate his reasons for assigning the weight that he does to
both treating and nontreating physicians’ opinions.”).
assessing a medical opinion from . . .

“[W]hen

a consultative examiner,

the ALJ should consider the following factors to determine the
proper weight to afford the opinion: (1) the source’s examination
relationship
including

the

and

treatment

length,

relationship

nature,

and

with

extent

of

the
the

plaintiff,
treatment

relationship, if applicable, (2) the opinion’s supportability,
(3) the opinion’s consistency with the record as a whole, (4) the
source’s specialization, if any, and (5) other factors, such as the
source’s knowledge of disability programs and familiarity with the
case record.” Bump v. Comm’r of Soc. Sec., No. 5:15-CV-1077 (GTS),
2016 WL 6311872, at *3 (N.D.N.Y. Oct. 28, 2016).

Remand is

appropriate where an ALJ fails to consider these factors and to
adequately explain the weight given to the consultative examiner’s
opinion.
In this case, the ALJ provided only a one sentence explanation
for his rejection of Dr. Toor’s opinion, in which he stated without
further elaboration that it was inconsistent with Plaintiff’s
reported activities of daily living and his work activity.
Court finds this explanation inadequate.

The

There is no indication

that the ALJ considered the regulatory mandated factors in reaching

6

his conclusion.

Moreover, the ALJ’s claim that Dr. Toor’s opinion

was inconsistent with Plaintiff’s reported activities of daily
living lacks support in the record.

While Plaintiff did report

engaging in some activities of daily living, such as preparing
meals, he also reported that he had difficulty dressing himself and
that he was able to shop only once a month for 15 minutes.
26.

T. 224-

Moreover, it is well-established that the performance of some

activities of daily living is not enough by itself to contradict
allegations of disability, “as people should not be penalized for
enduring

the

themselves.”

pain

of

their

disability

in

order

to

care

for

Knighton v. Astrue, 861 F. Supp. 2d 59, 69 (N.D.N.Y.

2012).
Plaintiff’s ability to perform work on a part time basis also
is

not,

on

its

face,

inconsistent

with

Dr.

Toor’s

opinion.

Plaintiff expressly testified that he had worked only 20 hours per
week with restrictions from his physician, that he did not do any
heavy lifting, and that he was no longer engaged in this work.
T. 42-44.

The ALJ proffered no explanation for how Plaintiff’s

ability to temporarily work with restrictions on a part-time basis
was inconsistent with Dr. Toor’s opinion, and so the Court is
unable to meaningfully review his conclusions.
Moreover, having rejected Dr. Toor’s opinion, it was error for
the ALJ to rely on this own lay opinion in determining that
Plaintiff

was capable

of performing

light

work.

“Neither

a

reviewing judge nor the Commissioner is permitted to substitute his
own expertise or view of the medical proof for . . . competent
7

medical opinion.”

Burgess v. Astrue, 537 F.3d 117, 131 (2d Cir.

2008) (internal citation and quotation omitted); see also Walker v.
Astrue, No. 08–CV–0828(A)(M), 2010 WL 2629832, at *6 (W.D.N.Y.
2010) (holding an ALJ is not qualified to assess a claimant’s RFC
“on the basis of bare medical findings,” and also holding that
where the medical findings in the record merely “diagnose” a
claimant’s impairments and do not relate those diagnoses to a
specific RFC, an ALJ’s determination of RFC without a medical
advisor’s assessment is not supported by substantial evidence).
Moreover, “this is not a case where the medical evidence shows
‘relatively little physical impairment’ such that the ALJ ‘can
render

a

common

sense

judgment

about

functional

capacity.’”

Palascak v. Colvin, No. 1:11-CV-0592 MAT, 2014 WL 1920510, at *9
(W.D.N.Y. May 14, 2014) (quoting Manso–Pizarro v. Secretary of
Health & Human Servs., 76 F.3d 15, 17 (1st Cir. 1996)).

To the

contrary, MRIs of Plaintiff’s of lumbar spine showed spondylosis,
bilateral neural foraminal narrowing at L4-L5, and disc bulges at
L3-4 and L4-5.

T. 294, 337-38, 517.

As discussed above, Dr. Toor,

the only physician to perform a functional analysis of Plaintiff’s
limitations, opined that he had moderate to severe limitations in
standing, walking, bending, and lifting. Under these circumstances,
it was not permissible for the ALJ to rely on his own common sense,
lay judgment to determine that Plaintiff was capable of light work
without any further limitations.
The Commissioner argues in her brief that treating physician
Dr. M. Gordon Whitbeck opined that Plaintiff was “capable of
8

performing light work.”

Docket No. 12-1 at 13-14.

This is a

misstatement of Dr. Whitbeck’s treatment records. Dr. Whitbeck did
not provide a functional analysis of Plaintiff, nor did he ever
state

that

Instead,

Plaintiff

Dr.

was

Whitbeck

capable

indicated

of
that

performing
“purely

light

from

work.

a

spine

perspective,” Plaintiff had “a marked temporary disability” and was
capable

of

“light

duty

work.”

T.

411

(emphasis

added).

Dr. Whitbeck offered no further elaboration as to what he meant by
“light duty work” and there is no basis for this Court to conclude
that “light duty work” is the equivalent of “light work” as defined
in the applicable regulations.

Moreover, the ALJ did not treat

Dr. Whitbeck’s statement as a medical source statement and did not
assign any weight to it.

T. 28.

This Court cannot uphold the

ALJ’s decision based on post hoc rationalizations by counsel.

See

Warchlok v. Colvin, No. 1:16-CV-00129(MAT), 2017 WL 585041, at *3
(W.D.N.Y. Feb. 14, 2017).
In sum, and for the reasons set forth above, the Court
concludes that the ALJ failed to appropriately consider and explain
the

weight

given

to

Dr.

Toor’s

opinion

and

that

the

ALJ

impermissibly relied on his own lay opinion to determine that
Plaintiff

was

restrictions.

capable

of

light

work

without

any

additional

Accordingly, remand of this matter for further

proceedings is required.
C.

Plaintiff’s Other Argument

Plaintiff has also argued that the ALJ erred at step two of
the analysis in finding that Plaintiff’s migraines and depression
9

were not severe impairments. Having already determined that remand
of this matter is required, the Court need not and does not resolve
this issue.

On remand, the ALJ is reminded that an RFC assessment

must account for all of a claimant’s limitations, including those
associated with non-severe impairments.
V.

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

the pleadings (Docket No. 9) is granted to the extent that this
matter is remanded to the Commissioner for further administrative
proceedings consistent with this Decision and Order. In light of
the fact that Plaintiff’s applications were initially filed in
March 2013 (over five years ago), on remand, the administrative
proceedings

shall

be

conducted

on

an

expedited

completed no later than December 31, 2018.

basis,

to

be

The Commissioner’s

motion for judgment on the pleadings (Docket No. 12) 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:

March 30, 2018
Rochester, New York.

10