Burke v. Berryhill

Filing 13

DECISION ANAD ORDER granting 10 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; denying 11 Commi ssioner's Motion for Judgment on the Pleadings. In light of the fact that Plaintiffs applications were initially filed in March 2014 (over four years ago), on remand, the administrative proceedings shall be conducted on an expedited basis, to be completed no later than December 31, 2018. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 4/25/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JENNIFER FAY BURKE,
Plaintiff,
-vs-

No. 6:17-CV-06369 (MAT)
DECISION AND ORDER

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

I.

Introduction
Represented

by

counsel,

plaintiff

Jennifer

Fay

Burke

(“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 Acting Commissioner of Social Security
(the “Commissioner” or “Defendant”) denying her 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 on

March 31, 2014, alleging disability as of December 31, 2013 due to
back

problems,

post-traumatic

gynecological problems.

stress

disorder

(“PTSD”),

and

Administrative Transcript (“T.”) 78, 144-

53. Plaintiff’s applications were initially denied.

T. 94-103. At

Plaintiff’s request, a hearing was held before administrative law
judge (“ALJ”) Hope Grunberg on October 5, 2015.

T. 38-77.

January 4, 2016, the ALJ issued an unfavorable decision.

On

T. 8-27.

On April 17, 2017, the Appeals Council denied Plaintiff’s request
for review, making the ALJ’s determination the Commissioner’s final
decision.

T. 1-7.

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 December 31,
2013.

T. 13. At step one of the five-step sequential evaluation,

the ALJ determined that Plaintiff had not engaged in substantial
gainful activity since December 31, 2013, the alleged onset date.
T. 14.

At step two, the ALJ found that Plaintiff suffered from the

severe impairments of degenerative disc disease of the lumbar
spine, obesity,

PTSD,

deficit hyperactivity

unspecified anxiety
disorder,

2

mood

disorder,

disorder,

and

attention
obsessive-

compulsive disorder, as well as the non-severe impairments of
urinary/gynecological issues, pelvic congestion syndrome, acid
reflux, left eye inflammation, and bronchitis.

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 any listed impairment. T. 15. The ALJ
particularly considered Listings 1.04, 12.02, 12.04, 12.06, and
12.08 in reaching this determination.

T. 15-17.

Before proceeding to step four, the ALJ determined that
Plaintiff retained the RFC to perform light work as defined in 20
C.F.R. §§ 404.1567(b) and 416.967(b), with the following additional
limitations:

can

lift

and

carry

20

pounds

occasionally

and

10 pounds frequently; can stand or walk up to 6 hours and sit up to
6 hours of an 8-hour workday; can frequently stoop; is limited to
understanding, remembering, and carrying out simple, routine, and
repetitive tasks.

T. 17.

At step four, the ALJ found that Plaintiff was unable to
perform any past relevant work.

T. 22.

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. 23-24.

Accordingly, the

ALJ found that Plaintiff was not disabled as defined in the Act.
T. 24.

3

IV.

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
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, because (1) the ALJ failed to
obtain any statement from a treating source regarding Plaintiff’s
physical limitations, (2) the opinion of consultative examiner
Dr. Harbinder Toor was too vague to support the ALJ’s findings, and

4

(3) the ALJ failed to account for Plaintiff’s limitations in
dealing with stress.
finds

that

remand

For the reasons discussed below, the Court
of

this

matter

for

further

administrative

proceedings is appropriate.
B.

Failure to Obtain Treating Source Opinion and Sufficiency
of Dr. Toor’s opinion

Plaintiff’s first argument is that the ALJ erred in failing to
develop the record by seeking a treating source’s opinion regarding
her physical limitations. Plaintiff further argues that the ALJ’s
error was not harmless, in part because Dr. Toor’s consultative
opinion was impermissible vague and therefore insufficient to
permit the ALJ to make an RFC finding supported by substantial
evidence.

For the reasons discussed below, the Court agrees.

“[S]ocial security hearings are not (or at least are not meant
to be) adversarial in nature.”

Lamay v. Comm’r of Soc. Sec., 562

F.3d 503, 508 (2d Cir. 2009).

As such, “[i]t is the rule in our

circuit that the ALJ, unlike a judge in a trial, must . . .
affirmatively develop the record in light of the essentially
non-adversarial nature of a benefits proceeding.” Tejada, 167 F.3d
at 774 (internal quotation omitted). “[A]n ALJ’s obligation to
develop the record is heightened where the claimant appears pro
se.”

Batista v. Barnhart, 326 F. Supp. 2d 345, 353 (E.D.N.Y.

2004).
“An ALJ’s duty to develop the record includes seeking opinion
evidence, usually in the form of medical source statements, from

5

the

claimant’s

treating

physicians.”

Annabi

v.

Berryhill,

No. 16-CV-9057 (BCM), 2018 WL 1609271, at *17 (S.D.N.Y. Mar. 30,
2018).

An ALJ need not recontact a treating physician to obtain a

function by function analysis in every case; instead, “[t]he need
for a medical source statement from the treating physician hinges
on the circumstances of the particular case, the comprehensiveness
of the administrative record, and, at core, whether an ALJ could
reach an informed decision based on the record.”
Berryhill,

No.

16

CIV.

10035

(RWL),

2018

WL

Greenhaus v.

1626347,

at

*9

(S.D.N.Y. Mar. 30, 2018). Remand is appropriate “where the medical
record available to the ALJ is not robust enough to obviate the
need for a treating physician’s opinion.” Hooper v. Colvin, 199 F.
Supp. 3d 796, 815 (S.D.N.Y. 2016) (internal quotation omitted).

In this case, the Court finds that the medical evidence of
record was not sufficiently developed to relieve the ALJ of the
obligation to seek an opinion from Plaintiff’s treating sources.
Plaintiff was proceeding pro se at the hearing level, and therefor
the ALJ had a heightened duty to develop the record.

From the

evidence that was presented, it is clear that Plaintiff suffers
from significant spinal impairments.

An MRI of Plaintiff’s spine

taken in February 2015 showed grade 2 L5-S1 anteriolisthesis
associated with bilateral L5 spondylolysis, with marked narrowing
and abnormal signal intensity of the L5-S1 disc space.

T. 401.

The overall impression from this imaging study was “high grade

6

bilateral

foraminal

stenosis

associated

with

spondylolisthesis and bilateral spondylolysis.”

a

Id.

grade

2

Plaintiff’s

treating orthopedist, Dr. Peter Capicotto, stated that this MRI was
“very impressive for a grade 2 spondylitic spondylolithesis” and
opined that Plaintiff’s back pain and bilateral leg pain were
“probably secondary to her listhesis.”

T 414-15.

Dr. Capicotto

recommended surgical intervention consisting of an L5-S1 fusion.
T. 415.

Plaintiff’s treating neurologist, Dr. Darrick Alaimo,

similarly opined that Plaintiff’s spondylolithesis was “one of the
major causes of [Plaintiff’s] symptoms.”

T. 409.

This was

therefore not a case in which the ALJ could determine from medical
records alone what functional limitations Plaintiff might have as
a result of her back problems.

See, e.g., Wilson v. Colvin,

No. 13-CV-6286P, 2015 WL 1003933, at *21 (W.D.N.Y. Mar. 6, 2015)
(noting that except in cases where “where the medical evidence
shows relatively minor physical impairment” such that the ALJ can
“render a common sense judgment about functional capacity even
without a physician's assessment,” an ALJ “is not qualified to
assess a claimant’s RFC on the basis of bare medical findings”).
Moreover, the Court agrees with Plaintiff that Dr. Toor’s
consultative opinion was impermissibly vague, and therefore cannot
provide substantial evidence to support the ALJ’s conclusions.
Dr. Toor examined Plaintiff on May 20, 2014.

T. 283-86.

He

observed that Plaintiff had lumbar spine forward flexion of only 20
degrees, extension of zero degrees, and lateral flexion and lateral
rotation bilaterally of only 30 degrees.
7

T. 285.

Straight leg

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

Id.

Dr. Toor opined that Plaintiff had a “moderate

limitation standing, walking, and sitting for a long time” and a
“moderate to severe limitation bending or heavy lifting.”

Id.

He

further stated that “[p]ain interferes with [Plaintiff’s] physical
routine.”

Id.

“[D]octors’

opinions

assigning

‘mild’

or

‘moderate’

limitations in work-related activities can be too vague to support
RFC assessments for sedentary or light work.”

Moe v. Colvin, No.

1:15-CV-00347(MAT), 2017 WL 6379239, at *5 (W.D.N.Y. Dec. 14,
2017).

The key question is whether the physician’s vague language

is “rendered more concrete by the facts in the underlying opinion
and other opinion evidence in the record.”

Phillips v. Comm’r of

Soc. Sec., No. 6:17-CV-057 (WBC), 2018 WL 1768273, at *5 (N.D.N.Y.
Apr. 11, 2018).

In this case, there is no other opinion evidence

of record that could render Dr. Toor’s language more concrete.
Moreover,

the

facts

in

the

underlying

opinion

do

not

shed

additional light on what precise functional limitations Dr. Toor
was identifying.

To the contrary, Dr. Toor’s observation that

Plaintiff’s pain was sufficient to interfere with her “physical
routine,” as well as the significant limitations he found on
physical examination, suggest that he may well have believed
Plaintiff was more limited than the ALJ ultimately concluded.

On

these facts, the Court concludes that Dr. Toor’s opinion was simply
too vague to constitute substantial evidence in support of the
ALJ’s determinations.
8

Additionally,

even

were

the

Court

to

agree

with

the

Commissioner that Dr. Toor’s opinion was not impermissibly vague,
the

Commissioner

has

offered

no

plausible

explanation

how

Dr. Toor’s statement that Plaintiff has a severe limitation in
bending is consistent with the ALJ’s finding that she is capable of
frequent stooping.

The ALJ made no attempt to reconcile this

inconsistency, instead claiming that “Dr. Toor’s findings are
accommodated for in the . . . residual functional capacity.”
T. 20.

When an ALJ adopts some portions of a medical opinion but

rejects others, he must explain why he did not adopt the rejected
portions. See Soc. Sec. Ruling 96-8p (1996) (“If the RFC assessment
conflicts with an opinion from a medical source, the adjudicator
must explain why the opinion was not adopted”); see also Labonte v.
Berryhill, No. 16-CV-518-FPG, 2017 WL 1546477 at *3 (W.D.N.Y.
May 1, 2017)) (“when an ALJ adopts only portions of a medical
opinion he or she must explain why the remaining portions were
rejected”).

In this case, the ALJ apparently rejected Dr. Toor’s

opinion that Plaintiff had a severe limitation in bending, but
offered no explanation for that rejection.

This fact further

supports the Court’s conclusion that Dr. Toor’s opinion does not
provide substantial evidence in support of the ALJ’s RFC finding.

Accordingly, and for the reasons discussed above, the Court
finds that the ALJ’s failure to seek an opinion from Plaintiff’s
treating sources constituted a breach of the duty to develop the
record.

This breach was not harmless, because Plaintiff suffers
9

from serious spinal impairments and Dr. Toor’s opinion (the sole
opinion of record regarding Plaintiff’s physical limitations) was
too vague to permit the ALJ to make an informed RFC finding.
Accordingly, remand of this matter for further proceedings is
required.

On remand, the ALJ shall affirmatively request medical

source statements from Plaintiff’s treating physicians. If the ALJ
is unable to obtain such statements, an additional consultative
examination may be necessary.
C.

Failure to Account for Plaintiff’s Stress

Plaintiff has also argued that the ALJ erred in failing to
account for Plaintiff’s limitations in dealing with stress in the
RFC finding.

Again, the Court agrees.

“An ALJ is required to specifically inquire [into] and
analyze a claimant’s ability to manage stress.”

Booker v. Colvin,

No. 14-CV-407S, 2015 WL 4603958, at *3 (W.D.N.Y. July 30, 2015)
“Because

stress

is

highly

individualized,

mentally

impaired

individuals may have difficulty meeting the requirements of even
so-called ‘low-stress’ jobs, and the Commissioner must therefore
make specific findings about the nature of a claimant’s stress, the
circumstances that trigger it, and how those factors affect his
ability to work.” Stadler v. Barnhart, 464 F.Supp.2d 183, 189
(W.D.N.Y. 2006) (internal quotations omitted).
In this case, consultative psychiatric examiner Dr. Yu-Ying
Lin performed an assessment of Plaintiff and concluded that she was
“moderately to markedly limited in appropriately dealing with
stress.”

T. 290.

In her decision, the ALJ purported to give

10

“great weight” to Dr. Lin’s opinion, and stated that “Dr. Lin’s
assessment is accommodated for in the above residual functional
capacity limiting [Plaintiff] to unskilled work involving only
simple, routine and repetitive tasks.”

T. 21.

However, nowhere

did the ALJ specifically address Dr. Lin’s opinion that Plaintiff
was moderately to markedly limited in appropriately dealing with
stress, nor did the ALJ perform the requisite individualized
assessment of Plaintiff’s limitations in dealing with stress.
Accordingly, the Court further finds that remand of this matter for
appropriate consideration of Plaintiff’s mental health limitations
is necessary.
V.

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

the pleadings (Docket No. 10) 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 2014 (over four 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. 11) 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:

April 25, 2018
Rochester, New York.
11