Stubbs v. Berryhill

Filing 17

DECISION AND ORDER granting 9 Motion for Judgment on the Pleadings; denying 13 Motion for Judgment on the Pleadings. Plaintiff's motion for judgment on the pleadings, ECF No. 9, is granted, and the Commissioner's cross-motion for judg ment on the pleadings, ECF No. 13, is denied. The ALJs decision is reversed, and the matter is remanded to the Commissioner for a new hearing pursuant to the fourth sentence of 42 U.S.C. § 405(g).Signed by Hon. Charles J. Siragusa on 11/30/18. (KAP)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CURTIS TERRELL STUBBS,
Plaintiff,
DECISION AND ORDER

-vs-

17-CV-6607-CJS

COMMISSIONER OF SOCIAL SECURITY
ADMINISTRATION,
Defendant.
APPEARANCES
For Plaintiff:

Ida Comerford, Esq.
Law Offices of Kenneth Hiller, PPLC
6000 North Bailey Avenue, Suite 1A
Amherst, NY 14226
[phone]

For the Commissioner:

Francis D. Tankard, Esq.
Social Security Administration
Office of General Counsel
601 E. 12st Street, Room 965
Kansas City, MO 64106
816-936-5830
Kathryn L. Smith, A.U.S.A.
U.S. Attorney’s Office
100 State Street
Rochester, NY 14614
[phone]
INTRODUCTION

Siragusa, J. Curtis Terrell Stubbs (“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") denying his application for Supplemental Security
Income ("SSI"). The Court has jurisdiction over this matter pursuant to 42 U.S.C. §§ 405(g),
1383(c). Both the Commissioner and Plaintiff have filed motions for judgment on the

pleadings. Pl.'s Mot., Apr. 6, 2018, ECF No. 9; Comm'r's Mot., Jun. 5, 2018, ECF No. 13. For
the reasons stated below, Plaintiff's motion for judgment on the pleadings, ECF No. 9, is
granted, and the Commissioner's cross-motion for judgment on the pleadings, ECF No. 13, is
denied. The matter is remanded to the Commissioner for a new hearing.
BACKGROUND
Plaintiff filed his application on March 17, 2014, for supplemental security income,
alleging disability beginning March 17, 2014. The Commissioner denied his claim initially on
May 1, 2014. At his request, Plaintiff appeared before an Administrative Law Judge (“ALJ”) on
March 8, 2016. The ALJ appeared by video conference from Alexandria, Virginia, and took
testimony from Plaintiff, as well as from a vocational expert. Plaintiff was represented at the
hearing by counsel.
The ALJ issued a decision dated April 29, 2016, finding that Plaintiff was capable of
light work and was, therefore, not disabled. R. 17–31.1 The Appeals Council denied Plaintiff’s
appeal on July 6, 2017, making the ALJ’s decision the final decision of the Commissioner.
Plaintiff filed suit on September 1, 2017, ECF No. 1, and the Court heard oral argument on
October 18, 2018.
STANDARD OF REVIEW
Title 42 U.S.C. § 405(g) grants jurisdiction to district courts to hear claims based on
the denial of Social Security benefits. Section 405(g) provides that the District Court "shall
have the power to enter, upon the pleadings and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing." 42 U.S.C. § 405(g) (2007). The section directs that
when considering such a claim, the Court must accept the findings of fact made by the

1

R. refers to the certified record of proceedings filed on February 5, 2018, ECF No. 8.

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Commissioner, provided that such findings are supported by substantial evidence in the
record. Substantial evidence is defined as "'more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.'"
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)); see also Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 149
(1997).
When determining whether substantial evidence supports the Commissioner's
findings, the Court's task is "to examine the entire record, including contradictory evidence
and evidence from which conflicting inferences can be drawn." Brown v. Apfel, 174 F.3d 59,
62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per
curiam)). Section 405(g) limits the scope of the Court's review to two inquiries: determining
whether the Commissioner's findings were supported by substantial evidence in the record as
a whole, and whether the Commissioner's conclusions are based upon an erroneous legal
standard. Green—Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003); see also
Mongeur, 722 F.2d at 1038 (finding a reviewing court does not try a benefits case de novo ).
Under Rule 12(c), the Court may grant judgment on the pleadings where the material
facts are undisputed and where judgment on the merits is possible merely by considering the
contents of the pleadings. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d
Cir.1988).
ANALYSIS
Plaintiff contends that the ALJ erred when he gave little weight to his treating
physicians: Sarah Vengal, M.D., and Thomas Gregg, M.D. The Commissioner has a treating
physician rule that reads as follows:
Generally, we give more weight to medical opinions from your treating sources,
since these sources are likely to be the medical professionals most able to

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provide a detailed, longitudinal picture of your medical impairment(s) and may
bring a unique perspective to the medical evidence that cannot be obtained
from the objective medical findings alone or from reports of individual
examinations, such as consultative examinations or brief hospitalizations. If we
find that a treating source’s medical opinion on the issue(s) of the nature and
severity of your impairment(s) is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in your case record, we will give it controlling weight. When
we do not give the treating source’s medical opinion controlling weight, we
apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) of this section, as
well as the factors in paragraphs (c)(3) through (c)(6) of this section in
determining the weight to give the medical opinion. We will always give good
reasons in our notice of determination or decision for the weight we give your
treating source’s medical opinion.
20 C.F.R. § 416.927 (2017).
Sarah Vengal, M.D.
Dr. Vengal provided several opinions and two medical source statements about
Plaintiff’s physical abilities and concluded, in October 2015, that Plaintiff would be unable to
work. The ALJ pointed out that Dr. Vengal’s opinions were “not consistent with the objective
and other evidence of record.” R. 28. In that regard, the ALJ wrote that Dr. Vengal’s
conclusions were “contrary to the claimant’s own admission of his current work activity,” and
that her opinions were “not consistent with her own correlating treatment records, which
reflect that the claimant has grossly normal musculoskeletal, neurological and pulmonary
findings.” Id. Moreover, the ALJ also wrote that the doctor’s opinion on Plaintiff’s limitations
was unsupported, since Plaintiff “has engaged in conservative and routine treatment for his
back pain, diabetes, hypertension, osteoarthritis, and hypertension.” R. 28, 367.
Plaintiff argues that the ALJ is substituting his own medical “expertise” for that of the
doctor’s, and that interpreting a note such as “Neuro: CN II-XII intact,” R. 390, from one of Dr.
Vengal’s reports, requires more than a layman’s understanding to decode. Pl.’s Mem. of Law
15. On this point, the Court notes that the Second Circuit has approved of an ALJ’s comparison
of a doctor’s opinion to the doctor’s notes to see if the doctor’s notes support his or her

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conclusions. Monroe v. Comm’r, 676 F. App’x 5, 7 (2d Cir. 2017) (“Not only did the ALJ find
that Dr. Wolkoff’s medical source statement contained internal inconsistencies, but she also
determined that his treatment notes contradicted his RFC assessment.”). Therefore, the Court
will assess the ALJ’s reasons for giving Dr. Vengal’s opinion little weight.
Plaintiff’s Current Work
In seeking judgment, Plaintiff relies in part on Gunter v. Comm’r of Soc. Sec., 361 Fed.
App’x 197 (2d Cir. 2010), in which the Second Circuit wrote, “while contradictions in the
medical record are for the ALJ to resolve . . . they cannot be resolved arbitrarily. . . . Here, the
ALJ’s incantatory repetition of the words ‘substantial evidence’ gives us no indication at all of
why he chose to credit the opinions of the consulting physicians over that of Dr. Nidus.” Id. at
200 (citations omitted).
In this case, the ALJ did not rely on an “incantatory repetition” of the words “substantial
evidence” to explain why he was not giving more weight to Dr. Vengal’s opinion. The ALJ
pointed out that Dr. Vengal’s opinion was at odds with Plaintiff’s current work activity. R. 28.
On this point, Plaintiff testified that he drove railroad employees to Syracuse from Rochester,
approximately 70 miles, which takes about one hour on the New York State Thruway, and that
he worked up to six hours per day and thirty hours weekly. R. 25, 62–63. Further, he testified
he worked for a fence installation company for six months, carrying eighty-pound bags of
concrete. R. 64.
However, Plaintiff also testified that he experienced back pain during driving stating,
“I’m in the seat and I’m steady, twisting my body, fidgeting and sticking my hand behind my
back, rubbing my back, as I’m driving.” R. 77. He also testified that his somnolence affects
him “three, four times a day or more. Sometimes less.” R. 78. The ALJ asked Plaintiff the
following question and he received the following response:

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Q. Has that ever happened to you while driving? Is it usually when you stop?
A. Yes. I feel it coming on and I just pull over, you know, I try to do my best to
make it to a rest stop or something and pull over, tell the crew I need to stop
and, you know, power myself back up; go in the bathroom, keep rinsing my face
and things of that nature, trying to wake myself back up.
R. 78–79. Moreover, Plaintiff testified that he has missed work “[f]rom being fatigued,” and
has had to turn down work. R. 81. Consequently, the Court finds that Plaintiff’s testimony does
not support the ALJ’s conclusion that such testimony contradicts Dr. Vengal’s findings.
Dr. Vengal’s Treatment Records
The ALJ also stated that Dr. Vengal’s opinion was inconsistent with her own treatment
records which he characterized as showing “grossly normal musculoskeletal, neurological and
pulmonary findings.” R. 28. Notations such as the one Plaintiff quoted about Dr. Vengal’s
neurological examination on May 15, 2015, may not useful to a layman. However, in that
examination report are statements such as these: “Lungs: clear to auscultation bilaterally. No
wheezes rales or rhonchi.” R. 390. Regarding his hypertension, Dr. Vengal wrote: “[P]atient’s
initial BP was wnl, then orthostatics were all in hypertensive range. Given that I am uncertain
of above symptoms will hold on adjusting medications, will check: - Basic metabolic panel;
Future - at next visit will also be due for urine micro albumin.” R. 391. About Plaintiff’s
diabetes, Dr. Vengal wrote: “- discussed continuing with lifestyle modification and continuing
with metformin; recheck: - hemoglobin Ale; Future; - Basic metabolic panel; Future; - will also
be due for urine microalbumin.” Finally, as to Plaintiff’s back-pain complaints, she wrote:
“- DSS forms filled out today; - encouraged to go to PT.” R. 391.
In contrast to this May 2015 examination report, Dr. Vengal provided a Physical
Assessment for Determination of Employability to the Monroe County Department of Human

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Services (“DHS”). R. 468.2 In that assessment, Dr. Vengal concluded that Plaintiff was “VERY
LIMITED” (one to two hours per eight-hour workday) in walking, standing, sitting, pushing,
pulling, bending, seeing, hearing, speaking, and in his ability to lift or carry. R. 471 (emphasis
added). She concluded that he could only work five hours per week due to dyspnoea, back
pain, and somnolence. R. 469. Nothing in the May 15 treatment notes addressed Plaintiff’s
abilities with regard to walking, standing, sitting, pushing, pulling, bending, seeing, hearing,
speaking, lifting, or carrying, all items she marked as “very limited” in the April assessment.
On October 2, 2015, Dr. Vengal completed another assessment for DHS. In that
assessment, she again concluded that Plaintiff was very limited, as in May (except that she
indicated he could now see, hear, and speak more than four hours). R. 476. This time, she
wrote that Plaintiff could do no work, but listed no reason why. R. 473. In contrast, when she
examined Plaintiff on October 14, 2015, she wrote that his diabetes was “without
complication,” that he was “walking a mile a day,” and his lungs were clear. R. 484–85.
Nothing in the October 14 treatment notes addressed Plaintiff’s abilities with regard to
walking, standing, sitting, pushing, pulling, bending, seeing, hearing, speaking, lifting, or
carrying, all items she marked as “very limited” in the October 2 assessment. Therefore, the
Court finds that the ALJ correctly assessed that Dr. Vengal’s notes do not support her physical
assessments.
Dr. Vengal’s Conservative Treatment
Plaintiff takes issue with the ALJ’s rejection of Dr. Vengal’s assessments based upon
the fact that she did not provide the treatment one would expect of someone she felt was
disabled. Dr. Vengal’s notes show that she treated Plaintiff conservatively for his back pain,

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Although her signature line is undated, stamped on the report is “RECEIVED APR 20 2015.”

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diabetes, hypertension and osteoarthritis. The ALJ concluded that Plaintiff’s diabetes and
hypertension did not rise to the level of a severe impairment, which Plaintiff does not contest.
R. 20–21, 28–29. The notes also showed that although Dr. Vengal recommended it, Plaintiff
“has not started physical therapy.” R. 371. Plaintiff argues that the ALJ was essentially
“playing doctor” by using Dr. Vengal’s treatment decisions as an indication that his stated
disabilities were not severe enough to warrant finding him disabled. Plaintiff cites to several
cases, all of which essentially criticize ALJs for failing to identify a medical expert who opined
that the plaintiffs’ medical treatment was atypical for a disabled person. See, e.g., Wilson v.
Colvin, 213 F. Supp. 3d 478, 490–91 (W.D.N.Y. 2016).
In support of his finding that Plaintiff received only conservative and routine treatment
for his back pain, diabetes, hypertension, and osteoarthritis, the ALJ cited page 79 of Exhibit
5F, which is page 367 in the Record. R. 28. In her examination notes for that day, December
17, 2014, Dr. Vengal recorded the following complaints from Plaintiff regarding his back pain:3
- flexeril, not of any benefit. Stopped taking them. Also tried mobic without any benefit
- having a hard time walking, doing any activity
- very limited with the back
- has been going on for a couple years
- has done physical therapy- hasn’t [sic] helped any
- continues to do the exercises
- cant [sic] stand on feet for very long, sometimes less than 15 minutes
- back will tighten up on him
- wants to know if there is a strap that will help

3 Plaintiff identified to the ALJ that his back was the part of his body that gave him the most
pain. R. 74.

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- would like to go walking but has severe pain with it, in back
R. 366–67. In the “A/P”4 portion of the same December 2014 report, she wrote with respect
to his back pain and other complaints, the following:
1. Back pain
- discussed that logn [sic] term benefits include continuing to work with PT and
weight loss
- will write for back brace to use as needed as trying to get back into activity but
discussed that it should not be worn 24/7
2. Sleep apnea
- continue with cpap as everything appears to be progressing appropriately
- no changes indicated at this time, will continue to monitor
3. Obesity
- discussed diet and exercise and starting a food log to bring in to discuss
different food options that can be made
4. Unspecified essential hypertension
- appears well controlled at this time, suspect that may be related to CPAP use
and improvement of sleep apnea. Discussed with patient that we do not want
to continue to lower his blood pressure and he may need to be titrated off some
of his medications, but will need to continue to follow closely to determine
changes in medications needed. Discussed warning signs of hypotension and
when to call in.
R. 367. The Court agrees that Dr. Vengal’s conservative treatment of Plaintiff’s
ailments contradicts her conclusions of severe limitations on the physical assessment
forms.
Therefore, based upon contradictions in Dr. Vengal’s treatment notes specified
above, the Court finds that the ALJ did provide good reasons for giving Dr. Vengal’s
opinion little weight.
4

The Court presumes this is an abbreviation for “assessment” and “prognosis.”

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Harbinder Toor, M.D.
The medical evidence on which the ALJ did place great weight, the consultative
examination by Harbinder Toor, M.D., provided information on the same complaints reviewed
by Dr. Vengal. Dr. Toor saw Plaintiff on April 22, 2014, and gave him an internal medical
examination. R. 261–64. His musculoskeletal examination results were as follows:
Cervical spine shows full flexion, extension, lateral flexion bilaterally, and full
rotary movement bilaterally. No scoliosis, kyphosis, or abnormality in thoracic
spine. Lumbar spine forward flexion 30 degrees, extension O degrees, lateral
flexion and lateral rotation bilaterally 30 degrees. SLR negative both sitting and
supine bilaterally. Full ROM of shoulders, elbows, forearms, and wrists
bilaterally. Full ROM of hips and knees bilaterally. Left ankle plantar flexion 10
degrees, dorsiflexion 10 degrees. Tenderness and slight swelling in the left
ankle. Scar from injury and surgery in the left ankle. Full ROM of right ankle. No
evident subluxations, contractures, ankylosis, or thickening. Joints stable. No
redness, heat, or effusion.
R. 263. Dr. Toor’s medical source statement was:
He has moderate limitation standing, walking, squatting, sitting, bending, and
lifting. Pain interferes with his physical routine and sometimes with the balance.
He should avoid irritants or other factors which can precipitate asthma.
R. 264. On the Physical Assessment for Determination of Employability form used by Monroe
County, R. 283, a moderate limitation means that the individual could perform standing,
sitting, etc., for two to four hours in an eight-hour workday. R. 286. Since Dr. Toor did not
define “moderately limited,” the ALJ was without specific medical guidance to make a
determination that Plaintiff retained the residual functional capacity for light work, which the
Commissioner defines as follows:
Light work involves lifting no more than 20 pounds at a time with frequent lifting
or carrying of objects weighing up to 10 pounds. Even though the weight lifted
may be very little, a job is in this category when it requires a good deal of walking
or standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable of performing a full or
wide range of light work, you must have the ability to do substantially all of these
activities.
20 C.F.R. § 416.967 (Lexis Advance through the October 15, 2018 issue of the Federal

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Register. Title 3 is current through October 5, 2018).
The Court’s electronic search of the Record revealed only one opinion from an
examining physician about Plaintiff’s ability to lift weights: Dr. Vengal’s medical source
statement dated March 2, 2016, in which she indicated Plaintiff could rarely lift or carry 20
pounds, and only occasionally lift or carry 10 pounds or less. R. 526. Since the ALJ gave Dr.
Vengal’s opinion little weight, his RFC determination was made without the benefit of a
medical opinion.
Thomas Gregg, M.D.
Dr. Gregg completed a medical source statement dated September 10, 2014. He
wrote that for the next three months, Plaintiff could only work for up to 5 hours per week and
could not stand for more than 20 minutes. R. 284. Dr. Gregg prepared another medical source
statement dated June 10, 2014. R. 273. He stated that Plaintiff could use public
transportation, and for the next six months, could work up to 15 hours per week. R. 274. He
reported that Plaintiff could walk and stand only 1 to 2 hours per week, sit for only 2 to 4 hours
per week, and lift or carry only 1 to 2 hours per week. R. 276.
RFC Determination Unsupported by Substantial Evidence
Cases in this District hold that an ALJ’s RFC determination generally requires
supporting medical evidence in the Record. Stemming from a 2010 Eastern District case,
Hilsdorf v. Comm’r of Soc. Sec., 724 F. Supp. 2d 330 (E.D.N.Y. 2010), a long line of cases in
this District follow the logic in the Hilsdorf case, where the district court reasoned:
An ALJ's obligation to obtain necessary medical records includes an obligation
to obtain a proper assessment of the claimant's RFC. See 20 C.F.R.
§ 404.1513(b)5 (describing “medical reports” as including “statements about
what [a claimant] can still do”).

5 In the current version of the regulation, this language appears at 20 C.F.R.
§ 404.1513(a)(2) (Mar. 27, 2017) and § 404.1527(a)(1) (Mar. 27, 2017).

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Because an RFC determination is a medical determination, an ALJ who makes
an RFC determination in the absence of supporting expert medical opinion has
improperly substituted his own opinion for that of a physician, and has
committed legal error. See Woodford v. Apfel, 93 F.Supp.2d 521, 529 (S.D.N.Y.
2000) (“An ALJ commits legal error when he makes a residual functional
capacity determination based on medical reports that do not specifically explain
the scope of claimant’s work-related capabilities.”); Zorilla v. Chater, 915 F.
Supp. 662, 666–67 (S.D.N.Y. 1996) (“The lay evaluation of an ALJ is not
sufficient evidence of the claimant’s work capacity; an explanation of the
claimant;s functional capacity from a doctor is required.”).
Hilsdorf v. Comm'r of Soc. Sec., 724 F. Supp. 2d 330, 347 (E.D.N.Y. 2010). Citing this case,
the Honorable Frank P. Geraci Jr., Chief Judge of this Court, in Cutre v. Berryhill, No. 17-CV135-FPG, 2018 WL 3968385, at *3 (W.D.N.Y. Aug. 20, 2018), wrote:
Additionally, an ALJ cannot “assess a claimant’s RFC on the basis of bare
medical findings, and as a result an ALJ’s determination of RFC without a
medical advisor’s assessment is not supported by substantial evidence.”
Wilson v. Colvin, No. 13-CV-6286P, 2015 WL 1003933, at *21 (W.D.N.Y. Mar.
6, 2015) (citation omitted). Even though the Commissioner is empowered to
make the RFC determination, “where 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 general rule is that
the Commissioner “may not make the connection” herself. Id. (citation and
alterations omitted); Hilsdorf v. Comm'r of Soc. Sec., 724 F. Supp. 2d 330, 347
(E.D.N.Y. 2010) (“Because an RFC determination is a medical determination,
an ALJ who makes an RFC determination in the absence of supporting expert
medical opinion has improperly substituted his own opinion for that of a
physician, and has committed legal error.”) (citations omitted).
See also Caswell v. Berryhill, No. 17-CV-6133-FPG, 2018 WL 4404578, at *5 (W.D.N.Y. Sept.
17, 2018) (same). The Honorable Michael A. Telesca in Ubiles v. Astrue, No. 11-CV-6340T
MAT, 2012 WL 2572772, at *12 (W.D.N.Y. July 2, 2012), held the same, again following the
reasoning in Hillsdorf. The undersigned has also adhered to this reasoning in Rodgers v.
Colvin, No. 16-CV-6739-CJS, 2018 WL 446220, at *2–3 (W.D.N.Y. Jan. 17, 2018) (ALJ’s RFC
determination cannot stand in the absence of medical opinion in support of functional
capabilities). Although on occasion the Court has deviated from this reasoning, see, e.g.,
Altman v. Berryhill, No. 15-CV-00967-MAT-JJM, 2017 WL 5634731, at *5 (W.D.N.Y. Nov. 7,

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2017), report and recommendation adopted, No. 1:15-CV-00967 (MAT), 2017 WL 5629964
(W.D.N.Y. Nov. 22, 2017) (involving relatively minor physical impairments), the cases have
consistently held that an ALJ must have medical support for her RFC determination. What
would have prevented the ALJ here from determining that Plaintiff could sustain medium or
heavy work?
The Record contains no medical evidence to support the ALJ’s conclusion that Plaintiff
is capable of light work. Accordingly, the ALJ’s RFC determination is unsupported by
substantial evidence and the ALJ’s decision is reversed and remanded for a new hearing
pursuant to the fourth sentence in 42 U.S.C. § 405(g).
CONCLUSION
Plaintiff's motion for judgment on the pleadings, ECF No. 9, is granted, and the
Commissioner's cross-motion for judgment on the pleadings, ECF No. 13, is denied. The ALJ’s
decision is reversed, and the matter is remanded to the Commissioner for a new hearing
pursuant to the fourth sentence of 42 U.S.C. § 405(g).
IT IS SO ORDERED.
DATED:

November 30, 2018
Rochester, New York
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

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