Santangelo v. Commissioner of Social Security
Filing
18
DECISION AND ORDER granting 10 Motion for Judgment on the Pleadings; denying 15 Motion for Judgment on the Pleadings. The Court finds that the ALJ's physical RFC determination is not supported by substantial evidence. Accordingly, the Cour t grants Plaintiffs motion for judgment on the pleadings, ECF No. 10, and denies the Commissioner's motion, ECF No. 15. The Commissioner's decision is reversed pursuant to the fourth sentence of 42 U.S.C. § 405(g) and this matter is remanded to the Commissioner for a new hearing. The Clerk will close the case.Signed by Hon. Charles J. Siragusa on 9/16/19. (KAP)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
NATASHA FELICIA SANTANGELO,
-vs-
Plaintiff,
DECISION AND ORDER
ANDREW M. SAUL, Commissioner of Social Security, 1
18-CV-6199-CJS
Defendant.
APPEARANCES
For Plaintiff:
Justin M. Goldstein, Esq.
Kenneth R. Hiller, Esq.
Law Offices of Kenneth Hiller, PPLC
6000 North Bailey Avenue, Suite 1A
Amherst, NY 14226
(716) 564-3288
For the Commissioner:
Michael Arlen Thomas, Esq.
Office of the General Counsel
Social Security Administration
1961 Stout Street, Suite 4169
Denver, CO 80294
(303) 844-1190
Oona Marie Peterson, Esq.
Social Security Administration
Office of General Counsel
26 Federal Plaza, Room 3904
New York, NY 10278
(212) 264-0768
Kathryn L. Smith, AUSA
U.S. Attorney's Office
100 State Street
Rochester, NY 14614
(585) 263-6760
1 The president nominated Andrew M. Saul to be Commissioner of Social Security and the
Senate confirmed his appointment on June 4, 2019. He is substituted pursuant to Fed. R. Civ. P. 25(d).
The Clerk is directed to amend the caption to comply with this substitution.
- 1-
INTRODUCTION
Siragusa, J. This Social Security disability case is here for review pursuant to 42 U.S.C.
§ 405(g) from the Commissioner’s decision denying disability benefits. Now before the Court
are Plaintiff’s motion for judgment on the pleadings, filed on October 6, 2018, ECF No. 10,
and the Commissioner’s cross-motion for judgment on the pleadings, filed on January 4,
2019, ECF No. 15. For the reasons stated below, the Court grants Plaintiff’s motion and
remands the case for a new hearing.
BACKGROUND
Plaintiff filed an application for disability benefits under Title II of the Social Security
Act on March 22, 2015, alleging that her disability began on January 5, 2014. The Social
Security Administration denied her claim initially on June 3, 2015, and she requested and was
granted a hearing before an Administrative Law Judge (“ALJ”). The hearing was held on
November 3, 2016, via video conference, with the claimant in Rochester, New York, and the
ALJ in Alexandria, Virginia. Plaintiff was represented by a non-attorney at the hearing. The ALJ
issued an unfavorable decision on January 13, 2017. Plaintiff appealed to the Social Security
Administration’s Appeals Council and provided additional evidence. The Appeals Council
denied her appeal on January 9, 2018, making the ALJ’s decision the Commissioner’s final
decision. Plaintiff filed her complaint in this Court through counsel on March 9, 2018. ECF No.
1.
THE ALJ’S DECISION
Plaintiff claims to suffer from osteoarthritis in her left knee, bilateral carpal tunnel
syndrome, depression, anxiety, and diabetes. The ALJ found everything but diabetes to be
severe impairments. In that light, the ALJ’s assessed Plaintiff’s residual functional capacity
(“RFC”). This assessment is contained in pages 41 through 46 in the Record. The ALJ first
summarized Plaintiff’s testimony concerning the osteoarthritis in her left knee and carpel
- 2-
tunnel syndrome along with depression and anxiety. R. 41. The ALJ then summarized
Plaintiff’s testimony and her written application pertaining to her ability to function. Id. Plaintiff
testified she could stand for ten minutes, walk for five minutes before needing a break and
lift about five pounds. Id. However, in her Function Report (dated April 25, 2015), when asked
in section C, “Explain how your illnesses, injuries, or conditions affect any of the following:
Lifting; Standing; Walking; Sitting; Climbing stairs; Kneeling; Squatting; Reaching; Using
hands; Seeing; Hearing; [and] Talking,” she left every category but two blank. R. 231–32. Only
for “Seeing” and “Talking” did she place any responses (for seeing she wrote “glasses” and
for talking she wrote “hesitant to talk”). “[T]he claimant has the burden on the first four steps.”
Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000). By leaving the Function Report’s section
C essentially blank, Plaintiff undermined her testimony at the hearing about the limitations of
her physical abilities. The ALJ noted this discrepancy in his decision at page 42.
The ALJ observed that Plaintiff lives in a home with stairs, in which the bedrooms and
bathrooms are on the second level, strongly implying that she is capable of climbing and
descending stairs. R. 42. She testified about and reported that she could perform the activities
of daily living.
The Record also shows a lack of treatment for her knee or wrist, and that her anxiety
and depression were successfully treated with medications. He pointed out that she began to
complain of knee pain in late January 2015, which contradicted her allegation that the pain
began in January 2014. Cf. R. 329 (“Natasha is a 41-year-old female who presents today with
complaints of left knee pain for 2–3 weeks.” Jan. 23, 2005 Office Visit to Webster Family
Medicine), with R. 200 (“I became unable to work because of my disabling condition on
January 5, 2014,” May 27, 2015, Application Summary for Disability Insurance Benefits).
- 3-
The ALJ also considered the medical evidence in the Record. In September 2015,
Plaintiff used Percocet occasionally for her knee pain. R. 600 (“Left knee pain—is still
occasionally using Percocet.”). Prior to an October 2015 arthroscopic surgery for what a
magnetic resonance image showed was a torn meniscus in her left knee, along with
degenerative change, and joint effusion, Plaintiff was exercising up to three times a week in
May 2015. R. 512 (“Natasha exercises 3 times a week.”). After surgery, she exercised up to
five times per week. R. 552 (“Natasha exercises 5 times a week,” Oct. 2015); R. 559
(“Natasha exercises 5 times a week,” Apr. 2016).
Stacy Hom, M.D., (“Dr. Hom”) a treating physician at Webster Family Medicine,
completed a Physical Assessment for Determination of Employability for the Monroe County
Department of Human Services on November 30, 2015. R. 638. Dr. Hom indicated that
Plaintiff had been a patient at her clinic since June of 2013. Id. Dr. Hom further indicated that
the expected duration of the limitations she listed was six months. R. 639. Additionally, Dr.
Hom indicated that during that six-month period, Plaintiff would need flexibility to sit or stand
as needed for comfort, that she could not lift, bend, squat, kneel, remain sitting or standing
for too long, and could not repetitively use her hands, and that she could work up to twenty
hours per week with those reasonable accommodations. R. 638. Dr. Hom also indicated that
Plaintiff was limited to sitting only two to four hours, and very limited (one to two hours) in
walking, standing, pushing, pulling, bending, seeing, hearing, speaking, lifting, or carrying. R.
641.
The ALJ considered other reports from Dr. Hom: “In February 2016, Dr. Hom refrained
from commenting on the claimant’s disability due to mental illness [R. 450]. Then in April
2016, Dr. Hom provided an opinion that the claimant was unable to tolerate holding a
meaningful job, complete tasks, poor concentration [R. 643].” The ALJ assigned “very little
- 4-
weight” to Dr. Hom’s opinion because her “opinions related to the claimant’s mental
functioning which is beyond the scope of Dr. Hom’s general practice,” and the opinion was
“inconsistent with the accepted findings and reported abilities.” R. 45. The ALJ cited to
Plaintiff’s hearing testimony, her reported activities of daily living (Exhibit 3E, p. 3, 6 & 9),
Kristin Luna, Psy.D.’s (“Dr. Luna”) consultative examination (Exhibit 5F), Dr. Kranz’s progress
notes from June 2016 (Exhibit 13F pp. 29–30), and LCSW-R Mary Scollan’s (“Ms. Scollan”)
progress note from September 2016 (Exhibit 16F, p. 8).
The ALJ pointed out that Plaintiff denied depression symptoms in May 2014. R. 44. He
cited to Exhibit 2F page 26, which is R. 308. That page contains no information regarding
depression, but on the following page, R. 309, this statement appears: “Depression—no
changes yet. Still taking 1 pill a day. Mood is ok, not depressed.” R. 309.
Dr. Hom completed another physical assessment form on April 28, 2016. R. 642–43.
In that assessment, Dr. Hom indicated Plaintiff was limited to standing and sitting for one hour
and that she was “unable to tolerate holding meaningful job, complete tasks, keep
obligations, poor concentration & communication.” R. 643. Dr. Hom also noted that Plaintiff
denied psychiatric treatment as of May 2015, which the ALJ commented was “inconsistent
with her allegations that he[r] mental impairments began in January 2014”. R. 44. The ALJ
cites to Exhibit 5F, page 2, which is R. 405, and contains this statement by Dr. Luna: “The
claimant has never been psychiatrically hospitalized. She was previously receiving outpatient
mental health services at Westchester Mental Health from 1989 until 2000. She is not
currently receiving outpatient mental health services.” R. 405. During a January 5, 2015,
examination, Physician’s Assistant Julie Anne Leo reported that Plaintiff’s mood, affect,
behavior, and though content were all “normal.” R. 460.
- 5-
Based on Plaintiff’s testimony about her abilities, and other exhibits in the Record, the
ALJ decided to “assign little weight to these opinions of Dr. Hom.” R. 43; 224 & 230 (Plaintiff’s
reported activities of daily living); R. 403 (Harbinger Toor, M.D., May 2015 medical source
statement: “She has moderate to marked limitation standing/walking long time. Pain
interferes with her balance. No other medical limitation suggested.”); R. 408 (Kristina Luna,
Psy.D., May 2015 medical source statement: “The claimant has no limitations in her ability to
follow and understand simple directions and instructions, perform simple tasks
independently, maintain a regular schedule, learn new tasks, and make appropriate
decisions. She is mildly limited in her ability to relate adequately with others and appropriately
deal with stress. She is moderately limited in her ability to maintain attention and
concentration and perform complex tasks independently. Difficulties are caused by
distractibility.”). Therefore, the Court finds that the ALJ adequately explained why he gave Dr.
Hom’s opinion “little weight.”
The ALJ also gave little weight to Dr. Toor’s opinion because his opinion “was based on
a one-time examination [and was] not completely consistent with the accepted findings and
reported abilities.” R. 43. In support of giving Dr. Toor’s opinion little weight, the ALJ referred
to the hearing testimony, and other medical opinions in the record.
Regarding her consultative psychiatric evaluation in May 2015, Dr. Luna’s conclusions
showed the ALJ that Plaintiff “maintained coherent and logical thought processes as well as
good insight and judgment despite a dysthymic mood” and only a “mild impairment of her
attention, concentration, and memory.” R. 44. The ALJ concluded that “[t]hese findings do not
support the degree of severity alleged.” Id. The ALJ also observed that medical evidence from
August 2015 showed normality, and in June 2016, Pebble Kranz, M.D., of Webster Family
- 6-
Medicine, noted that Plaintiff’s mood was depressed, her thought process was normal, her
perception was within normal limits and her judgment was intact. R. 617.
On August 24, 2016, Mary Scollan, LCSWR (“Ms. Scollan”), completed a psychological
assessment. R. 645. In it, she indicated that Plaintiff had normal functioning in the areas of
capacity to follow, understand and remember simple instructions and directions. R. 648. She
also had normal functioning in the area of having the capacity to perform simple and complex
tasks independently. She was moderately limited (that is, unable to function 10%--25% of the
time) in the capacity to perform low stress and simple tasks. Finally, she was very limited (that
is, unable to function 25% or more of the time) in the capacity to maintain attention and
concentration for rote tasks, the capacity to regularly attend to a routine and maintain a
schedule, and the capacity to maintain basic standards of hygiene and grooming. R. 648. The
ALJ addressed this report and assigned little weight to it since “Ms. Scollan is not an
‘acceptable medical source’ under the Regulations (20 C.F.R. § 404.1513(a) . . . .” R. 45.
The ALJ further considered the June 2015 opinion of state-examining psychologist S.
Juriga, Ph.D. (“Dr. Juriga”) R. 45, 97.2 Dr. Juriga noted that Plaintiff could frequently lift and
carry up to 10 pounds, stand or walk with normal breaks for 2 hours, sit with normal breaks
for 6 hours, and was unlimited in pushing and pulling. R. 94. Regarding her mental residual
functional capacity, he stated the following:
Does the individual have understanding and memory limitations?
Yes
Rate the individual’s understanding and memory limitations:
The ability to remember locations and work-like procedures.
2
The report in the Record is co-signed by P. Belardinelli, SDM. R. 95.
- 7-
Not significantly limited
The ability to understand and remember very short and simple instructions.
Not significantly limited
The ability to understand and remember detailed instructions.
Moderately limited
Explain in narrative form the presence and degree of specific understanding
and memory capacities and/ or limitations:
Mild impairment due to emotional distress. She could remember 3 of 3
objects immediately and 1 of 3 after 5 minutes. She could complete 5 digits
forward and none backward.
Does the individual have sustained concentration and persistence limitations?
Yes
Rate the individual’s sustained concentration and persistence limitations:
The ability to carry out very short and simple instructions.
Not significantly limited
The ability to carry out detailed instructions.
Moderately limited
The ability to maintain attention and concentration for extended periods.
Moderately limited
The ability to perform activities within a schedule, maintain regular attendance,
and be punctual within customary tolerances.
Moderately limited
The ability to sustain an ordinary routine without special supervision.
Not significantly limited
The ability to work in coordination with or in proximity to others without being
distracted by them.
Not significantly limited
The ability to make simple work-related decisions.
- 8-
Not significantly limited
The ability to complete a normal workday and workweek without interruptions
from psychologically based symptoms and to perform at a consistent pace
without an unreasonable number and length of rest periods.
Moderately limited
Explain in narrative form the sustained concentration and persistence
capacities and/or limitations:
Mildly impaired due to anxiety and nervousness. She is distractible. She
was unable to complete serial 3’s.
Does the individual have social interaction limitations?
No
Does the individual have adaptation limitations?
Yes
Rate the individual’s adaptation limitations:
The ability to respond appropriately to changes in the work setting.
Moderately limited
The ability to be aware of normal hazards and take appropriate precautions.
Moderately limited
The ability to travel in unfamiliar places or use public transportation.
Moderately limited
The ability to set realistic goal or make plans independently of others.
Moderately limited
Explain in narrative form the adaptation capacities and/or limitations:
She can drive but she will not take public transportation. She has a lot
of anxiety leaving her home and relys [sic] on family members.
MRFC - Additional Explanation
No history of psychiatric hospitalization. No current mental health treatment.
Her insight and judgment are good. She can understand, carry out and
remember simple instructions. She can use appropriate judgment to make
- 9-
simple, work related decisions. She can respond appropriately to supervision,
coworkers, work situations and deal with changes in a routine work setting most
of the time.
R. 96–97. The ALJ assigned “some weight” to Dr. Juriga’s opinions because “these opinions
are consistent with the reported abilities.” R. 45.
The ALJ addressed Plaintiff’s work history, noting that she was fired from her last
employment at Heritage Christian Services because “she left a resident in a vehicle,” and not
due to anxiety. R. 45, 412.
DISCUSSION
Plaintiff raises the following as errors committed by the Commissioner: (1) the Appeals
Council failed to evaluate new and material evidence pursuant to appropriate legal standards;
and (2) the ALJ’s residual functional capacity assessment is unsupported by substantial
evidence and is inconsistent with the legal standards. Pl.’s Mem. of Law 1, Oct. 6, 2018, ECF
No. 10-1.
The Appeals Council
The Appeals Council denied Plaintiff’s appeal on January 4, 2018. Plaintiff states that
she submitted evidence of receiving physical therapy from Lindsay Dakin, Physical Therapist,
on November 4, 2016, and that her “[f]lexion was limited to 102 on the right and 100 on the
left.” Id. 12; R. 10. Later that same month, she saw Katherine Rizzone, M.D. (“Dr. Rizzone”),
and Colleen McTammany, P.A., who treated her for left knee pain. Dr. Rizzone noted that she
had received a cortisone shot in January, which relieved her pain “for a few months,” but that
“[t]he last injection and round of PT did not help significantly.” R. 12. The doctor suggested a
referral for acupuncture, R. 15, however a later progress note mentioned acupuncture was
not covered by her insurance, R. 17.
- 10 -
On November 29, 2016, John Elfar, M.D. (“Dr. Elfar”), saw Plaintiff for an orthopedic
review. R. 15. He noted the following:
Patient is seen today now status post EMG nerve conduction study that shows
moderate-to-severe left median neuropathy and moderate right median
neuropathy. There is some chronic bilateral mild ulnar neuropathy at each
elbow. All of the numbness and tingling are from the radial three digits -- thumb,
index, and middle finger.
She would like to have the carpal tunnel release. We have discussed the nature
of surgery, the nature of postoperative rehab, and the risks and benefits. I don’t
recommend the elbow surgery right at this time. She doesn’t have a lot of pinkie
numbness, and I think that this might be a quicker recovery for her. Certainly,
if she does develop pinkie numbness, or her numbness isn’t fully better, we can
go and approach that later.
We have also talked about bilateral simultaneous carpal tunnel releases. For
now, we are going to plan a LEFT CARPAL TUNNEL RELEASE done under local
plus sedation anesthesia at a surgery center. We will begin the scheduling
process.
We will see the patient back at the time of surgery. LEFT SIDE IS THE SURGICAL
SIDE.
R. 16.
Michael Maloney, M.D. (“Dr. Maloney”), an orthopedic surgeon, examined Plaintiff on
January 14, 2017, noting that “[s]he is tender somewhat out of proportion to the exam.” R.
21. In his assessment her wrote:
A 43-year-old with left knee pain that almost seems to be neuropathic in nature.
She has had previous arthroscopy by another orthopedist. I did agree to obtain
a new MRI. I explained that if her MRI is unremarkable, my thinking is that she
is experiencing neurogenic pain, a complex regional pain syndrome and a pain
treatment evaluation would be more appropriate as I would not have anything
to offer her from an orthopedic standpoint. Certainly, physical therapy can be
pursued. MRI has been ordered. We will look follow up and get back to her even
electronically, if possible.
R. 21.
On February 3, 2017, Nicholas Pearson, D.O., F.E.L., and Dr. Maloney saw Plaintiff for
her knee and made the following assessment and plan:
- 11 -
Left knee degenerative joint disease.
PLAN: As had been discussed previously, the patient’s symptoms as well as
pathology are not amenable to arthroscopic surgery at this time. As had been
discussed previously, we will not be accepting the patient for chronic pain
management. She will need to be managed by her primary care physician and
possibly Pain Management which she will need to be referred to by her primary
care physician. If she desires to see somebody in the arthroplasty division that
could be a possibility; however, at her age, she is very young for a replacement.
She will need to follow up with her primary care at this time.
R. 22.
Plaintiff underwent carpel tunnel surgery on February 1, 2017, and attended physical
therapy thereafter. R. 23. The physical therapist on February 14, 2017, wrote that her
prognosis was good. R. 24.
Plaintiff argues that the nerve conduction study on Plaintiff’s wrist by Dr. Elfar
conducted on November 29, 2016, “supports the severity of Plaintiff’s carpal tunnel
syndrome.” Pl.’s Mem. 17. She argues that this evidence directly contradicts the ALJ’s
determination that, “[a]lthough the evidence shows that the claimant was diagnosed with
knee osteoarthritis and carpal tunnel syndrome, the record lacks significant treatment
evidence as of the alleged onset date. This suggests the impairments were not as severe as
alleged.” R. 42. Further, Plaintiff points to the ALJ’s conclusion about her carpal tunnel
syndrome, evidenced by his decision that “she testified that she must undergo additional tests
to determine ‘how bad it is.’ (e.g. Hearing Testimony). This limited evidence related to her
carpal tunnel is recent, which suggests the impairment was not as intense and frequent as
alleged.” R. 43. Plaintiff therefore argues:
Thus, in contrast to the ALJ’s finding that “the objective record fails to establish
that the…carpal tunnel had intense, persistent, and limiting effect,” the new
and material evidence contains objective findings, surgical records, and
postoperative surgical records showing that Plaintiff continued to have intense,
persistent, and limiting effects following surgery. T 43. Thus, the evidence
- 12 -
shows a reasonable probability that it would change the outcome of the
decision.
Pl.’s Mem. 17.
The Commissioner’s regulation provides that the Appeals Council will review a case if
it “receives additional evidence that is new, material, and relates to the period on or before
the date of the hearing decision, and there is a reasonable probability that the additional
evidence would change the outcome of the decision.” 20 C.F.R. § 404.970(a)(5) (Dec. 16,
2016). However, this provision is limited by 20 C.F.R. § 404.970(b), which refers to the time
deadlines in § 404.935. With regard to the additional evidence Plaintiff submitted to the
Appeals Council, that body responded as follows:
You submitted records from the University of Orthopedics and Rehabilitation
dated November 4, 2016 through January 3, 2017 (11 pages). We find this
evidence does not show a reasonable probability that it would change the
outcome of the decision. We did not consider and exhibit this evidence.
You submitted records from the University of Orthopedics and Rehabilitation
dated February 3, 2017 through March 1, 2017 (7 pages). The Administrative
Law Judge decided your case through January 13, 2017. This additional
evidence does not relate to the period at issue. Therefore, it does not affect the
decision about whether you were disabled beginning on or before January 13,
2017.
R. 2. The Court agrees that the new evidence submitted did not meet the Commissioner’s
rules for consideration by the Appeals Council. However, the Court concludes that the records
from November 2016 through January 3, 2017, would not have undermined the ALJ’s
determination regarding the severity of Plaintiff’s carpal tunnel syndrome. Therefore, the
Appeals Council did not err by rejecting the post-decision evidence.
The ALJ’s RFC Determination
Ordinarily, RFC is the individual’s maximum remaining ability to do sustained
work activities in an ordinary work setting on a regular and continuing basis,
and the RFC assessment must include a discussion of the individual’s abilities
on that basis. A “regular and continuing basis” means 8 hours a day, for 5 days
a week, or an equivalent work schedule.
- 13 -
* * *
Exertional capacity addresses an individual’s limitations and restrictions of
physical strength and defines the individual’s remaining abilities to perform
each of seven strength demands: Sitting, standing, walking, lifting, carrying,
pushing, and pulling. Each function must be considered separately (e.g., “the
individual can walk for 5 out of 8 hours and stand for 6 out of 8 hours”), even
if the final RFC assessment will combine activities (e.g., “walk/stand, lift/carry,
push/pull”).
* * *
The RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e.g.,
laboratory findings) and nonmedical evidence (e.g., daily activities,
observations). In assessing RFC, the adjudicator must discuss the individual’s
ability to perform sustained work activities in an ordinary work setting on a
regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an
equivalent work schedule)7, and describe the maximum amount of each workrelated activity the individual can perform based on the evidence available in
the case record. The adjudicator must also explain how any material
inconsistencies or ambiguities in the evidence in the case record were
considered and resolved.
Titles II & XVI: Assessing Residual Functional Capacity in Initial Claims, SSR 96-8P (S.S.A. July
2, 1996).
The Court now turns to Plaintiff’s arguments regarding the ALJ’s RFC determinations
(both mental and physical). Plaintiff begins her argument with the proposition that the RFC
determination is a medical one, citing Hilsdorf v. Comm’r of Soc. Sec., 724 F. Supp. 2d 330
(E.D.N.Y. 2010). The Commissioner directly contradicts this assertion in his brief: “The RFC
finding is an administrative determination that is dispositive of whether a claimant is disabled
under the Act. See 20 C.F.R. § 404.1545.” Comm’r Mem. of Law 26, Jan. 1, 2019, ECF No.
15-1. The Court has read § 404.1545 and does not find support for the Commissioner’s
assertion. Instead, the Court finds the district court’s opinion in Hilsdorf persuasive. There,
the district court held that:
Because an RFC determination is a medical determination, an ALJ who makes
an RFC determination in the absence of supporting expert medical opinion has
- 14 -
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, 724 F. Supp. 2d at 347. According to Westlaw, 28 cases in this district have cited
Hilsdorf for the proposition in the quoted language from headnote 14 in the Westlaw
publication of the decision. As the undersigned stated in Stubbs v. Comm’r of Soc. Sec., No.
17-CV-6607, 2018 WL 6257431 (W.D.N.Y. Nov. 30, 2018),
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….
Stubbs, 2018 WL 6257431, at *6. Thus, the Court finds that the ALJ’s RFC determination for
Plaintiff’s physical and mental capabilities must have support from medical evidence, except
in cases involving relatively minor physical impairments. Id. at *7.
As Plaintiff points out, both Dr. Hom, her treating physician, and Dr. Toor, a consultative
examiner, found limitations that are inconsistent with light work. The ALJ, though, gave little
weight to either opinion. Light work is defined by the Commissioner 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. If someone can do light work, we determine that he or she can also
do sedentary work, unless there are additional limiting factors such as loss of
fine dexterity or inability to sit for long periods of time.
20 C.F.R. § 404.1567(b).
- 15 -
As early as 1972, the Second Circuit has held that a claimant’s treating physician’s
opinion was to be given greater weight. See Gold v. Sec. of H.E.W., 463 F.2d 38, 42 (2d Cir.
1972) (quoting Walker v. Garnder, 266 F. Supp. 998 (S.D. Ind. 1967) and citing Teeter v.
Flemming, 270 F.2d 871, 874 (7th Cir. 1959). The Commissioner’s current treating physician
rule, which will no longer apply to claims filed after March 27, 2017, reads in part 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
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 . . . .
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. § 404.1527(c)(2) (Mar. 27, 2017). Consequently, the ALJ was required to give Dr.
Hom’s opinions controlling weight if they met the criteria above, or otherwise give a good
explanation for not giving them controlling weight.
First, Plaintiff argues that the ALJ misread the record and limited Dr. Hom’s opinion to
a duration of six weeks. R. 43. However, the Court has read Dr. Hom’s report at R. 639, and
agrees with Plaintiff. Dr. Hom did indicate that the expected duration was six months, not six
weeks. The report is dated December 29, 2015. R. 641. However, the statute’s twelve-month
durational requirement applies both to the impairment and to the claimant’s inability to work.
Barnhart v. Walton, 535 U.S. 212, 222–23 (2002).
Second, Plaintiff argues that the ALJ “does not discuss how any of the finding [sic] in
the treatment notes [relate to] the ability to perform light work . . .,” and argues that the
Commissioner’s reliance on the holding in Monroe v. Colvin, 676 F. App’x 5, 8–9 (2d Cir. 2017)
- 16 -
(summary order) is misplaced. Pl.’s Reply Mem. of Law 4, Jan. 24, 2019, ECF No. 16.
Regarding Monroe, the Second Circuit panel wrote:
Here, although the ALJ ultimately rejected Dr. Wolkoff’s medical assessment,
she relied on Dr. Wolkoff’s treatment notes dating back before the alleged
onset date. Not only do Dr. Wolkoff’s notes include descriptions of Monroe’s
symptoms, but they also provide contemporaneous medical assessments of
Monroe’s mood, energy, affect, and other characteristics relevant to her ability
to perform sustained gainful activity. The ALJ also considered Dr. Wolkoff’s welldocumented notes relating to Monroe’s social activities relevant to her
functional capacity—such as snowmobile trips, horseback riding, and going on
multiple cruise vacations. Because the ALJ reached her RFC determination
based on Dr. Wolkoff’s contemporaneous treatment notes—while at the same
time rejecting his post hoc medical opinion ostensibly based on the
observations memorialized in those notes—that determination was adequately
supported by more than a mere scintilla of evidence . . . .
Likewise, because the ALJ based its RFC determination on Dr. Wolkoff’s years’
worth of treatment notes, it was not necessary for the ALJ to seek additional
medical information regarding Monroe’s RFC.
Monroe, 676 F. App’x at 8–9 (citations omitted).
In support of her argument, Plaintiff relies on the decision by the Honorable Michael A.
Telesca in Muhammad v. Colvin, No. 16-CV-6369, 2017 WL 4837583 (W.D.N.Y. Oct. 26,
2017). There, Judge Telesca distinguished Monroe by quoting Morales v. Colvin, No. 3:16-CV0003(WIG), 2017 WL 462626 (D. Conn. Feb. 3, 2017), where the district court wrote:
“Monroe is distinguishable from this case because the ALJ here did not discuss treatment
notes with any vocation or functional relevance when he formulated the RFC.” Morales, 2017
WL 462626 at *3. Plaintiff contends that the ALJ did not “tie any of the raw medical data to
Plaintiff’s ability to stand, walk, lift, carry, push, pull, reach, and perform postural abilities
required for a range of light work.” Pl.’s Reply Mem. of Law 4.
The only discussion of Plaintiff’s ability to lift, stand, and walk is from her hearing
testimony. The ALJ’s discussion of the medical records does not touch on these physical
requirements for light work. It appears that the ALJ interpreted the raw medical evidence to
- 17 -
arrive at the conclusion that Plaintiff was physically capable of light work. Light work can
“require[] a good deal of walking or standing. . . .” Considering that one of Plaintiff’s primary
problems is with her knee, it is surprising that the ALJ asked no questions of the vocational
expert about the standing or walking requirements of the jobs identified in the light category
that the vocational expert stated Plaintiff could perform. R. 83–87.
CONCLUSION
The Court finds that the ALJ’s physical RFC determination is not supported by
substantial evidence. Accordingly, the Court grants Plaintiff’s motion for judgment on the
pleadings, ECF No. 10, and denies the Commissioner’s motion, ECF No. 15. The
Commissioner’s decision is reversed pursuant to the fourth sentence of 42 U.S.C. § 405(g)
and this matter is remanded to the Commissioner for a new hearing. The Clerk will close the
case.
DATED:
September 16, 2019
Rochester, New York
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
- 18 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?