Sowinski v. Commissioner of Social Security

Filing 15

DECISION AND ORDER. Plaintiff's Motion (Dkt. 8) is GRANTED; Defendant's Motion (Dkt. 12) is DENIED; the matter is remanded to the Commissioner for further proceedings consistent with this Decision and Order. The Clerk of Court is directed to close the file. Signed by Hon. Leslie G. Foschio on 9/19/2019. (SDW)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________ 
DAVID FRANK SOWINSKI,
Plaintiff,
v.
ANDREW M. SAUL,1 Commissioner of
Social Security,

DECISION
and
ORDER
18-CV-6390F
(consent)

Defendant.
______________________________________
APPEARANCES:

LAW OFFICES OF KENNETH R. HILLER, PLLC
Attorneys for Plaintiff
KENNETH R. HILLER, and
TIMOTHY HILLER, of Counsel
6000 North Bailey Avenue, Suite 1A
Amherst, New York 14226
JAMES P. KENNEDY, JR.
UNITED STATES ATTORNEY
Attorney for Defendant
Federal Centre
138 Delaware Avenue
Buffalo, New York 14202
and
KATHRYN L. SMITH
Assistant United States Attorney
United States Attorney’s Office
100 State Street
Rochester, New York 14614
and
OONA MARIE PETERSON
Special Assistant United States Attorney, of Counsel
Social Security Administration
Office of General Counsel
26 Federal Plaza – Room 3904
New York, New York 10278
and

1

Andrew M. Saul became the Commissioner of the Social Security Administration on June 17, 2019, and,
pursuant to Fed.R.Civ.P. 25(d), is substituted as Defendant in this case. No further action is required to
continue this suit by reason of sentence one of 42 U.S.C. § 405(g).

JOSHUA R. SUMNER
Special Assistant United States Attorneys, of Counsel
Social Security Administration
Office of General Counsel
601 E. 12th Street, Room 965
Kansas City, Missouri 64106

JURISDICTION
On July 9, 2019, this matter was reassigned to the undersigned before whom the
parties to this action consented pursuant to 28 U.S.C. § 636(c) to proceed in
accordance with this court’s June 29, 2018 Standing Order (Dkt. 14). The matter is
presently before the court on motions for judgment on the pleadings filed by Plaintiff on
December 17, 2018 (Dkt. 8), and by Defendant on February 13, 2019 (Dkt. 12).

BACKGROUND
Plaintiff David Frank Sowinski (“Plaintiff”), brings this action under Title II of the
Social Security Act (“the Act”), 42 U.S.C. §§ 405(g), seeking judicial review of the
Commissioner of Social Security’s final decision denying Plaintiff’s application filed with
the Social Security Administration (“SSA”), on January 22, 2015, for Social Security
Disability Insurance (“SSDI” or “disability benefits”). Plaintiff alleges he became
disabled on April 15, 2014, based on osteoporosis, hypertension, glaucoma, arthritis,
and low thyroid. AR2 at 252, 272. Plaintiff’s application initially was denied on March 3,
2015, AR at 163-69, and at Plaintiff’s timely request, on February 28, 2017, a hearing
was held in Rochester, New York, before administrative law judge John P. Costello (“the
ALJ). AR at 129-62. Appearing and testifying at the hearing were Plaintiff, who was

2

References to “AR” are to the page of the Administrative Record electronically filed by Defendant on
December 17, 2018 (Dkt. 7).

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without legal representation yet agreed to proceed unrepresented, and vocational
expert (“VE”) Dawn Blythe.
On April 27, 2017, the ALJ issued a decision denying Plaintiff’s claim, AR at 1325 (“the ALJ’s decision”), which Plaintiff timely appealed to the Appeals Council, AR at
229-30, submitting additional medical records in support of his application. AR at 26118. On March 30, 2018, the Appeals Council issued a decision denying Plaintiff’s
request for review, rendering the ALJ’s decision the Commissioner’s final decision. AR
at 1-7. On May 25, 2018, Plaintiff commenced the instant action seeking judicial review
of the ALJ’s decision.
On December 17, 2018, Plaintiff moved for judgment on the pleadings (Dkt. 8-2)
(“Plaintiffs’ Motion”), attaching the Memorandum of Law in Support of Plaintiff’s Motion
for Judgment on the Pleadings (Dkt. 8-3) (“Plaintiff’s Memorandum”).3 On February 13,
2019, Defendant moved for judgment on the pleadings (Dkt. 12) (“Defendant’s Motion”),
attaching the Commissioner’s Brief in Support of the Commissioner’s Motion for
Judgment on the Pleadings and in Response to Plaintiff’s Brief Pursuant to Local
Standing Order on Social Security Cases (Dkt. 12-1) (“Defendant’s Memorandum”).
Filed on March 5, 2019, was Plaintiff’s Reply Brief (Dkt. 13) (“Plaintiff’s Reply”). Oral
argument was deemed unnecessary.
Based on the foregoing, Plaintiff’s Motion is GRANTED; Defendant’s Motion is
DENIED.

3
Because of an electronic court filing error, Plaintiff missed the original December 14, 2018 filing date for
dispositive motions but, upon discovering the error, moved on December 17, 2018 (Dkt. 8) for an
extension of time to file, explaining in the accompanying Affirmation of Timothy Hiller, Esq. (Dkt. 8-1), that
Defendant had consented to the request. Plaintiff’s Motion and Plaintiff’s Memorandum were attached to
the motion seeking an extension of the filing deadline, which request was granted by Text Order entered
December 18, 2018 (Dkt. 9).

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FACTS4
Plaintiff David Frank Sowinski (“Plaintiff” or “Sowinski”), born January 22, 1953,
was 61 years old as of April 14, 2014, his alleged disability onset date (“DOD”), and 64
years old as of May 2, 2017, the date of the ALJ’s decision. AR at 133. Prior to the
February 28, 2017 administrative hearing, Plaintiff applied for and began receiving
Social Security retirement benefits. AR at 136. Plaintiff is divorced, has no children,
and lives by himself in a single story, ranch style home, and takes care of his pet cat.
AR at 15, 260.
Plaintiff is a high school graduate and earned a two-year technical degree from
Monroe Community College. AR at 134. Plaintiff worked for more than 40 years as a
fleet mechanic for Hertz Corporation (“Hertz”), a car rental company located at the
Rochester airport, where he was in charge of vehicle inventory and work flow involving
all aspects of maintenance and repair. AR at 134-35, 253-54. Plaintiff maintains that
during the last two years of his employment with Hertz, he was assigned work more
difficult and requiring heavier exertion than younger employees, purportedly to
encourage retirement of the older workers whose pay and benefits were more than
younger employees. AR at 137-38. On April 14, 2014, Plaintiff was suspended and
then terminated from his employment for refusing to work mandatory overtime because
he was in pain from arthritis. AR at 138-39, 147. Plaintiff has not worked since leaving
Hertz’s employ, but received unemployment benefits for 39 weeks and has since
applied for and receives Social Security retirement benefits. AR at 136, 140.

4

In the interest of judicial economy, recitation of the Facts is limited to only those necessary for
determining the pending motions for judgment on the pleadings.

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Plaintiff is able to tend to his personal needs and grooming, AR at 260, has a
driver’s license and regularly drives for errands including grocery and household
shopping. AR at 262-63. Plaintiff cleans his house, does yardwork, cooks his own
meals, grocery shops, does laundry, maintains his own vehicles, and pursues several
hobbies including reading, collecting model trains, restoring antique radios, and
repairing antique boat engines. AR at 152-54, 260-64. Socially, Plaintiff has a
girlfriend, AR at 251, attends weekly church services, AR at 264, and participates in
monthly activities with a church group. AR at 264.
Throughout the time relevant to this matter, Plaintiff’s primary care physician was
Margaret M. Bergin, M.D. (“Dr. Bergin”), and also treated with Ummara Shah, M.D. (“Dr.
Shah”), a rheumatologist. AR at 328-41. In connection with his disability benefits
application, Plaintiff underwent a consultative examination by Dr. Karl Eurenius, M.D.
(“Dr. Eurenius”), an internist, on February 19, 2015. AR at 319-27.

DISCUSSION
1.

Standard and Scope of Judicial Review
A claimant is “disabled” within the meaning of the Act and entitled to disability

benefits when she is unable “to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which . . . has lasted or can
be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§
416(i)(1); 1382c(a)(3)(A). A district court may set aside the Commissioner’s
determination that a claimant is not disabled 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),

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1383(c)(3); Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). In
reviewing a final decision of the SSA, a district court “is limited to determining whether
the SSA’s conclusions were supported by substantial evidence in the record and were
based on a correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012) (internal quotation marks and citation omitted). “Substantial evidence is more
than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. It is not, however, the district court’s
function to make a de novo determination as to whether the claimant is disabled; rather,
“the reviewing court is required to examine the entire record, including contradictory
evidence and evidence from which conflicting inferences can be drawn” to determine
whether the SSA’s findings are supported by substantial evidence. Id. “Congress has
instructed . . . that the factual findings of the Secretary,5 if supported by substantial
evidence, shall be conclusive.” Rutherford v. Schweiker, 685 F.2d60, 62 (2d Cir. 1982).
2.

Disability Determination
The definition of “disabled” is the same for purposes of receiving SSDI and SSI

benefits. Compare 42 U.S.C. § 423(d) with 42 U.S.C. § 1382c(a). The applicable
regulations set forth a five-step analysis the Commissioner must follow in determining
eligibility for disability benefits. 20 C.F.R. §§ 404.1520 and 416.920. See Bapp v.
Bowen, 802 F.2d 601, 604 (2d Cir. 1986); Berry v. Schweiker, 675 F.2d 464 (2d Cir.
1982). If the claimant meets the criteria at any of the five steps, the inquiry ceases and
the claimant is not eligible for disability benefits. 20 C.F.R. §§ 404.1520 and 416.920.

5

Pursuant to the Social Security Independence and Program Improvements Act of 1994, the function of
the Secretary of Health and Human Services in Social Security cases was transferred to the
Commissioner of Social Security, effective March 31, 1995.

6 

The first step is to determine whether the applicant is engaged in substantial gainful
activity during the period for which the benefits are claimed. 20 C.F.R. §§ 404.1520(b)
and 416.920(b). The second step is whether the applicant has a severe impairment
which significantly limits the physical or mental ability to do basic work activities, as
defined in the relevant regulations. 20 C.F.R. §§ 404.1520(c) and 416.920(c). Third, if
there is an impairment and the impairment, or its equivalent, is listed in 20 C.F.R. Part
404, Subpart P, Appendix 1 of the regulations (“Appendix 1” or “the Listings”), and
meets the duration requirement of at least 12 continuous months, there is a
presumption of inability to perform substantial gainful activity, and the claimant is
deemed disabled, regardless of age, education, or work experience. 42 U.S.C. §§
423(d)(1)(A) and 1382a(c)(3)(A); 20 C.F.R. §§ 404.1520(d) and 416.920(d). As a fourth
step, however, if the impairment or its equivalent is not listed in Appendix 1, the
Commissioner must then consider the applicant’s “residual functional capacity” or “RFC”
which is the ability to perform physical or mental work activities on a sustained basis,
notwithstanding the limitations posed by the applicant’s collective impairments, see 20
C.F.R. 404.1520(e)-(f), and 416.920(e)-(f), and the demands of any past relevant work
(“PRW”). 20 C.F.R. §§ 404.1520(e) and 416.920(e). If the applicant remains capable of
performing PRW, disability benefits will be denied, id., but if the applicant is unable to
perform PRW relevant work, the Commissioner, at the fifth step, must consider whether,
given the applicant’s age, education, and past work experience, the applicant “retains a
residual functional capacity to perform alternative substantial gainful work which exists
in the national economy.” Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation
marks and citation omitted); 20 C.F.R. §§ 404.1560(c) and 416.960(c). The burden of

7 

proof is on the applicant for the first four steps, with the Commissioner bearing the
burden of proof on the final step. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4);
Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008).
In the instant case, the ALJ found Plaintiff met the insured status requirements
for SSDI through December 31, 2018, AR at 18, has not engaged in substantial gainful
activity since April 15, 2014, his alleged disability onset date, AR at 18, and suffers from
the severe impairments of osteoporosis and fibromyalgia, as well as non-severe
impairments of glaucoma, hypertension, and anxiety, but does not have an impairment
or combination of impairments meeting or medically equal to the severity of any listed
impairment in Appendix 1, id. at 18-19, that Plaintiff retains the RFC to perform a full
range of medium work, id. at 19-21, and remains capable of performing his PRW as an
auto mechanic as such job generally is performed. Id. at 21. Based on these findings,
the ALJ determined Plaintiff is not disabled as defined under the Act. Id. at 21.
Plaintiff does not contest the ALJ’s findings with regard to the first three steps of
the five-step analysis, but argues the ALJ’s determination of Plaintiff’s RFC at the fourth
step is not supported by substantial evidence in the record, Plaintiff’s Memorandum at
8-12, the ALJ did not explain the basis for his credibility determination concerning
Plaintiff’s subjective complaints, id. at 12-15, and the Appeals Council failed to consider
new and material evidence of additional severe impairments. Id. at 15-18. Defendant
argues the ALJ’s determination is supported by substantial evidence because the ALJ
properly evaluated Plaintiff’s alleged disabling symptoms, Defendant’s Memorandum at
11-16, and medical opinions, id. at 16-21, and the evidence Plaintiff submitted to the
Appeals Council does not warrant remand because it was either duplicative or

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cumulative of evidence already in the record. Id. at 21-23. In further support of remand,
Plaintiff argues Defendant fails to demonstrate the RFC assessment that Plaintiff
remains capable of medium work is supported by substantial evidence in the record.
Plaintiff’s Reply at 1. The record in this case fails to support the ALJ’s determination.
Plaintiff particularly challenges the ALJ’s determination that Plaintiff retains the
RFC for the full range of work at the medium exertional level, including Plaintiff’s PRW
as an auto mechanic which the VE testified generally is considered medium work,
although Plaintiff’s description of his specific auto mechanic job was consistent with an
exertional level of heavy. AR at 157-58. It is significant that in finding Plaintiff retains
the RFC for work at the medium exertional level, the ALJ relied on the Medical
Vocational Guidelines, 20 C.F.R. Part 404, Subpt. P, App. 2, commonly referred to as
the “grids.” Generally, where a claimant relies on only exertional impairments, i.e.,
strength limitations, to establish disability, the Commissioner may satisfy his burden by
resorting to the applicable grids. Pratts v. Chater, 94 F.3d 34, 38-39 (2d Cir. 1996).
“The grids ‘take into account the claimant’s residual functional capacity in conjunction
with the claimant’s age, education and work experience.’ Based on these
considerations, the grids indicate whether the claimant can engage in any substantial
gainful work existing in the national economy.” Roma v. Astrue, 468 Fed.Appx. 16, 20
(2d Cir. Jan. 19, 2012) (quoting Bapp v. Bowen, 802 F.2d 601, 603-04 (2d Cir. 1986)
(internal quotation marks and citation omitted).
In the instant case, the ALJ, taking into considerations such relevant
characteristics as Plaintiff’s age, education, work experience, and functional ability,
determined that Rule 203.07 of the grids directed a finding of “not disabled.” AR at 21.

9 

Rule 203.07 specifies that a person of Plaintiff’s age, defined as “closely approaching
retirement age,” with more than a high school education but which does not provide for
direct entry into skilled work, and whose previous work experience is skilled or semiskilled, with such skills not transferrable to other work, is considered not disabled.6 If,
however, a claimant fits the same vocational criteria but is limited to work at the light, as
opposed to medium, exertional level,7 such claimant would be considered disabled
under Rule 202.06 of the grids. Accordingly, the ALJ’s assessment that Plaintiff’s RFC
permits Plaintiff to work at the medium exertional level is critical to the determination
that Plaintiff is not disabled.
In assessing Plaintiff with the RFC for medium work, the ALJ relied on the only
medical opinion evidence in the record, i.e., the consultative medical examination of Dr.
Eurenius, AR at 20-21, who opined that Plaintiff “is mildly limited in bending, lifting,
carrying, pushing, and pulling due to a combination of chronic low back pain, left
shoulder pain, and right hip pain.” AR at 323. Plaintiff argues Dr. Eurenius’s opinion
does not sufficiently align with the ALJ’s determination that Plaintiff is capable of the full
range of work at the exertional level of medium, such that the ALJ impermissibly
substituted his own lay opinion for that of medical evidence. Plaintiff’s Memorandum at

6

Although at the administrative hearing, the ALJ also obtained testimony from the VE that there were
several jobs considered to be of light exertion to which Plaintiff’s skills were transferrable, AR at 159, in
his decision, the ALJ relied on Rule 203.07, thereby establishing the ALJ considered Plaintiff’s skills were
not transferrable.
7
 As defined under the relevant regulations, “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. . . .
20 C.F.R. § 404.1567(b).
In comparison, “medium” work
involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects
weighing up to 25 pounds. . . .
20 C.F.R. § 404.1567(c). 

10 

10-11. Plaintiff’s argument is correct because although the ALJ is permitted to rely on
such consultative opinion, particularly when the opinion is consistent with the record as
a whole, Monette v. Colvin, 654 Fed.Appx. 516, 518 (2d Cir. July 7, 2016) (citing cases),
here, the record is devoid of any evidence establishing Plaintiff retains the RFC for
medium exertional work.
The RFC determination is reserved for the Commissioner, 20 C.F.R. §§
404.1527(e)(2), and 416.927(e)(2), yet “an ALJ’s RFC assessment is a medical
determination that must be based on probative medical evidence of record. . . . .
Accordingly, an ALJ may not substitute his own judgment for competent medical
opinion.” Lewis v. Commissioner of Social Security, 2005 WL 1899399, at * 3 (N.D.N.Y.
Aug. 2, 2005) (citing cases). In the instant case, the ALJ’s determination that Plaintiff
retains the RFC for the full range of work at the medium exertional level, including
Plaintiff’s PRW as an auto mechanic, is not supported by substantial evidence in the
record insofar as Dr. Eurenius opined that Plaintiff’s limitations in bending, lifting,
carrying, pushing and pulling are “mild.” See Vann v. Commissioner of Social Security,
2016 WL 3526076, at * 8 (N.D.N.Y. May 27, 2016) (citing Curry v. Apfel, 209 F.3d 117,
123 (2d Cir. 2000) (considering physician’s use of terms “moderate” and “mild” without
any additional information too vague which “does not permit the ALJ, a layperson
notwithstanding her considerable and constant exposure to medical evidence, to make
the necessary inference” that the plaintiff could perform the exertional requirements for
a specific level of work), superseded by regulation on other grounds by 20 C.F.R. §
404.1560(c)(2). Similar to the instant case, in Vann the court found that the medical
opinion of the consultative examiner “could actually be read to support the exertional

11 

requirements of sedentary, light, or even medium work because she concluded Plaintiff
had only ‘mild limitations to exertional activity, bending, twisting of the lumbar spine, or
heavy lifting.’” Vann, 2016 WL 3526076, at * 8 (quoting administrative record).
Nor is this a situation where the ALJ is permitted to rely on common-sense. See
Keller v. Comm’s of Soc. Sec., __ F.Supp.3d __; 2019 WL 4426352, at * 5 (W.D.N.Y.
Sept. 16, 2019) (determining that under the circumstances, including that the medical
evidence of record established the claimant’s condition was “largely normal, with only
mild ongoing complications from her spinal surgery . . . it was not reversible error for the
ALJ to make a common-sense assessment of Plaintiff’s physical RFC.”). To the
contrary, here the record establishes Plaintiff was terminated from his long-term
employment when he refused to work overtime because of pain attributed to Plaintiff’s
arthritis, an impairment for which there is medical evidence in the record, which is
consistent with Dr. Eurenius’s diagnosis of Plaintiff with “osteoarthritis and osteoporosis,
particularly of the left shoulder, back, and right hip.” AR at 423. Plaintiff was also
diagnosed with diffuse pain and stiffness, swollen joints, and possible arthritis or
connective tissue disease by Dr. Shah, a rheumatologist. See, e.g., AR at 328-32
(examining Plaintiff on September 1, 2015, and finding Plaintiff with elevated ANA
(antinuclear antibodies indicative of autoimmune disease such as connective tissue
disease), generalized body pain and stiffness possibly due to osteoarthritis of multiple
joints and overlapping pain syndrome); and 336-39 (follow-up examination of December
6, 2015, finding Plaintiff with “very elevated” ANA, diffuse pain, most severe in upper
and lower back and legs, and pain noted at all myofascial trigger joints). Neither Dr.
Shah nor Dr. Eurenius, however, opined as to how Plaintiff’s diffuse pain and stiffness

12 

impacted Plaintiff’s exertional capacity for work. It is only where the record contains
sufficient evidence to permit the ALJ to render a common-sense RFC determination that
the ALJ is not required to develop the record by seeking a physician’s function-byfunction assessment of the Plaintiff. Tankisi v. Comm’r of Soc. Sec., 521 Fed.Appx. 29,
34 (2d Cir. Apr. 2, 2013) (affirming District Court’s decision that ALJ’s determination that
disability claimant’s RFC did not render her disabled was supported by substantial
evidence, which did not include a function-by-function assessment, but included two
consultative examinations which were consistent with an extensive medical record and
the findings of one of the claimant’s treating physicians). In contrast, in the instant case,
the medical record is not extensive and contains no other opinion of any physician,
treating or otherwise, such that there is a gap in the record, i.e., whether Plaintiff’s
exertional restriction is to medium or light work. Contrast, id. (remand not required to
further develop the record where “the record contains sufficient evidence from which an
ALJ can assess the petitioner’s residual functional capacity”). Significantly, the nonadversarial nature of a disability benefits proceeding obligates the ALJ to affirmatively
develop the record to fill in any gaps of the kind relevant to this case. Pratts v. Chater,
94 F.3d 34, 37 (2d Cir. 1996).
The ALJ thus improperly relied on his lay opinion in assessing Plaintiff’s RFC,
particularly with regard to the determination that Plaintiff retains the exertional capacity
for medium work, which is not supported by substantial evidence in the record, requiring
remand. Furthermore, upon remand, the ALJ should also reconsider the credibility of
Plaintiff’s subjective complaints in light of the new evidence to be obtained.

13 

CONCLUSION
Based on the foregoing, Plaintiff’s Motion (Dkt. 8) is GRANTED; Defendant’s
Motion (Dkt. 12) is DENIED; the matter is remanded to the Commissioner for further
proceedings consistent with this Decision and Order. The Clerk of Court is directed to
close the file.
SO ORDERED.
/s/ Leslie G. Foschio  
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE

DATED:

September 19, 2019
Buffalo, New York

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