Hayes v. Commissioner of Social Security

Filing 13

DECISION & ORDER The Commissioner's motion for judgment on the pleadings 10 is denied, and plaintiff's motion for judgment on the pleadings 7 is granted to the extent that the Commissioners decision is reversed, and this case is remanded to the Commissioner pursuant to 42 U.S.C. § 405(g), sentence four, for further administrative proceedings consistent with this decision. Signed by Hon. Marian W. Payson on 7/15/2021. (KAH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
WILLIAM H.,1
DECISION & ORDER
Plaintiff,
20-CV-6050MWP
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_______________________________________

PRELIMINARY STATEMENT
Plaintiff William H. (“plaintiff”) brings this action pursuant to Section 205(g) of
the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision of the
Commissioner of Social Security (the “Commissioner”) denying his application for
Supplemental Security Income (“SSI”). Pursuant to the Standing Order of the United States
District Court for the Western District of New York regarding Social Security cases dated June
29, 2018, this case has been reassigned to, and the parties have consented to the disposition of
this case by, the undersigned. (Docket # 12).
Currently before the Court are the parties’ motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket ## 7, 10). For the
reasons set forth below, I hereby vacate the decision of the Commissioner and remand this claim
for further administrative proceedings consistent with this decision.

1

Pursuant to the November 18, 2020 Standing Order of the United States District Court for the Western
District of New York regarding identification of non-governmental parties in social security opinions, the plaintiff in
this matter will be identified and referenced solely by first name and last initial.

DISCUSSION
I.

Standard of Review
This Court’s scope of review is limited to whether the Commissioner’s

determination is supported by substantial evidence in the record and whether the Commissioner
applied the correct legal standards. See Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004)
(“[i]n reviewing a final decision of the Commissioner, a district court must determine whether
the correct legal standards were applied and whether substantial evidence supports the
decision”), reh’g granted in part and denied in part, 416 F.3d 101 (2d Cir. 2005); see also
Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (“it is not our function to determine de novo
whether plaintiff is disabled[;] . . . [r]ather, we must determine whether the Commissioner’s
conclusions are supported by substantial evidence in the record as a whole or are based on an
erroneous legal standard”) (internal citation and quotation omitted). Pursuant to 42 U.S.C.
§ 405(g), a district court reviewing the Commissioner’s determination to deny disability benefits
is directed to accept the Commissioner’s findings of fact unless they are not supported by
“substantial evidence.” See 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner . . . as to
any fact, if supported by substantial evidence, shall be conclusive”). 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) (internal quotation omitted).
To determine whether substantial evidence exists in the record, the court must
consider the record as a whole, examining the evidence submitted by both sides, “because an
analysis of the substantiality of the evidence must also include that which detracts from its
weight.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). To the extent

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they are supported by substantial evidence, the Commissioner’s findings of fact must be
sustained “even where substantial evidence may support the claimant’s position and despite the
fact that the [c]ourt, had it heard the evidence de novo, might have found otherwise.” Matejka v.
Barnhart, 386 F. Supp. 2d 198, 204 (W.D.N.Y. 2005) (citing Rutherford v. Schweiker, 685 F.2d
60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983)).
A person is disabled for the purposes of SSI and disability benefits if he or she is
unable “to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C.
§§ 423(d)(1)(A) & 1382c(a)(3)(A). In assessing whether a claimant is disabled, the ALJ must
employ a five-step sequential analysis. See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)
(per curiam). The five steps are:
(1)

whether the claimant is currently engaged in substantial
gainful activity;

(2)

if not, whether the claimant has any “severe impairment”
that “significantly limits [the claimant’s] physical or mental
ability to do basic work activities”;

(3)

if so, whether any of the claimant’s severe impairments
meets or equals one of the impairments listed in Appendix
1 of Subpart P of Part 404 of the relevant regulations (the
“Listings”);

(4)

if not, whether despite the claimant’s severe impairments,
the claimant retains the residual functional capacity
[(“RFC”)] to perform [his or her] past work; and

(5)

if not, whether the claimant retains the [RFC] to perform
any other work that exists in significant numbers in the
national economy.

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20 C.F.R. §§ 404.1520(a)(4)(i)-(v) & 416.920(a)(4)(i)-(v); Berry v. Schweiker, 675 F.2d at 467.
“The claimant bears the burden of proving his or her case at steps one through four[;] . . . [a]t
step five the burden shifts to the Commissioner to ‘show there is other gainful work in the
national economy [which] the claimant could perform.’” Butts v. Barnhart, 388 F.3d at 383
(quoting Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998)).

II.

The ALJ’s Decision
In her decision, the ALJ followed the required five-step analysis for evaluating

disability claims. Under step one of the process, the ALJ found that plaintiff had not engaged in
substantial gainful activity since June 2, 2016, the application date. (Tr. 17).2 At step two, the
ALJ concluded that plaintiff had the following severe impairments: hypertension, chronic low
back pain, degenerative changes in the lumbar spine and cervical spine, and chronic numbness
and pain in his wrists and right hand. (Id.). At step three, the ALJ found that plaintiff did not
have an impairment (or combination of impairments) that met or medically equaled one of the
listed impairments in the Listings. (Id.).
The ALJ concluded that plaintiff retained the RFC to perform light work but with
several additional limitations. (Tr. 18). Specifically, plaintiff required a sit/stand option that
allowed for changing positions every sixty minutes for up to five minutes; could occasionally
stoop, crouch, balance, climb stairs or ramps, kneel, and crawl; could frequently, but not
constantly, finger and feel; could not climb a rope, ladder, or scaffold; could not work overhead;
could fulfill daily quotas or expectations, but could not maintain a fast-paced, automated,
production line pace; and required three less-than-five-minute breaks in addition to regularly

2

The administrative transcript (Docket # 5) shall be referred to as “Tr. ___,” and references thereto utilize
the internal Bates-stamped pagination assigned by the parties.

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scheduled breaks. (Id.). At step four, the ALJ found that plaintiff was unable to perform any of
his past work. (Tr. 23). At step five, the ALJ determined that other jobs existed in significant
numbers in the national economy that, based on his age, education, work experience, and RFC,
plaintiff could perform, such as laundry sorter and collator operator. (Tr. 23-24). Accordingly,
the ALJ found that plaintiff was not disabled. (Tr. 24).

III.

Plaintiff’s Contentions
Plaintiff contends that the ALJ’s determination that he was not disabled is not

supported by substantial evidence and is the product of legal error. (Docket ## 7, 11). First,
plaintiff argues that despite affording weight to the internal medicine examination completed by
consultative examiner Rita Figueroa, MD, the ALJ erroneously failed to explain why certain of
Dr. Figueroa’s opined limitations, particularly those relating to plaintiff’s ability to turn his neck
and reach, were not incorporated into the RFC. (Docket ## 7-1 at 8-10; 11 at 1-2). Second,
plaintiff maintains that the ALJ’s “highly specific RFC” is the product of her lay interpretation of
the medical evidence and therefore unsupported by substantial evidence. (Docket ## 7-1 at
10-17; 11 at 2-4).

IV.

Analysis
I turn first to plaintiff’s argument that the ALJ’s “highly specific RFC”

determination is not supported by substantial evidence, as I find that remand is warranted on this
basis. (Docket ## 7-1 at 10-17; 11 at 2-4). Plaintiff specifically challenges the ALJ’s
determination that he could perform the standing and walking requirements associated with light
work so long as he could change positions between sitting and standing every hour for up to five

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minutes, contending that this finding is not supported by record evidence. (Docket # 7-1 at
10-17). The Commissioner does not respond to plaintiff’s specific argument regarding the ALJ’s
inclusion of a sit/stand option in the RFC, but maintains that the ALJ’s RFC is supported by Dr.
Figueroa’s consultative examination, which included no specific limitation regarding plaintiff’s
ability to walk and stand. (Docket # 10-1 at 8-9).
An individual’s RFC is his “maximum remaining ability to do sustained work
activities in an ordinary work setting on a regular and continuing basis.” Melville v. Apfel, 198
F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96–8p, 1996 WL 374184, *2 (July 2, 1996)). When
making an RFC assessment, the ALJ should consider “a claimant’s physical abilities, mental
abilities, symptomology, including pain and other limitations which could interfere with work
activities on a regular and continuing basis.” Pardee v. Astrue, 631 F. Supp. 2d 200, 221
(N.D.N.Y. 2009) (citing 20 C.F.R. § 404.1545(a)). “To determine RFC, the ALJ must consider
all the relevant evidence, including medical opinions and facts, physical and mental abilities,
non-severe impairments, and [p]laintiff’s subjective evidence of symptoms.” Stanton v. Astrue,
2009 WL 1940539, *9 (N.D.N.Y. 2009) (citing 20 C.F.R. §§ 404.1545(b)-(e)), aff’d, 370
F. App’x 231 (2d Cir. 2010).
As an initial matter, I disagree with plaintiff’s contention that the ALJ had “no
opinion” upon which to find that plaintiff could perform the standing and walking requirements
associated with light work.3 (See Docket # 7-1 at 12-14). In contrast to the rather restrictive
opinions offered by plaintiff’s treating physician, Stephen Lurie, MD, the consultative examiner,
Dr. Figueroa, opined that plaintiff would only have “moderate limitations to repetitive bending,

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“Light work” requires approximately six hours of standing and/or walking during an eight-hour workday.
See 20 C.F.R. § 416.967(b); Mancuso v. Astrue, 361 F. App’x 176, 178 (2d Cir. 2010) (summary order) (“[l]ight
work requires the ability to lift up to 20 pounds occasionally, lift 10 pounds frequently, stand and walk for up to 6
hours a day, and sit for up to two hours”).

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lifting, and carrying beyond 10 [pounds] [and] mild limitations to turning movements of the neck
. . . [and] reaching.” (Tr. 519). Dr. Figueroa’s opinion was based upon an internal medicine
examination conducted on July 22, 2016, at which time plaintiff’s chief complaints were
cervicalgia, lumbago, and hypertension. (Tr. 516). Plaintiff appeared in no acute distress, had
normal gait and stance, could walk on his heels and toes without difficulty and squat fully, used
no assistive devices, needed no help changing for the examination or getting on and off the
examination table, and was able to rise from a chair without difficulty. (Tr. 517). Plaintiff’s
lumbar spine had limited range of motion and straight leg raises were positive at 60 degrees
bilaterally, but not confirmed in the sitting position, yet he also exhibited full range of motion in
his hips, knees, and ankles bilaterally, and his joints were stable and nontender. (Tr. 518).
Moreover, although none of his extremities were able to sense pinprick sensation and there was a
dull patch area in his right outer thigh, he otherwise exhibited no sensory deficits, and he had full
strength in his upper and lower extremities. (Id.). The ALJ assigned Dr. Figueroa’s opinion
“some weight,” finding, among other things, that it was “consistent with the conclusion that
[plaintiff] would be able to perform light work with some non-exertional limitations.” (Tr. 20).
Contrary to plaintiff’s argument, the reasonable construction of Dr. Figueroa’s
opinion is that she did not find that plaintiff had any walking/standing limitations. As noted
above, Dr. Figueroa recognized cervicalgia and lumbago among plaintiff’s chief complaints,
acknowledged plaintiff’s own reports that walking and standing made certain activities of daily
living difficult to perform, performed a full body physical examination of plaintiff, reviewed
lumbar and cervical spine x-rays, and diagnosed plaintiff with, among other impairments,
lumbago, cervicalgia, and lumbar and cervical radiculopathy. (See generally Tr. 516-21).
Because her full body internal medicine examination of plaintiff was in no way incomplete or

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limited in scope, the fact that Dr. Figueroa did not assess any limitations regarding plaintiff’s
ability to stand and/or walk is reasonably read to reflect her opinion that plaintiff had no such
limitations.4 See, e.g., Fisher v. Colvin, 2016 WL 8677160, *7 (N.D.N.Y.) (“contrary to
[p]laintiff’s supposition, [consultative examiner] was not silent on [p]laintiff’s ability to sit, as he
observed that she was in no acute distress and had no difficulty walking on heels and toes, and
could rise from her chair without difficulty[;] [t]he fact that [consultative examiner] did not opine
as to any limitations with regard to [p]laintiff’s ability to sit for any length of time is not an
indication of the incompleteness of the opinion, but rather that he, based upon his observations
and examination, did not assess any such limitation”), report and recommendation adopted by,
2016 WL 1248900 (N.D.N.Y. 2016).
The issue in this case is that the ALJ did not find that plaintiff could perform the
full range of light work, but rather that he could perform light work only with limitations that
included “a sit/stand option that allows for changing position every [sixty] minutes for up to
[five] minutes.” (Tr. 18). After reviewing the ALJ’s decision and the record evidence, I am
unable to conclude that the specific sit/stand option incorporated into the RFC is adequately
supported by the record, and thus agree with plaintiff that remand is warranted on this basis.
(See Docket # 7-1 at 15-17).
In reaching an RFC determination, “[a]n ALJ must conduct an analysis that
permits adequate review on appeal, and the ALJ’s conclusions must be supported by relevant
medical evidence.” Tavion T. v. Comm’r of Soc. Sec., 2021 WL 1559243, *4 (W.D.N.Y. 2021);
4

Dr. Figueroa’s assessed limitations for bending, lifting, and carrying are consistent with light work. See,
e.g., Michael V. v. Comm’r of Soc. Sec., 2019 WL 4276722, *5 n.3 (N.D.N.Y. 2019) (“[c]ourts have held that
‘moderate’ lifting or carrying limitations are consistent with RFC limitations to light work”); Moore v. Comm’r of
Soc. Sec., 2017 WL 1323460, *8 (N.D.N.Y. 2017) (“[consultative examiner] assessed [p]laintiff with moderate
limitations for sitting, standing, walking, bending, climbing stairs, and lifting or carrying heavy objects[,] . . . which
is consistent with light work”).

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see also Sewar v. Berryhill, 2018 WL 3569934, *2 (W.D.N.Y. 2018) (an ALJ is required to
“explain the bases for his findings with sufficient specificity to permit meaningful review”).
“Meaningful review is frustrated where the ALJ fails to provide sufficient analysis to permit
th[e] [c]ourt to glean the rational[e] supporting his RFC determination.” Tavion T. v. Comm’r of
Soc. Sec., 2021 WL 1559243 at *4. Stated differently, “[w]hen an ALJ does not connect the
record evidence and RFC findings or otherwise explain how the record evidence supported his
RFC findings, the decision leaves the court with many unanswered questions and does not afford
an adequate basis for meaningful judicial review.” Heckman v. Comm’r of Soc. Sec., 2019 WL
1492868, *3 (W.D.N.Y. 2019) (quotations omitted). Moreover, “[a] very specific RFC
assessment – such as the specific amount of time a claimant can spend on certain activities –
must be based on evidence in the record, not on ‘the ALJ’s own surmise.’” Id. (quoting Cosnyka
v. Colvin, 576 F. App’x 43, 46 (2d Cir. 2014) (summary order)). “So when the record provides
no support for the specific amount of time that a claimant can sit or stand without relief, a
specific finding toward that end is not supported by substantial evidence.” Id.
Here, the only medical evidence addressing plaintiff’s need for a sit/stand option
is Dr. Lurie’s October 9, 2017 opinion, in which he opined that plaintiff required a job that
permitted “shifting positions at will from sitting, standing, or walking.” (Tr. 635 (emphasis
supplied)). Although the ALJ discussed certain portions of Dr. Lurie’s opinion that she did not
credit (see Tr. 22 (“the record does not support the restrictions Dr. Lurie described with regard to
[plaintiff’s] ability to use his hands, fingers, and arms or to stand”)), she explicitly gave “weight
to [other] aspects” of Dr. Lurie’s opinion “based on his treating relationship with [plaintiff].”
(Tr. 22). The ALJ’s inclusion of a sit/stand option in the RFC suggests that she credited Dr.
Lurie’s opinion regarding plaintiff’s need for a sit/stand limitation.

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The particular sit/stand limitation in the ALJ’s RFC, however, conflicts with Dr.
Lurie’s opined limitation. Although Dr. Lurie concluded that plaintiff required the opportunity
to shift positions “at will” (Tr. 635), the RFC permits plaintiff to change positions only every
hour for up to five minutes (see Tr. 18). It also appears to conflict with plaintiff’s own
testimony. (See, e.g., Tr. 46-53, 195-200). Critically, the ALJ did not adequately explain why
she assessed the specific and less restrictive sit/stand option that she did, despite affording
“weight” to that aspect of Dr. Lurie’s opinion, and it is not clear what evidence in the record, if
any, supports the ALJ’s determination. The absence of explanation for the specific sit/stand
option assessed frustrates meaningful judicial review – that is, whether the highly specific RFC
is supported by substantial evidence – and warrants remand.5 See, e.g., Cosnyka v. Colvin, 576
F. App’x at 46 (“[t]here is no evidence in the record to the effect that [plaintiff] would be able to
perform sedentary work if he could take a six-minute break every hour, rather than some other
duration and frequency amounting to ten percent of the workday[;] [i]ndeed, there is evidence to
the contrary, as [plaintiff] testified that he would need a 15-20 minute break[;] [a]ccordingly, [the
court] find[s] that there was no basis for the ALJ to incorporate this ‘six minutes per hour’
formulation into the RFC finding”); Tomicki v. Berryhill, 2018 WL 703118, *5 (W.D.N.Y.)
(“[t]he [c]ourt agrees with [plaintiff], however, that the record does not support the ALJ’s
conclusion that she needs to briefly switch between sitting and standing only every thirty
minutes[;] [t]he ALJ did not cite any evidence to support this highly-specific sit-stand opinion[,]
. . . making it unclear to the [c]ourt how the ALJ arrived at this particular finding[;] [m]oreover,
there is evidence in the record indicating that [plaintiff] needs to change positions every few

5

On remand, the ALJ is not required to accept Dr. Lurie’s opined sit/stand option, but she must provide an
adequate explanation grounded in the record evidence supporting any sit/stand option included in the RFC
determination.

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minutes, not every thirty minutes as the ALJ concluded[;] . . . [a]ccordingly, the ALJ’s RFC
assessment that [plaintiff] needs to briefly switch between sitting and standing only every thirty
minutes is not supported by substantial evidence”), report and recommendation adopted by,
2018 WL 692141 (W.D.N.Y. 2018); Rice v. Colvin, 2016 WL 7366977, *2 (W.D.N.Y. 2016)
(“[t]he ALJ’s decision, however, merely summarizes the medical record . . . and goes on to find
that plaintiff could perform light work ‘with the option to sit or stand hourly’[;] . . . [t]he ALJ’s
decision does not explain what evidence supports this particular sit/stand option, and the [c]ourt
can find no support for such a specific restriction in the record[;] [t]he ALJ’s decision thus once
again fails to ‘provide appropriate rationale with specific references to evidence of record in
support of the assessed limitations’”) (citations omitted).

CONCLUSION
For the reasons stated above, the Commissioner’s motion for judgment on the
pleadings (Docket # 10) is DENIED, and plaintiff’s motion for judgment on the pleadings
(Docket # 7) is GRANTED to the extent that the Commissioner’s decision is reversed, and this
case is remanded to the Commissioner pursuant to 42 U.S.C. § 405(g), sentence four, for further
administrative proceedings consistent with this decision.
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
July 15, 2021

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