Hughes v. Commissioner of Social Security
DECISION & ORDER: The Commissioner's motion for judgment on the pleadings, Docket Item 14 , is DENIED, and the plaintiff's motion for judgment on the pleadings, Docket Item 12 , is GRANTED in part. The decision of the Commissioner is VACATED, and the matter is REMANDED for further administrative proceedings consistent with this decision. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 11/18/2021. (WMH)-CLERK TO FOLLOW UP-
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DAVID H., 1
COMMISSIONER OF SOCIAL
DECISION & ORDER
On June 1, 2020, the plaintiff, David H. (“David”), brought this action under the
Social Security Act (“the Act”). He seeks review of the determination by the
Commissioner of Social Security (“Commissioner”) that he was not disabled. 2 Docket
Item 1. On January 28, 2021, David moved for judgment on the pleadings, Docket Item
12; on April 20, 2021, the Commissioner responded and cross-moved for judgment on
the pleadings, Docket Item 14; and on May 3, 2021, David replied, Docket Item 15.
To protect the privacy interests of social security litigants while maintaining
public access to judicial records, this Court will identify any non-government party in
cases filed under 42 U.S.C. § 405(g) only by first name and last initial. Standing Order,
Identification of Non-government Parties in Social Security Opinions (W.D.N.Y. Nov. 18,
David applied for both Supplemental Security Income (“SSI”) and Disability
Insurance Benefits (“DIB”). One category of persons eligible for DIB includes any adult
with a disability who, based on quarters of qualifying work, meets the Act’s insuredstatus requirements. See 42 U.S.C. § 423(c); see also Arnone v. Bowen, 882 F.2d 34,
37-38 (2d Cir. 1989). SSI, on the other hand, is paid to a person with a disability who
also demonstrates financial need. 42 U.S.C. § 1382(a). A qualified individual may
receive both DIB and SSI, and the Social Security Administration uses the same fivestep evaluation process to determine eligibility for both programs. See 20 C.F.R. §§
404.1520(a)(4) (concerning DIB); 416.920(a)(4) (concerning SSI).
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For the reasons stated below, this Court grants David’s motion in part and denies
the Commissioner’s cross-motion. 3
STANDARD OF REVIEW
“The scope of review of a disability determination . . . involves two levels of
inquiry.” Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). The court “must first
decide whether [the Commissioner] applied the correct legal principles in making the
determination.” Id. This includes ensuring “that the claimant has had a full hearing
under the . . . regulations and in accordance with the beneficent purposes of the Social
Security Act.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (alterations omitted)
(quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)). Then, the court “decide[s]
whether the determination is supported by ‘substantial evidence.’” Johnson, 817 F.2d at
985 (quoting 42 U.S.C. § 405(g)). “Substantial evidence” means “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 Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “Where there is a
reasonable basis for doubt whether the ALJ applied correct legal principles, application
of the substantial evidence standard to uphold a finding of no disability creates an
unacceptable risk that a claimant will be deprived of the right to have her disability
determination made according to the correct legal principles.” Johnson, 817 F.2d at
The Court assumes familiarity with the underlying facts, the procedural history,
and the decision of the Administrative Law Judge (“ALJ”) and refers only to the facts
necessary to explain its decision.
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David argues that the ALJ erred in determining his residual functional capacity
(“RFC”). 4 Docket Item 12-1 at 1. More specifically, David argues that the ALJ
improperly discounted the opinion of Rhonda Peterson, M.D., as inconsistent with the
record and therefore only partially persuasive. Id. at 15. David also argues that the ALJ
did not identify any objective evidence that was inconsistent with Dr. Peterson’s opinion.
Id. at 17. This Court agrees that the ALJ erred, and, because the error was to David’s
prejudice, remands the matter to the Commissioner.
DR. PETERSON’S OPINION
When determining a claimant’s RFC, “the Commissioner must consider all
medical opinions” received. Christopher M. V. v. Comm’r of Soc. Sec., 2021 WL
804258, at *3 (W.D.N.Y. Mar. 3, 2021) (citing Andrew G. v. Comm’r of Soc. Sec., 2020
WL 5848776, at *5 (N.D.N.Y. Oct. 1, 2020) (quoting 20 C.F.R. § 404.1520c(a)-(c))). But
under recent revisions to the Social Security regulations, 5 the ALJ “will not defer or give
any specific evidentiary weight, including controlling weight, to any medical opinion[s].”
20 C.F.R. § 404.1520c(a). Instead, the ALJ “will articulate in [his or her] determination
or decision how persuasive [he or she] find[s] all of the medical opinions.” Id.
Residual functional capacity is defined as what a claimant is still able to do
despite his or her limitations. See 20 C.F.R. § 404.1545(a)(1).
An ALJ’s review of medical evidence for disability claims filed on or after March
27, 2017, is governed by 20 C.F.R. § 404.1520c. See Revisions to the Rules
Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 584401, 5844, 5875 (Jan. 18, 2017).
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“A medical opinion is a statement from a medical source about what [a claimant]
can still do despite [his or her] impairment[s] and whether [the claimant] ha[s] one or
more impairment-related limitations or restrictions in . . . [the claimant’s] ability to
perform [the physical and mental] demands of work activities.” Id. § 404.1513(a)(2).
The Code of Federal Regulations lists five factors that the ALJ must consider when
considering medical opinions: (1) the amount of evidence the source presents to
support his or her opinion; (2) the consistency between the opinion and the record;
(3) the treating provider’s relationship with the claimant, including the length, frequency,
purpose, and extent of the relationship; (4) the treating provider’s specialization; and
(5) any other factors that “that tend to support or contradict” the opinion. Id.
An ALJ is specifically required to “explain how [he or she] considered the
supportability and consistency factors”—because they are “the most important
factors”—and “may, but [is] not required to, explain how [he or she] considered the
[remaining] factors.” Id. § 404.1520c(b)(2); see Harry B. v. Comm’r of Soc. Sec., 2021
WL 1198283, at *7 (N.D.N.Y. Mar. 30, 2021) (quoting 20 C.F.R. §§ 404.1520c(b)(2),
416.920c(b)(2)); Rivera v. Comm’r of the Soc. Sec. Admin., 2020 WL 8167136, at *14
(S.D.N.Y. Dec. 30, 2020), report and recommendation adopted sub nom. Rivera v.
Comm’r of Soc. Sec. Admin., 2021 WL 134945 (S.D.N.Y. Jan. 14, 2021). “With respect
to ‘supportability,’ the new regulations provide that ‘[t]he more relevant the objective
medical evidence and supporting explanations presented by a medical source are to
support his or her medical opinion(s) or prior administrative medical finding(s), the more
persuasive the medical opinions or prior administrative medical finding(s) will be.’ With
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respect to ‘consistency,’ the new regulations prov[ide] that ‘[t]he more consistent a
medical opinion(s) or prior administrative medical finding(s) is with the evidence from
other medical sources and nonmedical sources in the claim, the more persuasive the
medical opinion(s) or prior administrative medical finding(s) will be.’” Jacqueline L. v.
Comm’r of Soc. Sec., 515 F. Supp. 3d 2, 7-8 (W.D.N.Y. 2021) (alterations in original)
(quoting 20 C.F.R. §§ 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2)). “Both supportability and
consistency in part require comparison of the medical opinions with other medical
sources.” Mark K. v. Comm’r of Soc. Sec., 2021 WL 4220621, at *4 (W.D.N.Y. Sept.
16, 2021) (citing 20 C.F.R. § 404.1520c(c)(1)-(2)).
Here, the record included three medical opinions. Amanda Slowik, Psy.D, and
Oliver Fassler, Ph.D., opined about David’s mental functioning, and the ALJ found these
opinions to be persuasive. 6 Docket Item 11 at 28, 68, 319. Dr. Peterson opined largely
about David’s physical limitations and tangentially about his mental capacity. Id. at 79698. The ALJ found Dr. Peterson’s opinion to be only partially persuasive. Id. at 28.
The ALJ discounted Dr. Peterson’s opinion because he concluded that “the level
of restriction of functional ability [in Dr. Peterson’s opinion wa]s not supported by the
degree of treatment that [David] has received or his activities.” Id. The ALJ then found
that David had the residual functional capacity to perform light work but included several
specific additional limitations. Id. at 22-23.
Dr. Slowik’s opinion included a section entitled “Medical History” which
mentioned David’s physical diagnoses, including degenerative disc disease, COPD, and
carpal tunnel syndrome, but she did not opine about those conditions. Id. at 320.
Instead, her observations, diagnoses, and recommendations were limited to David’s
mental state. Id. at 319-24. Dr. Fassler co-signed an assessment of vocational factors
which limited David to light, unskilled work. Id. at 78-79. That was Dr. Fassler’s only
reference to David’s physical capabilities or limitations.
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There are several problems with the ALJ’s analysis and the RFC that he
formulated. First, the ALJ failed to “compar[e Dr. Peterson’s] medical opinion with
other medical sources.” See Mark K., 2021 WL 4220621, at *4. Especially because the
new regulations no longer require the ALJ to assign specific weight to opinion evidence
or, absent detailed analysis, to give controlling weight to the opinion of treating
physicians, that error alone requires remand. See 20 C.F.R. § 404.1520c(a) (“[The ALJ]
will not defer or give any specific evidentiary weight, including controlling weight, to any
medical opinion(s) . . . including those from  medical sources.”); see also Rivera, 2020
WL 8167136, at *14 (“If the ALJ fails adequately to ‘explain the supportability or
consistency factors,’ or bases her explanation upon a misreading of the record, remand
is required.” (citing Andrew G., 2020 WL 5848776, at *9)).
What is more, other medical evidence was largely consistent with Dr. Peterson’s
opinion. For example, both Dr. Peterson and Dr. Slowik noted that David’s severe pain
affected his concentration and attentiveness. Id. at 322, 798. Dr. Peterson opined that
David could occasionally lift up to 20 pounds and could rarely reach his arms overhead,
id. at 797-98; George Edward Vates, M.D., a neurosurgeon at University of Rochester
Medical Center, id. at 259, noted David’s difficulty lifting objects and raising his arms
above his head, id. at 364. Dr. Peterson found that David could rarely look down, turn
his head right or left, or look up. Id. at 797. Chirag R. Patel, M.D., a pain management
expert who treated David for “neck/back pain,” id. at 663, likewise found David’s range
of motion in his neck to be limited in all directions, id. at 664.
The ALJ also did not address what Dr. Peterson “used to support [her] opinions
and reach [her] ultimate conclusions.” Brianne S. v. Comm’r of Soc. Sec., 2021 WL
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856909, at *5 (W.D.N.Y. Mar. 8, 2021) citing Cuevas v. Comm’r of Soc. Sec., 2021 WL
363682, at *14 (S.D.N.Y. Jan. 29, 2021). And while the ALJ asserted that “the level of
restriction of functional ability” in Dr. Peterson’s opinion “is not supported by the degree
of treatment that [David] has received or his activities,” see Docket Item 11 at 28, her
attempt to explain that conclusion does not pass muster. The ALJ noted that David
had “minimal” physical therapy, had not followed up on other treatment, and was told
that his impairments were inappropriate for surgery. Id. But nothing about that is
inconsistent with Dr. Peterson’s findings that David could “sit and stand/walk for [only]
about two hours during an eight-hour workday” and that he “could sit for fifteen minutes
at one-time [sic] before needing to get up and stand for fifteen minutes at one time
before [he] needed to sit down, walk around, etc.” Id. Likewise, the fact that David
“dabble[s] in auto mechanics, repair, and changing tires” is not inconsistent with Dr.
Peterson’s opinion that he can rarely reach or climb stairs and never twist. Id.
In sum, the ALJ “failed to apply or even consider the supportability [and
consistency] factor[s].” Cuevas, 2021 WL 363682, at *14. That was error. See id. at
*15 (“Because the ALJ failed to address the supportability factor . . . the ALJ committed
legal error by failing to apply the proper legal standards in the form of the post-March
26, 2017 SSA regulations.”); cf. Jacqueline L., 2021 WL 243099, at *6 (“As required by
the new regulations, the ALJ explained his findings regarding the supportability and
consistency for each of the opinions, pointing to specific evidence in the record
supporting those findings.”). And the reasons she gave for discounting Dr. Peterson’s
opinion were error as well.
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Perhaps most basically, the ALJ erred in formulating very specific limitations in
the RFC from whole cloth without any medical support. For example, contrary to Dr.
Peterson’s more restrictive opinion, the ALJ found that David could do light work except
that he would need a “one to two minute” break “after standing or walking for thirty
minutes”; could “occasionally stoop, balance, crouch, crawl, kneel, and climb stairs and
ramps”; and could “frequently reach.” Docket Item 11 at 22-23. Those restrictions are
quite specific, but they are inconsistent with and less restrictive than those in Dr.
Peterson’s opinion, and there is no medical opinion behind them; therefore, they must
be the product of the ALJ’s own lay judgment. And the new regulations do not change
the rule that specific restrictions like these must come from a medical opinion, not from
the ALJ’s lay opinion. See Linda L. v. Comm’r of Soc. Sec., 2021 WL 4147062, at *5-6
(W.D.N.Y. Sept. 13, 2021) (finding that the ALJ improperly formulated the claimant’s
RFC based on the ALJ’s own lay opinion which contradicted the medical opinions of
Finally, the ALJ’s several errors likely prejudiced David. Dr. Peterson diagnosed
David with severe intervertebral disc disease and assessed his prognosis as poor.
Docket Item 11 at 796. As the ALJ noted, Dr. Peterson detailed David’s limitations in
walking, sitting, and standing during the workday, including his need for frequent
breaks. Id. at 28. She limited him to rarely climbing stairs, reaching, or turning his head
right or left or up or down. Id. And she found that his “constant pain and other systems
[sic] are severe enough to interfere with attention and concentration needed to perform
even simple work tasks.” Id.
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Had the ALJ properly compared Dr. Peterson’s opinion with the other opinions
and medical evidence and evaluated it in light of the medical evidence supporting it, that
might well have resulted in an RFC that rendered David disabled. That warrants
remand here. See Manuel v. Comm’r of Soc. Sec., 2020 WL 2703442, at *4 (W.D.N.Y.
May 26, 2020) (remanding where the ALJ failed to consider an opinion that “could have
resulted in a finding of disability . . . if given weight by the ALJ”).
This Court therefore remands the matter so that the ALJ can appropriately
address the supportability and consistency of Dr. Peterson’s opinion and formulate an
RFC with limitations grounded in the medical evidence. The Commissioner’s motion for
judgment on the pleadings, Docket Item 14, is DENIED, and David’s motion for
judgment on the pleadings, Docket Item 12, is GRANTED in part. The decision of the
Commissioner is VACATED, and the matter is REMANDED for further administrative
proceedings consistent with this decision.
November 18, 2021
Buffalo, New York
/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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