Helser v. Commissioner of Social Security
DECISION and ORDER granting 13 Motion for Judgment on the Pleadings; denying 15 Motion for Judgment on the Pleadings. The Clerk of Court is directed to enter judgment and close the case. Signed by Hon. Elizabeth A. Wolford on 11/17/22. (NNR)Clerk to Follow up
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
Represented by counsel, Plaintiff Cassandra H. (“Plaintiff”) brings this action
pursuant to Title II of the Social Security Act (the “Act”), seeking review of the final
decision of the Commissioner of Social Security (the “Commissioner” or “Defendant”)
denying her application for social security income benefits (“SSI”). (Dkt. 1). This Court
has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g).
Presently before the Court are the parties’ competing motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Dkt. 13; Dkt.
15). For the reasons discussed below, Plaintiff’s motion (Dkt. 13) is granted to the extent
that the matter is remanded for further administrative proceedings and the Commissioner’s
motion (Dkt. 15) is denied.
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Plaintiff protectively filed her application for SSI on June 12, 2017. (Dkt. 11 at 107,
178-83). 1 In her application, Plaintiff alleged disability beginning June 28, 2016. (Id. at
178). Plaintiff’s application was initially denied on November 16, 2017. (Id. at 96-06).
At Plaintiff’s request, a hearing was held before administrative law judge (“ALJ”) John
Ramos on July 30, 2019. (Id. at 38-58). On August 30, 2019, the ALJ issued an
unfavorable decision. (Id. at 19-32). Plaintiff then requested review by the Appeals
Council, which the Council denied on August 4, 2020, making the ALJ’s determination the
final decision of the Commissioner. (Id. at 5-9).
District Court Review
“In reviewing a final decision of the [Social Security Administration (“SSA”)], this
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) (quotation omitted); see also 42 U.S.C.
§ 405(g). The Act holds that a decision by the Commissioner is “conclusive” if it is
supported by substantial evidence. 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.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)
When referencing the page number(s) of docket citations in this Decision and Order,
the Court will cite to the CM/ECF-generated page numbers that appear in the upper
righthand corner of each document.
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(quotation omitted). It is not the Court’s function to “determine de novo whether [the
claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quotation
omitted); see also Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.
1990) (holding that review of the Secretary’s decision is not de novo and that the
Secretary’s findings are conclusive if supported by substantial evidence). However, “[t]he
deferential standard of review for substantial evidence does not apply to the
Commissioner’s conclusions of law.” Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003)
(citing Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
An ALJ follows a five-step sequential evaluation to determine whether a claimant
is disabled within the meaning of the Act. See Parker v. City of New York, 476 U.S. 467,
470-71 (1986). At step one, the ALJ determines whether the claimant is engaged in
substantial gainful work activity. See 20 C.F.R. § 416.920(b). If so, the claimant is not
disabled. If not, the ALJ proceeds to step two and determines whether the claimant has an
impairment, or combination of impairments, that is “severe” within the meaning of the Act,
in that it imposes significant restrictions on the claimant’s ability to perform basic work
activities. Id. § 416.920(c). If the claimant does not have a severe impairment or
combination of impairments, the analysis concludes with a finding of “not disabled.” If
the claimant does have at least one severe impairment, the ALJ continues to step three.
At step three, the ALJ examines whether a claimant’s impairment meets or
medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of
Regulation No. 4 (the “Listings”). Id. § 416.920(d). If the impairment meets or medically
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equals the criteria of a Listing and meets the durational requirement (id. § 416.929), the
claimant is disabled. If not, the ALJ determines the claimant’s residual functional capacity
(“RFC”), which is the ability to perform physical or mental work activities on a sustained
basis, notwithstanding limitations for the collective impairments. See id. § 416.920(e).
The ALJ then proceeds to step four and determines whether the claimant’s RFC permits
the claimant to perform the requirements of his or her past relevant work. Id. § 416.920(f).
If the claimant can perform such requirements, then he or she is not disabled. If he or she
cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the
Commissioner to show that the claimant is not disabled. Id. § 416.920(g). To do so, the
Commissioner must present evidence to demonstrate that the claimant “retains a residual
functional capacity to perform alternative substantial gainful work which exists in the
national economy” in light of the claimant’s age, education, and work experience. Rosa v.
Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation omitted).
The ALJ’s Decision
In deciding whether Plaintiff was disabled, the ALJ applied the five-step sequential
evaluation analysis set forth in 20 C.F.R. § 416.920 and determined that Plaintiff had not
engaged in substantial gainful work activity since June 12, 2017, the alleged onset date.
(Dkt. 11 at 21).
At step two, the ALJ found that Plaintiff suffered from several severe impairments:
obesity, degenerative joint disease of the right knee and the lumbar spine, as well as
fibromyalgia. (Id.). The ALJ also determined that Plaintiff’s anxiety, depression, attention
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deficit hyperactivity disorder, obstructive sleep apnea, paraspinal cystic lesion, and carpal
tunnel syndrome were non-severe impairments. (Id. at 22).
At step three, the ALJ determined that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of any Listing. (Id.
at 26). Before proceeding to step four, the ALJ concluded that Plaintiff retained the RFC
to perform the full range of sedentary work as defined in 20 C.F.R. § 416.967(a). (Id. at
At step four, the ALJ found that Plaintiff had no past relevant work. (Id. at 31). The
ALJ then considered Plaintiff’s age, education, and work experience to conclude that she
was not disabled from the date of her application through the date of the ALJ’s decision.
Remand for Further Proceedings is Warranted
Plaintiff asks this Court to remand this matter to the Commissioner for further
proceedings because the ALJ erred in: (1) limiting her to sedentary work despite her
moderate limitations in prolonged sitting identified by the consultative examiner; (2)
evaluating her subjective complaints; and (3) finding that she had no severe mental
impairments. (Dkt. 13-1 at 10-22). For the reasons discussed below, the Court finds that
remand is warranted.
In determining that Plaintiff was capable of performing sedentary work, the ALJ
relied on a medical source statement of the consultative examiner Despina Isihos, D.O.
(“Dr. Isihos”), who opined that Plaintiff had moderate restrictions for prolonged sitting,
standing, walking, climbing, heavy lifting, squatting, and kneeling. (Dkt. 11 at 326). The
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ALJ found Dr. Isihos’s opinion to have “some persuasive value” because even though her
findings about Plaintiff’s moderate restriction for prolonged sitting, standing, walking, and
heavy lifting were supported and consistent with Plaintiff’s ability to work at the sedentary
level, Dr. Isihos’s opinion regarding Plaintiff’s postural limitations was not supported by
Plaintiff’s ability to drive, vacuum, shop, and care for four children. (Id. at 30). While the
Court does not disagree with the ALJ’s determination that Dr. Isihos’s findings were
supported by her observations of Plaintiff during the examination and consistent with the
record, it disagrees with the ultimate conclusion that the ALJ reached in evaluating Dr.
Isihos’s opinion, i.e., that Plaintiff was capable of performing sedentary work.
Indeed, during her examination, Dr. Isihos found Plaintiff to have decreased range
of motion in her back, positive single leg raises on the right side, and limited range of
motion in her shoulders, hips, and right knee. (Id. at 324). Plaintiff also had 16 positive
trigger points for fibromyalgia, except for the right lateral epicondyle and left knee. (Id. at
324-25). Based on her examination, Dr. Isihos diagnosed Plaintiff with low back pain,
fibromyalgia, bilateral knee pain, carpal tunnel, depression and anxiety, sleep apnea, and
obesity, and concluded that she had a moderate restriction for prolonged sitting, standing,
walking, climbing, heavy lifting, squatting, and kneeling. (Id. at 325).
The Commissioner argues that Dr. Isihos’s findings support the RFC determination
that Plaintiff was capable of sedentary work because moderate limitations are not generally
work-preclusive. (Dkt. 15-1 at 21-22). Although the Court does not disagree that moderate
limitations are not inherently inconsistent with the ability to perform sedentary work, the
Commissioner’s argument misses the mark.
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As a general matter, the regulations provide that sedentary work requires an
individual to remain in a seated position for most of the day, though “a certain amount of
walking and standing is often necessary in carrying out job duties. Jobs are sedentary if
walking and standing are required occasionally and other sedentary criteria are met.” See
20 C.F.R. § 416.967(a). “Occasionally . . . would generally total no more than about 2
hours of an 8-hour workday. Sitting would generally total about 6 hours of an 8-hour
workday.” Titles II & XVI: Determining Capability to Do Other Work-Implications of A
RFC for Less Than A Full Range of Sedentary Work, Soc. Sec. Ruling (“SSR”) 96-9P,
1996 WL 374185, at *3 (S.S.A. July 2, 1996) (internal quotations omitted).
It has been well-recognized that a claimant’s moderate limitations for sitting do not
necessarily preclude sedentary work. See Kevin M. v. Kijakazi, No. 20-CV-6802L, 2022
WL 2704527, at *2 (W.D.N.Y. July 12, 2022) (“As district courts within this Circuit have
repeatedly recognized, moderate limitations in prolonged sitting are not necessarily
inconsistent with the ability to perform the up-to-six hours of sitting (at approximately 2hour intervals, interrupted by morning and afternoon breaks, and a lunch period) required
for sedentary work.”) (collective cases); see generally Halloran v. Barnhart, 362 F.3d 28,
33 (2d Cir. 2004) (“[t]he [Commissioner’s] regulations do not mandate the presumption
that all sedentary jobs in the United States require the worker to sit without moving for six
hours, trapped like a seat-belted passenger in the center seat on a transcontinental flight”).
Moreover, the regulations provide for some flexibility in a claimant’s ability to perform
sedentary work where the claimant is allowed to take “a morning break, a lunch period,
and an afternoon break at approximately 2-hour intervals” during an eight-hour workday.
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See SSR 96-9P, 1996 WL 374185, at *6; see also Josielewski v. Berryhill, No. 1:15-CV00728-MAT, 2018 WL 903471, at *5 (W.D.N.Y. Feb. 15, 2018) (“to be capable of
performing sedentary work, an individual generally is required to work in two hour periods,
and is not required to sit for six unbroken hours”). However, even with the ordinary breaks,
the claimant’s ability to sit for a total of six hours is crucial for the sedentary work analysis.
See SSR 96-9P, 1996 WL 374185, at *6 (“If an individual is unable to sit for a total of 6
hours in an 8-hour work day, the unskilled sedentary occupational base will be eroded.”).
Equally important, where, as here, a claimant is assessed not only with a sitting
limitation, but also with moderate limitations for standing and walking, a finding of
sedentary work may be precluded. See, e.g., Steven C. v. Comm’r of Soc. Sec., No. 6:20CV-06596 EAW, 2022 WL 855000, at *6 (W.D.N.Y. Mar. 22, 2022) (“moderate to severe
limitations for standing and walking which, coupled with the sitting limitation, are not
consistent with an RFC requiring plaintiff to perform sedentary work”) (collective cases).
This proposition is particularly important here in light of Dr. Isihos’s opinion that Plaintiff
was moderately restricted not only in prolonged sitting, but also in prolonged standing and
walking. (Dkt. 11 at 326). However, the ALJ, while finding Dr. Isihos’s opinion pervasive,
failed to analyze how Plaintiff’s limitation in sitting could impact her ability to sit for six
hours, and to consider Plaintiff’s moderate limitations in standing and walking to determine
whether she was able to stand or walk for two hours in an eight-hour workday required for
That is not to say that the RFC determination had to “perfectly
correspond” with Dr. Isihos’s opinion cited by the ALJ; rather, the ALJ was “entitled to
weigh all of the evidence available to make an RFC finding that was consistent with the
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record as a whole.” Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013) (citation omitted);
see also Smith v. Comm’r of Soc. Sec., No. 19-CV-6194-LJV, 2020 WL 4904956, at *3
(W.D.N.Y. Aug. 19, 2020) (while the RFC finding does not need to track any medical
opinion, the ALJ must still construct “an accurate and logical bridge between his recitation
of the facts and the conclusions he reached”). Even though the ALJ found the opinion to
be consist with the record, he did not make a logical connection between Plaintiff’s
moderate limitations in sitting, standing, and walking, and the postural requirements of
sedentary work, and, instead, simply concluded that Plaintiff’s limitations were consistent
with sedentary work. That alone, without any further explanation, was improper. See e.g.,
Luis R. v. Comm’r of Soc. Sec., No. 20-CV-6257-FPG, 2021 WL 3615703, at *4
(W.D.N.Y. Aug. 16, 2021) (remanded where the ALJ failed to explain how the opinion
that plaintiff had moderate limitation in prolonged sitting translated into the ALJ’s
conclusion that plaintiff could sit for six hours); Toomey v. Colvin, 15-CV-730-FPG, 2016
WL 3766426, at *4 (W.D.N.Y. Aug. 3, 2016) (remanded where the ALJ failed to reconcile
his finding that plaintiff could perform sedentary work with a medical opinion that she was
moderately limited in sitting for a long time).
Notably, the review of the record casts serious doubt on whether Plaintiff was, in
fact, capable of sitting for six hours, or standing and walking for two hours to perform the
requirements of sedentary work. The Court is not saying she was not; however, the record
contains sufficient evidence demonstrating that Plaintiff’s sitting, standing, and walking
was significantly limited, and it is precisely why the ALJ’s analysis about how Plaintiff’s
limitations translated into her RFC designating sedentary work was particularly important.
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Specifically, the record is replete with Plaintiff’s treatment notes addressing her complaints
of debilitating symptoms stemming from severe back, knee, and wide-spread muscle pain.
Plaintiff reported having back pain since the age of 17, and consistently complained about
her symptoms throughout the relative period. (Dkt. 11 at 297, 321). She indicated that she
could not lift more than five pounds, stand longer than 5-10 minutes, sit longer than 15-20
minutes, or walk more than 400 feet—the length of her driveway. (Id. at 51, 209, 214).
Some days, Plaintiff could only walk 100 feet without assistance and required a break of
20-30 minutes before she could continue walking. (Id. at 214). She could no longer cook
full-course meals or do laundry due to her standing limitation, and required her family’s
help with household chores, shopping, and taking care of her children. (Id. at 49, 51, 20911, 323). Lastly, Plaintiff indicated that her pain was aggravated by movement, and was
worse with prolonged sitting and standing at 20-30-minute intervals. (Id. at 52-53, 301,
These subjective complains were consistent with Plaintiff’s reports to her treating
providers when she routinely sought help for having diffuse severe and radiating pain in
her back, knees, joints and muscles, persistent fatigue, as well as decreased joint mobility
and stiffness. (Id. at 253, 256-57, 259, 262, 265-66, 268, 271-72, 274, 276-77, 288-90,
292, 295, 298, 301, 303, 307, 312, 321, 324-25, 334, 336, 339, 392, 396, 406, 410, 563,
590, 626, 628, 634). Upon examination, Plaintiff often demonstrated a limp, positive
straight leg test, 18 out of 18 points of tenderness in her back, neck, joints, and upper and
lower extremities, as well as the decreased range of motion in all directions in her thoracic
and lumbar back. (Id.). The record demonstrates that Plaintiff did not get any relief from
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medication or physical therapy, and surgical intervention for her back pain was not
recommended. (Id. at 563, 567, 595). As a result of her examinations, Plaintiff’s treating
sources repeatedly assessed her with musculoskeletal pain and fibromyalgia.
Because substantial evidence supported by Dr. Isihos’s conclusion that Plaintiff had
moderate limitations in sitting, standing, and walking, the ALJ was required to provide a
sufficient explanation as to why, despite the limitations, Plaintiff was capable of
performing sedentary work. See Mack v. Comm’r of Soc. Sec., No. 17-CV-991, 2019 WL
2529386, at *5 (W.D.N.Y. June 19, 2019) (while a moderate limitation in sitting is not
inconsistent with sedentary work, “it does not absolve the ALJ of his legal duty to explain
why such a limitation, when diagnosed by a medical source given significant weight by an
ALJ, was not incorporated into an RFC designating sedentary work.”).
Likewise, the ALJ was required to reconcile Plaintiff’s frequent need to change her
position to alleviate back and knee pain, as well as stiffness and muscle pain associated
with fibromyalgia, and discuss what impact, if any, it might have on the requirements of
sedentary work that he determined Plaintiff could perform. Although mentioned in the
ALJ’s decision, it is unclear how the ALJ determined that Plaintiff could perform sedentary
work notwithstanding substantial evidence in the record demonstrating that Plaintiff
repeatedly alternated between sitting and standing to alleviate her pain. See Titles II &
XVI: Capability to Do Other Work—The Medical-Vocational Rules As A Framework for
Evaluating Exertional Limitations Within A Range of Work or Between Ranges of Work,
SSR 83-12, 1983 WL 31253, at *4 (S.S.A. Jan. 1, 1983) (An individual who “may be able
to sit for a time, but must then get up and stand or walk for awhile before returning to sitting
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. . . is not functionally capable of doing . . . the prolonged sitting contemplated in the
definition of sedentary work, . . . or the prolonged standing or walking contemplated for
most light work. . . . Unskilled types of jobs are particularly structured so that a person
cannot ordinarily sit or stand at will.”); see also SSR 96-9p, 1996 WL 374185, at *7 (“[t]he
RFC assessment must be specific as to the frequency of [an] individual’s need to alternate
sitting and standing” when the “individual may need to alternate the required sitting of
sedentary work by standing (and, possibly, walking)”). Therefore, without the ALJ’s
proper analysis, the Court cannot conclude whether the RFC determination was supported
by substantial evidence.
Accordingly, the ALJ’s failure to incorporate Plaintiff’s moderate limitations in
prolonged sitting, standing, or walking, and to reconcile her need to change positions with
the requirements of sedentary work requires remand of this matter for further
administrative proceedings. See Rosario v. Colvin, No. 1:14-CV-00191 (MAT), 2016 WL
2342008, at *3 (W.D.N.Y. May 4, 2016) (remand was warranted due to the ALJ’s failure
to incorporate moderate sitting and standing limitations into plaintiff’s RFC and provide
an explanation why the limitations were not incorporated into the RFC). On remand, the
ALJ is required to consider all the limitations found by Dr. Isihos, as well as the other
evidence of record, to determine Plaintiff’s RFC. Because the Court has determined that
remand of this matter for further administrative proceedings is necessary, it declines to
address Plaintiff’s remaining arguments. See Bell v. Colvin, No. 5:15-CV-01160 (LEK),
2016 WL 7017395, at *10 (N.D.N.Y. Dec. 1, 2016) (declining to address Plaintiff’s
remaining arguments “devoted to the question whether substantial evidence supports
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various determinations made by [the] ALJ” where the court had already determined that
remand was warranted).
For the foregoing reasons, Plaintiff’s motion for judgment on the pleadings (Dkt.
13) is granted to the extent the matter is remanded for further administrative proceedings
and the Commissioner’s motion for judgment on the pleadings (Dkt. 15) is denied. The
Clerk of Court is directed to enter judgment and close this case.
ELIZABETH A. WOLFORD
United States District Court
November 17, 2022
Rochester, New York
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