Snyder v. Commissioner of Social Security

Filing 15

DECISION AND ORDER: For the reasons set forth herein, Plaintiff's 8 motion for judgement on the pleadings is granted and the Commissioner's 9 motion for similar relief is denied. The matter is remanded to the Commissioner of Social S ecurity for further proceedings consistent with this Decision and Order. The Clerk of Court shall take all steps necessary to close the case. SO ORDERED. Signed by Hon. Richard J. Arcara on 5/22/2023. (LAS)Clerk to Follow up

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
DARRELL S., 1
Plaintiff,
DECISION AND ORDER
21-CV-6009

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________

Plaintiff Darrell S. (“Plaintiff”) brings this action seeking review of the
Commissioner of Social Security’s final decision that denied his applications for
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“SSA”) and
Supplemental Security Income (“SSI”) under Title XVI of the SSA. The Court has
jurisdiction pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3). The parties
have filed cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. Dkt. 8, 9. Plaintiff also filed a response brief. Dkt.
11.
The Court assumes the parties’ familiarity with the administrative record, the
parties’ arguments, and the standard of review, to which the Court refers only as
necessary. See Schaal v. Apfel, 134 F.3d 496, 500-01 (2d Cir. 1998) (summarizing the
standard of review and the five-step sequential evaluation process that Administrative

To protect the personal and medical information of non-governmental parties, this Decision
and Order will identify Plaintiff using only his first name and last initial, in accordance with this
Court’s Standing Order issued November 18, 2020.
1

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Law Judges (“ALJs”) are required to use in making disability determinations); Burgess v.
Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (same). Upon consideration of the record, and
for the reasons set forth below, the Court grants Plaintiff’s motion in part and denies the
Commissioner’s cross-motion. The decision of the Commissioner is vacated and the
matter is remanded for further administrative proceedings consistent with this Decision
and Order.
PROCEDURAL HISTORY
Plaintiff filed applications for DIB and SSI on June 25 and 22, 2018, respectively,
alleging disability beginning on October 4, 2017. Tr. 216-28. 2 Plaintiff identified the
following conditions as limiting his ability to work: (1) chronic foot pain, (2) diabetic
neuropathy, (3) chronic post-traumatic stress disorder, (4) adjustment disorder with
mixed anxiety and depression, (5) generalized anxiety disorder, (6) irritable bowel
syndrome, (7) hypertension, and (8) high cholesterol. Tr. 238. His applications were
initially denied on August 28, 2018. Tr. 135-42.
Plaintiff requested an administrative hearing on September 25, 2018. Tr. 143-44.
On January 9, 2020, Plaintiff appeared with his attorney and testified at a video hearing;
a Vocational Expert (“VE”) testified by phone. Tr. 21-82. On March 25, 2020, the ALJ
issued an unfavorable decision finding Plaintiff was not disabled within the meaning of
the SSA. Tr. 113-34.
The ALJ determined that Plaintiff had severe impairments of (1) hypertension, (2)
type II diabetes mellitus, (3) diabetic polyneuropathy, (4) gammopathy, (5) degenerative

“Tr. __” refers to pages of the administrative transcript, specifically the pagination located at
the bottom right-hand corner of the transcript.

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joint disease of the feet, (6) irritable bowel syndrome, (7) depression, (8) post-traumatic
stress disorder, and (9) adjustment disorder. Tr. 118. After concluding that Plaintiff’s
impairments did not meet or medically equal the criteria of an impairment listed in 20
C.F.R. § 404, Subpart P, Appendix 1, the ALJ determined Plaintiff’s Residual Functional
Capacity (“RFC”) to be at the sedentary level, 3 with additional limitations.
Specifically, the ALJ found that Plaintiff could frequently handle, finger, or feel
bilaterally; he could occasionally stoop, kneel, crouch, crawl, and climb ramps or stairs;
he was unable to operate push or pull controls with the lower extremities; he could not
climb ladders, ropes, or scaffolds; he must avoid concentrated exposure to extreme
heat, humidity, excessive vibration, and hazards, including unprotected heights and
dangerous machinery; he could perform simple, routine tasks in low-stress work
environments, where low-stress was defined as jobs having only occasional decisionmaking and occasional changes in the work setting; he could have occasional contacts
with co-workers or supervisors, but should not have either telephonic or in-person
contact with the public; and he required the option to wear his Nike sneakers. Tr. 121.
On April 27, 2020, Plaintiff requested review by the Appeals Council. Tr. 213-15.
On November 6, 2020, his request for review was denied by the Appeals Council. Tr. 16. The ALJ’s decision thus became the Commissioner’s final decision. See 20 C.F.R.
§§ 404.981, 416.1481.

Sedentary work is defined by agency regulations as follows: “Sedentary work involves lifting no
more than 10 pounds at a time and occasionally lifting or carrying articles like docket files,
ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, 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.” 20 C.F.R. § 416.967(a).

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DISCUSSION
1. Standard of Review
The Court reviews the record to determine only whether the Commissioner
applied the correct legal standards and whether substantial evidence supports the
Commissioner’s final decision. 42 U.S.C. § 405(g). “‘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.’” Talavera v. Astrue, 697 F.3d 145, 151
(2d Cir. 2012), quoting Richardson v. Perales, 402 U.S. 389, 401 (1971).
2. Development of the Record: Physical Impairments
Plaintiff argues that the ALJ essentially rejected the only medical opinion of
record regarding his physical condition, the reviewing opinion of Dr. A. Saeed, who
concluded that Plaintiff was capable of performing light work. Because it is clearly
established that an ALJ may not render an RFC based on his lay opinion, as opposed to
relying on an actual medical assessment, when a claimant suffers from multiple severe
impairments, Plaintiff contends that this RFC determination was not supported by
substantial evidence.
In response, the Commissioner argues that the ALJ did not reject Dr. Saeed’s
opinion; rather, the ALJ found his opinion partially persuasive because they agreed that
Plaintiff could perform “some work.” Additionally, the Commissioner argues that the ALJ
did not rely on his lay assessment of medical evidence in the record, but rather he
appropriately and comprehensively considered the evidence.
It is settled law that “whether the ALJ met the duty to develop the record is a
threshold question before determination of whether the ALJ’s conclusions are supported

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by substantial evidence[.]” Miller v. Comm’r, 18-CV-450, 2019 WL 3780085, 2019 U.S.
Dist. LEXIS 135623, *10 (W.D.N.Y. Aug. 12, 2019) (citations omitted); see also
Echevarria v. Sec'y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982).
Regardless of whether a claimant is represented by counsel, the well-established
rule is that ALJs must “affirmatively develop the record in light of the essentially nonadversarial nature of a benefits proceeding.” Moran v. Astrue, 569 F.3d 108, 112 (2d
Cir. 2009) (citations omitted). While the Commissioner is empowered to make RFC
determinations, “[w]here the medical findings in the record merely diagnose claimant’s
exertional impairments and do not relate those diagnoses to specific residual functional
capabilities,” the Commissioner generally “may not make the connection himself.”
Wilson v. Colvin, 13-CV-6286, 2015 WL 1003933, *21, 2015 U.S. Dist. LEXIS 27804
(W.D.N.Y. Mar. 6, 2015) (citation omitted).
There are no opinions in the record from any of Plaintiff’s treating physicians
regarding his physical limitations. The record contains only one prior administrative
medical report pertaining to Plaintiff’s physical impairments – the reviewing opinion of
Dr. Saeed; however, the Court adopts Plaintiff’s view and finds that the ALJ rejected this
opinion, despite categorizing it as “partially persuasive.” Tr. 127.
Dr. Saeed, a medical consultant from the Disability Determination Service,
reviewed medical records that had been submitted prior to issuance of his August 7,
2018 report, but did not personally examine Plaintiff. As summarized by the ALJ, Dr.
Saeed concluded that Plaintiff was capable of “the full range of light exertional level4
work.” Tr. 127 (citing generally to Tr. 83-110).
Light work is defined by agency regulations 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

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The ALJ explained that he found this opinion “partially persuasive” insofar as it
was “supported by the records available at the time,” despite subsequent records
supporting a more restrictive RFC determination. Tr. 127. This justification troubles the
Court for multiple reasons.
First, records available to Dr. Saeed from Plaintiff’s treating physician Thomas
Pieklo, DPM opine that Plaintiff’s neuropathy “is so severe that this is the major reason
for his foot pain,” despite his additional podiatric diagnosis. Tr. 308. One month later, in
March 2018, Dr. Pieklo noted that he advised Plaintiff “there is no cure for the
neuropathy and the best that could be done would be to take off some of the edge of
the tingling, burning and constant nerve pain, needle and pin like feeling that is created
in his feet.” Tr. 307. His treatment notes from March 2018 also reflect balance
problems due to Plaintiff's neuropathy and numbness in his feet. And in April 2018, Dr.
Pieklo’s notes indicate that the Neurontin he had prescribed Plaintiff “did not seem to
help with the neuropathy” and as such, would be discontinued. Tr. 306.
Second, the June 14, 2017 treatment records provided to Dr. Saeed from
Plaintiff’s primary physician, Daniel Curtin, MD, state that Plaintiff experienced “less foot
numbness” after starting insulin; however, the records do not quantify either Plaintiff’s
then-current or previous numbness, or indicate related pain levels. Tr. 505. Dr. Curtin’s
treatment notes from February 7, 2018 likewise note ongoing “diabetes with

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. §
416.967(b).

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neuropathy” but do not relate the diagnoses to specific residual functional capabilities.
Tr. 490.
Three additional sets of treatment records were provided by unidentified sources
for Dr. Saeed and the psychological consultant from the Disability Determination
Service, S. Bhutwala, PhD, to review. TR. 85-6, 99-100. As they were not identified,
this Court cannot ascertain whether they supported Dr. Saeed’s opinion, and neither
could the ALJ.
Finally, it is also unclear whether Dr. Saeed reviewed the treatment records or
mental RFC assessment provided for review by Noyes Mental Health Clinic. If he did,
he should have noticed that Plaintiff repeatedly complained of severe foot pain, and
shared that he was advised he could not have any foot surgery due to his diabetes. Tr.
319, 328, 353. Additionally, there is note in the treatment records from Plaintiff’s April
24, 2018 therapy session that he was “having a tough time with numbness in his hands
today.” Tr. 340. Plaintiff also reported during that session that his left leg “went numb
from the knee on down this week.’”
In light of the foregoing, the ALJ’s determination that Dr. Saeed’s opinion was
“supported by the records available at the time” is inaccurate. It is difficult, if not
impossible, to understand how Dr. Saeed assessed Plaintiff as capable of performing
light work. Moreover, it is troubling that a consultative physical examination of Plaintiff
was not ordered, especially as his physical impairments were already worsening prior to
issuance of Dr. Saeed’s opinion.
Put another way, as correctly noted by the ALJ, the record evidence does
indicate that Plaintiff’s neuropathy worsened over time. However, because the record

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was not sufficiently developed, there is inadequate record evidence to support the ALJ’s
conclusion that an RFC of sedentary work with the noted restrictions properly accounted
for Plaintiff’s physical impairments and associated pain.
3. Development of the Record: Psychological Impairments
The Court next addresses the ALJ’s assessment of Plaintiff's mental
impairments. The ALJ found that the May 24, 2018 opinion of Diane Smith, MS, ATRBC, LCAT, Plaintiff’s then-treating therapist, was “unpersuasive.” Tr. 126 (citing
incorrectly to Exhibit 14F for her opinion, which is found within Exhibit 2F at Tr. 350-53).
To account for his determination, the ALJ noted that Ms. Smith had only a short
treatment history with Plaintiff at the time her opinion was rendered, and he had “not yet
been regulated on psychotropic medication.”
According to the records before the Court, Ms. Smith had engaged in seven
counseling sessions with Plaintiff, each approximately one hour long, prior to rendering
her opinion on a form entitled “Mental Residual Functional Capacity Assessment.” Tr.
350-53. She assessed Plaintiff with extreme limitation interacting with supervisors and
co-workers and marked limitation adapting and managing himself. Tr. 352-53. Ms.
Smith also opined that Plaintiff’s impairments would substantially interfere with his ability
to work on a regular and sustained basis at least 20% of the time, and that he would
miss work approximately 15-20 days per month due to his mental impairments,
including treatment of the same. Tr. 353.
Furthermore, the ALJ failed to articulate when he deemed Plaintiff to have been
“regulated on psychotropic medication.” Based on treatment records, Plaintiff had been
prescribed and was treating daily with Escitalopram by at least March 2018 as well as

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Seroquel by June 2018. Tr. 436, 441. The Court also finds that Plaintiff’s behavior
during the January 2020 administrative hearing was not persuasive evidence that he
had been “regulated,” per se. Moreover, the absence of any acknowledgement in the
ALJ’s decision of the unusually contentious exchanges between the ALJ and the
Plaintiff is tantamount to ignoring relevant evidence in light of his findings that Plaintiff
had severe impairments of (1) adjustment disorder, (2) post-traumatic stress disorder,
and (3) depression. Tr. 118.
With respect to the August 27, 2018 opinion of Disability Determination Service
psychological review consultant S. Bhutwala, PhD, and the August 20, 2018 opinion of
consultative psychologist Agnes Jonas, Psy. D., the ALJ determined that both were
“partially persuasive.” Tr. 127. Dr. Jonas conducted a single, in-person evaluation of
Plaintiff and concluded that his psychiatric conditions – which she diagnosed as major
depressive disorder, moderate to severe, and marijuana use disorder – were unstable,
expected to continue for “one year to more than a year,” and recommended that Plaintiff
double the frequency of his outpatient therapy. Tr. 597. Dr. Jonas further assessed
Plaintiff as having (1) marked limitation regulating emotions, controlling behavior, and
maintaining well-being, (2) moderate to marked limitation interacting adequately with
supervisors, co-workers, and the public, and (3) moderate limitation using reason and
judgment to make work-related decisions. Tr. 596. Dr. Bhutwala’s non-examining
opinion relied on Dr. Jonas’s opinion, and the ALJ found it “consistent with longitudinal
mental health records noting improved anxiety and mood symptoms with medication
and intermittent therapy.” Tr. 127.

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The Court notes that the ALJ found Plaintiff suffered from the severe impairment
of post-traumatic stress disorder; however, neither Dr. Jonas nor Dr. Bhutwala
diagnosed Plaintiff with that condition. Plaintiff’s post-traumatic stress disorder was
actually diagnosed by Ms. Smith, which indicates the ALJ did not find her opinion
entirely unpersuasive.
In sum, the ALJ failed to adequately articulate why he found the opinions of Dr.
Bhutwala and Dr. Jonas “partially persuasive” and the opinion of Ms. Smith
“unpersuasive.” And although an ALJ may support their RFC determination based on
the contemporaneous treatment notes of a medical provider, those notes must provide
information relevant to a claimant’s ability to perform sustained gainful employment.
See Monroe v. Commr. of Soc. Sec., 676 F. App'x 5, 8 (2d Cir. 2017). Here, the ALJ
failed to support his RFC determination with references to evidence in the treatment
records that Plaintiff had consistently improved anxiety and other psychological
conditions.
The ALJ’s treatment of each of the medical opinions created a gap in the record
as to both Plaintiff’s physical and psychological impairments. Without reliance on a
medical source statement, consultative examination, or other medical analysis of
Plaintiff’s functional limitations, the ALJ necessarily relied on his own lay opinion to
determine Plaintiff’s RFC, which constitutes an error requiring remand. See Judd v.
Berryhill, 17-CV-1188, 2018 WL 6321391, *7, 2018 U.S. Dist. LEXIS 205177 (W.D.N.Y.
Dec. 4, 2018).
Because the ALJ failed to meet his affirmative duty to develop the record,
remand is warranted for this purpose. The ALJ should obtain medical source

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statements regarding Plaintiff’s limitations during the pertinent time period, and/or
independent functional capacity examinations. On remand, the ALJ should also
reconsider at Step 2 whether Plaintiff’s peripheral neuropathy meets the criteria of a
severe impairment as described in 11.14(B) of 20 C.F.R. § 404, Subpart P, Appendix 1.
CONCLUSION
For the reasons set forth above, Plaintiff’s motion for judgment on the pleadings
(Dkt. 8) is GRANTED in part, insofar as remand was requested, the Commissioner’s
cross-motion for similar relief and motion in opposition (Dkt. 9) is DENIED, and the
Commissioner’s final decision is VACATED and the case is REMANDED for further
administrative proceedings consistent with this Decision and Order. The Clerk of the
Court shall take all steps necessary to enter judgment and close the case.

IT IS SO ORDERED.

_s/Richard J. Arcara__________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: May 22, 2023
Buffalo, New York

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