Johnson v. Commissioner of Social Security

Filing 9

OPINION AND ORDER granting 6 MOTION for Order Reversing the Decision of the Commissioner; denying 7 MOTION for Order Affirming the Decision of the Commissioner. Signed by Chief Judge Christina Reiss on 6/21/2017. (law)

U.S. DlSTRICT C~T
&lSTRlCT OF VEf'tMGNT
FILED
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

JOSEPH JOHNSON,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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Zltl JUN 21 PH 3: 21t
CLEftK

BY-Ot:'P'tJ~M
Case No.2: 16-cv-58

OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR AN ORDER
REVERSING THE COMMISSIONER'S DECISION AND DENYING THE
COMMISSIONER'S MOTION TO AFFIRM
(Docs. 6 & 7)
Plaintiff Joseph Johnson is a claimant for Social Security Disability Insurance
benefits and Supplemental Security Income under the Social Security Act. He brings this
action pursuant to 42 U.S.C. §§ 405(g) to reverse the decision of the Social Security
Commissioner that he is not disabled. 1 On August 19, 2016, Plaintiff filed his motion to
reverse (Doc. 6), and on October 18, 2016, the Commissioner moved to affirm (Doc. 7).
On November 1, 2016, Plaintiff filed his response to the Commissioner's motion, at
which time the court took the motions under advisement.
Plaintiff raises three issues on appeal: ( 1) whether substantial evidence supports
Administrative Law Judge ("ALJ") Dory Sutker's findings that Plaintiff's osteoarthritis
of the hands, knees, and hips was not a severe impairment and that neither the
1 Disability

is defined as the inability "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)(l)(A), 1382c(a)(3)(A). A claimant's "physical or mental
impairment or impairments" must be "of such severity" that the claimant is not only unable to do
any previous work but cannot, considering the claimant's age, education, and work experience,
engage in any other kind of substantial gainful work which exists in the national economy. 42
U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

degenerative changes of Plaintiffs spine nor his peripheral vascular disease were
medically determinable impairments; (2) whether she properly assessed the medical
opinions in the administrative record ("AR"); and (3) whether substantial evidence
supports her determinations that Plaintiff has the residual functional capacity ("RFC") for
medium work, is able to perform his past relevant work as a dishwasher, and that
alternative occupations exist in significant numbers that Plaintiff is able to perform. The
Commissioner responds that substantial evidence in the record supports ALJ Sutker's
findings and RFC, and asserts that she properly assessed the medical opinions.
Plaintiff is represented by Penelope E. Gronbeck, Esq., and the Commissioner is
represented by Special Assistant United States Attorney Fergus J. Kaiser.
I.

Procedural History.
Plaintiffs claims were initially denied on January 15, 2013, and upon

reconsideration on May 8, 2013. Plaintiff timely requested a hearing, which was held
before ALJ Sutker via videoconference on August 7, 2014. Plaintiff was represented and
appeared at the hearing, and both he and vocational expert ("VE") Elizabeth Laflamme
testified.
On August 22, 2014, ALJ Sutker issued a written decision and found that Plaintiff
was not disabled under the Social Security Act. Plaintiff filed a timely appeal which the
Appeals Council denied on January 6, 2016. As a result, ALJ Sutker's August 22, 2014
decision stands as the Commissioner's final decision. Plaintiffs claim is ripe for judicial
review pursuant to 42 U.S.C. § 405(g).

II.

Factual Background.
Plaintiff is a male born in 1959 who attended school through the tenth grade. He

alleges a disability onset date of March 15, 20 12, based on osteoarthritis in his hands,
knees, and hips; degenerative arthritis of the spine; peripheral vascular disease in his
lower extremities; obstructive sleep apnea; chronic obstructive pulmonary disorder
("COPD"); anxiety disorder/post-traumatic stress disorder ("PTSD"); and depressive
disorder. Plaintiffs employment history includes work in the construction industry, a
convenience store, a tire store, and a restaurant.
2

A.

Plaintiff's Medical History.

On October 29, 2012, Craig Knapp, Ph.D., a licensed psychologist, conducted a
consultative examination of Plaintiff. Dr. Knapp recounted that Plaintiff, who had
separated from his wife and had no children, typically watched television, took walks
until his hip hurt, exercised, and played with his stepdaughter's child during the day. He
attended to his own personal care, cooked, shopped, cleaned the house, and paid bills
with assistance from his sister. Plaintiff maintained a number of friendships and cared
for his cat and dog. Plaintiff reported first abusing alcohol and marijuana during his
teenage years and identified his last use of marijuana four years prior to the examination.
Although he drank two beers once a week, Plaintiff stated that he last excessively
consumed alcohol six or seven years ago. Plaintiff claimed that he was seeking disability
benefits because "it [was] hard for him to get around because he [had] abused his body
and now it [was] catching up to him." (AR 410.)
Dr. Knapp observed that Plaintiff was relaxed, positive, cooperative, and
responsive, with normal tone and manner of speech and reported an overall life
satisfaction of seventy-five out of one hundred. Plaintiff experienced depression after his
sister's death when he was ten years old, and he felt anxiety and uncertainty about "how
to deal with things at times." (AR 412.) Plaintiff had difficulty recalling past events and
displayed significant confusion about dates and details. Dr. Knapp estimated some
degree of cognitive delay and noted that Plaintiffs thought process appeared "somewhat
circumstantial and tangential and he did acknowledge having cognitive blocking at
times." (AR 413.) Dr. Knapp opined that Plaintiff was nonetheless fully oriented
without any indication of perceptual disorder. Dr. Knapp concluded that Plaintiff "would
most likely have some difficulty understanding, remembering, and carrying out
instructions in a work setting[,]" and that Plaintiffs "ability to relate to coworkers and
supervisors ... [and h]is ability to respond to work pressures on a sustained basis in a
work setting would also appear to be impacted upon by his continued use of marijuana,"
as well as by his physical impairments, "particularly arthritis or asthma[.]" (AR 413-15.)

3

On November 29, 2012, Russell Tonkin, M.D. performed a consultative physical
examination of Plaintiff to evaluate his complaints of worsening arthritis, cramping in his
hands, and poor circulation in his legs and occasional leg cramps. Plaintiff reported that
his arthritis did not impact his activities of daily living, but it did impair his ability to
engage in carpentry. The knee pain that Plaintiff experienced after walking long
distances was "somewhat limiting[,]" and he acknowledged that he obtained "some
relief' from over-the-counter or prescription nonsteroidal anti-inflammatory drugs. (AR
418.) Plaintiff described his chronic asthma as "unlimiting." !d.
Plaintiff stated that he lived with his nephew and performed yardwork and
housework. He watched television for entertainment because his hand discomfort and
occasional cramping limited his ability to draw, but he nevertheless completed all of his
daily activities without assistance and in a timely manner. Plaintiff reported taking
N aproxen to relieve his occasional ankle swelling and discomfort and using Dulera and
Xopenex inhalers for his COPD and asthma, respectively.
Plaintiff denied any significant weakness, regular numbness, or tingling in his
extremities, but he reported that his legs felt numb after he sat for extended periods of
time. Plaintiff moved around the examination room, removed his shoes and socks,
moved on and off of the examination table, and performed the activities of the
examination without significant distress. Dr. Tonkin noted Plaintiff had normal dexterity
in his arms and hands, his ability to pick up fine objects was unimpaired, and he had full
grip strength on both sides. Dr. Tonkin further observed that Plaintiffs coordination,
station, and gait were normal, his straight leg raise test was normal, and he had full
strength in his arms and legs. Despite an arthritic deformity on his right thumb, Plaintiff
did not exhibit any limitation, and his range of motion in his hands and fingers was
normal. Dr. Tonkin found that Plaintiff had "crepitance of his left knee, but the range of
motion was normal, and there was no swelling." (AR 420.) Plaintiff exhibited decreased
breath sounds bilaterally, but he did not exhibit any shortness of breath.
Dr. Tonkin diagnosed arthritis in Plaintiffs hands, poor circulation in his legs,
COPD, and asthma. He opined that Plaintiff could stand or walk for at least six hours as
4

long as he had opportunities to rest and was not walking up steep inclines. Plaintiffs
capacity to sit was unlimited as long as he was permitted to change positions periodically,
and Plaintiff used no assistive devices. Dr. Tonkin noted that Plaintiff could lift fifty
pounds occasionally and twenty-five pounds frequently with opportunities to rest. With
respect to postural activities, Dr. Tonkin stated that Plaintiff should only occasionally
climb due to his age and the arthritis in his knees, but he had no problems with balancing,
stooping, or crouching. Dr. Tonkin further opined that Plaintiff would exacerbate the
condition of his knees by kneeling or crawling for extended periods of time and
recommended that he avoid dust, fumes, or gases. Although he had "early arthritic
changes in his hands[,]" Plaintiff could reach, handle, finger, and feel without limitation.
(AR422.)
On January 4, 2013, Plaintiff received x-rays of his knees at Rutland Regional
Medical Center, which were negative for bone or joint abnormalities. On February 26,
2013, lumbosacral x-rays revealed "moderate to severe degenerative change involving
the facet joints fairly diffusely" within Plaintiffs spine and "mild degenerative change
involving [his] hips bilaterally." (AR 455.)
Kim Kurak, D.O. examined Plaintiff on March 27, 2013. Plaintiff raised "minor
complaints" about back and left hip pain and decreased energy and stated that he
exercised three to four times a week. (AR 441.) Plaintiff reported excessive sleeping
because of his medication regimen, which included Omeprazole for upset stomach;
Spironolactone for high blood pressure; Buspar and Mirtazapine for anxiety and
depression; Gabapentin, Tramadol, and Naproxen for pain; and inhalers for asthma. Dr.
Kurak observed that Plaintiff was alert and not in acute distress with normal breathing
and no leg edema, and his mood and affect were normal. Dr. Kurak recommended that
Plaintiff stop taking Tramadol to see if his fatigue improved, and she prescribed a cane.
During a follow-up visit with Dr. Kurak on April10, 2013, Plaintiff reported that
he had been avoiding heavy lifting and was less sleepy after an adjustment in his
medications. Plaintiff stated that his back was "doing alright" but he remained unable to
stand or walk for long periods of time without back pain, which had begun to radiate into
5

his left hip. (AR 710.) Plaintiff indicated that he was having difficulty breathing in the
morning, and as a result he had decreased his daily intake of cigarettes, although he
continued to smoke a pack per day through April of2014. Dr. Kurak noted that Plaintiff
was alert, cooperative, in no acute distress, and fully oriented, his breathing was normal,
and his legs were not swollen. Dr. Kurak discontinued Plaintiffs Tramadol prescription,
instructed him to continue taking Dulera for his COPD, prescribed Combivent, and
recommended that Plaintiff exercise.
Beginning in April2013, Plaintiff met with Coleen Lillie, a licensed independent
clinical social worker, for psychiatric evaluation and care. During his initial evaluation,
Plaintiff reported mild depression, sleep disturbance, low energy, slow movements,
moderate mood swings, severe anxiety, and moderate hopelessness and worthlessness.
Despite Plaintiffs report that he suffered '"memory problems[,]"' Ms. Lillie observed
that Plaintiffs long-term memory was "very clear." (AR 706.) Ms. Lillie's "working
diagnosis" was that Plaintiff suffered from generalized anxiety disorder. !d. At their next
meeting in June of2013, Plaintiff was "sad and increasingly tearful[.]" (AR 698.)
On Apri116, 2013, Plaintiffwas referred to Vermont Sports Medicine Center
("VSMC") for physical therapy to treat his back pain. He was using a cane. Plaintiff
exhibited decreased lumbar range of motion, hip muscle tightness, core and hip
weakness, abnormal posture, and impaired daily functioning. Plaintiffs rehabilitation
potential was nevertheless determined to be "[g]ood" and he was directed to attend
therapy twice a week for eight weeks. (AR 449.) Three days later, Plaintiff returned to
VSMC for a physical therapy session, during which he exercised and stretched. He was
assessed as having responded well to increased exercise.
During a May 9, 2013 visit with Dr. Kurak, Plaintiff reported breathing
difficulties. Later that month, Plaintiff completed a sleep study with the Center for Sleep
Disorders, which indicated that Plaintiff had moderate obstructive sleep apnea and
restless leg syndrome. Treatment options included continuous positive airway pressure
("CPAP") therapy as well as weight loss, exercise, and smoking cessation. June 10, 2013
notes from the Brandon Medical Center included reports that Plaintiffs COPD was "not
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well controlled at [that] time" and that he "cont[inued] to work on smoking cessation."
(AR 700.) Approximately two weeks later, edema and pitting were observed in
Plaintiffs lower extremities.
On July 11, 2013, Dr. Kurak recorded that Plaintiffs feet were swollen and
blotchy, and they tingled when he walked. He reported that he could perform his daily
activities without problems, but walking quickly caused him to feel breathless. Dr. Kurak
noted that Plaintiff was alert, cooperative, and fully oriented and exhibited normal mood
and breathing. Plaintiffs legs were swollen, with the right leg slightly more swollen than
the left leg, and "pitting edema" and "chronic skin changes [were] visible." (AR 696.)
Dr. Kurak ordered compression socks to treat the swelling and his peripheral vascular
disease. Plaintiffs breathing issues and physical condition remained stable through the
end of2013.
On July 16, 2013, Plaintiff met with Wendy Leffel, M.D. and reported suicidal
thoughts following "emotional stress and legal difficulties." (AR 692.) Plaintiff stated
that he "tied a string around his neck on his porch[,]" but "[t]he string broke and he
realized what he was doing and that he did[] [not] want to kill himself." !d. Dr. Leffel
noted that Plaintiff was alert, cooperative, depressed, and fully oriented with a flat affect
and assessed "[m]ajor depressive disorder, recurrent episode, severe[.]" (AR 693.)
At his next session with Ms. Lillie on August 15, 2013, Plaintiff was "very sad and
tearful regarding his suicide attempt[.]" (AR 685.) Plaintiff discussed his ongoing
divorce and his ex-wife's allegations, and Plaintiff"agreed to not harm himself and no
longer report[ed] feeling suicidal." !d. At his October 10, 2013 appointment with Ms.
Lillie, Plaintiff appeared to be in a "very depressed state" and was "[ s]omewhat
tearful[.]" (AR 677.) Ms. Lillie described him as cooperative but depressed, sad, and
anxious with limited insight and judgment. No significant changes were reported during
Plaintiffs visits on December 2, 2013, December 10, 2013, or February 21, 2014.
On January 2, 2014, Plaintiff was referred to John F. Dick, M.D. for a disability
examination. Plaintiff reported that he had not worked in three years due to his lower
back pain, which "came on insidiously" and was not the result of a specific injury. (AR
7

752.) Plaintiff stated that the pain radiated down into his left leg and to his knee and was
aggravated by walking so that he had to stop and lean on something when he walked
more than 200 feet. He indicated that his pain level was eight out often at its worst, but
that medication reduced his pain to "about a 2." ld. Plaintiff reported poor balance and
breathing difficulties.
Dr. Dick described Plaintiff as alert with a slightly flat affect. Plaintiff exhibited
full strength and normal coordination and flexion in his arms, but flexion was limited in
his lower back with mild tenderness over the lumbosacral spine. Plaintiff experienced
pain in his back during the straight leg raise at thirty degrees on the left leg and at fortyfive degrees on the right leg. Dorsal pedal pulses were absent on Plaintiff's left leg. His
station was normal, and his gait favored his left leg with a slight limp.
Dr. Dick assessed chronic back pain and recommended that Plaintiff stop taking
Tramadol because he was "not sure [it was] helping and likely making him sleepy." (AR
754.) He further recommended physical therapy and opined that Plaintiff was unable to
lift ten pounds or complete a full workweek, even in a sedentary position. He estimated
that Plaintiff would miss more than one day of work each month for medical reasons and
that Plaintiff was at risk for injury due to his inability to concentrate.
That same day, Dr. Dick completed a Medical Source Statement of Ability to Do
Work-Related Activities (Physical) form, wherein he opined that Plaintiff could lift
and/or carry less than ten pounds; stand and/or walk less than two hours in an eight hour
workday; and sit less than six hours in an eight hour workday. He reported that Plaintiff
had limited ability to push and/or pull with his arms and legs; was unable to climb,
balance, crouch, crawl, or stoop; and was only occasionally able to kneel. Plaintiff was
further limited in his ability to concentrate as well as his ability to reach, although he
exhibited no limitation in his fine or gross manipulation. Dr. Dick noted that Plaintiff
was limited in his ability to be exposed to temperature extremes, dust, hazards, fumes,
odors, chemicals, or gases.
The following month, Plaintiff reported to Dr. Kurak that his COPD was
improving and he was smoking less, about half a pack per day. Plaintiff reported he had
8

"never weighed [as] much in his life" and believed that it contributed to his increased
back pain. (AR 740.) Dr. Kurak recommended that Plaintiff return to physical therapy
and endeavor to lose weight.
On March 21, 2014, Ms. Lillie observed that Plaintiff was "very depressed" and
tearful and had been having "extremely limited social contact[.]" (AR 732.) Plaintiff
reported that "[h]is world consist[ ed] of smoking outside, eating and sleeping on the
couch as well as watching [television] during the day." !d. Ms. Lillie was "struck by his
level of depression and his rapid state of poor health[,]" and opined that Plaintiffs "spirit
ha[d] been broken and he ha[d] given up." !d. After visits on April18, 2014 and April
30, 2014, Ms. Lillie noted that Plaintiff remained "extremely distressed and [was]
sobbing." (AR 726.)
On May 14, 2014, Plaintiff informed Dr. Kurak that his breathing had been
"alright[,]" but he experienced shortness of breath when he walked outside. (AR 773.)
Plaintiff reported that he had no leg pain when he walked, but he did occasionally feel leg
pain after he rested. Dr. Kurak again recommended that Plaintiff resume physical
therapy to alleviate his back pain. During a visit the next month, Dr. Kurak observed
swelling in Plaintiffs legs, and Plaintiff reported swelling and burning in his feet. Dr.
Kurak advised him to continue using compression socks and to exercise more.

B.

Plaintiff's Function Reports.

Plaintiff completed two undated Function Reports wherein he stated that he
walked outside during the day, watched television, walked his pets, and played cards. He
was unable to pick up objects weighing more than ten pounds or kneel for extended
periods of time and had difficulty sleeping. Plaintiff dressed himself and attended to his
daily self-care, as well as paid bills, counted change, and handled a savings account.
Unless his hands cramped, Plaintiff cooked, washed dishes, and did laundry. He moved
around without difficulty until his feet cramped, at which time he rested until the
cramping subsided. He stated that he could not stand for a long time, but he was able to
shop for one to two hours at a time.

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Plaintiff enjoyed reading and drawing, although he was unable to draw for
extended periods of time without his hands cramping. He also fished and assembled
models. Although Plaintiff could pay attention for a short time, he had difficulty
following instructions, getting along with authority figures, and handling stress. Plaintiff
noted that he did not like changes in his routine, but he was able to handle them. Plaintiff
used glasses and walked with his cane only when he felt it was necessary. He stated that
his medications made him sleep more than he should.
From 1997 through 1999, Plaintiffwas employed as a dishwasher and
maintenance person at a restaurant and was required to walk, stand, climb, stoop, kneel,
crouch, and crawl for eight hours while performing these jobs. He used to be able to lift
fifty pounds or more but assessed that he would be "lucky" if he could pick up ten
pounds. (AR 280.)

C.

State Consultants' Assessments.

On January 14, 2013 and April26, 2013, state agency medical consultants Leslie
Abramson, M.D. and Donald Swartz, M.D. reviewed the record and determined that
Plaintiffs COPD, osteoarthritis, and allied disorders were medically determinable, nonsevere impairments. Dr. Swartz recognized that Plaintiff had begun to use a cane
recently and which reflected "some slight worsening" in his condition. (AR 97 .) Dr.
Swartz, however, erroneously noted that there was no evidence in Plaintiffs medical
records that he was prescribed a cane. Dr. Swartz opined that Plaintiffs reports of being
limited to walking only short distances were inconsistent with his reports of cooking and
shopping for one to two hours daily. Dr. Swartz also noted that Plaintiffs alleged
limitations of walking and standing were inconsistent with the consultative examination
results, in particular with Plaintiffs normal gait and his abilities to tandem walk, walk on
his heels and toes, and bend.
On November 8, 2012, and April24, 2013, state agency psychiatric consultants
Howard Goldberg, Ph.D. and Ellen Atkins, Ph.D. reviewed the record and concluded that
Plaintiffs affective disorder, anxiety disorder, and substance addiction disorder were
severe impairments. They determined that Plaintiff had mild limitations in activities of
10

daily living and maintaining social functioning; moderate limitations in maintaining
concentration, persistence, and pace; and no episodes of decompensation. They opined
that Plaintiffs anxiety and depressive symptoms could disrupt his memory, but that
Plaintiff was able to retain one-to-three step instructions for two hours over an eight-hour
period during a forty-hour week.

D.

Plaintiff's Testimony at the August 7, 2014 Hearing.

Plaintiff testified at the August 7, 2014 hearing that he was able to perform simple
math and read "[a] little," such as menus and street signs; however, he needed assistance
reading "the big long words" on the Social Security Administration's forms. (AR 35.)
Plaintiff reported that he did not drive.
Plaintiff testified that he was unable to work due to constant pain in his back and
arthritis in his hips. He stated he was unable to sit or stand for long periods of time, and
that he could only walk for short distances before his back began to hurt. Plaintiff
explained that his back pain started in the small of his back and radiated down into his
tailbone and his left leg, and the pain was starting to travel down his right hip and leg as
well. Medication alleviated most of his pain, and he utilized physical therapy and home
exercises. Plaintiff testified that his doctor had prescribed a cane, which he used "[a]ll
the time[.]" (AR 41.) He further testified that his doctor prescribed compression socks,
which mostly controlled the swelling in his legs so that they were "almost normal[,]"
although they did not eliminate the pain in his calves and feet. (AR 42.) Plaintiff
claimed that his leg pain occasionally woke him during the night.
Regarding his COPD, Plaintiff testified that he used four inhalers and took
unspecified prescribed medication. Plaintiff reported that his breathing was a constant
problem when he "tr[ied] to hurry [him]self1,]" and that it felt like he was "run[ning] out
of air[.]" (AR 44.) Plaintiff explained that he used his inhaler "probably occasionally
when [he was] at home[,]" but more frequently when he walked or his "nerves [got] the
best of [him.]" !d.
Plaintiff estimated that he could sit comfortably in a chair for ten minutes and
stand comfortably for approximately twenty minutes. He testified that his doctor
11

restricted him to lifting no more than ten pounds. Plaintiff stated that, on some days, he
had difficulties reaching in front of himself or over his head, and he was unable to walk
more than fifty feet before needing to rest. Plaintiff further testified that "it [took him] a
lot longer to get back up" to his feet when he kneeled. (AR 46.)
Plaintiff reported that he attended counseling every two weeks and had been
prescribed medication to minimize his mood swings and "high anxiety[.]" (AR 52.)
Plaintiff described his memory as "[n]ot very good[;] [n]ot like it used to be[,]" and stated
that he forgot both recent and distant memories. (AR 4 7.) Plaintiff similarly described
his concentration as "[n]ot very good" and reported an ability to concentrate for twenty
minutes at a time. !d.
Plaintiff acknowledged that he was able to get along with others, deal with
strangers, and take care of himself. Plaintiff stated that he had a decreased energy level,
which he described as "[m]edium." (AR 48.) Despite "a drug and alcohol problem a
long time ago[,]" (AR 49), Plaintiff testified that since 2012 he had not used any nonprescribed medication or drugs and only drank "up to a six-pack" at a time. (AR 51.)

III.

ALJ Sutker's Application of the Five-Step, Sequential Evaluation Process.
In order to receive benefits, a claimant must be disabled on or before his or her

"date last insured" under the Social Security Act. 42 U.S.C. § 423(a)(l)(A). Social
Security Administration regulations set forth the following five-step, sequential
evaluation process to evaluate whether a claimant is disabled under the statute:
( 1) whether the claimant is currently engaged in substantial gainful activity;
(2) whether the claimant has a severe impairment or combination of
impairments; (3) whether the impairment meets or equals the severity of the
specified impairments in the Listing of Impairments; (4) based on a
"residual functional capacity" [RFC] assessment, whether the claimant can
perform any of his or her past relevant work despite the impairment; and
(5) whether there are significant numbers of jobs in the national economy
that the claimant can perform given the claimant's residual functional
capacity, age, education, and work experience.

Mcintyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing 20 C.P.R.
§§ 404.1520(a)(4)(i)-(v) & 416.920(a)(4)(i)-(v)). "The claimant has the general burden

12

of proving that he or she has a disability within the meaning of the Act, and bears the
burden of proving his or her case at Steps One through Four of the sequential five-step
framework established in the SSA regulations[.]" Burgess v. Astrue, 537 F.3d 117, 128
(2d Cir. 2008) (internal quotation marks and citations omitted). At Step Five, "the
burden shift[s] to the Commissioner to show there is other work that [the claimant] can
perform." Mcintyre, 758 F.3d at 150 (alterations in original) (internal quotation marks
omitted).
In this case, ALJ Sutker determined that Plaintiff met the "insured status
requirements" of the Social Security Act through June 30, 2015, and that Plaintiff had not
engaged in substantial gainful activity since his alleged onset date ofMarch 15, 2012. At
Step Two, she found that Plaintiff had the following severe impairments: obstructive
sleep apnea; COPD; anxiety disorder; depressive disorder; alcohol dependence in partial
sustained remission; and cannabis dependence. She concluded that Plaintiffs other
impairments did not meet the definition of a severe impairment, including his
osteoarthritis of the hands, knees, and hips.
ALJ Sutker further determined that the degenerative changes of Plaintiffs spine
and peripheral vascular disease were not medically determinable impairments due to the
absence of objective medical abnormalities. Although she did not find that Plaintiffs hip
and hand arthritis and back pain were severe impairments, she considered those
impairments when determining his RFC. With respect to Plaintiffs mental health
impairments, ALJ Sutker found that he had mild restrictions in activities of daily living,
mild restrictions in social functioning, and moderate restrictions in concentration,
persistence, or pace.
With regard to Plaintiffs use of a cane, ALJ Sutker found as follows: "Although
the claimant reports use of a cane to ambulate, he was noted at his consultative exam
without the use of any assistive device. There also is no evidence that the cane was
prescribed, as the claimant reports. In addition, his records show that he walks regularly
for exercise." (AR 16) (citations omitted).

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ALJ Sutker found at Step Three that Plaintiff did not have an impairment or
combination of impairments that met or equaled the severity of any listed impairment. At
Step Four, she determined Plaintiff had the RFC:
to perform medium work . . . . He is unable to climb ladders, ropes and
scaffolds, and he may occasionally kneel and crawl. He is able to rarely
climb steep inclines (less than 10% of the workday), and is limited to
concentrated exposure to temperature extremes and pulmonary irritants. He
is limited to uncomplicated tasks (defined as tasks able to be learned in 30
days or less). He is able to maintain concentration, persistence and pace for
2-hour blocks of time throughout a normal workday and workweek.
(AR 15-16) (emphasis omitted).
ALJ Sutker deemed Plaintiffs testimony at the August 7, 2014 hearing regarding
the intensity, persistence, and limiting effects of his symptoms to be "not entirely
credible[.]" (AR 16.) Based on Plaintiffs RFC for medium work and his specific
limitations, she determined that Plaintiff was capable of performing his past relevant
work as a dishwasher, but that he was unable to perform his past relevant work as a lead
maintenance worker, construction worker, or tire changer. (AR 19.) At Step Five, she
concluded, based upon VE Laflamme's testimony, that Plaintiff was able to perform
alternative work at the medium exertionallevel as a production helper, hand packager, or
grocery bagger, and at the light exertionallevel as a price marker, laundry classifier, or
assembler of small products. For these reasons, ALJ Sutker determined that Plaintiff was
not disabled.
IV.

Conclusions of Law and Analysis.
A.

Standard of Review.

In reviewing the Commissioner's decision, the court "'conduct[s] a plenary review
of the administrative record to determine if there is substantial evidence, considering the
record as a whole, to support the Commissioner's decision and if the correct legal
standards have been applied."' Cichocki v. As true, 729 F .3d 172, 175-76 (2d Cir. 20 13)
(quoting Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008)). Substantial evidence is
"'more than a mere scintilla. It means such relevant evidence as a reasonable mind might

14

accept as adequate to support a conclusion."' Selian v. Astrue, 708 F.3d 409, 417 (2d Cir.
2013) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Even if the court could draw different conclusions after an independent review of
the record, the court must uphold the Commissioner's decision when it is supported by
substantial evidence and when the proper legal principles have been applied. See 42
U.S.C. § 405(g). It is the Commissioner that resolves evidentiary conflicts and
determines credibility issues, and the court may not substitute its own judgment for the
Commissioner's. See Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998); Aponte v. Sec 'y,

Dep 't of Health & Human Servs. of US., 728 F .2d 588, 591 (2d Cir. 1984).

B.

Whether ALJ Sutker's Step Two Findings were Erroneous.

Plaintiff raises two arguments with respect to ALJ Sutker's Step Two findings.
First, he asserts that her determination that the arthritis in his hands, knees, and hips did
not constitute a severe impairment was erroneous because that finding was "materially
inconsistent with the medical assessments of all of the treating, examining, and nonexamining physicians[.]" (Doc. 6 at 4.) Second, he contends that her finding that the
degenerative changes of his spine and peripheral vascular disease were not medically
determinable impairments due to the lack of signs, symptoms, or laboratory findings was
directly contradicted by the medical evidence.
At Step Two of the sequential analysis, the claimant must demonstrate that he or
she has a "medically determinable impairment" that "result[ s] from anatomical,
physiological, or psychological abnormalities which can be shown by medically
acceptable clinical and laboratory diagnostic techniques[.]" Mussaw v. Comm 'r of Soc.

Sec., 2013 WL 1293774, at *2 (N.D.N.Y. Mar. 28, 2013) (citing 20 C.P.R. § 404.1508).
In order for such an impairment to be "severe," SSA regulations provide that the
claimant's impairment must "significantly limit[] [his or her] physical or mental ability to
do basic work activities[.]" 20 C.P.R. § 404.1520(c). If the ALJ "rate[s] the degrees of
[the claimant's] limitation as 'none' or 'mild,' [the ALJ] will generally conclude that
[the] impairment( s) is not severe, unless the evidence otherwise indicates that there is
more than a minimal limitation in [the claimant's] ability to do basic work activities[.]"
15

!d. § 404.1520a(d)(1). The ALJ's severity assessment "may do no more than screen out

de minimis claims." Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995) (citing Bowen
v. Yuckert, 482 U.S. 137, 158 (1987)).

In finding that Plaintiffs arthritis was not severe, ALJ Sutker concluded that
"there are no significant objective medical findings in the record which exist in order for
[this] impairment[] to be considered severe within the meaning of the regulations." (AR
13.) ALJ Sutker noted that in November 2012, Dr. Tonkin observed that Plaintiff
maintained full grip strength in his hands, the arthritic deformity on Plaintiffs right
thumb did not limit him, and Plaintiffs range of motion in his hands and fingers was
normal. Dr. Tonkin further found that Plaintiff was able to reach, handle, finger, and feel
without limitation and his treatment notes described the changes in Plaintiffs hands as
"early arthritic changes[,]" that nonetheless permitted Plaintiff to pick up objects,
including fine objects. (AR 422.) None of Plaintiffs other physicians identified severe
limitations stemming from the arthritis in Plaintiffs hands, and Plaintiff reported in
November of2012 that the arthritis did not limit his activities of daily living.

.

With respect to the osteoarthritis of Plaintiffs hips, ALJ Sutker noted diagnostic
imaging from February of2013 showed mild degenerative changes bilaterally to the hips.
Plaintiff reported only "minor complaints" about left hip pain one month later, and also
stated that he exercised three to four times per week. (AR 441.) Despite Plaintiffs
statements about experiencing pain after walking long distances, Dr. Tonkin found during
the November 2012 consultative examination that Plaintiff had no swelling; normal range
of motion in his knees; normal gait, coordination, and station, including walking on his
heels/toes; the ability to hop and bend; and full motor function of his upper and lower
extremities.
While Plaintiff reported that his legs became numb if he sat for extended periods
of time, he denied significant weakness or regular numbness or tingling in his extremities
and demonstrated no difficulties moving around the examination room, getting on and off
the exam table, removing his socks and shoes, and performing the activities of his
consultative examination. In November of2012, Plaintiff reported that over-the-counter
16

or prescription nonsteroidal anti-inflammatory drugs provided "some relief' for his knee
pain, and a January 4, 2013 x-ray of Plaintiffs knees was negative for bone or joint
abnormalities.
Against this backdrop, whether the abnormalities in Plaintiffs hands, hips, and
knees constitute de minimis impairments presents a close question. However, because
ALJ Sutker proceeded to consider those impairments in formulating her RFC
determination, 2 any error in failing to designate them as "severe" at Step Two is harmless
and does not warrant remand. See Reices-Colon v. Astrue, 523 F. App'x 796, 798 (2d
Cir. 2013) (concluding "any error was harmless" where ALJ excluded claimant's anxiety
disorder and panic disorder from his review at Step Two but considered them in
subsequent steps); Lasiege v. Colvin, 2014 WL 1269380, at* 11 (N.D.N.Y. Mar. 24,
2015) (holding that "even if the ALJ erred in failing to find Plaintiffs headaches to be a
severe impairment, such an error would be harmless" where the ailment was considered
in determining the claimant's RFC).
Plaintiff next challenges ALJ Sutker' s determination that the degenerative changes
of his spine and his peripheral vascular disease were not medically determinable
impairments. ,While acknowledging that x-rays contained evidence of "moderate to
severe" degenerative changes in the facet joints (AR 455), ALJ Sutker concluded
Plaintiffs back pain was not a medically determinable impairment because treatment
providers recommended minimal treatment beyond weight management and physical
therapy. This conclusion is supported by substantial evidence in the record, even if this
court might have reached a different conclusion.
Plaintiff reported to Dr. Kurak throughout 2013 and 2014-that he was able to
complete his daily activities despite ongoing back pain and swelling in his legs and that
medication alleviated most of his pain. Despite the recommendations that he engage in
weight management and physical therapy to alleviate his back pain, there is no evidence

2

See AR 13 (noting that while Plaintiffs "hip and hand arthritis/pain and back pain are not
severe impairments, these impairments were considered upon assessing his residual functional
capacity").
17

that Plaintiff attended physical therapy after his initial sessions in April of 20 13.
Although Plaintiff is correct that his medical records reflect that he continued to complain
of back pain, he reported activities such as shopping for one to two hours and walking
which support a conclusion that his back pain did not interfere with his daily living
activities. Any conflicts regarding the severity and limiting effects ofPlaintiffs
impairments in the administrative record were within the ALJ's discretion to resolve. See
Cage v. Comm 'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) ("In our review, we defer

to the Commissioner's resolution of conflicting evidence"). Plaintiff therefore "failed to
carry his burden at step two to provide evidence showing that his ... impairments were
severe or caused functional limitations that precluded him from performing substantial
gainful activity." Collier v. Colvin, 2016 WL 4400313, at *5 (W.D.N.Y. Aug. 17, 2016).
ALJ Sutker's conclusion that Plaintiffs peripheral vascular disease was not a
medically determinable impairment, by contrast, was not supported by substantial
evidence. Although Plaintiff informed ALJ Sutker that compression socks controlled the
swelling in his legs so that they were "almost normal" (AR 42), Dr. Kurak diagnosed
Plaintiff with peripheral vascular disease following an October 23, 2013 physical
examination. Her treatment notes further noted that Plaintiff exhibited swelling, chronic
skin changes, and pitting edema in his legs. Plaintiff also showed decreased range of
motion and strength at her physical therapy examination. The error was not harmless
because ALJ Sutker did not consider the physical limitations stemming from Plaintiffs
peripheral vascular disease in determining his RFC. While she concluded that Plaintiff
was unable to climb ladders, ropes, and scaffolds, she found he could otherwise perform
work at the medium exertionalleve1, including work that entails occasional kneeling and
crawling. She did not address whether Plaintiff was further limited in another areas, such
as his ability to sit, stand, or lift objects. It is therefore impossible to determine whether
Plaintiff could perform his past relevant work as a dishwasher or alternative occupations
if limitations from his peripheral vascular disease were included in his RFC. A remand
for this determination is therefore warranted. See Concepcion v. As true, 2010 WL
4038769, at *4 (D. Conn. Sept. 30, 2010) (holding that "[w]ithout the ALJ's analysis of
18

the relevant evidence, the court cannot determine whether his conclusion would have
been different if he had considered all factors" in his RFC determination).

C.

Whether ALJ Sutker Failed to Properly Assess the Medical Evidence.

Plaintiff argues that ALJ Sutker failed to properly assess the medical evidence by
"rejecting ... without good cause for doing so" the opinion of Dr. Dick and according
significant weight to the opinions of state agency non-examining physicians. (Doc. 6 at
9.) The Commissioner disputes that Dr. Dick was Plaintiffs treating physician and
argues that ALJ Sutker properly accorded Dr. Dick's opinion lesser weight because it was
contradicted by other evidence in the record, including the opinions of the state agency
medical consultants to which she accorded significant weight.
1.

Whether ALJ Sutker Properly Assigned Lesser Weight to Dr.
Dick's Opinion.

"The opinion of a treating physician on the nature or severity of a claimant's
impairments is binding if it is supported by medical evidence and not contradicted by
substantial evidence in the record." Selian, 708 P.3d at 418; see 20 C.P.R.
§§ 404.1527(c)(2), 416.927(c)(2) (directing that opinions from treating sources are
accorded "more weight" because "these sources are likely to be the medical professionals
most able to provide a detailed, longitudinal picture of [any] medical impairment( s) and
may bring a unique perspective to the medical evidence that cannot be obtained from the
objective medical findings alone or from reports of individual examinations"). Pursuant
to 20 C.P.R.§§ 404.1527(c)(2) & 416.927(c)(2), the ALJ must provide "good reasons"
regarding "the weight" given to a treating source's opinion. Halloran v. Barnhart, 362
P.3d 28, 32-33 (2d Cir. 2004) (internal quotation marks omitted).
In order to "override" the opinion of the treating physician, the Second Circuit has
held that the ALJ must consider, inter alia: "(1) the frequently, length, nature, and extent
oftreatment; (2) the amount of medical evidence supporting the opinion; (3) the
consistency of the opinion with the remaining medical evidence; and (4) whether the
physician is a specialist." Selian, 708 P.3d at 418. Notwithstanding this rule, "[w]hen
other substantial evidence in the record conflicts with the treating physician's
19

opinion[] ... that opinion will not be deemed controlling." Snell v. Apfol, 177 F.3d 128,
133 (2d Cir. 1999).
Plaintiff testified at the August 7, 2014 hearing that Dr. Dick was not his "main
doctor" and that he saw him only "once in a while but not all the time[.]" (AR 53.) On
the basis of this testimony, ALJ Sutker properly concluded that Dr. Dick was not
Plaintiffs treating physician. See Mongeur v. Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir.
1983) (holding that the opinions of a treating physician who had only seen the claimant
"once or twice" were not entitled to controlling weight). The Commissioner also points
out that Plaintiff was referred to Dr. Dick by his attorney in connection with his
application for benefits. See AR 752 (January 2, 2014 treatment notes recording that
Plaintiff was "referred by his attorney for evaluation for Social Security disability"). 3 In
any event, the issue is not Dr. Dick's "designation but whether, guided by the factors set
forth in § 404.15 2 7(c), [the ALJ] provided good reasons for not according [his] opinions
controlling weight." Sanborn v. Berryhill, 2017 WL 923248, at *12 (D. Vt. Mar. 8,
2017).
Regarding Plaintiffs COPD, ALJ Sutker correctly noted that "the use of his
inhaler results in significant improvement in his breathing, without noted daily functional
limitations" (AR 19) and his COPD and shortness of breath were "generally controlled"
(AR 16). See Wilferth v. Colvin, 49 F. Supp. 3d 359, 363 (W.D.N.Y. 2014) (affirming
the Commissioner's decision where "[t]here is no evidence whatsoever that the plaintiffs
COPD had some [e]ffect on his RFC for which the ALJ failed to account"). This
conclusion is supported by Dr. Kurak's treatment notes, which ALJ Sutker cited in her
decision. ALJ Sutker therefore properly rejected Dr. Dick's proposed limitations arising
3

The Social Security Administration "will not consider an acceptable medical source to be [a]
treating source if [the] relationship with the source is not based on ... medical need for treatment
or evaluation, but solely on [the] need to obtain a report in support of [a] claim for disability."
20 C.F.R. § 404.1527(a)(2); see also Petrie v. Astrue, 412 F. App'x 401,405 (2d Cir. 2011)
(reasoning the ALJ properly refused to give controlling weight to the medical opinion of a
provider where that provider "only examined [the] claimant once or twice[,] did not see th[e]
claimant regularly and did not develop a physician/patient relationship with the claimant, even
though other practitioners in the same facility had also submitted medical opinions on behalf of
the claimant") (internal quotation marks and citation omitted).
20

from Plaintiffs COPD which restricted him from lifting or carrying less than ten pounds,
standing or walking less than two hours, and sitting less than six hours in an eight-hour
workday.
However, ALJ Sutker erred when she found that Dr. Dick's proposed limitations
arising out of Plaintiffs back pain were "inconsistent with [Plaintiffs] medical records,"
which did "not reflect treatment or diagnosis of a back impairment, or ongoing functional
limitations[.]" (AR 19.) Plaintiffs February 2013 lumbosacral x-rays revealed moderate
to severe degenerate changes involving his facet joints. In addition, Plaintiff consistently
reported at least some functional limitations that were attributable to his back pain.
While the court agrees that the limitations arising from Plaintiffs back impairments were
included in his RFC, according Dr. Dick's opinion lesser weight on this ground was a
factual error. Although by itself this error would not warrant remand, as the court has
already determined that a remand is appropriate, this issue should be revisited. See Goff
v. Astrue, 993 F. Supp. 2d 114, 122 (N.D.N.Y. 2012) (remanding where the ALJ's
"dismiss[al]" of a treating physician's opinion was "factually inaccurate" and "legally
inadequate"). The court finds no other errors in the weight ALJ Sutker ascribed to Dr.
Dick's opinion.

2.

Whether ALJ Sutker Properly Assigned Significant Weight to
State Agency Medical Consultants' Opinions.

Plaintiff further contends that the findings ofthe state agency physicians that
Plaintiff does not suffer from any severe physical impairment were contrary to the ALJ' s
findings and were based on an incomplete record. In January and April of2013, Dr.
Abramson and Dr. Swartz determined that Plaintiffs COPD, osteoarthritis, and allied
disorders were medically determinable, non-severe impairments. Although ALJ Sutker
ultimately concluded that Plaintiffs COPD and sleep apnea were severe impairments, she
nevertheless accorded "significant weight" to the assessments of Dr. Abramson and Dr.
Swartz because they were "consistent with the evidence of record which does not reflect
disabling physical impairments." (AR 18.)

21

"In appropriate circumstances, opinions from State agency medical and
psychological consultants and other program physicians and psychologists may be
entitled to greater weight than the opinions of treating or examining sources." SSR 966p, 1996 WL 374180, at *3 (July 2, 1996). Provided that the non-examining sources'
opinions "are supported by evidence in the record[,]" the ALJ may "permit the opinions
ofnon[-]examining sources to override treating sources' opinions[.]" Diaz v. Shalala, 59
F.3d 307, 313 n.5 (2d Cir. 1995) (citing Schisler v. Sullivan, 3 F.3d 563, 567-68 (2d Cir.
1993)); see also Mongeur, 722 F.2d at 1039 ("[T]he opinion of a treating physician is not
binding if it is contradicted by substantial evidence, and the report of a consultative
physician may constitute such evidence.") (citation omitted).
Plaintiff contends that ALJ Sutker engaged in a "lay assessment" of the medical
evidence by "reject[ing]" Dr. Abramson's and Dr. Swartz's opinions that Plaintiffs
COPD and sleep apnea were non-severe. (Doc. 6 at 9.) The court disagrees. ALJ Sutker
did not "reject" their opinions but rather found that these two impairments were severe
after "viewing the evidence in the light most favorable to" Plaintiff. (AR 18.) The
limitations attributable to those two impairments were reflected not only in Dr. Dick's
treatment notes, but also in Dr. Tonkin's observation that "[b]ecause of[Plaintiffs]
COPD and asthma, I would not let him work around dust, fumes, or gases." (AR 422.)
ALJ Sutker's determination that Plaintiffs COPD and sleep apnea were severe
impairments was therefore supported by substantial evidence in the record and does not
undermine the propriety of her reliance on Dr. Abramson's and Dr. Swartz's opinions.
See Savage v. Comm 'r of Soc. Sec., 2014 WL 690250, at *7 (D. Vt. Feb. 24, 2014)
(holding that the ALJ "did not err in crediting some aspects of the agency consultant
opinions while discounting others, as ALJ s are entitled to accept certain portions of
medical opinions while rejecting others").

D.

Whether the ALJ Erred in Finding Plaintiff Was Not Prescribed a
Cane in Determining His RFC.

ALJ Sutker found that there was "no evidence" that Plaintiff was prescribed a
cane. (AR 16.) As Plaintiff correctly points out, this finding was in error. Dr. Kurak's

22

March 27, 2013 treatment notes reflect that she directed Plaintiff to use a cane. See AR
442 (recording that Plaintiffhad "[s]tarted [c]ane ... AS DIRECTED"). This error, in
tum, undermines the reliability of Dr. Swartz's opinions which reflect that same error.
As Dr. Swartz submitted his opinions without reviewing Dr. Dick's opinions, which were
rendered several months thereafter? his opinions may change if he were informed that
Plaintiffs use of a cane was prescribed and if he considered Dr. Dick's opinions
regarding Plaintiffs functional limitations. Because the absence of a prescribed cane is
reflected in Plaintiffs RFC, it cannot be deemed to be harmless.
Pursuant to Social Security Ruling 96-8p, "RFC is an assessment of an
individual's ability to do sustained work-related physical and mental activities in a•work
setting on a regular and continuing basis[,]" which "means 8 hours a day, for 5 days a
week, or an equivalent work schedule." SSR 96-8p, 1996 WL 374184, at *1 (July 2,
1996). "RFC is not the least an individual can do despite his or her limitations or
restrictions, but the most[,]" and any RFC assessment requires consideration of
"functional limitations and restrictions that result from an individual's medically
determinable impairment or combination of impairments, including the impact of any
related symptoms." ld.
In making the RFC determination, an ALJ must consider the claimant's reports of
pain and other limitations, but is not required to accept the claimant's subjective
complaints without question. Instead, an ALJ "may exercise discretion in weighing the
credibility of the claimant's testimony in light of other evidence in the record." Genier v.
Astrue, 606 F.3d 46, 49 (2d Cir. 2010).

The ALJ "'must first identify [an] individual's functional limitations or restrictions
and assess his or her work-related abilities on a function-by-function basis[.]"' Cichocki,
729 F.3d at 176 (quoting SSR 96-8p, 1996 WL 374184, at *1). These functions include:
[P]hysical abilities such as sitting, standing, walking, lifting, carrying,
pushing, pulling, or other physical functions; mental abilities such as
understanding, remembering, carrying out instructions, and responding
appropriately to supervision; and other abilities that may be affected by

23

impairments, such as seeing, hearing, and the ability to tolerate
environmental factors.
Id. An RFC is "expressed in terms of the exertionallevels of work, sedentary, light,

medium, heavy, and very heavy," that are outlined in 20 C.P.R. § 404.1567. SSR 96-8p,
1996 WL 374184, at *1.
ALJ Sutker found that Plaintiff had the RFC to perform medium work, subject to
certain limitations. Medium work involves "lifting no more than 50 pounds at a time
with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do
medium work, we determine that he or she can also do sedentary and light work." 20
C.P.R.§ 404.1567(c).
Plaintiff contends that the omission of his need to use a cane in his RFC was
reversible error, citing Social Security Ruling 96-9p:
[t]o find that a hand-held assistive device is medically required, there must
be medical documentation establishing the need for a hand-held assistive
device to aid in walking or standing, and describing the circumstances for
which it is needed (i.e., whether all the time, periodically, or only in certain
situations; distance and terrain; and any other relevant information). The
adjudicator must always consider the particular facts of a case.
SSR 96-9p, 1996 WL 374185, at *7 (July 2, 1996). Plaintiff further maintains that in
light of his use of a cane, "the ALJ could not apply the 'Grid' and was obligated to obtain
evidence from a vocational witness regarding the specific issue ofwhether [he] could still
perform the required standing for light and medium work" while using a cane. (Doc. 6 at
13.) The cases Plaintiff cites for this proposition involved claimants who had proffered
medical opinions that identified specific limitations arising from the use of a cane which
eroded the claimant's occupational base. See, e.g., White v. Barnhart, 153 F. App'x 432,
433 (9th Cir. 2005) (noting that claimant's provider opined that "she could walk without
it for only a short distance and that when she did not use her cane she had rather severe
pain"); Sawyer v. Astrue, 775 F. Supp. 2d 829, 835 (E.D.N.C. 2011) (noting that the
claimant was prescribed a cane, "must lean on walls and furniture" and had "difficulty
with balance and gait and has fallen"); Robinson v. Astrue, 2005 WL 6077067, at *9
(E.D. Cal. Mar. 7, 2005) (holding that "[a]lthough the circumstances under which this

24

cane must be used were not described, it is clear the cane is a necessity and its use was
not limited").
Here, Plaintiff cites no medical documentation establishing his need to use a cane
beyond Dr. Kurak's March 27, 2013 treatment notes, which do not describe the
circumstances for which a cane was needed. The record contains conflicting evidence
regarding whether, as Plaintiff testified before ALJ Sutker, he used a cane "all the time"
(AR 41 ), or as he stated in his Function Report, that he uses a cane "only if [he] ha[ s] to
use it[.]" (AR 281.)
Although ALJ Sutker, rather than this court, is authorized to resolve such a
conflict in the evidence, ALJ Sutker's RFC determination was nevertheless erroneous
because her analysis proceeded from the false premise that no cane was prescribed to
Plaintiff. This error was not harmless because ALJ Sutker did not ask VE Laflamme
whether Plaintiffs use of a cane, even on an occasional basis, impacted his ability to
work:
[Q.] I want you to assume the same age, ... educational background, and
past work that I said before. I want you to assume the individual would not
be able to climb ladders, ropes or scaffolds. The individual would have no
limitations on balancing, stooping or crouching, but would not be able [to]
climb steep inclines except on a rare basis. Kneeling and ... crawling
could be performed on an occasional basis. Again, the individual would
not be able to engage in concentrated exposure to temperature extremes or
pulmonary irritants; and would be limited to uncomplicated tasks; could
concentrate, persist at tasks, and stay on pace for two hour blocks of time
throughout the workday. Based upon that hypothetical, would such an
individual be able to perform any of the Claimant's past work?
A. And again, we're at the medium duty level, Your Honor?

Q. Yes.
A. Thank you. Yes, the dishwasher position, Your Honor.
(AR 59-60.)
While "[a]n ALJ may rely on a vocational expert's testimony regarding a
hypothetical" there must be '"substantial record evidence to support the assumption[s]
upon which the vocational expert based his opinion"' and which "accurately reflect the
25

limitations and capabilities ofthe claimant involved." Mcintyre, 758 F.3d at 151 (citing

Aubeufv. Schweiker, 649 F.2d 107, 114 (2d Cir. 1981)). Social Security Ruling 96-9p
provides "that it may be especially useful to consult a vocational resource in order to
make a judgment regarding the individual's ability to make an adjustment to other work"
where the claimant "uses [a medically required hand-held device] for balance because of
significant involvement ofboth lower extremities[.]" SSR 96-9p, 1996 WL 1374185, at
*7 (emphasis supplied). In addition, as ALJ Sutker had an affirmative obligation to
develop the evidence, she could have sought an opinion from Dr. Kurak regarding in
what circumstances and how often she expected Plaintiff to need a cane. See Rosa v.

Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (commenting that "an ALJ cannot reject a
treating physician's diagnosis without first attempting to fill any clear gaps in the
administrative record"); Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) ("[E]ven if the
clinical findings were inadequate, it was the ALJ's duty to seek additional information
from [the treating physician] sua sponte.").
If Plaintiffs use of a cane had been reflected in his RFC, the outcome might have
been different because "the requirement of a cane can significantly erode the number of
available jobs as it may impact the ability to perform the full range of work." Kelly v.

Colvin, 2016 WL 5374113, at *12 (N.D.N.Y. Sept. 26, 2016). Under such
circumstances, the disability determination required an analysis of whether Plaintiffs use
of a cane affected his ability to work. See Stanley v. Colvin, 2014 WL 1311963, at *8
(N .D .N.Y. Mar. 31, 20 14) (holding that "because there is evidence in the record of

Plaintiffs use of a cane and her difficulty ambulating" and because remand was
warranted on other grounds, "the ALJ should also inquire about Plaintiffs use of a cane
to ambulate and the effect of such use on Plaintiffs ability to perform work-related
functions."). For this additional reason, a remand is warranted.
CONCLUSION

For the foregoing reasons, the court GRANTS Plaintiffs motion to reverse the
decision of the Commissioner (Doc. 6) and DENIES the Commissioner's motion to
affirm (Doc. 7). This action is REMANDED for further proceedings consistent with this
26

Opinion and Order. On remand, the ALJ must determine Plaintiffs RFC, which shall
include the limitations, if any, stemming from Plaintiffs peripheral vascular disease and
use of a cane. The ALJ should seek clarification from Dr. Kurak regarding the
circumstances for which the cane was prescribed. The ALJ may obtain testimony from
an impartial vocational source regarding whether Plaintiffs use of a cane impacts his
ability to work. The ALJ must also correct the factual error indicating no diagnosis of a
back impairment in his or her analysis of Dr. Dick's opinions.
SO ORDERED.

I

I-

Dated at Burlington, in the District of Vermont, this Z I day of June, 2017.

~

Christina Reiss, Chief Judge
United States District Court

27