Ramos v. Berryhill

UNITED STATES DISTRICT COURT US DIS TET BoUaT EDN.

EASTERN DISTRICT OF NEW YORK

RONALD RAMOS, :

BROOKLYN OFFICE

Plaintiff,

: MEMORANDUM & ORDER

v. : 17-CV-4632 (WFK)

COMMISSIONER OF SOCIAL SECURITY, :

Defendant. :

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WILLIAM F. KUNTZ, IT, United States District Judge:

Plaintiff Ronald Ramos (‘Plaintiff’) brings this action pursuant to 42 U.S.C. §§ 405(g) and

1383(c)(3) alleging the Acting Commissioner of the Social Security Administration (the

“Commissioner” or “Defendant”) improperly denied Plaintiffs application for Disability

Insurance Benefits under title II of the Act. The Plaintiff has moved for Judgement on the

pleadings under Federal Rule of Civil Procedure 12(c). See ECF No. 14. Defendant also moves

for judgment on the pleadings. See ECF No. 16. For the reasons set forth below, Defendant’s

motion is DENIED.

PROCEDURAL HISTORY .

On June 8, 2015, Plaintiff filed an application for Disability Insurance Benefits (SSDI)

under the Social Security Act (“the Act”) alleging disability commencing on September 13,

2014. Tr. 152-155, 172, 201. The Plaintiff alleged he was disabled due to impairments of his

back, neck, knees and shoulder. /d. at 171. Plaintiffs application for SSDI was denied on

August 27, 2015. Jd. at 72-76. The Plaintiff appealed the SSI denial of his claim on September

14, 2015 and requested a hearing before an administrative law judge. Jd. at 82-83. A hearing

was held before ALJ Margaret Donaghy on January 19, 2017 where the plaintiff appeared with

counsel. Jd. at 40-61. The ALJ issued a decision denying the Plaintiff's claim on February 17,

2017. Jd. at 17-37. The Appeals Council denied the Plaintiffs request for review on June 8,

2017, making the ALJ decision the final determination of the Commissioner. /d. at 1-4. _

Plaintiff then filed a complaint with the United States District Court for the Eastern

District of New York on August 7, 2017. Compl., ECF No. 1. Plaintiff and Defendant both

move for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). See Pl.’s □

Notice of Mot. for J. on the Pleadings, ECF No. 14; Pl. Mem. of Law in Support of Mot. for

Judgment on the Pleadings (“Pl. Mem.”), ECF No. 15. Def. Mem. of Law in Support of Def.

Cross-Mot. for J. on the Pleadings (““Def. Mem.”), ECF No. 17, and Pl’s Mem. of Law in Further

Support of Mot. for J. on the Pleadings (“P!. Mem. in Further Support”), ECF No. 18.

STATEMENT OF FACTS

Both parties accurately portray the contents of the administrative record. Accordingly,

rather than provide a lengthy recitation of the facts based on the ample administrative record, the

Court adopts the factual background as set forth in both parties’ briefs and discusses the evidence

to the extent necessary to determine the issues raised herein. See Pl. Mem.; Def. Mem.; PI.

Mem. in Further Support; accord Juarez v. Berryhill, 18-CV-189, 2019 WL 2162120 (S.D.N.Y.

May 16, 2019) (Smith, M.J.).

STANDARD OF REVIEW

When a claimant challenges a denial of disability benefits by the Social Security

Administration, the Court’s function is not to evaluate de novo whether the claimant has a

disability but rather to determine “whether the correct legal standards were applied and whether

substantial evidence supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004);

see also 42 U.S.C. § 405(g); Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (applying

“substantial evidence” standard of review). Substantial evidence is “more than a mere

scintilla”—it is “such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal quotation

marks omitted). The reviewing court must examine the entire record, weighing the evidence on

both sides to ensure the claim “has been fairly evaluated.” Brown v. Apfel, 174 F.3d 59, 62 (2d

Cir. 1999) (quoting Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983)).

The Commissioner, not the courts, “weigh[s] the conflicting evidence in the record” and

resolves such conflicts. Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). “While

the ALJ need not resolve every conflict in the record, the crucial factors in any determination

must be set forth with sufficient specificity to enable [the reviewing court] to decide whether the

determination is supported by substantial evidence.” Calzada v. Asture, 753 F. Supp. 2d 250,

268-69 (S.D.N.Y. 2010) (Sullivan, J.) (internal quotation marks omitted). To fulfill this burden,

the ALJ must “‘adequately explain his reasoning in making the findings on which his ultimate

decision rests’” and must ““‘address all pertinent evidence.’” Kane v. Astrue, 942 F. Supp.

301, 305 (E.D.N.Y. 2013) (Kuntz, J.) (quoting Calzada, 753 F. Supp. 2d at 269).

Ultimately, the issue before the Court is not whether Plaintiff, in argument on appeal, can

articulate an interpretation of the evidence in her favor, but whether a reasonable factfinder could

have weighed the evidence as did the ALJ. See McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir.

2014). “If the evidence is susceptible to more than one rational interpretation, the

Commissioner’s conclusion must be upheld.” /d. But if the ALJ applied an improper legal

standard, or if there are gaps in the administrative record, then remand is warranted. See Rosa v.

Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999).

DISCUSSION

L Determination of Disability

A. Applicable Law

“To be eligible for disability insurance benefits, an applicant must be ‘insured for

disability insurance benefits.” Arnone v. Bowen, 882 F.2d 34, 37 (2d Cir. 1989) (quoting 42

§§ 423(a)(1)(A), 423(c)(1)). Generally, an applicant must apply for benefits during the

period in which she satisfies these earning requirements. If the applicant does not apply for

benefits during this period, she may still obtain benefits if she has been under a continuous

period of disability that began when she was eligible to receive benefits. Hartfiel v. Apfel, 192 F.

Supp. 2d 41, 42 n.1 (W.D.N.Y. 2001) (Larimer, J.).

To be eligible for SSI benefits, an individual must be “aged, blind, or disabled” as__,

defined in 42 U.S.C. § 1382c and, inter alia, meet the resource and income limits specified in the

Act. For purposes of both SSDI AND SSI benefits, 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)(1)(A),

1382c(a)(3){(A). The impairment in question must be of “such severity that [the claimant] is not

only unable to do his previous work but cannot, considering his age, education, and work

experience, engage in any other kind of substantial gainful work which exists in the national

economy.” /d. §§ 423(d)(2)(A), 1382c(a)(3)(B).

To evaluate a disability claim, the Commissioner must apply the five-step sequential

process set forth in 20 C.F.R. §§ 404.1520, 416.920. See McIntyre v. Colvin, 758 F.3d 146, 150

(2d Cir. 2014). First, the Commissioner must determine whether the claimant is engaged in .

“substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If not, the

second step is to determine whether the claimant has a “severe medically determinable physical

or mental impairment.” Id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has such an

impairment, the third step is to determine whether the impairment or combination of impairments

meets or equals one of the listings in Appendix 1 of the regulations. Jd. §§ 404.1520(a)(4)(iii),

416.920(a)(4)(Gii). If the claimant’s impairment does not match any of the listings, the fourth □

step requires the Commissioner to determine whether the claimant’s residual functional capacity

(“RFC”) allows the claimant to perform past relevant work. Jd. §§ 404.1520(a)(4)(iv),

416.920(a)(4)(iv). If the claimant cannot perform past relevant work, the fifth and final step is to

determine whether the claimant can perform any job based on his or her RFC and vocational

considerations—work experience, age, and education. Id. §§ 404.1520(a)(4)(v),

416.920(a)(4)(v). The claimant bears the burden of proving the first four steps, at which point

the burden shifts to the Commissioner at the fifth step. Rosa v. Callahan, 168 F.3d 72, 77-78 (2d

Cir. 1999).

B. The ALJ’s Decision

On February 23, 2017, ALJ Donaghy issued a decision following the five-step procedure

to evaluate Plaintiff's claim. Tr. 17-37. At the first step, ALJ Donaghy determined Plaintiff did

not engage in substantial gainful activity since the date of his alleged onset, September 13, 2014.

Id. at 22. At the second step, he found the Plaintiff suffered from the medically determinable

impairments of bilateral knee derangement status-post bilateral knee arthroscopy and status-post

left shoulder arthroscopy. Jd. At step three, ALJ Donaghy considered whether the Plaintiff's

impairments met or equaled Listing 1.02 or any other of the listed impairments in Appendix 1 of

the regulations and determined that they did not. Jd. at 23. ALJ Donaghy then assessed the

Plaintiff's RFC, which must be based on all relevant medical and other evidence in the record.

See 20 C.F.R. § 404.1520(e). ALJ Donaghy determined that plaintiff had the RFC to perform

sedentary work as defined in 20 CFR 404.1567(b) and 416.967(a) with additional limitations that

he could occasionally climb ramps and stairs, stoop and balance; can occasionally reach

overhead with his left arm; can kneel, crouch and crawl less than occasionally; can never climb

ladders, ropes or scaffolds and should be permitted to change positions every hour for up to 5

minutes while remaining at his work station. Tr. 23. At the fourth step, ALJ Donaghy found the

Plaintiff was unable to perform any past relevant work as a police officer I, which was skilled

and medium, or as a bus driver, which was semi-skilled and medium. /d. at 31. At the fifth step,

ALJ Donaghy determined based upon vocational expert testimony elicited from Jay

Steinbrenner, there existed a significant number of jobs in the national economy that plaintiff can

perform within the range of “sedentary work.” Jd. at 31-32. Accordingly, the ALJ found that

plaintiff was not disabled for purposes of the SSA and was thus ineligible for benefits. /d. at 32-

33.

If. Analysis

The Plaintiff has raised an argument simultaneously attacking both the RFC and the fact

that the ALJ violated the treating physician rule. We will address the issue of the RFC, which is

not supported by substantial evidence in the case. We decline to address the issue of whether the

ALJ violated the treating physician rule. The ALJ did purport to give great weight to the

consulting source’s opinion but in fact disregarded his finding that the Plaintiff was limited in his

ability to sit for prolonged periods. This is a significant issue, because it was the opinion of all

medical sources that the Plaintiff was limited in his ability to sit for prolonged periods and in

finding that the Plaintiff was able to sit for six hours the ALJ effectively imposed her own non-

expert judgment in their stead. That eclipses the issue of which actual medical source she should

have given greater weight, rendering it moot.

The Plaintiff argues there is no support in the medical record for the finding that the

Plaintiff is capable of sitting for six hours in an eight-hour day. We agree.

The finding the Plaintiff is capable of sitting for six hours in an eight-hour day with only

a five minute break each hour is contradicted by the medical evidence and contradicted by all

medical opinions in the record. By finding that the Plaintiff is capable of sitting for six hours in

an eight-hour day, the ALJ has rendered a finding which is unsupported by the medical record as

a whole.

The ALJ specifically noted that she gave “great weight” to the findings of Dr. Shtock,

who specifically opined the Plaintiff would have moderate to marked limitations in sitting. A

moderate to marked impairment is not consistent with an ability to sit for six hours with only a

five-minute break per hour. That is not consistent with even the lower end of a moderate

impairment. It is clearly not consistent with a marked impairment. Additionally, the ALJ gave

less weight to the opinion of Dr. Ciancimino who opined that the Plaintiff could sit for only one

hour in an eight-hour day, but acknowledged Dr. Cinancimino’s finding.

The medical evidence in this case in no way contradicts the findings of Dr. Schtock or

Dr. Ciancimino. The Plaintiff underwent a course of painful injections as well as physical

therapy three times a week for more than a year and when that was not successful underwent

surgery on both knees. When surgery proved unsuccessful, the Plaintiff was subjected to another

round of physical therapy as well as additional injections.

The ALJ gave no alternate source upon which to base her contradictory finding that the

plaintiff could sit for six hours. Thus, the ALJ has instead made a finding that the plaintiff has a

, .

mild limitation in sitting. In doing so, the ALJ “substitute[d] [her] own expertise or view of the

medical proof for those” of a medical professional and committed legal error. Greek v. Colvin,

802 F.3d 370, 375 (2d Cir. 2015); see Hilsdorf Comm'r of Soc. Sec., 724 F.Supp.2d 330, 347

(E.D.N.Y. 2010) (“Because an RFC determination is a medical determination, an ALJ who

makes an RFC determination in the absence of supporting expert medical opinion has improperly

substituted his own opinion for that of a physician, and has committed legal error.”).

Moreover, it is of note that each examining source noted that the Plaintiff was required to

use an assistance device and to wear knee braces. There is no mention of either in the RFC

which the ALJ set forth. This is error. While courts have held the use of a cane or other durable

medical equipment does not necessarily limit a plaintiff to sedentary or less than sedentary work,

it is error to ignore the need for such devices. In Wright v, Colvin, No. 6:13-cv-06585 (MAT),

2015 WL 4600287, at *4-5 (W.D.N.Y. July 29, 2015), the court found the ALJ failed to properly

consider whether it was medically necessary for the plaintiff to use a cane. See also Miller v.

Colvin, No. 1:13-CV-1388 (GLS/ESH), 2015 WL 1383816, at *8 (N.D.N.Y. Mar. 25, 2015). In

that case, the Plaintiff argued that the ALJ erred when he failed to discuss, evaluate, and

incorporate his need for a cane into the RFC determination. /d.

Insofar as the ability to sit for six hours is crucial to the finding the Plaintiff is capable of

engaging in sedentary work, we find that that decision is unsupported by substantial evidence.

Because we find that the ALJ substituted her own opinion for those of medical experts in her

finding that the Plaintiff was capable of sitting for six hours in an eight-hour day, we cannot

reach the threshold level to determine if substantial evidence supports the opinion. Indeed, a

district court reviews the Commissioner’s decision to “determine whether the correct legal

standards were applied and whether substantial evidence supports the decision.” Butts, 388 F.3d

at 384 (citing Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.2002)). Moreover, “[b]efore the □

insulation of the substantial evidence test comes into play, it must first be determined that the.

facts of a particular case have been evaluated in light of correct legal standards.” Klofia v.

Mathews, 418 F.Supp. 1139, 1141 (E.D.Wis.1976), quoted in Gartmann v. Secretary of Health

and Human Services, 633 F.Supp. 671, 680 (E.D.N. Y.1986).

CONCLUSION

For the above-mentioned reasons, Defendant’s motion for judgment on the pleadings,

ECF No. 16, is DENIED. The Court hereby REMANDS this action to the Social Security

Administration for further proceedings, including a new hearing and a new decision, consistent

with this opinion. The Clerk of Court is respectfully directed to close this case.

SO ORDERED.

s/WFK

- = □□

—~ HON. WILLIAM rk UNTZA

UNITED STATES DISTRICT JUDGE

Dated: September 20, 2019

Brooklyn, New York