Roginsky v. Berryhill

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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DAVID ROGINSKY,

Plaintiff,

MEMORANDUM & ORDER

v.

17-cv-5559 (KAM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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MATSUMOTO, United States District Judge:

David Roginsky (“Roginsky” or “Plaintiff”) appeals the

final decision of the Commissioner of Social Security

(“Commissioner” or “Defendant”) finding him ineligible for

disability insurance benefits under Title II of the Social

Security Act (the “Act”) on the grounds that he could perform

work which existed in the national economy. Before the Court

are the parties’ cross-motions for judgment on the pleadings, in

which Plaintiff seeks a remand and Defendant seeks an order

affirming the Commissioner’s decision. For the reasons set

forth below, the Court DENIES Defendant’s motion, GRANTS

Plaintiff’s motion, and REMANDS this action for further

proceedings consistent with this Memorandum and Order.

Background

I. Procedural History

On December 30, 2013, Roginsky filed an application

for disability insurance benefits. (ECF No. 16, Administrative

Transcript (“Tr.”), at 67.) Roginsky alleged disability

beginning October 3, 2013, due to, inter alia, a learning

disability and right knee condition. (Id. at 140-141, 164.)

On May 9, 2014, the Social Security Administration

(“SSA”) denied Roginsky’s application for disability insurance

benefits and supplemental security income on the basis that

Roginsky did not qualify as “disabled” within the meaning of the

Act. (Id. at 70-73.) Roginsky requested a hearing before an

ALJ. (Id. at 82-83.)

On March 3, 2016, Roginsky appeared for a hearing

before ALJ Patrick Kilgannon. (Id. at 30-56.) Following the

hearing, ALJ Kilgannon issued a decision finding Roginsky not

disabled within the meaning of the Act and, as a result, not

entitled to social security benefits. (Id. at 12-29.)

On July 19, 2016, Roginsky requested review of ALJ

Kilgannon’s decision. (Id. at 130.) The Appeals Council denied

Roginsky’s request for review, making ALJ Kilgannon’s decision

the final decision of the Commissioner. (Id. at 1-6.) This

action followed. (See generally ECF No. 1, Compl.)

II. Relevant Evidence

Roginsky’s principal argument on appeal is that in

assessing his residual functional capacity (“RFC”), ALJ

Kilgannon accorded great weight to the opinion of Dr. Louis A.

Fuchs (“Dr. Fuchs”), but disregarded, without explanation, the

portion of Dr. Fuchs’ opinion noting that Roginsky could not

sit, stand, or walk for more than one hour at a time. The

Court’s Memorandum and Order thus summarizes only those facts

relevant to whether ALJ Kilgannon erred in disregarding that

portion of Dr. Fuchs’ opinion.

On April 4, 2016, ALJ Kilgannon served a set of

medical interrogatories on Dr. Fuchs and requested his

professional opinion in connection with Roginsky’s claim. (Tr.

452-64.) Dr. Fuchs did not examine Roginsky, but instead

answered ALJ Kilgannon’s interrogatories based on his review of

Roginsky’s medical record. (See id. at 475.) Dr. Fuchs’

response, dated April 15, 2016, notes the following findings:

•

Lifting/Carrying: Roginsky could lift up to ten pounds

continuously; lift eleven to twenty pounds occasionally;

carry up to ten pounds continuously; and carry eleven to

twenty pounds occasionally. (Id. at 467.)

•

Sitting/Standing/Walking: Roginsky could sit, stand, and

walk for up to one hour at a time without interruption; sit

for a total of eight hours in a day; stand for a total of

two hours in a day; and walk for a total of two hours in a

day. (Id. at 469.)

•

Use of Hands: Roginsky could continuously reach, handle,

finger, feel, push, and pull. (Id. at 470.)

•

Use of Feet: Roginsky could use foot controls occasionally

with his right foot and continuously with his left foot.

(Id.)

•

Postural Activities: Roginsky could occasionally climb

stairs and ramps, climb ladders or scaffolds, balance,

stoop, kneel, crouch, and crawl. (Id. at 471.)

•

Environmental Limitations: Roginsky could be continuously

exposed to unprotected heights and moving mechanical parts;

could continuously operate a motor vehicle; could

occasionally be exposed to humidity and wetness, or extreme

heat or cold; and could never be exposed to vibrations.

(Id. at 472.)

ALJ Kilgannon afforded “great weight” to Dr. Fuchs’

opinion, noting that Dr. Fuchs “examined the record in its

entirety, has a specialty in the field of orthopedics and

arrived at conclusions constituent with the record as a whole.”

(Id. at 22.) ALJ Kilgannon cited Dr. Fuchs’ as opining that

“during the course of an eight-hour workday, [Roginsky] retained

the ability to sit for 8 hours, stand for 2 hours[,] and walk

for 2 hours, and occasionally lift/carry up to 20 pounds. In

addition, he found [that Roginsky] could occasionally engage in

postural activities and continuously use his hands.” (Id.) ALJ

Kilgannon did not, however, cite the portion of Dr. Fuchs’

opinion indicating that Roginsky could not sit, stand, or walk

for more than one hour at a time. (See id.)

Standard of Review

Unsuccessful claimants for disability benefits may

bring an action in federal court seeking judicial review of the

Commissioner’s denial of their benefits. 42 U.S.C. §§ 405(g),

1383(c)(3). The reviewing court does not have the authority to

conduct a de novo review, and may not substitute its own

judgment for that of the ALJ, even when it might have

justifiably reached a different result. Cage v. Comm’r, 692

F.3d 118, 122 (2d Cir. 2012). Rather, “‘[a] district court may

set aside the Commissioner’s determination that a claimant is

not disabled only if the factual findings are not supported by

‘substantial evidence’ or if the decision is based on legal

error.’” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008)

(quoting Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)).

“Substantial evidence means ‘more than a mere

scintilla. It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.’” Id.

(quoting Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004)).

If there is substantial evidence in the record to support the

Commissioner’s factual findings, those findings must be upheld.

42 U.S.C. § 405(g) (“The findings of the Commissioner of Social

Security as to any fact, if supported by substantial evidence,

shall be conclusive . . . .”). Inquiry into legal error

requires the court to ask whether “‘the claimant has had a full

hearing under the [Commissioner’s] regulations and in accordance

with the beneficent purposes of the [Social Security] Act.’”

Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting Cruz

v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)).

Discussion

I. The Commissioner’s Five-Step Analysis of Disability Claims

A claimant must be “disabled” within the meaning of

the Act to receive disability benefits. See 42 U.S.C. §§

423(a), (d). A claimant qualifies as disabled when she is

unable 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.” Id. § 423(d)(1)(A); Shaw, 221 F.3d at 131–32. The

impairment must be of “such severity” that the claimant is

unable to do her previous work or engage in any other kind of

substantial gainful work. 42 U.S.C. § 423(d)(2)(A).

The regulations promulgated by the Commissioner

prescribe a five-step sequential evaluation process for

determining whether a claimant meets the Act’s definition of

disability. See 20 C.F.R. § 404.1520. The Commissioner’s

process is essentially as follows:

[I]f the Commissioner determines (1) that the claimant is

not working, (2) that [s]he has a ‘severe impairment,’ (3)

that the impairment is not one [listed in Appendix 1 of the

regulations] that conclusively requires a determination of

disability, and (4) that the claimant is not capable of

continuing in [her] prior type of work, the Commissioner

must find [her] disabled if (5) there is not another type

of work the claimant can do.

Burgess, 537 F.3d at 120 (quoting Green-Younger v. Barnhart, 335

F.3d 99, 106 (2d Cir. 2003)); accord 20 C.F.R. § 404.1520(a)(4).

If the answer at any of the previously mentioned steps is “no,”

the analysis stops and the ALJ must find that the claimant does

not qualify as disabled under the Act.

“The claimant has the general burden of proving . . .

his or her case at steps one through four of the sequential

five-step framework established in the SSA regulations.”

Burgess, 537 F.3d at 128 (internal quotation marks and citations

omitted). “However, [b]ecause a hearing on disability benefits

is a nonadversarial proceeding, the ALJ generally has an

affirmative obligation to develop the administrative record.”

Id. (internal quotation marks omitted). “The burden falls upon

the Commissioner at the fifth step of the disability evaluation

process to prove that the claimant, if unable to perform her

past relevant work [and considering her residual functional

capacity, age, education, and work experience], is able to

engage in gainful employment within the national economy.”

Sobolewski v. Apfel, 985 F. Supp. 300, 310 (E.D.N.Y. 1997).

“The Commissioner must consider the following in

determining a claimant’s entitlement to benefits: ‘(1) the

objective medical facts [and clinical findings]; (2) diagnoses

or medical opinions based on such facts; (3) subjective evidence

of pain or disability . . . ; and (4) the claimant’s educational

background, age, and work experience.’” Balodis v. Leavitt, 704

F. Supp. 2d 255, 262 (E.D.N.Y. 2001) (quoting Brown v. Apfel,

174 F.3d 59, 62 (2d Cir. 1999) (alterations in original)). If

the Commissioner finds a combination of impairments, the

Commissioner must also consider whether “the combined effect of

all of [a claimant’s] impairment[s]” establish the claimant’s

eligibility for Social Security benefits. 20 C.F.R. §

404.1523(c); see also id. § 416.945(a)(2).

II. ALJ Kilgannon’s Application of the Five-Step Analysis

Using the five-step sequential process to determine

whether a claimant is disabled as mandated by 20 C.F.R. §

416.971, ALJ Kilgannon made the following determinations:

At step one, ALJ Kilgannon found that Roginsky had not

engaged in substantial gainful activity since October 3, 2013,

the alleged onset date of Roginsky’s disability. (Tr. 17.)

At step two, ALJ Kilgannon found that Roginsky

suffered from the following “severe” impairments: right knee

impairment, hand tremors, obesity, and learning disability.

(Id.) ALJ Kilgannon also found that Roginsky suffered from

several “non-severe” impairments: hypertension, sleep apnea,

and depression/adjustment disorder. (Id. at 17-18.) ALJ

Kilgannon noted that a consultative examiner, Rachel Felsenfeld,

Ph.D., examined Roginsky and diagnosed him with an adjustment

disorder with depressed mood and learning disability. (Id. at

18.) ALJ Kilgannon did not, however, perform the psychiatric

review technique as mandated by 20 C.F.R. § 404.1520a.1

At step three, ALJ Kilgannon considered Listings 1.02

(major disfunction of a joint) and 12.05 (intellectual disorder)

but determined that Roginsky did not have an impairment, or

combination of impairments, that meets or medically equals one

of the impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App’x

1. (Id. at 18-19.)

At step four, ALJ Kilgannon concluded that Roginsky

could not perform his past relevant work as a Patient

Transporter. (Id. at 23.) ALJ Kilgannon did, however, find

that Roginsky could perform “sedentary” work with the following

limitations: no climbing ladders, ropes or scaffolds;

occasional climbing ramps and stairs; occasional crouching,

crawling, balancing, stooping, and kneeling; frequent handling,

fingering, and feeling with bilateral extremities; no hazards

such as moving machinery and unprotected heights; and only

unskilled tasks. (Id. at 19.)

At step five, ALJ Kilgannon concluded that Roginsky

could perform jobs available in substantial numbers in the

national economy, including Addresser, Document Preparer, and

Surveillance System Monitor. (Id. at 24.) Thus, ALJ Kilgannon

1 Although the Court remands on other grounds, the Commissioner should be

mindful on remand that he must assess Roginsky’s mental impairments pursuant

to the Special Technique, as required by 20 C.F.R. § 404.1520a.

found that Roginsky did not qualify as disabled within the

meaning of the Act. (Id.)

III. ALJ Kilgannon’s Error in Applying the Five-Step Analysis

a. ALJ Kilgannon Provided an Incomplete RFC Assessment

Roginsky argues that ALJ Kilgannon erred by concluding

that Roginsky could perform sedentary work, despite the fact

that Dr. Fuchs found Roginsky unable to sit, stand, or walk for

more than one hour at a time. The Court cannot meaningfully

review ALJ Kilgannon’s decision in this regard because, contrary

to applicable regulations, ALJ Kilgannon did not set forth the

restrictions applicable to Roginsky’s work-related abilities on

a function-by-function basis.

An ALJ assessing a claimant’s RFC “must first identify

the individual’s functional limitations or restrictions and

assess his or her work-related abilities on a function-by-

function basis.” Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir.

2013) (quoting Titles II & Xvi: Assessing Residual Functional

Capacity in Initial Claims, SSR 96-8P (S.S.A. July 2, 1996)).

“[T]he ALJ [must] include in his RFC assessment a ‘function-by-

function analysis of the claimant’s functional limitations or

restrictions and an assessment of the claimant’s work-related

abilities on a function-by-function basis.’” Palascak v.

Colvin, No. 11-CV-0592(MAT), 2014 WL 1920510, at *10 (W.D.N.Y.

May 14, 2014) (quoting Zurenda v. Astrue, No. 11–CV–1114

(MAD/VEB), 2013 WL 1183035, at *4 (N.D.N.Y. Mar. 1, 2013),

report and recommendation adopted, 2013 WL 1182998 (N.D.N.Y.

Mar. 21, 2013)). “[T]he ALJ must make a function by function

assessment of the claimant’s ability to sit, stand, walk, lift,

carry, push, pull, reach, handle, stoop, or crouch, based on

medical reports from acceptable medical sources that include the

sources’ opinions as to the claimant’s ability to perform each

activity.” Knighton v. Astrue, 861 F. Supp. 2d 59, 66 (N.D.N.Y.

2012) (citing 20 C.F.R. §§ 404.1513(c)(1), 404.1569a(a),

416.969a(a); Martone v. Apfel, 70 F. Supp. 2d 145, 150 (N.D.N.Y.

1999)). “Only after that may RFC be expressed in terms of the

exertional levels of work, sedentary, light, medium, heavy, and

very heavy.” SSR 96-8P; see also, e.g., Hilsdorf v. Comm’r of

Soc. Sec., 724 F. Supp. 2d 330, 348–49 (E.D.N.Y. 2010).

ALJ Kilgannon’s decision relied on Dr. Fuchs’ opinion

that Roginsky could sit for up to 8 hours a day. But ALJ

Kilgannon did not address the accompanying limitation that

Roginsky could not sit, stand, or walk for more than one hour at

a time. Without ALJ Kilgannon’s reasoning on this point, the

Court cannot conclude whether ALJ Kilgannon assessed no such

limitations in Roginsky’s ability to sit, stand, or walk for

more than one hour at time or, alternatively, failed to properly

consider Dr. Fuchs’ opinion. As ALJ Kilgannon failed to

properly explain his reasoning, the Court cannot adequately

review his findings and remand is appropriate.2 See, e.g., Welch

v. Comm’r of Soc. Sec., No. 17-CV-6764 (JS), 2019 WL 4279269, at

*3 (E.D.N.Y. Sept. 10, 2019); see also SSR 96-8P (“[A] failure

to first make a function-by-function assessment of the

individual’s limitations or restrictions could result in the

adjudicator overlooking some of an individual’s limitations or

restrictions.”); Cichocki, 729 F.3d at 177 (“Remand may be

appropriate . . . where an ALJ fails to assess a claimant’s

capacity to perform relevant functions, despite contradictory

evidence in the record, or where other inadequacies in the ALJ's

analysis frustrate meaningful review.”).

b. ALJ Kilgannon’s Finding that Roginsky Could Perform

Frequent Handling & Fingering

Roginsky also argues that ALJ Kilgannon erred in

failing to consider the evidence in the record relating to

Roginsky’s severe hand tremors. ALJ Kilgannon found that

Roginsky’s hand tremors qualified as a “severe” impairment.

(Tr. 17.) But Roginsky incorrectly states that ALJ Kilgannon

2 The Commissioner cites to other evidence in the record which he argues

supports ALJ Kilgannon’s decision, and specifically, to the testimony of Dr.

Caiati, Dr. Famulare, and Dr. Goodwillie. (ECF No. 14, Commissioner’s Mot.

for J. on the Pleadings, at 17.) ALJ Kilgannon accorded limited weight to

the opinions of each of the cited physicians. (Tr. 21-22.) Although the

Commissioner attempts to rationalize how ALJ Kilgannon could have accepted

some portions of these physicians’ opinions – i.e., those related to

Roginsky’s limitations in sitting, standing, and walking – the Court cannot

accept such post hoc rationalizations given the lack of any corresponding

discussion in ALJ Kilgannon’s decision. See Newbury v. Astrue, 321 F. App’x

16, 18 (2d Cir. 2009) (“A reviewing court “‘may not accept appellate

counsel’s post hoc rationalizations for agency action.’” (quoting Snell v.

Apfel, 177 F.3d 128, 134 (2d Cir. 1999))).

identified no evidence in support of his finding that, despite

this severe impairment, Roginsky could frequently handle,

finger, and feel bilaterally despite the hand tremors. ALJ

Kilgannon cited Dr. Fuchs’ opinion that Plaintiff could

continuously use his hands to support his finding regarding

Plaintiff’s ability to use his hands. (Id. at 22.) The only

other opinion in the administrative record addressing Roginsky’s

use of his hands was the opinion of psychologist Stephen Kaplan

(“Dr. Kaplan”), which ALJ Kilgannon rejected as outside the area

of Dr. Kaplan’s specialty. (Id. at 22.) As Dr. Kaplan is not a

physician, physiatrist, physical therapist, or qualified in any

manner to issue opinions as to physical impairments, the Court

cannot say that ALJ Kilgannon erred in giving little weight to

Dr. Kaplan’s findings regarding Roginsky’s physical status. In

any event, as Dr. Fuchs is a non-examining source and there is

no proper opinion in the record from an examining source

discussing Roginsky’s hand tremors, the Court directs that, on

remand, ALJ Kilgannon seek an opinion from an examining source

as to the effects Roginsky’s hand tremors may have on his

manipulative limitations.

Conclusion

Federal regulations explicitly authorize a court, when

reviewing decisions of the SSA, to order further proceedings

where appropriate. 42 U.S.C. § 405(g) (“The court shall have

power to enter, upon the pleadings and transcript of the record,

a judgment affirming, modifying, or reversing the decision of

the Commissioner of Social Security, with or without remanding

the cause for a rehearing.”). Remand is warranted where “there

are gaps in the administrative record or the ALJ has applied an

improper legal standard.” Rosa v. Callahan, 168 F.3d 72, 82-83

(2d Cir. 1999) (quoting Pratts v. Chater, 94 F.3d 34, 39 (2d

Cir. 1996) (internal quotation marks omitted)). Remand is

particularly appropriate where, as here, further findings or

explanation will clarify the rationale for the ALJ’s decision.

Pratts, 94 F.3d at 39. The Court finds that ALJ Kilgannon

failed to explain his findings and REMANDS this action for

further proceedings consistent with this Memorandum and Order.

SO ORDERED.

Dated: Brooklyn, New York

January 28, 2020

/s/

Hon. Kiyo A. Matsumoto

United States District Judge