Schofield v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

STEPHANIE S.,

Plaintiff,

Vv. 3:20-CV-1557

(DJS)

KILOLO KIJAKAZI, Acting

Commissioner of Social Security,

Defendant.

APPEARANCES: OF COUNSEL:

STEPHANIE S.

Plaintiff, Pro Se

“) Norwich, New York 13815

U.S. SOCIAL SECURITY ADMIN. HUGH DUN RAPPAPORT, ESQ.

OFFICE OF REG’L GEN. COUNSEL

Attorney for Defendant

J.F.K. Federal Building - Room 625

15 New Sudbury Street

Boston, Massachusetts 02203

DANIEL J. STEWART

United States Magistrate Judge

MEMORANDUM-DECISION AND ORDER!

Plaintiff pro se, Stephanie S., brought this action pursuant to 42 U.S.C. § 405(g)

seeking review of a decision by the Commissioner of Social Security that Plaintiff was

' Upon Plaintiffs consent, the United States’ general consent, and in accordance with this District’s General Order

18, this matter has been referred to the undersigned to exercise full jurisdiction pursuant to 28 U.S.C. § 636(c) and

Federal Rule of Civil Procedure 73. See Dkt. No. 5 & General Order 18.

not disabled. Currently before the Court are Plaintiff's Motion for Judgment on the

Pleadings and Defendant’s Motion for Judgment on the Pleadings. Dkt. Nos. 20 & 26.

For the reasons set forth below, Plaintiff's Motion for Judgment on the Pleadings is

granted and Defendant’s Motion is denied.

I. RELEVANT BACKGROUND

A. Background

Plaintiff was born in 1973. Dkt. No. 16, Admin. Tr. (“Tr.’’), p. 207. Plaintiff

reported completing high school. Tr. at p. 212. She has past work experience in the

construction and hospitality industries. /d. Plaintiff alleges disability based upon a

splinter above her left buttock that resulted in an infected leg and four surgeries. Tr. at

p. 211. Plaintiff applied for disability insurance benefits in September 2017. Tr. at pp.

11 & 168-169. She alleged a disability onset date of April 24, 2015. Tr. at p. 207.

Plaintiff's application was initially denied on April 12, 2018. Tr. at pp. 89-97. Plaintiff

sought reconsideration, Tr. at p. 98, which was denied. Tr. at pp. 99-106. Plaintiff

requested a hearing before an Administrative Law Judge (“ALJ”). Tr. at p. 107.

Plaintiff appeared at a hearing before ALJ Randall Frye on January 14, 2020. Tr. at pp.

28-64. On April 13, 2020, the ALJ issued a written decision finding Plaintiff was not

disabled under the Social Security Act. Tr. at pp. 11-22. On October 21, 2020, the

Appeals Council denied Plaintiff's request for review, making the ALJ’s decision the

final decision of the Commissioner. Tr. at pp. 1-4.

B. The ALJ’s Decision

In his decision, the ALJ made the following findings of fact and conclusions of

law. First, the ALJ found that Plaintiff last met the insured status requirements of the

Social Security Act on June 30, 2019 and that she had not engaged in substantial gainful

activity during the period between her alleged onset date and her date last insured. Tr.

at p. 13. Second, the ALJ found that Plaintiff had the following severe impairment:

complex regional pain syndrome associated with history of wood splinter in left upper

leg with infection and surgery. /d. Third, the ALJ found that Plaintiff does not have an

impairment or combination of impairments that meets or medically equals one of the

listed impairments in 20 C.F.R. § 404, Subpart P, App. 1 (the “Listings”). Tr. at p. 14.

Fourth, the ALJ found that Plaintiff has the residual functional capacity (“RFC”) “to

perform light work (lift and carry 20 pounds occasionally and 10 pounds frequently, as

defined in 20 C.F.R. 404.1567(b)), except she can sit/stand one time briefly each hour,

and she should not perform any climbing or work around heights or dangerous

equipment.” /d. Fifth, the ALJ found that Plaintiff could not perform her past relevant

work. Tr. at p. 20. Sixth, the ALJ found that based upon Plaintiff's age, education, and

functional abilities there are other jobs that exist in significant numbers in the national

economy that Plaintiff can perform, specifically work as a marker, router, or

photocopier. Tr. at p. 21. The ALJ, therefore, concluded that Plaintiff is not disabled.

Td.

Il. RELEVANT LEGAL STANDARDS

A. Standard of Review

A court reviewing a denial of disability benefits may not determine de novo

whether an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health &

Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s

determination will be reversed only if the correct legal standards were not applied, or it

was not supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 986

(2d Cir. 1987) (“Where there is a reasonable basis for doubt whether the ALJ applied

correct legal principles, application of the substantial evidence standard to uphold a

finding of no disability creates an unacceptable risk that a claimant will be deprived of

“| the right to have her disability determination made according to the correct legal

principles.”); accord Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983), Marcus v.

Califano, 615 F.2d 23, 27 (2d Cir. 1979). “Substantial evidence” is evidence that

amounts to “more than a mere scintilla,” and has been defined as “such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.” Richardson v.

Perales, 402 U.S. 389, 401 (1971). Where evidence is deemed susceptible to more than

one rational interpretation, the Commissioner’s conclusion must be upheld. Rutherford

v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

“To determine on appeal whether the ALJ’s findings are supported by substantial

evidence, a reviewing court considers the whole record, examining evidence from both

sides, because an analysis of the substantiality of the evidence must also include that

which detracts from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).

If supported by substantial evidence, the Commissioner’s finding must be sustained

“even where substantial evidence may support the plaintiff's position and despite that

the court’s independent analysis of the evidence may differ from the [Commissioner’s].”

Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court

must afford the Commissioner’s determination considerable deference, and may not

substitute “its own judgment for that of the [Commissioner], even if it might justifiably

have reached a different result upon a de novo review.” Valente v. Sec’y of Health &

Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

B. Standard to Determine Disability

The Commissioner has established a five-step evaluation process to determine

whether an individual is disabled as defined by the Social Security Act. 20 C.F.R. §§

404.1520, 416.920. The Supreme Court has recognized the validity of this sequential

evaluation process. Bowen vy. Yuckert, 482 U.S. 137, 140-42 (1987). The five-step

process is as follows:

First, the [Commissioner] considers whether the claimant is currently

engaged in substantial gainful activity. If he is not, the [Commissioner]

next considers whether the claimant has a “severe impairment” which

significantly limits his physical or mental ability to do basic work

activities. If the claimant suffers such an impairment, the third inquiry is

whether, based solely on medical evidence, the claimant has an

impairment which is listed in Appendix 1 of the regulations. If the

claimant has such an impairment, the [Commissioner] will consider him

disabled without considering vocational factors such as age, education,

and work experience; the [Commissioner] presumes that a claimant who

is afflicted with a “listed” impairment is unable to perform substantial

gainful activity. Assuming the claimant does not have a listed impairment,

the fourth inquiry is whether, despite the claimant’s severe impairment, he

has the residual functional capacity to perform his past work. Finally, if

the claimant is unable to perform his past work, the [Commissioner] then

determines whether there is other work which the claimant could perform.

Under the cases previously discussed, the claimant bears the burden of the

proof as to the first four steps, while the [Commissioner] must prove the

final one.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord McIntyre v. Colvin, 758

F.3d 146, 150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can

be made, the SSA will not review the claim further.” Barnhart v. Thompson, 540 U.S.

20, 24 (2003).

C. Plaintiff's Pro Se Status

Given that Plaintiff 1s proceeding pro se the Court is mindful of its obligation to

“engage in a searching inquiry when deciding whether substantial evidence supports an

administrative fact finding, whether or not a pro se litigant is perceptive enough to

identify a specific evidentiary deficiency.” Smith v. Comm’r of Soc. Sec., 2014 WL

3392336, at *4 (N.D.N.Y. July 10, 2014) (citing Monette v. Astrue, 269 F. App’x 109,

110 (2d Cir. 2008)). In doing so, the Court has held Plaintiff's “pleadings to less

”| stringent standards than formal pleadings drafted by lawyers” and has construed them

“to raise the strongest arguments that they suggest.” Rose v. Comm’r of Soc. Sec., 202

F. Supp. 3d 231, 239 (E.D.N.Y. 2016) (internal quotations and citations omitted).

I. ANALYSIS

A. The Five Step Sequential Analysis

Since Plaintiff has not identified potential errors in the ALJ’s analysis, the Court

has examined the record at each step of the sequential analysis for error.

“At step one of the sequential analysis, the ALJ must consider a plaintiff's work

activity during the period of alleged disability.” Parks v. Comm’r of Soc. Sec., 2016

WL 590227, at *4 (N.D.N.Y. Feb. 11, 2016) (citing C.F.R. § 404.1520(a)(i)). “If the

claimant is currently engaged in substantial gainful employment, she will be found not

disabled.” Ewing v. Astrue, 2013 WL 1213129, at *4 (N.D.N.Y. Mar. 22, 2013). Here,

the ALJ found that Plaintiff had not engaged in substantial gainful employment since

“| the alleged onset date of her disability. Tr. at p. 13. The record supports this conclusion.

Tr. at p. 192 (earnings record reflecting no income in years 2016-2019).

“At step two of the sequential analysis, the ALJ must determine whether the

claimant has a ‘severe medically determinable physical or mental impairment.’” Pepper

v. Comm’r of Soc. Sec., 2015 WL 3795879, at *2 (N.D.N.Y. June 17, 2015) (quoting 20

C.F.R. § 404.1520(a)(4)(i)). A condition will be found not severe when it does not

significantly impact or limit the individual’s ability to do basic work. /d. Prior to her

hearing before the ALJ, Plaintiff identified a splinter near her left buttock and history of

surgeries on her infected leg as her disabling medical conditions. Tr. at p. 211. The

ALJ found Plaintiff to have a severe impairment as it related to the splinter and

subsequent surgeries. Tr. at p. 13.

The ALJ’s findings at these first two steps were clearly favorable to Plaintiff and

no basis for remand.

“Step three requires a determination as to ‘whether, based solely on medical

evidence, the claimant has an impairment which is listed in Appendix 1 of the

“)regulations.’” Rivas v. Barnhart, 2005 WL 183139, at *19 (S.D.N.Y. Jan. 27, 2005)

(quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)). “For a claimant to show

that [her] impairment matches a listing, 1t must meet a// of the specified medical criteria.

An impairment that manifests only some of those criteria, no matter how severely, does

not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990). Here, the ALJ considered

whether Plaintiff's condition met Listing 1.08 and concluded that it did not. Tr. at p. 14.

Upon review, the ALJ’s conclusion in this regard is supported by substantial evidence.

Listing section 1.08 requires:

Soft tissue injury (e.g., burns) of an upper or lower extremity, trunk, or

face and head, under continuing surgical management, as defined in

1.00M, directed toward the salvage or restoration of major function, and

such major function was not restored or expected to be restored within 12

months of onset.

20 C.F.R. Pt. 404, Subpart P, App. 1, § 1.08. “Listing 1.00(M) defines ‘continuing

surgical management’ as ‘surgical procedures and any other associated treatments

related to the efforts directed toward the salvage or restoration of functional use of the

affected part.”” Murray v. Comm’r of Soc. Sec., 2014 WL 4199725, at *12 (E.D.N.Y.

Aug. 21, 2014) (quoting 20 C.F.R. Part 404, Subpart P, App. 1, § 1.00(M)). The ALJ

reasoned that Plaintiff did not demonstrate that she was disabled under this Listing

because her surgeries “were not procedures directed toward salvage or restoration of

major function of the claimant’s lower extremity and moreover, she retained function of

her lower extremity.” Tr. at p. 14. There is no basis for concluding that the ALJ erred

in his analysis.

As of November 2015, Plaintiff's surgeon reported that her surgical wounds were

“well healed” and “she appears to be doing very well and I do not identify any particular,

complicating features or concerns.” Tr. at p. 409. Her doctor indicated she could return

to work at “full duty” after completing physical therapy. /d. This was roughly seven

months after her initial injury. See Tr. at p. 33 (noting injury occurred in April 2015).

Thus, while Plaintiff concededly underwent several surgeries, the record does not

“| demonstrate that she experienced continued surgical intervention without improvement

over a twelve-month period. As such, she cannot show she met the requirements of

Listing 1.08. Lopez v. Berryhill, 448 F. Supp. 3d 328, 351 (S.D.N.Y. 2020); Murray v.

Comm’r of Soc. Sec., 2014 WL 4199725, at *14.

Prior to moving to step four, the ALJ must determine the Plaintiff's residual

functional capacity. 20 C.F.R. § 404.1520(e); Hall v. Colvin, 2016 WL 6989806, at *10

(N.D.N.Y. Nov. 29, 2016). “In assessing a claimant’s RFC, an ALJ must consider all

of the relevant medical and other evidence, including a claimant’s subjective complaints

of pain.” Mills v. Astrue, 2012 WL 6681685, at *3 (N.D.N.Y. Dec. 21, 2012) (internal

quotations and citations omitted); see also Knapp v. Apfel, 11 F. Supp. 2d 235, 238

(N.D.N.Y. 1998) (“The RFC is determined by considering all relevant evidence’). The

question for the Court is whether the RFC is supported by substantial evidence. Mills

v. Astrue, 2012 WL 6681685, at *3. This Court has consistently required that an ALJ

“explain the weight given to the various opinions on which he relies, and generally

ensure that the discussion of the evidence in the determination or decision allows a

claimant or subsequent reviewer to follow the adjudicator’s reasoning.” Christeenia C.

v. Saul, 2021 WL 2644104, at *4 (N.D.N.Y. June 28, 2021). An ALJ must build an

accurate and logical bridge between the evidence and her conclusion to enable the Court

to undertake a meaningful review. Pamela P. v. Saul, 2020 WL 2561106, at *4

(N.D.N.Y. May 20, 2020). Here, the record is lacking in this regard and remand is

required.

The ALJ found Plaintiff had the RFC to “perform light work (lift and carry 20

pounds occasionally and 10 pounds frequently, as defined in 20 CFR 404.1567(b)),

except she can sit/stand one time briefly each hour, and she should not perform any

climbing or work around heights or dangerous equipment.” Tr. at p. 14. Exactly how

the ALJ reached this conclusion is unclear. The ALJ purported to rely on statements in

the medical records of Drs. Cardwell, Bhasin, and Stanley which the ALJ found “were

consistent with one another and were very persuasive as well.” Tr. at p. 20. Upon closer

examination, however, these statements do not provide a clear explanation for the RFC

finding here.

As discussed above, in November 2015, Dr. Bhasin stated that Plaintiff's surgical

wounds were “well healed” and that she could return to work at “full duty” upon

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completing physical therapy. Tr. at p. 409.7 Just a month earlier, Dr. Stanley noted that

Plaintiff's pain was “markedly improved.” Tr. at p. 397. Dr. Stanley further noted that

Plaintiff could engage in activity as tolerated and was being discharged from Dr.

Stanley’s care. Jd. While the ALJ referred to “opinions” from Drs. Bhasin and Stanley,

“neither of the statements relied upon by him actually qualify as opinions under the

applicable regulations. “A medical opinion is a statement from a medical source about

what you can still do despite your impairment(s) and whether you have one or more

impairment-related limitations or restrictions.” 20 C.F.R. § 404.1513(a)(2). Put another

way, “[a] medical opinion discusses the plaintiffs ability to perform physical demands

of work activities; mental demands of work activities; other demands of work; and adapt

to environmental conditions.” Michael H. v. Saul, 2021 WL 2358257, at *5 (N.D.N.Y.

June 9, 2021). The information gleaned from the medical notes of two providers clearly

does not meet those standards. The ALJ’s basis for relying on those statements in the

record as medical opinions is, therefore, unclear.

The ALJ’s consideration of Dr. Cardwell’s records is also problematic. The

record also lacks a specific medical opinion, as defined above, from Dr. Cardwell on

which the ALJ could rely. Several other factors give the Court pause about the ALJ’s

consideration of evidence related to Dr. Cardwell’s care of Plaintiff. First, the ALJ

2 The opinion was clearly contingent. Tr. at p. 409 (indicating Plaintiff could return to work “once her physical

therapy is complete.”). The ALJ failed to address that contingency in discussing Dr. Bhasin’s opinion and the

record is unclear about the timing of any therapy after this statement. Evaluation of contingent opinions, however,

requires express consideration of whether the stated contingency has been satisfied. See Campbell v. Berryhill,

2019 WL 691781, at *6 (S.D. Ala. Feb. 19, 2019).

1]

appears to have relied heavily on a notation in Dr. Cardwell’s records that as of August

2018, Plaintiff had returned to working tn the construction industry. See Tr. at pp. 20 &

644. It is unclear why the ALJ credited that statement despite Plaintiff's express denial

of the claim during her administrative hearing. Tr. at p. 34 (“I did not work after the

S)injury.”). The ALJ’s acceptance of that fact also raises questions about his finding that

Plaintiff had not engaged in substantial gainful activity during the relevant period ending

in 2019. See Tr. at p. 13.

Second, the ALJ appears to have taken very different views of two letters from

Dr. Cardwell in 2019 without providing an adequate basis for doing so. The ALJ credits

the statements in a June 2019 letter indicating that Plaintiff had difficulty sitting for

“| extended periods of time by imposing a sit/stand option in the RFC. Tr. at p. 20. The

ALJ appears, however, to completely discredit a December 2019 letter. Jd. While the

ALJ properly found that Dr. Cardwell’s December statement that Plaintiff could not

work was an issue properly reserved for the Commissioner, Becky Sue H. v. Kijakazi,

2022 WL 304518, at *2 n.5 (N.D.N.Y. Feb. 2, 2022) (statements “that a claimant is

‘disabled’ or ‘unable to work’ are not medical opinions.”), the ALJ’s decision fails to

explain his different treatment of the two letters. The explanation he offers, regarding

the lack of consistency between the limitations discussed in the December letter,

Plaintiff's daily activities, and Dr. Cardwell’s treatment records might very well be

sufficient. The ALJ, however, did not account for why the limitations in the June letter

would have been accepted by the ALJ. For example, the ALJ relies on Plaintiffs ability

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to drive from Rhode Island to North Carolina as a basis for discounting the December

letter, but accepts the June letter’s need for a sit/stand option. Tr. at p. 20. The ALJ’s

unexplained, differing treatment of the letters precludes this Court from meaningfully

reviewing his conclusions. Remand, therefore, is necessary to evaluate Plaintiff's RFC.

IV. CONCLUSION

ACCORDINGLY, it is

ORDERED, that Plaintiff's Motion for Judgment on the Pleadings is

GRANTED; and it is

ORDERED, that Defendant’s Motion for Judgment on the Pleadings is

DENIED; and it is further

ORDERED, that Defendant’s decision denying Plaintiff disability benefits is

REMANDED for further proceedings under section four of section 405; and it is further

ORDERED, that the Clerk of the Court shall serve copies of this Memorandum-

Decision and Order on the parties.

Dated: June 10, 2022

Albany, New York

De el J. Ste xart)

U.SMMagistrate Judge

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