Matott v. Kijakazi

NORTHERN DISTRICT OF NEW YORK

PENNY M.,

Plaintiff,

v.

8:20-CV-1334

KILOLO KIJAKAZI, ACTING (ATB)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

ARTHUR P. ANDERSON, ESQ., for Plaintiff

NATASHA OELTJEN, Special Asst. U.S. Attorney, for Defendant

ANDREW T. BAXTER

United States Magistrate Judge

MEMORANDUM-DECISION AND ORDER

This matter was referred to me, for all proceedings and entry of a final judgment,

pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No. 18, and in

accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, N.D.N.Y.

Local Rule 73.1 and the consent of the parties. (Dkt. Nos. 4, 5).

I. PROCEDURAL HISTORY

On February 6, 2018, plaintiff filed an application for disability insurance

benefits (“DIB”), alleging that she became disabled on November 26, 2014.

(Administrative Transcript (“T.”) 455, 523-26). The claim was denied initially on April

10, 2018. (T. 455, 463-68). Plaintiff requested a hearing, which was held on October

10, 2019 before Administrative Law Judge (“ALJ”) Arthur Patane. (T. 409-22).

Plaintiff testified at the hearing, accompanied by a non-attorney representative. (Id.)

ALJ Patane issued an unfavorable decision on November 14, 2019 (T. 10-16), which

request for review on August 20, 2020 (T. 1-6).

II. GENERALLY APPLICABLE LAW

A. Disability Standard

To be considered disabled, a plaintiff seeking disability insurance benefits or SSI

disability benefits must establish that 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 twelve months . . . .” 42 U.S.C. § 1382c(a)(3)(A). In

addition, the plaintiff’s

physical or mental impairment or impairments [must be] of such severity

that [she] is not only unable to do [her] previous work but cannot,

considering [her] age, education, and work experience, engage in any other

kind of substantial gainful work which exists in the national economy,

regardless of whether such work exists in the immediate area in which

[she] lives, or whether a specific job vacancy exists for [her], or whether

[she] would be hired if [she] applied for work

42 U.S.C. § 1382(a)(3)(B). The Commissioner uses a five-step process, set forth in 20

C.F.R. sections 404.1520 and 416.920, to evaluate disability insurance and SSI

disability claims.

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

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

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

significantly limits [her] 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 meets or equals the criteria of an impairment listed in Appendix 1 of

the regulations. If the claimant has such an impairment, the

vocational factors such as age, education, and work experience …

Assuming the claimant does not have a listed impairment, the fourth

inquiry is whether, despite the claimant’s severe impairment, [she] has the

residual functional capacity to perform [her] past work. Finally, if the

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

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

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see 20 C.F.R. §§ 404.1520,

416.920. The plaintiff has the burden of establishing disability at the first four steps.

However, if the plaintiff establishes that her impairment prevents her from performing

her past work, the burden then shifts to the Commissioner to prove the final step. Id.

B. Scope of Review

In reviewing a final decision of the Commissioner, a court must determine

whether the correct legal standards were applied and whether substantial evidence

supported the decision. Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013); Brault v.

Soc. Sec. Admin. Comm’r, 683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g).

Substantial evidence is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.

2012). It must be “more than a scintilla” of evidence scattered throughout the

administrative record. Id. However, this standard is a very deferential standard of

review, “even more so than the ‘clearly erroneous standard.’” Brault, 683 F.3d at 448.

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

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

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

that which detracts from its weight.” Williams on behalf of Williams v. Bowen, 859 F.2d

interpretation of the administrative record for that of the Commissioner, if the record

contains substantial support for the ALJ’s decision. Id. See also Rutherford v.

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

An ALJ is not required to explicitly analyze every piece of conflicting evidence

in the record. See, e.g., Monguer v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles

v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (Finding we are unwilling to require an

ALJ explicitly to reconcile every conflicting shred of medical testimony). However, the

ALJ cannot “pick and choose evidence in the record that supports his conclusions.”

Cruz v. Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); Fuller v. Astrue, No. 09-

CV-6279, 2010 WL 5072112 (W.D.N.Y. Dec. 6, 2010).

III. FACTS

Plaintiff was 52 years old on the date of the administrative hearing. (T. 412).

She had completed school through the 12th grade, but did not graduate, nor did she

obtain a GED. (T. 415). She lived with her husband. (Id.).

Plaintiff was most recently employed as a janitor at SUNY Plattsburgh, having

retired from that position in 2011 after twenty years. (T. 412). She testified that she

was on “retirement disability” from the state, because she could no longer perform her

job duties. (Id.). The disability precipitating plaintiff’s retirement stemmed from a

shoulder condition – she suffered an injury on the job in 2010, after which she had right

shoulder surgery. (T. 414, 416). Since the surgery, plaintiff had experienced

and had trouble gripping. (T. 414). Her right hand felt heavy “all the time,” and her

fingers were “always numb.” (T. 414, 416, 419-20). At times, plaintiff had difficulty

driving, and could only travel short distances. (T. 418). The swelling in her arm was

exacerbated by reaching and performing housework. (T. 419). She did not cook,

because she dropped items such as hot pans. (Id.).

Plaintiff also stated that she had an upcoming surgery on her neck, due to

increasing weakness in her arms. (T. 417-18). She had undergone “two knee surgeries

in the past couple years,” in addition to weight loss surgery. (T. 418-19). She

continued to experience trouble walking. (T. 419).

At the conclusion of the administrative hearing, which took place in October

2019, the ALJ pointed out that plaintiff’s date last insured was in 2016, and requested

that plaintiff’s representative provide a post-hearing submission developing the record

specific to the time period prior to that date. (T. 421). In discussing this matter,

representative described plaintiff’s right arm/shoulder condition as an “ongoing issue,”

causing plaintiff continued limitations in, among other things, reaching and handling

since her 2010 injury and subsequent surgery. (T. 421).

IV. THE ALJ’S DECISION

At step one of the sequential evaluation, the ALJ found that plaintiff last met her

insured status requirements for DIB on December 31, 2016. (T. 12). The ALJ found

that plaintiff had the following severe impairments at step two: disc herniation at the

1Plaintiff testified that she was right-handed. (T. 416).

esophageal reflux disease (“GERD”). (Id.). At step three, the ALJ determined that

plaintiff did not have an impairment or combination of impairments that met or

medically equaled the severity of a listed impairment. (Id.).

At step four, the ALJ found that, “through the date last insured,” plaintiff could

perform the full range of light work as defined in 20 C.F.R. § 404.1567(b). (T. 13).

Based on this RFC, the ALJ found that plaintiff could not perform any of her past

relevant work. (T. 15). However, at step five, the ALJ found that based on plaintiff’s

RFC, and considering her age, education, and work experience, she could perform other

jobs which exist in significant numbers in the national economy. (T. 15-16).

V. ISSUES IN CONTENTION

Plaintiff raises the following arguments in support of her position that the ALJ’s

decision is not supported by substantial evidence:

1. The ALJ’s RFC determination is not based on any medical opinion. (Pl.’s

Br. at 11-13) (Dkt. No. 20).

2. The ALJ failed to consider the effects of plaintiff’s obesity. (Pl.’s Br. at

13-14).

3. The ALJ erred in rejecting the walking and standing limitations opined by

plaintiff’s primary care physician. (Pl.’s Br. at 14-16).

4. The ALJ erred in omitting an evaluation of plaintiff’s right upper extremity

impairment, and the limitations flowing therefrom. (Pl.’s Br. at 16-18).

5. The ALJ failed to incorporate and consider medical evidence from

plaintiff’s prior disability claim. (Id.).

Defendant argues that the ALJ’s decision was supported by substantial evidence, and

following reasons, this court finds that the ALJ’s step two determination was not

supported by substantial evidence, and remand is therefore warranted.

VI. MEDICALLY DETERMINABLE IMPAIRMENT

A. Legal Standards

In order to be found disabled, a claimant must show that she is unable to perform

any substantial gainful activity by reason of a medically determinable physical or

mental impairment that can be expected to result in death or that has lasted or can be

expected to last for a continuous period of not less than 12 months. 20 C.F.R. §§

404.1505(a), 416.905(a). “Consequently, only impairments that are ‘medically

determinable impairments’ can be considered in the disability analysis.” Flower v.

Comm’r of Soc. Sec., No. 6:16-CV-1084 (GTS), 2018 WL 895579, at *5 (N.D.N.Y.

Feb. 13, 2018).

In order to qualify as a medically determinable impairment, an impairment “must

result from anatomical, physiological, or psychological abnormalities which can be

shown by medically acceptable clinical or laboratory diagnostic techniques.2 Therefore,

a physical or mental impairment must be established by objective medical evidence3

2Diagnostic techniques include chemical tests (such as blood tests), electrophysiological studies

(such as electrocardiograms and electroencephalograms), medical imaging (such as X-rays), and

psychological tests. 20 C.F.R. §§ 404.1502(c), 416.902(c).

3Objective medical evidence means signs, laboratory findings, or both. Signs mean one or more

anatomical, physiological, or psychological abnormalities that can be observed, apart from your

statements (symptoms). Signs must be shown by medically acceptable clinical diagnostic techniques.

20 C.F.R. §§ 404.1502(f-g), 416.902(f-g).

416.929; Woodard v. Berryhill, No. 3:17-CV-1124, 2018 WL 3536084, at *4 (D. Conn.

July 23, 2018) (internal quotation marks, citations and brackets omitted). Furthermore,

the evidence must “show the existence of a medical impairment(s) . . . which could

reasonably be expected to produce the pain or other symptoms alleged.” 20 C.F.R. §§

404.1529(b), 416.929(b). The existence of a medically determinable impairment is not

established by a claimant’s “statement of symptoms, a diagnosis, or a medical

opinion[.]” Id. A claimant bears the burden of establishing that he or she has a

medically determinable impairment. Woodard v. Berryhill, 2018 WL 3536084, at *4.

B. Application

Plaintiff argues, among other things, that the ALJ erred in omitting her right

upper extremity condition from consideration at step two of the sequential evaluation

process. (Pl.’s Br. at 16-18). In response, the defendant argues that the ALJ was not

obligated to find that plaintiff’s right upper extremity was a medically determinable

impairment, much less a severe impairment, because this condition “did not appear

limiting until after the relevant period.” (Def.’s Br. at 15).

“Under Title II, a period of disability cannot begin after a worker’s disability

insured status has expired.” Woods v. Colvin, 218 F. Supp. 3d 204, 207 (W.D.N.Y.

Nov. 3, 2016), citing SSR 83-10, 1983 WL 31251, at *8 (Jan. 1, 1983). In other words,

“[i]t is well established that evidence of an impairment which reached disabling

severity after the expiration of insured status, or which was exacerbated after such

expiration, cannot be the basis for the determination of entitlement to a period of

existed before the claimant’s insured status expired.” Ewing v. Astrue, No.

5:11-CV-01418 (TJM), 2013 WL 1213129 *3 (N.D.N.Y. Mar. 22, 2013), citing Arnone

v. Bowen, 882 F.2d 34, 37-38 (2d Cir. 1989). Thus, to defendant’s point, it would have

been proper for the ALJ to decline consideration of plaintiff’s right upper extremity

condition if it was, in fact, dormant until after plaintiff’s date last insured.

The ALJ’s step two analysis in this case was incredibly brief. As previously

noted, the ALJ found that plaintiff’s disc herniation at the L4-5 level of the lumbar

spine; obesity; status-post left knee arthroscopy; and GERD were all medically

determinable impairments which significantly limited her ability to perform basic work

activities. (T. 12). The ALJ did not provide any explanation for his conclusion, nor

justification for the omission of any other medical conditions. Plaintiff’s right upper

extremity was entirely absent from the limited discussion. (Id.). In fact, there is no

meaningful reference to plaintiff’s right upper extremity condition throughout the

ALJ’s decision. Although the ALJ identified plaintiff’s testimony as to “neck and arm

problems,” he apparently dismissed these statements as irrelevant because said

impairments “were limiting after [plaintiff’s] date last insured.” (T. 14).

Plaintiff’s date last insured was December 31, 2016. (T. 12). The record reflects

that, in 2011, plaintiff underwent “SLAP”4 repair surgery to her right shoulder,

subsequent to a work-related injury. (T. 807-09). Several months after the surgery,

plaintiff sought treatment for numbness and “altered sensation” in her right hand. (T.

4A SLAP tear is an injury to the labrum of the shoulder, which is the ring of cartilage that

surrounds the socket of the shoulder joint. https://orthoinfo.aaos.org/en/diseases--conditions/slap-tears.

shoulder, with inconsistent numbness throughout her right hand. (T. 787). She

continued to treat with her orthopedic surgeon, Daniel P. Bullock, M.D., in 2012 and

2013, with complaints of right shoulder pain and decreased range of motion. (T. 785,

786). In September 2013, Dr. Bullock diagnosed plaintiff with a right shoulder strain

versus contusion after a fall, indicating that plaintiff seemed to have aggravated her

shoulder injury. (T. 783). Plaintiff continued to exhibit “some limitations in abduction

and forward flexion” on the right side in October 2013. (T. 781). Dr. Bullock

prescribed plaintiff physical therapy, and indicated that he would see her back on an as-

needed basis. (Id.). He also suggested that plaintiff had reached maximum medical

improvement with respect to her shoulder, for a “total percentage loss of use of 50%[.]”

(T. 786).

Plaintiff continued to complain about her right upper extremity pain during the

relevant period of alleged disability; namely between November 26, 2014, her alleged

onset date, through her date last insured of December 31, 2016. At her annual

examination with her primary care physician, Zbigniew Wolczynski, M.D., on

December 1, 2014, plaintiff reported right shoulder pain and was observed to have

“limitation with movement of the right upper extremity.” (T. 688-89). Included in Dr.

Wolczynksi’s progress note was a “problem list” of diagnoses, including “disorder of

shoulder” and “neck pain.” (T. 688). Plaintiff’s medication list included

acetaminophen with hydrocodone. (Id.).

On October 1, 2015, plaintiff reported to Dr. Wolczynski that she was

observed to be “normal” upon examination. (T. 690-92). She was also observed to

have developed a “hard growth” on her right upper arm. (T. 693). The lesion was

excised on November 23, 2015. (T. 666-67). Then, on July 12, 2016, plaintiff reported

“chronic right shoulder pain” to Dr. Wolczynski, who upon examination noted

plaintiff’s “discomfort with movement of the right upper extremity.” (T. 701-02). She

was advised to continue with her pain medicine as needed. (T. 703).

On September 10, 2016, plaintiff sought treatment in the emergency department

for complaints of right shoulder pain. (T. 764). Plaintiff exhibited shoulder pain with

palpation, and full range of motion with some discomfort. (T. 766). She was

discharged with instructions to follow up with her primary care physician for physical

therapy, and a prescription for pain medication. (Id.).

Plaintiff’s right upper extremity condition was, arguably, complained about and

treated on a more frequent basis after her date last insured. However, the relevant

medical records generated after December 2016 do not contradict plaintiff’s position

that this was an ongoing condition throughout the relevant period of alleged disability.

For example, plaintiff consistently reported to multiple providers that she had

experienced, and continued to experience, intermittent pain and numbness in her right

upper extremity since her 2011 surgery. (T. 638, 640, 708, 711, 714). “[E]vidence of an

applicant’s condition subsequent to the expiration of her insured status ‘is pertinent

evidence in that it may disclose the severity and continuity of impairments existing

before [the date of her insured status expires].’ ” Mattison v. Astrue, No.

see also Patricia S. v. Kijakazi, No. 3:20-CV-01609, 2022 WL 819561, at *3 (D. Conn.

Mar. 18, 2022) (When post-[DLI] medical evidence indicates ‘a continuity of [ ]

problems commencing well before the [DLI],’ ‘implie[s]’ as much, or there is an actual

retroactive diagnosis in the record, an ALJ is ‘obligated . . . to explore the possibility

that the diagnoses applied retrospectively to the insured period’ and fill any gaps in the

record.”).

Although this court stops short of concluding as a matter of law if or when

plaintiff’s right upper extremity condition became a medically determinable

impairment, the ALJ’s reason for omitting the condition at step two, without further

explanation, is at odds with the longitudinal record. As discussed above, there is at

least some objective evidence of record suggesting that plaintiff’s right upper extremity

condition was a diagnosed and established impairment prior to December 2016.

Moreover, Dr. Wolczynski opined in the only medical opinion of record that, prior to

plaintiff’s date last insured, she was limited to reaching, handling, fingering, and

feeling for less than 1/3 of the workday. (T. 884). In light of the foregoing, the court

cannot conclude that the ALJ’s general statement dismissing plaintiff’s upper extremity

condition as irrelevant was the result of proper application of the correct legal

principles, nor supported by substantial evidence.

An error at step two may be harmless if the ALJ identified other severe

impairments, proceeded through the remainder of the sequential evaluation, and

specifically considered all severe and non-severe impairments during subsequent steps

However, the ALJ’s error in this case stemmed not from a step-two severity conclusion,

but from the conclusion that plaintiff’s right upper extremity condition was not a

medically determinable impairment.

“[T]he step-two harmless error doctrine is inapplicable to a determination that an

impairment is not medically determinable.” Penny Lou S. v. Comm’r of Soc. Sec., No.

2:18-CV-213, 2019 WL 5078603, at *8 (D. Vt. Oct. 10, 2019). “Th[e] distinction

[between an ALJ’s determination that an impairment is not severe and her

determination that an impairment is not medically determinable] is significant because

an ALJ may credit a claimant’s statements about her symptoms and functional

limitations only if the impairment to which they relate is medically determinable.”

Cooper v. Comm’r of Soc. Sec., No. 17-CV-1058, 2019 WL 1109573, at *5 (W.D.N.Y.

Mar. 11, 2019) (where ALJ’s finding that plaintiff’s condition was not a medically

determinable impairment was not supported by substantial evidence, harmless error

analysis did not apply and remand was warranted). See SSR 12-2P, 2012 WL 3104869

*5 (July 25, 2012) (“Once a [medically determinable impairment] is established, we

then evaluate the intensity and persistence of the person’s pain or any other symptoms

and determine the extent to which the symptoms limit the person’s capacity for work.”

(emphasis added)); see also Lauren A. v. Saul, No. 8:18-CV-0244 (TWD), 2019 WL

4242248, at *7 (N.D.N.Y. Sept. 6, 2019) (ALJ’s failure to find impairment medically

determinable was not harmless and warranted remand); Childs v. Colvin, No. 1:14-CV-

462, 2016 WL 1127801, at *3-4 (W.D.N.Y. Mar. 23, 2016) (ALJ’s failure to find

“constituted reversible error, because a full consideration of plaintiff’s disorder could

have affected the outcome of her application”); Showers v. Colvin, No. 3:13-CV-1147

(GLS/ESH), 2015 WL 1383819, *8 (N.D.N.Y. Mar. 25, 2015) (“Since [the ALJ] found

that Showers’s claimed personality disorder, depression and anxiety were not

medically-determinable abnormalities rising to the level of impairments, functional

limitations attributable thereto were never considered at subsequent steps or when

formulating Showers’s residual functional capacity.”).

Here, the ALJ’s deficient step two analysis impacted the subsequent steps of the

disability determination process because once the ALJ found that plaintiff’s right upper

extremity condition was not medically determinable, he was not required to consider it

in determining plaintiff’s RFC. See Penny Lou S., 2019 WL 5078603, at *8 (error in

finding condition was not medically determinable impairment “impact[s] the

subsequent steps of the disability determination process because, once the ALJ [finds]

the impairment to be not medically determinable, he [is] not required to consider it in

determining Plaintiff’s RFC”). This is especially concerning, to the extent the ALJ

concluded plaintiff had the residual functional capacity to perform the full range of

light work, without considering the impact of any potential non-exertional limitations

stemming from plaintiff’s right upper extremity. See SSR 83-14 (“[M]any unskilled

light jobs . . . require gross use of the hands to grasp, hold, and turn objects. Any

limitation on these functional abilities must be considered very carefully to determine

its impact on the size of the remaining occupational base of a person who is otherwise

found functionally capable of light work.’’).

In sum, remand is warranted in this matter because the ALJ’s conclusion at step

two was not supported by substantial evidence. Accordingly, this matter should be

remanded in order for the ALJ to examine, inter alia, whether plaintiff's right upper

extremity condition was a medically determinable impairment prior to plaintiffs date

last insured, whether it was severe or non-severe in nature, and the limiting effects it

may have on her RFC. The court does not address the plaintiff's remaining arguments

“because, after evaluating the medical and diagnostic evidence and applying the de

minimus standard,” the ALJ may come to an alternative conclusion at step two, and

consequently incorporate his findings into the remaining steps in the evaluation

process. Burgos v. Berryhill, No. 3:16-CV-1764, 2018 WL 1182175, at *3 (D. Conn.

Mar. 7, 2018) (remanding matter where ALJ failed to address, and reconcile, evidence

of record suggesting that plaintiff's back pain constituted a medically determinable

impairment).

WHEREFORE, based on the findings above, it is

ORDERED, that the decision of the Commissioner is REVERSED and this case

REMANDED, pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings

consistent with this Memorandum-Decision and Order, and it is

ORDERED, that the Clerk enter judgment for PLAINTIFF.

Dated: August 31, 2022 | low) Bate.

Andrew T. Baxter

U.S. Magistrate Judge

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