McGowan v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

MYIA S. MCGOWAN,

Plaintiff,

DECISION AND ORDER

-vs-

18-CV-6608-MJP

ANDREW SAUL,

Commissioner of Social Security ,

Defendant.

INTRODUCTION

Plaintiff Myia S. McGowan (“Plaintiff”) brings this action pursuant to

Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g) and § 1383(c)(3)

seeking judicial review of a final decision of the Commissioner of Social

Security (“Commissioner”) denying her application for a period of disability

and disability insurance benefits. Pursuant to 28 U.S.C. § 636(c) the parties

have consented to the disposition of this case by a United States magistrate

judge. (Consent to Proceed, Nov. 15, 2019, ECF No. 14.)

Presently before the Court are cross-motions for judgment on the

pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Pl.’s

Mot. for Jud. on the Pleadings, Apr. 5, 2019, ECF No. 10; Comm’r’s Mot. for

Jud. on the Pleadings, Jun. 4, 2019, ECF No. 12.) For the reasons set forth

below, this matter must be remanded for a rehearing.

PROCEDURAL BACKGROUND

On November 3, 2015, Plaintiff protectively filed an application for a

period of disability and disability insurance benefits, alleging disability due to

both physical and mental impairments. (R.1 176, 197.) Plaintiff alleges that her

disability began on July 7, 2015. (R. 176.) The Social Security Administration

denied Plaintiff’s claim on December 23, 2015. (R. 97–101.) On March 16, 2017,

a hearing was held before Administrative Law Judge (“A.L.J.”) Hortensia

Haaversen in Falls Church, Virginia. (R. 43, 45.) Plaintiff participated in the

hearing and was represented by counsel. (R. 45.) A vocational expert also

testified at the hearing. (R. 45.)

The A.L.J. issued an unfavorable decision on July 6, 2017, finding that

Plaintiff had the following severe impairments: “affective disorder and

degenerative disc disease.” (R. 18.) Nevertheless, the A.L.J. determined that

Plaintiff was able to

perform light work as defined in 20 CFR 404.1567(b) except she

should avoid concentrated exposure to extremes in temperature,

fumes, odors, presence of toxic substances, dust, and poor

ventilation. The claimant can follow and understand simple

directions and instructions, perform simple tasks independently,

maintain a regular schedule, and learn new tasks. She is limited

to low stress jobs defined as only occasionally decisionmaking [sic]

and occasional interaction with the public.

(R. 21–22.)

1 “R __” refers to the page in the Administrative Record filed by the

Commissioner of Social Security on February 4, 2019. (ECF No. 8.)

Plaintiff appealed to the Social Security Administration’s Appeals

Council and that body denied her request for review on June 22, 2018, making

the A.L.J.’s decision the Commissioner’s final decision. (R. 1–6.) Plaintiff filed

this lawsuit on August 20, 2018.

STANDARD OF REVIEW

Title 42 U.S.C. § 405(g) grants jurisdiction to district courts to hear

claims based on the denial of Social Security benefits. Section 405(g) provides

that the District Court “shall have the 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.” 42 U.S.C. § 405(g) (2007). It directs that when

considering a claim, the Court must accept the findings of fact made by the

Commissioner, provided that such findings are supported by substantial

evidence in the record. Substantial evidence is defined as “‘more than a mere

scintilla. It means such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.’” Richardson v. Perales, 402 U.S. 389

(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938));

see also Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 149 (1997).

To determine whether substantial evidence supports the

Commissioner’s findings, the Court must “examine the entire record, including

contradictory evidence and evidence from which conflicting inferences can be

drawn.” Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v.

Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam)). Section 405(g) limits

the scope of the Court’s review to two inquiries: whether the Commissioner’s

findings were supported by substantial evidence in the record, and whether

the Commissioner’s conclusions are based upon an erroneous legal standard.

Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003); see also

Mongeur, 722 F.2d at 1038 (finding a reviewing court does not try a benefits

case de novo).

A person is disabled for the purposes of SSI and disability benefits if he

or 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.” 42 U.S.C. §§ 423(d)(1)(A) & 1382c(a)(3)(A).

In assessing whether a claimant is disabled, the A.L.J. must employ a five-step

sequential analysis. See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)

(per curiam). The five steps are:

(1) whether the claimant is currently engaged in substantial

gainful activity;

(2) if not, whether the claimant has any “severe impairment”

that “significantly limits [the claimant’s] physical or mental

ability to do basic work activities”;

(3) if so, whether any of the claimant’s severe impairments

meets or equals one of the impairments listed in Appendix 1 of

Subpart P of Part 404 of the relevant regulations;

(4) if not, whether despite the claimant’s severe impairments,

the claimant retains the residual functional capacity [(“RFC”)] to

perform his past work; and

(5) if not, whether the claimant retains the [RFC] to perform

any other work that exists in significant numbers in the national

economy.

20 C.F.R. §§ 404.1520(a)(4)(i)-(v) & 416.920(a)(4)(i)-(v); Berry v. Schweiker, 675

F.2d at 467. “The claimant bears the burden of proving his or her case at steps

one through four[;] . . . [a]t step five the burden shifts to the Commissioner to

‘show there is other gainful work in the national economy [which] the claimant

could perform.’” Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004) (quoting

Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998)).

ANALYSIS

Plaintiff raises two issues for the Court’s review. First, Plaintiff asserts

that the A.L.J.’s physical RFC determination was erroneous because she failed

to properly evaluate Plaintiff’s physical impairments and failed to form a

supported physical RFC determination. (Pl.’s Mem. of Law at 1, Apr. 5, 2019,

ECF No. 10-1.) Second, Plaintiff contends that the A.L.J.’s mental RFC

determination was not supported by substantial evidence. Id. For the reasons

discussed below, this matter must be remanded for a rehearing.

The A.L.J.’s Physical RFC was Not Supported by Substantial Evidence.

The Court agrees with Plaintiff that the A.L.J. erred in assessing

Plaintiff’s physical RFC. (Pl.’s Mem. of Law at 16–19.) “An A.L.J. is not a

medical professional, and is not qualified to assess a claimant’s RFC on the

basis of bare medical findings.” Benman v. Comm’r of Soc. Sec., 350 F. Supp.

3d 252, 257 (W.D.N.Y. 2018) (citations omitted). In other words, the A.L.J. may

not interpret raw medical data in functional terms. Smith v. Comm’r of Soc.

Sec., 337 F. Supp. 3d 216, 226 (W.D.N.Y. 2018) (citations omitted); Rodriguez

v. Colvin, No. 13-CV-07607, 2015 WL 1903146, at *24 (S.D.N.Y. Mar. 31, 2015)

(“An A.L.J. may not . . . reject an examining source’s conclusions based on the

A.L.J.’s own interpretation of the medical evidence, because . . . an A.L.J. may

not substitute his own opinion of the medical evidence for that of a medical

professional . . . [i]n determining that [the consultative doctor’s] findings did

not support her conclusions that Plaintiff suffered from significant limitations,

the A.L.J. did not rely on the opinion of any medical other professional, but

instead appears to have relied on his own interpretation of the evidence”).

Accordingly, it is error for an A.L.J. to make an RFC determination without

opinions from medical professionals concerning the impact of the objective

medical evidence on a plaintiff’s RFC. Dennis v. Colvin, 195 F. Supp. 3d 469,

474 (W.D.N.Y. 2016).

In determining Plaintiff’s physical RFC, the A.L.J. considered the

opinions of consultative examiner Rita Figueroa, M.D., and employability

assessments for the Monroe County Department of Human Services. (R. 28.)

After conducting an examination of Plaintiff, Dr. Figueroa opined only that

Plaintiff “should avoid exposure to smoke, dust, and any respiratory irritants.”

(R. 315.) In addition, Plaintiff underwent three physical assessments for

determination of employability with the Monroe County Department of

Human Services. (R. 363–66; 371–76; 380–83.)

The A.L.J. accorded “partial weight” to Dr. Figueroa’s opinion, finding

that the doctor’s opinion that Plaintiff should avoid exposure to smoke, dust,

and any respiratory irritants was too limited. (R. 28.) The A.L.J. concluded that

Plaintiff “can have some exposure to these respiratory irritants, just not

concentrated exposure” because Plaintiff’s physical examination showed

“grossly normal respiratory and cardiovascular findings.” (Id.)

The A.L.J. did “not accord great weight” to the employability

assessments conducted by the Monroe County Department of Human Services.

(R. 28.) The A.L.J. provided several reasons for essentially rejecting the

assessments, including, but not limited to, the fact that any determination

regarding disability is reserved to the Commissioner. (R. 28.) Moreover, despite

indicating in her decision that she considered these opinions when assessing

Plaintiff’s RFC, she also states “[h]owever, the opinions are too inconsistent

internally and with the medical evidence of record to receive significant

weight.” (R. 28–29.) Given these statements it is unclear whether the A.L.J.

actually did consider the employability assessments when determining the

RFC.

Importantly, based upon the forgoing, the A.L.J.’s physical RFC

determination that Plaintiff can perform “light work” could not have been

based upon substantial evidence. First, Dr. Figueroa’s opinion solely dealt with

Plaintiff’s respiratory issues and did not address any physical functional

limitations beyond that. The only remaining opinions regarding Plaintiff’s

functional limitations were from the employability assessments conducted by

the Monroe County Department of Human Services, which the A.L.J. rejected.

See Solomon v. Barnhart, 01-CV-5856, 2006 WL 3794292, at *4 (S.D.N.Y. 2006)

(A.L.J. “rejected” the medical conclusions of two treating doctors where he “did

not accord great weight” to their opinions). In other words, there was no

medical opinion evidence upon which the A.L.J. could have based Plaintiff’s

physical RFC. The A.L.J. provides no explanation for how Dr. Figueroa’s

opinion and the Monroe County Department of Human Services employability

assessments supported a finding of “light work.” This is reversible error.

Moreover, in effectively rejecting the opinions in the record relating to

Plaintiff’s physical impairments, the A.L.J. did not rely on any opinion

evidence from an acceptable medical source when making her RFC

determination. The A.L.J., therefore, determined Plaintiff's RFC based on her

own interpretation of the medical record, which is not permissible.

The forgoing errors require reversal and remand. Since remand is

required, the Court need not address the other argument advanced by Plaintiff

in support of her motion.

CONCLUSION

For the foregoing reasons, Plaintiff's motion for judgment on the

pleadings (ECF No. 10) is granted and the Commissioner’s motion for

judgment on the pleadings (ECF No. 12) is denied. The case is remanded

pursuant to the fourth sentence of 42 U.S.C. § 405(g) for an expedited hearing.

The Clerk of the Court is directed to enter judgment in favor of the Plaintiff

and close this case.

IT IS SO ORDERED.

DATED: March 17, 2020

Rochester, New York

/s/ Mark W. Pedersen

MARK W. PEDERSEN

United States Magistrate Judge