Davis v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_______________________________________

JERMAINE LAMONT DAVIS,

DECISION & ORDER

Plaintiff,

18-CV-6561-MJP

v.

ANDREW SAUL,

Commissioner of Social Security,

Defendant.

_______________________________________

PRELIMINARY STATEMENT

Pedersen, M.J. Jermaine Lamont Davis (“Plaintiff”) seeks reversal of the

Commissioner’s final decision finding that he was not eligible for Supplemental

Security Income (“SSI”) under Title XVI of the Social Security Act (the “Act.”). The

Commissioner’s decision is supported by the evidence and is based upon the

application of the correct legal standards.

BACKGROUND

Procedural Background

Plaintiff filed an application for SSI on August 20, 2014, alleging that he

became disabled on April 8, 2009, due to depression, bad knees, asthma, high blood

pressure, depression, back pain, liver problems, cysts, and sleep apnea. (Record1

(“R.”) 176–81, 203.) The Commissioner denied the application. (R. 98–105.) Plaintiff

then requested a hearing by an Administrative Law Judge (“A.L.J.”). (R. 106–08.)

The hearing was held on May 25, 2017. (R. 36–77.) Plaintiff, who was represented by

1 Refers to the Record of Proceedings at the Social Security Administration filed on January

15, 2019, ECF No. 9.

counsel at the hearing, appeared and presented testimony before A.L.J. Brian Kane.

(R. 36–77.) The A.L.J.’s denial became the final decision of the Commissioner when

the Appeals Council denied Plaintiff’s request for review on June 8, 2018. (R. 1–6.)

This action followed. (Compl., Aug. 2, 2018, ECF No. 1.)

DISCUSSION

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)).

The A.L.J.’s Decision

At step one of the sequential evaluation, the A.L.J. found that Plaintiff had not

engaged in substantial gainful activity since his SSI application date of August 20,

2014. (R. 23.) At steps two and three, the A.L.J. found that Plaintiff’ depressive

disorder, bilateral knee arthritis, and obesity were severe impairments that did not

meet or equal the requirements of the Listings of Impairments (“Listings”) set forth

at 20 C.F.R., Part 404, Subpart P, Appendix 1. (R. 23.) Then, the A.L.J. found that

Plaintiff retained the RFC to: “Perform light work as defined in 20 CFR 416.967(b)

except he can sit for at least six hours; stand and/or walk for two hours; lift and carry

up to 15 pounds; and he is limited to frequent interaction with coworkers and the

general public.” (R. 25.) The A.L.J. also found that Plaintiff could not perform his past

relevant work as a warehouse worker. (R. 29.) At step five, relying upon Vocational

Expert testimony and the Medical-Vocational Rules as a framework for decision

making, the A.L.J. found that Plaintiff was not disabled as he was capable of making

an adjustment to other work in the national economy. (R. 30–31.)

Plaintiff’s Contentions

Plaintiff contends that the A.L.J. did not properly evaluate Dr. Harbinder

Toor’s opinion because the A.L.J. rejected the severe exertional limitations in his

medical statement, where Dr. Toor found that that Plaintiff had moderate-to-severe

limitations in standing, walking, bending, and lifting, but the A.L.J. accorded some

weight to the moderate limitations in sitting for a long time, pushing, pulling, and

reaching with the left shoulder, and doing exertional activities. (Pl.’s Mem. of Law at

17–19, Mar. 18, 2019, ECF No. 10.) Plaintiff also argues that the A.L.J. improperly

rejected Dr. Kristina Luna’s opinion that Plaintiff was moderately limited in his

ability to maintain attention and concentration and perform complex tasks

independently. (Pl.’s Mem of Law at 21–22.)

Second, Plaintiff argues that the A.L.J. erred when he did not account for

Plaintiff’s learning disorder in his RFC finding despite finding it was a non-severe

impairment. (Id. at 23.)

Third, Plaintiff argues that the A.L.J.’s RFC limiting him to frequent contact

with coworkers and the general public is unsupported by the record and the evidence

supports much greater limitations. (Id. at 26.)

Finally, Plaintiff argues that the A.L.J. should have relied on the Vocational

Expert’s testimony that an individual who required no contact with coworkers or the

general public, or had occasional arguments or altercations with supervisors, would

be unemployable. (Id. at 27.)

ANALYSIS

At the administrative level, the A.L.J. alone assesses RFC based on all relevant

evidence of record, not just medical opinions. 20 C.F.R. §§ 404.1545(a)(3), 404.1546(c);

Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (the ultimate responsibility to

determine a claimant’s RFC rests solely with the A.L.J.); accord Johnson v. Colvin,

669 F. App’x 44, 46-47 (2d Cir. 2016) (Summ. Order) (citing 20 C.F.R. § 416.945(a)(3)

(explaining that an A.L.J. looks to “all of the relevant medical and other evidence”

including relevant medical reports, medical history, and statements from the

claimant when assessing an applicant’s RFC). Should an A.L.J. give only little weight

to all the medical opinions of record, the A.L.J. creates an evidentiary gap which

warrants remand. Defrancesco v. Berryhill, No. 16-CV-6575-FPG, 2017 WL 4769004,

at *4, 2017 U.S. Dist. LEXIS 175151, at *9 (W.D.N.Y. Oct. 23, 2017); Pryn v. Berryhill,

No. 16-CV-315-FPG, 2017 WL 1546479, at *4 (W.D.N.Y. May 1, 2017) (giving little

weight to the only opinion of record “created an evidentiary gap that requires

remand”); Covey v. Colvin, 204 F. Supp. 3d 497, 507 (W.D.N.Y. 2016) (noting that the

A.L.J.’s rejection of the treating physician’s opinion created a “significant and obvious

gap in the evidentiary record” because “the record contained no competent medical

opinion regarding Plaintiff’s RFC during the relevant time period”). However, the

RFC need not correspond to any particular medical opinion; rather, the A.L.J. weighs

and synthesizes all evidence available to render an RFC finding consistent with the

record as a whole. Matta v. Astrue, 508 Fed. App’x 53, 56 (2d Cir. 2013) (Summ.

Order).

The Second Circuit has held that “neither the trial judge nor the A.L.J. is

permitted to substitute his own expertise or view of the medical proof for the treating

physician’s opinion.” Flynn v. Commissioner of Social Sec., 729 Fed. App’x 119, 121

(2d Cir. July 6, 2018) (summary order) (citing Shaw v. Chater, 221 F.3d 126, 134 (2d

Cir. 2000); Greek v. Colvin, 802 F.3d 370, 375 (2d. Cir. 2015). Further, the Second

Circuit states that “while a physician’s opinion might contain certain inconsistencies

and subject to attack, a circumstantial critique by non-physicians, however thorough

or responsible, must be overwhelmingly compelling in order to overcome a medical

opinion.” Flynn, 729 Fed. App’x 121 (citing Shaw, 221 F.3d at 135.) The A.L.J. in

Flynn spent “significant energy recounting the physician’s treatment notes” and

concluded that the “notes indicated nothing more than ‘mild anxiety’” such an

assessment was “beyond the scope of the A.L.J.’s authority.” Id. It should also be

noted that while Flynn involved a treating physician, the Second Circuit has applied

the same logic applies to an A.L.J.’s rejection of non-treating opinions. See Giddings

v. Astrue, 333 Fed. App’x 649, 652 (2d Cir. 2009) (Summ. Order).

Here, the A.L.J. evaluated the opinion of Dr. Toor assigning it “some weight”

but rejecting the limitations. (R. 29.) “Administrative law judges and the Appeals

Council are not bound by findings made by State agency or other program physicians

and psychologists, but they may not ignore these opinions and must explain the

weight given to the opinions in their decisions.” Converso v. Comm’r. of Soc. Sec., No.

17-CV-91 HBS, 2018 WL 6803764, *3 (W.D.N.Y. Dec. 27, 2018) (quoting SSR 96-6P,

1996 WL 374180, at *2 (Jul. 2, 1996)); see also 20 C.F.R. § 416.913a. Not only should

the opinions be given weight, but they should be discussed to allow the reviewer to

follow the reasoning. 20 C.F.R. § 416.927(f)(2); see Duell v. Astrue, 8-CV-969 (MAS)

2010 WL 87298, *5 (N.D.N.Y. Jan. 5, 2010) (A.L.J. failed to explain the weight given

to opinions of both consultative examiners).

Dr. Toor opined Plaintiff had moderate to severe limitations in standing,

walking, bending, and lifting. (R. 469.) The A.L.J. believed that Dr. Toor’s finding of

severe limitations “does not appear to be entirely consistent with the rest of the

medical evidence.” (R. 29.) However, Plaintiff had positive straight leg test and

tenderness to palpitation. (R. 418, 427, 707, 712.) He had gait issues (R. 685, 734) and

limited range of motion. (R.418, 697, 709, 712, 733.) Plaintiff had joint line tenderness

and crepitus in his knee. (R. 411, 733, 739.) He also reported worsening pain and

instability. (R. 412, 685, 701, 738.) An MRI showed arthritic changes in the trochlear

groove and retropatellar. (R. 479.) Further imaging showed diffuse arthritic changes

with spurring and tibial spine spiking. (R. 739.) Plaintiff’s knee would often go out.

(R. 407, 418, 479, 691.) He had paresthesia on the left leg for several months and his

leg would go numb resulting in him falling. (R. 716.) Additionally, there was swelling

in the knee. (R. 685, 697, 703, 709.)

The Commissioner claims that the A.L.J.’s finding that Dr. Toor’s severe

limitations were not “entirely consistent with the rest of the medical evidence” is

supported by substantial evidence. (Comm.’s Mem. of Law at 17, Mar. 28, 2019, ECF

No. 11-1.) The Commissioner states that “clinical findings showed that although

Plaintiff had reduced range of motion of the right knee and left shoulder, he had an

intact gait, normal strength throughout the extremities, and he was neurologically

intact.” (Id. at 13.) In addition, X-rays of Plaintiff’s right knee were normal. (R. 468,

470, 480.) Also, while an MRI of Plaintiff’s right knee showed arthritic changes, there

were no meniscus tears. (R. 479.) An X-ray of Plaintiff’s lumbar spine was normal.

(R. 743.) This evidence supports the A.L.J.’s decision to reject Dr. Toor’s severe

limitations. (R. 29.) Pellam v. Astrue, 508 F. App’x 87, 90 (Summ. Order) (2d Cir.

2013) (A.L.J. properly declined to credit certain conclusions in consultative

examiner’s opinion that were inconsistent with other evidence of record).

Dr. Toor opined Plaintiff had moderate limitations in pushing, pulling, and

reaching and in exertion. (R. 468.) The A.L.J. stated he gave Dr. Toor’s opinion “some

weight” however the RFC does not account for any of these limitations. (R. 25.) In

Carroll v. Colvin, No. 13-CV-456S, 2014 WL 2945797, *4, *5 (W.D.N.Y. Jun. 30, 2014),

an A.L.J. gave weight to opinions which found the plaintiff had moderate difficulties

in prolonged sitting or standing but the RFC did not address them. The A.L.J. was

required “to discuss and provide reasons tending to support the finding that, despite

the moderate limitations...[plaintiff] could still perform light work.” (id.).

Additionally, in Buchanan v. Colvin, 15-CV-88S, 2016 WL 2729593, at *4 (W.D.N.Y.

May 11, 2016) “because the A.L.J. failed to provide any reasoning behind the RFC, or

explanation as to how sedentary work is consistent with Plaintiff’s moderate physical

limitations, this Court is unable to conduct a meaningful review as to whether the

RFC is supported by substantial evidence.”

Light work involves lifting no more than 20 pounds at a time with frequent

lifting or carrying of objects weighing up to 10 pounds and some pushing and pulling

of arm or leg controls. 20 C.F.R. § 404.1567. The A.L.J. did not include the pushing

and pulling limitations in his RFC determination. (R. 25.) The A.L.J. stated Plaintiff

could lift up to 15 pounds, but does not mention anything about pushing, pulling, and

reaching and overall exertion. (R. 25.) The A.L.J. did not give reasons as to how

Plaintiff, with the omitted limitations, could perform light work. Thompson v.

Comm’r of Soc. Sec., (the failure to properly evaluate [a doctor’s] assessment of

plaintiff’s moderate limitations is not harmless error. Those limitations were not

accounted for in the RFC and, if credited, may likely have resulted in a more

restrictive finding.”) Therefore, as the A.L.J. did not include Plaintiff’s additional

limitations in the RFC determination, the Court is unable to conduct a meaningful

review as to whether the RFC is supported by substantial evidence.

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. 11) is denied. Pursuant to the fourth sentence of 42 U.S.C.

§ 405(g), this matter is remanded to the Commissioner 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.

/s/ Mark W. Pedersen

MARK. W. PEDERSEN

United States Magistrate Judge

Dated: March 26, 2020

Rochester, New York