# Davis v. Commissioner of Social Security

> District Court, W.D. New York · March 26, 2020

URL: https://www.frixlaw.com/law-library/cases/10361995

## Case

- **Court:** District Court, W.D. New York
- **Decided:** March 26, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10361995

## How later opinions describe it (automated extraction)

- finding a reviewing court does not try a benefits case de novo

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10361995. Public record. Not legal advice.