Chastain v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_______________________________________

TIFFANY R. CHASTAIN,

DECISION & ORDER

Plaintiff,

19-CV-0017MWP

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

_______________________________________

PRELIMINARY STATEMENT

Plaintiff Tiffany R. Chastain (“Chastain”) brings this action pursuant to Section

205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision

of the Commissioner of Social Security (the “Commissioner”) denying her application for

Disability Insurance Benefits (“DIB”). Pursuant to the Standing Order of the United States

District Court for the Western District of New York regarding Social Security cases dated June

1, 2018, this case has been reassigned to, and the parties have consented to the disposition of this

case by, the undersigned. (Docket # 16).

Currently before the Court are the parties’ motions for judgment on the pleadings

pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket ## 12, 14). For the

reasons set forth below, I hereby vacate the decision of the Commissioner and remand this claim

for further administrative proceedings consistent with this decision.

DISCUSSION

I. Standard of Review

This Court’s scope of review is limited to whether the Commissioner’s

determination is supported by substantial evidence in the record and whether the Commissioner

applied the correct legal standards. See Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004)

(“[i]n reviewing a final decision of the Commissioner, a district court must determine whether

the correct legal standards were applied and whether substantial evidence supports the

decision”), reh’g granted in part and denied in part, 416 F.3d 101 (2d Cir. 2005); see also

Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (“it is not our function to determine de novo

whether plaintiff is disabled[;] . . . [r]ather, we must determine whether the Commissioner’s

conclusions are supported by substantial evidence in the record as a whole or are based on an

erroneous legal standard”) (internal citation and quotation omitted). Pursuant to 42 U.S.C.

§ 405(g), a district court reviewing the Commissioner’s determination to deny disability benefits

is directed to accept the Commissioner’s findings of fact unless they are not supported by

“substantial evidence.” See 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner . . . as to

any fact, if supported by substantial evidence, shall be conclusive”). 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, 401

(1971) (internal quotation omitted).

To determine whether substantial evidence exists in the record, the court must

consider the record as a whole, examining the evidence submitted by both sides, “because an

analysis of the substantiality of the evidence must also include that which detracts from its

weight.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). To the extent

they are supported by substantial evidence, the Commissioner’s findings of fact must be

sustained “even where substantial evidence may support the claimant’s position and despite the

fact that the [c]ourt, had it heard the evidence de novo, might have found otherwise.” Matejka v.

Barnhart, 386 F. Supp. 2d 198, 204 (W.D.N.Y. 2005) (citing Rutherford v. Schweiker, 685 F.2d

60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983)).

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 ALJ 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 (the

“Listings”);

(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 at 383

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

II. The ALJ’s Decision

In her decision, the ALJ followed the required five-step analysis for evaluating

disability claims. Under step one of the process, the ALJ found that Chastain had not engaged in

substantial gainful activity since September 16, 2014, the alleged onset date. (Tr. 17).1 At step

two, the ALJ concluded that Chastain had the severe impairments of “lumbar spine disorder

status-post fusion[,] cervical and thoracic spine disorders[,] [and] shoulder disorder.” (Tr. 18).

The ALJ also found that Chastain suffered from appendicitis, hand pain indicative of carpal

tunnel syndrome, depression, anxiety, and marijuana use, but that those impairments were

nonsevere. (Id.). At step three, the ALJ determined that Chastain did not have an impairment

(or combination of impairments) that met or medically equaled one of the listed impairments in

the Listings. (Tr. 20).

The ALJ concluded that Chastain retained the RFC to perform a full range of light

work but with certain limitations. (Tr. 21). Specifically, the ALJ found that Chastain needed to

be afforded the opportunity to change positions for one to two minutes as often as hourly; could

not climb ladders, ropes, or scaffolds, engage in crawling activities, or perform overhead

reaching tasks with her right upper extremity; could frequently, but not constantly, perform

1 The administrative transcript (Docket # 7) shall be referred to as “Tr. ___,” and references thereto utilize

the internal Bates-stamped pagination assigned by the parties.

upper extremity reaching, handling, and fingering tasks; could not be exposed to dangerous work

hazards, such as unprotected heights and exposed moving machinery; needed to be limited to

detailed, but not complex, work tasks not requiring a fast assembly quota pace; and would be off

task up to five percent of the workday due to symptom exacerbations. (Id.). At steps four and

five, the ALJ found that Chastain was unable to perform any of her past relevant work, but that,

based on Chastain’s age, education, work experience, and RFC, other jobs existed in significant

numbers in the national economy that Chastain could perform, such as office helper and

cashier II. (Tr. 25-26). Accordingly, the ALJ found that Chastain was not disabled. (Tr. 26).

III. Chastain’s Contentions

Chastain contends that the ALJ’s determination that she is not disabled is not

supported by substantial evidence and is the product of legal error. (Docket ## 12, 15). First,

Chastain challenges the ALJ’s “reject[ion]” of several “disability opinions” offered by

Chastain’s treating neurosurgeon, Ryan DenHaese (“DenHaese”), MD, and her treating

board-certified physician assistant Joseph Beang2 (“Beang”), RPA-C, arguing that the ALJ failed

to provide adequate reasons for discounting these opinions. (Docket # 12-1 at 10-14). Second,

Chastain maintains that the ALJ’s physical RFC determination was not supported by substantial

evidence. (Id. at 14-20). Specifically, Chastain contends that the ALJ’s discounting of the

medical source statement of consultative examiner Abrar Siddiqui (“Siddiqui”), MD, created an

evidentiary gap in the record, which resulted in a physical RFC determination unsupported by

any medical opinion and based solely on the ALJ’s lay interpretation of the medical evidence.

2 Chastain refers to this individual throughout her papers as Joseph “Beeng.” (See generally Docket

# 12-1). The medical record indicates that this individual’s last name is “Beang.” (See, e.g., Tr. 300, 311).

(Id. at 16-20). She also challenges the ALJ’s consideration of Siddiqui’s medical opinion on the

grounds that it was “stale.” (Id. at 16).3

IV. Analysis

A. The ALJ’s Physical RFC Determination

I turn first to Chastain’s argument that the ALJ’s physical RFC determination was

not supported by substantial evidence.4 (Docket # 12-1 at 14-20). This argument relies

primarily on two related contentions: first, that Siddiqui’s consultative opinion was stale in light

of subsequent developments in Chastain’s medical record; and second, that, as a result, the

record contained no useful assessment of Chastain’s functional abilities upon which the ALJ

could base her physical RFC determination. (Id. at 16-18). Specifically, Chastain contends that

Siddiqui’s examination was unreliable based on records showing that her back and neck

impairments worsened after the examination and that she developed a right shoulder impairment.

(Id. at 16).

On August 10, 2015, Chastain presented to consultative examiner Siddiqui for an

internal medicine examination, complaining of low back pain and arthritis in both of her hands

and her neck. (Tr. 325-28). By that time, Chastain had been recovering for several months from

a December 3, 2014 L5-S1 anterior discectomy and L5-S1 anterior arthrodesis, which addressed

3 I note the inconsistency in Chastain’s argument that Siddiqui’s August 2015 opinion is stale, but the

“disability opinions” rendered by DenHaese and Beang during the period from September 2014 through June 2015

should have been afforded more weight. (See Docket # 12-1 at 10-14).

4 Chastain’s contentions relate only to the physical portion of the ALJ’s RFC determination, even though

the RFC also contains limitations related to Chastain’s mental impairments. Thus, I only address the RFC as it

relates to Chastain’s physical limitations. See, e.g., Cottrell v. Comm’r of Soc. Sec., 2019 WL 201508, *2 n.3

(W.D.N.Y. 2019) (“[claimant’s] RFC determination also included several mental limitations; however, the [c]ourt

focuses its opinion on [claimant’s] physical limitations because she argues only that the ALJ’s physical RFC

findings lack substantial evidence”).

Chastain’s lumbar spondylosis, lumbar disc herniation, low back pain, and lumbar radiculopathy,

and which was performed by DenHaese and Dr. Timothy Rasmusson, MD, with the assistance of

Beang. (Tr. 295-99).

Siddiqui noted Chastain’s eleven-year history with lower back pain, her

diagnosed degenerative joint disease, and her low back surgery in December 2014. (Tr. 325).

Despite completing physical therapy after her surgery, Chastain still complained of low back

pain, which was aggravated by exertional activity and alleviated by rest or medication. (Id.).

Chastain’s arthritis was localized in her hands and neck, and diagnostic imaging demonstrated

that she had carpal tunnel syndrome in both areas. (Id.). With respect to activities of daily

living, Chastain stated that she was capable of cooking, cleaning, and doing laundry two to three

times a week, shopping once a week, but could not perform childcare. (Tr. 326). She showered

five times a week, dressed herself daily, and enjoyed watching television, reading, and going out

to socialize with friends. (Id.).

On physical examination, Chastain appeared in no acute distress, had normal gait,

could walk on heels and toes without difficulty and fully squat, had normal stance, used no

assistive devices, needed no help changing for the examination or getting on and off the

examination table, and was able to rise from a chair without difficulty. (Id.). Her cervical spine

showed full flexion, extension, and lateral flexion bilaterally, and full rotary movement

bilaterally. (Tr. 327). Chastain exhibited limited range of motion in her low back due to pain,

and Siddiqui noted that her surgery contributed to this limited range of motion. (Id.). Straight

leg tests were negative. (Id.). She had full range of motion in her shoulders, elbows, forearms,

and wrists, bilaterally, and full range of motion in her hips, knees, and ankles, bilaterally. (Id.).

Her joints were stable and nontender, she had no sensory deficit, full strength in her upper and

lower extremities, and full grip strength, bilaterally. (Id.). Siddiqui diagnosed Chastain with low

back pain and arthritis in her bilateral hands and neck, and opined that her prognosis was fair.

(Tr. 328). Siddiqui also opined that Chastain had “mild limitations in [her] ability to sit, stand,

climb, push, pull, or carry heavy objects.” (Id.).

Close to two years after Siddiqui’s consultative examination, Chastain developed

right shoulder pain. (Tr. 811, 815). On June 5, 2017, diagnostic images of Chastain’s right

shoulder showed “[e]arly irregularity . . . suggesting degenerative disease at the

acromioclavicular joint.” (Tr. 811). On June 16, 2017, Chastain reported to Nurse Practitioner

Janelle Colquhoun (“Colquhoun”) at a primary care appointment that she had been experiencing

right shoulder pain for about a month. (Tr. 815). Colquhoun noted that Chastain’s right

shoulder was tender to palpation at the AC joint with limited active range of motion, that

Chastain refused to perform the scratch test due to pain, had difficulty with upward shoulder

rotation due to pain, and that she was unable to adduct her arm across her chest due to pain.

(Tr. 816). Her motor strength remained normal in her upper extremities. (Id.).

On July 6, 2017, Chastain presented for a follow-up appointment for right

shoulder pain. (Tr. 821-22). Chastain complained of continued right shoulder pain with

decreased range of motion, for which medication and supportive measures, such as arm

exercises, provided minimal pain relief. (Tr. 821). On physical examination, Chastain exhibited

tenderness to palpation in her right AC joint and was unable to perform the scratch test due to

pain. (Id.). Her “lateral[,] extens[ion,] and flexion” had improved. (Id.). During an August 10,

2017 appointment with Colquhoun, no changes were noted, but Colquhoun did refer Chastain for

physical therapy for her right shoulder pain. (Tr. 825-26). Similarly, at an appointment with

Colquhoun on September 13, 2017, Chastain again reported continued decreased range of motion

and pain in her right shoulder, with range of motion that was unchanged and no improvement

with supportive measures. (Tr. 828). Physical examination findings remained the same. (Id.).

Chastain underwent physical therapy for her right shoulder pain at Advantage

Physical Therapy, PC, on September 19, 2017. (Tr. 831-33). At the time of the appointment,

Chastain reported to Rachel Sisson (“Sisson”), DPT, that the severity of her right shoulder pain

was 0/10, but that it could reach 7/10 at its worst. (Tr. 831). She described the pain as burning

and sharp, and stated that it disturbed her sleep and that it caused limited range of motion,

tenderness, and weakness. (Id.). She also reported that although her right shoulder had

previously caused no functional limitations, it now caused difficulties with her activities of daily

living, her ability to carry and lift, fasten her bra, be mobile, and push and pull. (Id.). On

physical examination, Chastain demonstrated tenderness at the AC joint and consistently

diminished strength and range of motion in her right shoulder compared to her left shoulder.

(Tr. 831-32). Apprehension test was positive on the right shoulder, and Chastain tested positive

for Hawkins-Kennedy impingement. (Tr. 832). Sisson assessed Chastain with “good”

rehabilitation potential, but noted that her associated impairments included decreased activities

of daily living, decreased strength, decreased flexibility, increased pain, decreased joint

mobility/integrity, poor body mechanics, and decreased range of motion. (Id.).

Less than a month later, at the October 2, 2017 hearing before the ALJ, Chastain

continued to complain of right shoulder pain. (Tr. 46 (“I have a lot of problems with my neck,

and now my should[er] also, [for] which I am currently in physical therapy”)). Chastain testified

that she could not “really lift much of anything off of the ground” and could carry “maybe five

pounds.” (Tr. 50). She also stated that because of her shoulder pain she could not “reach at all

with [her] right hand” and that her right arm hurt “even [when] lift[ing] it to [her] chest, or []

push[ing] it back,” which presented problems because she was right-handed. (Tr. 51). In fact,

Chastain told the ALJ that her right shoulder was “the most severe” issue she was dealing with at

the time of the hearing. (Tr. 55).

This documented history of Chastain’s right shoulder impairment, an impairment

which the ALJ found to be severe at step two (Tr. 18), demonstrates a deterioration of Chastain’s

condition subsequent to Siddiqui’s August 2015 examination, and indeed subsequent to most of

the medical record, which predates May/June 2017. In addition, the developments pertaining to

Chastain’s right shoulder plainly contradict Siddiqui’s findings that Chastain had full range of

motion in her shoulders, bilaterally, and that her joints were stable and nontender. (Tr. 327).

Furthermore, Siddiqui’s examination and medical source statement did not – because they could

not – take into account Chastain’s alleged limitations associated with her right shoulder pain.

Both the ALJ and the Commissioner recognize this. (See Tr. 24 (ALJ giving “less weight” to

Siddiqui’s “opinion of only mild limitations because the record as a whole, including

[Chastain’s] history of lumbar spine surgery and updated physical therapy records documenting

right shoulder abnormalities, support[s] a finding that [Chastain] is more limited tha[n] Dr.

Siddiqui opined”) (emphasis supplied); see also Docket # 14-1 at 14-15 (the “ALJ correctly

noted that subsequent evidence undermined Dr. Siddiqui’s findings regarding arm use”)

(emphasis supplied)).

Accordingly, I find that Siddiqui’s examination and medical source statement are

stale at least as they relate to Chastain’s severe right shoulder impairment. See Whitsett v.

Berryhill, 2019 WL 156261, *4 (W.D.N.Y. 2019) (“[a] medical opinion may be stale if the

claimant’s condition deteriorates after the opinion is rendered and before the ALJ issues his

decision”) (quotations omitted); Vazquez v. Saul, 2019 WL 3859031, *3-4 (W.D.N.Y. 2019)

(“[i]n other words, the mere passage of time does not render an opinion stale, but significant

developments in an individual’s medical history after the examination might[;] . . . the opinion

[from the consultative examiner] is clearly stale with regard to [claimant’s] bilateral carpal

tunnel syndrome [that was diagnosed more than two years after opinion was rendered][;] . . .

[consultative examiner] did not opine about any limitations in [claimant’s] hand and finger

dexterity; instead, [consultative examiner] found ‘5/5’ bilateral grip strength[;] [s]o there was a

significant deterioration in [claimant’s] condition after [consultative examiner’s] exam[;] [a]nd

[nurse’s] diagnosis and referral for treatment of carpal tunnel syndrome renders [consultative

examiner’s] opinion stale regarding possible limitations due to that ailment”) (citations and

quotations omitted).

I am also unpersuaded by the Commissioner’s argument that the ALJ’s physical

RFC finding “included significant postural limitations to account for any subsequent

limitations.” (Docket # 14-1 at 15). The ALJ purported to accommodate Chastain’s right

shoulder impairment by precluding her from “all overhead reaching tasks with the right upper

extremity” and limiting her to “frequent, but not constant, upper extremity reaching, handling,

and fingering tasks.” (Tr. 21). As Chastain points out, however, the ALJ arrived at these

limitations without a medical opinion and seemingly based upon her lay interpretation of the

medical evidence and Chastain’s hearing testimony. (Docket # 12-1 at 18).

As a general matter, although an ALJ’s conclusion need not “perfectly correspond

with any of the opinions of medical sources cited in his decision,” Matta v. Astrue, 508 F. App’x

53, 56 (2d Cir. 2013), “an ALJ is not qualified to assess a claimant’s RFC on the basis of bare

medical findings, and as a result an ALJ’s determination of RFC without a medical advisor’s

assessment is not supported by substantial evidence,” Wilson v. Colvin, 2015 WL 1003933, *21

(W.D.N.Y. 2015) (alteration and citation omitted). “Accordingly, although the RFC

determination is an issue reserved for the Commissioner, ‘[w]here the medical findings in the

record merely diagnose [the] claimant’s exertional impairments and do not relate those diagnoses

to specific residual functional capabilities,’ as a general rule, the Commissioner ‘may not make

the connection himself.’” Nanartowich v. Comm’r of Soc. Sec., 2018 WL 2227862, *9

(W.D.N.Y. 2018) (quoting Deskin v. Comm’r of Soc. Sec., 605 F. Supp. 2d 908, 912 (N.D. Ohio

2008)).

Here, Chastain developed her right shoulder impairment after Siddiqui’s

examination (and much of the medical record); despite treatment records from June through

September 2017, there are no medical records or opinions that provide a clear or useful

assessment of the functional limitations associated with Chastain’s shoulder impairment. To the

extent the ALJ relied on Chastain’s hearing testimony in formulating the RFC, the ALJ’s RFC

did not fully account for Chastain’s alleged limitations. For example, the RFC permits Chastain

to perform frequent reaching with her upper extremities (Tr. 21), yet Chastain testified that she

was unable to perform any reaching with her right arm (Tr. 51), and the ALJ does not explain

this discrepancy. Given that the treatment notes merely diagnosed Chastain’s right shoulder

impairment and did not “relate those diagnoses to specific residual functional capabilities,” it

was error in this case for the ALJ to “make the connection [her]self.” Nanartowich v. Comm’r of

Soc. Sec., 2018 WL 2227862 at *9.

In sum, I conclude that the ALJ based at least some portions of her RFC finding

on her own lay reading of the record and that the RFC is therefore not supported by substantial

evidence. Remand is thus required for the ALJ to obtain an up-to-date medical assessment of

Chastain’s functional capacity in light of her several severe impairments.5

B. Chastain’s Remaining Contention

Chastain also contends that the ALJ failed to comply with the treating physician

rule as it pertains to several statements provided by DenHaese and Beang towards the end of

2014 and throughout the first half of 2015, which Chastain characterizes as “disability opinions.”

(Docket # 12-1 at 10-14). Given my finding that the ALJ’s physical RFC determination is not

supported by substantial evidence, I do not address whether the ALJ complied with the treating

physician rule in evaluating these statements. See, e.g., Benman v. Comm’r of Soc. Sec., 350

F. Supp. 3d 252, 260-61 (W.D.N.Y. 2018) (collecting cases); see also Stein v. Colvin, 2016 WL

7334760, *3 n.2 (W.D.N.Y. 2016) (remanding where RFC determination was not supported by

substantial evidence because ALJ based RFC on raw medical evidence and his own lay opinion;

“[plaintiff] advances other arguments that she believes require reversal of the Commissioner’s

decision[;] [h]owever, because this [c]ourt disposes of this matter on the improper RFC

determination, those arguments need not be reached”).

CONCLUSION

For the reasons stated above, the Commissioner’s motion for judgment on the

pleadings (Docket # 14) is DENIED, and Chastain’s motion for judgment on the pleadings

5 This finding is based on my view that Chastain’s right shoulder impairment deteriorated after Siddiqui’s

examination and that the ALJ had no up-to-date medical opinion as to the effect this severe impairment had on

Chastain’s functional capabilities. I do not reach the issue of whether Siddiqui’s opinion, particularly as it relates to

Chastain’s low back and neck impairments, was stale in its entirety because of Chastain’s subsequent medical

history. See Palistrant v. Comm’r of Soc. Sec., 2018 WL 4681622, *6 (W.D.N.Y. 2018) (“[j]ust because the

claimant continues treatment after an opinion is rendered, however, does not mean that the opinion is stale”).

Because remand is warranted to evaluate functional limitations associated with Chastain’s subsequent deterioration

of her right shoulder, I urge the ALJ to consider obtaining a current medical opinion addressing any functional

restrictions associated with Chastain’s neck and back impairments.

(Docket # 12) is GRANTED to the extent that the Commissioner’s decision is reversed, and this

case is remanded to the Commissioner pursuant to 42 U.S.C. § 405(g), sentence four, for further

administrative proceedings consistent with this decision.

IT IS SO ORDERED.

s/Marian W. Payson

MARIAN W. PAYSON

United States Magistrate Judge

Dated: Rochester, New York

June 12, 2020