Swoope v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_____________________________________________

DAVID SWOOPE,

Plaintiff, DECISION & ORDER

19-CV-0026-MJP

vs.

ANDREW SAUL,

Commissioner of Social Security,

Defendant.

_____________________________________________

INTRODUCTION

Pedersen, M.J. David Swoope (“Plaintiff”) 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 (“Commissioner”) denying

his application for disability insurance benefits (“DIB”) under Title II of the Social

Security Act. Pursuant to 28 U.S.C. § 636(c) the parties have consented to the

disposition of this case by a United States magistrate judge. (ECF No. 15.)

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

pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (ECF Nos. 10 & 11.)

For the reasons set forth below, this matter must be remanded for a rehearing.

PROCEDURAL BACKGROUND

Plaintiff was born in 1971 and was 43 years old as of the alleged onset date of

December 17, 2014. (R.1 170.) He has high school education with special education

1 “R” refers to the filed Record of Proceedings from the Social Security Administration,

filed on July 19, 2019. (ECF No. 6.)

services. (R. 174.) He has a good work history as a forklift truck operator. (R. 149–69,

175.) His last insured date was December 31, 2019.2 (R. 14.) He has the following

severe impairments of, inter alia: (1) cervical and lumbar degenerative disc disease

(DDD) status post lumbar spine fusion on December 17, 2014; (2) atherosclerotic

heart disease, status post non-ST elevated myocardial infarction (NSTEMI) on May

8, 2015; (3) head trauma with multiple facial fractures and status post open reduction

and internal fixation (ORIF) surgery; (4) chondromalacia of the right knee, status

post anterior cruciate ligament (ACL) and meniscus repair; (5) labral tear in the right

hip; (6) spondylosis and herniated discs in the cervical spine; (9) diabetes mellitus

type 1 (DM1) with neuropathy and insulin pump; (10) arthritis, synovitis, and

tenosynovitis of the right ankle; and (11) peripheral artery disease. (R. 173, 189–98.)

On May 21, 2015, Plaintiff protectively filed a Title II application for a period

of disability and disability insurance benefits, alleging disability beginning December

17, 2014. (R. 14.) The claim was denied initially on September 9, 2015. (Id.)

Thereafter, Plaintiff filed a written request for hearing on October 20, 2015. The

claimant appeared and testified at a hearing held on December 8, 2017, in Buffalo,

New York before an Administrative Law Judge (“A.L.J.”).

Plaintiff timely filed this civil action in District Court, seeking judicial review

of the A.L.J.’s decision. (Compl., ECF No. 1.)

2 Last date insured was referenced in Plaintiff’s memo of law as December 31, 2020,

(ECF No. 10-1), which obviously is not the case. (See R. 14.)

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. 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

The A.L.J. found that Plaintiff has the residual functional capacity (“RFC”) to

perform light work as defined in 20 C.F.R. § 404.1567(b), including lifting and

carrying up to twenty pounds occasionally and ten pounds frequently,

pushing/pulling as much as he can lift/carry, sitting for up to a total of six hours,

standing for up to a total of' six hours, and walking for up to a total of six hours,

except the claimant can only occasionally balance, stoop, kneel, crouch, crawl, and

climb ramps, stairs, ladders, ropes or scaffolds. (R. 18.)

Plaintiff claims that the A.L.J. erred by failing to appropriately weigh the

treating opinions resulting in an unsubstantiated RFC. (Pl.’s Mem. of Law at 15, ECF

No. 10-1.) Plaintiff states the A.L.J. further erred by failing to weigh Plaintiff’s

subjective complaints pursuant to the appropriate legal standard, and that the proper

application of the legal standards supports a finding of disability at Step 5. (Pl.’s

Mem. of Law at 15.) Plaintiff claims that the A.L.J. has failed to adequately discuss

the treating opinion evidence.

In deciding a disability claim, an A.L.J. is tasked with “weigh[ing] all of the

evidence available to make an RFC finding that [is] consistent with the record as a

whole.” Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013). An A.L.J.’s conclusion

need not “perfectly correspond with any of the opinions of medical sources cited in his

decision.” Id. However, 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.” Ortiz v. Colvin, 298

F. Supp. 3d 581, 586 (W.D.N.Y. 2018). “[A]s a result[,] an A.L.J.’s determination of

RFC without a medical advisor’s assessment is not supported by substantial

evidence.” Dennis v. Colvin, 195 F. Supp. 3d 469, 474 (W.D.N.Y. 2016)

“Because an RFC determination in a social security disability benefits case is

a medical determination, an A.L.J. who makes an RFC determination in the absence

of supporting expert medical opinion has improperly substituted his own opinion for

that of a physician, and thus has committed legal error.” Hilsdorf v. Comm’r of Soc.

Sec., 724 F. Supp. 2d 330, 347 (E.D.N.Y. 2010) (citations omitted).

The A.L.J. gave partial or little weight to all the medical opinion evidence. (R.

24.) The A.L.J.’s reasoning for limiting the opinion evidence is conclusory, and the

A.L.J. does not cite to a single source or give examples to support his conclusion. For

example, the A.L.J.’s weighing of Plaintiff’s treating physician, Frederick J. Piwko,

M.D., only states: “The Administrative Law Judge gives this opinion partial weight

because the restrictions suggested are not supported by a narrative explanation with

citation to specific medical evidence by Dr. Piwko or by the record. The limitations

imposed exceed those indicated by the medical record, including the results of

diagnostic testing.” (R. 24.) There are no examples or cites to the record to show any

contradictions. Further, the A.L.J. states: “In sum, the above residual functional

capacity assessment is supported by the objective medical evidence on clinical

examination and diagnostic testing, the level of care the claimant has required since

his lumbar surgery, to some extent his own statements as to his symptoms and

functioning, and, to varying degrees, the opinions of treating and examining sources.”

Since all opinions were evaluated with conclusory assessments, the A.L.J. has not

shown that he relied on any medical opinion when determining the RFC. This error

requires remand.

CONCLUSION

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

the pleadings (ECF No. 10) and denies the Commissioner’s motion for judgment on

the pleadings (ECF No. 11). The Court remands the case pursuant to the fourth

sentence of 42 U.S.C. § 405(g) for a new hearing. Finally, the Court directs the Clerk

of the Court to enter judgment in favor Plaintiff and close this case.

SO ORDERED.

DATED: August 31, 2020

Rochester, New York |

MARK W. PEDERSEN

United States Magistrate Judge