# Ramsey v. Commissioner of Social Security

> District Court, W.D. New York · September 1, 2020

URL: https://www.frixlaw.com/law-library/cases/10362780

## Case

- **Court:** District Court, W.D. New York
- **Decided:** September 1, 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/10362780

## 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

JOELLE KATHRYN RAMSEY,

Plaintiff, DECISION AND ORDER

-vs- 19-CV-208 MJP

COMMISSIONER OF SOCIAL SECUIRTY,

Defendant.

INTRODUCTION
Plaintiff Joelle Kathryn Ramsey (“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 Disability Insurance
Benefits (“DIB”). 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, ECF No. 16.)
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 & 12.) For the reasons set forth below, this matter must be remanded
for a rehearing.
PROCEDURAL BACKGROUND
On December 9, 2015, Plaintiff protectively filed a Title II application
for a period of disability insurance benefits, alleging disability beginning on
October 25, 2014.1 (R.2 20; 118.)3 The Social Security Administration initially
denied Plaintiff’s claim on January 19, 2016. (R. 77.) On January 23, 2018, an
Administrative Law Judge (“A.L.J.”) located in Alexandria, Virginia held a

video teleconference hearing in this matter. (R. 20; 30.) Plaintiff participated
in the hearing from Buffalo, New York and was represented by counsel. (R. 30.)
A vocational expert was also present and testified at the hearing. (R. 32; 59.)
The A.L.J. issued a decision on April 30, 2018, finding that Plaintiff had
the following severe impairments: “degenerative disc disease with disc
herniation post status lumbar and cervical fusions.” (R. 19.) Nevertheless, the

A.L.J. determined that Plaintiff was able to
perform light work as defined in 20 CFR 404.1567(b) except the
claimant is limited to lifting 15 pounds occasionally and 10
pounds frequently. The claimant must avoid ladders, ropes, and
scaffolding as well as crawling and no more than occasional
climbing of ramps and stairs, balancing, stooping, kneeling, and
crouching. The claimant must also avoid exposure to dangerous
work hazards (including unprotected heights, uneven terrain and
dangerous moving machinery), and cannot do driving jobs.
(R. 23.)
Plaintiff appealed to the Social Security Administration’s Appeals
Council and that body denied her request for review on January 30, 2019,

1 While Plaintiff asserts in her Application Summary for Disability Insurance Benefits
that her disabling condition began on October 25, 2014, in her Memorandum of Law in Support
of Plaintiff’s Motion for Judgment on the Pleadings, Plaintiff states that her disability began
on April 2, 2014. (Pl.’s Mem. of Law at 4, ECF No. 10-1.)
2 “R __” refers to the page in the Administrative Record filed by the Commissioner of
Social Security.
3 The A.L.J. incorrectly states that Plaintiff filed for DIB on December 8, 2015. (ECF
No. 4, at 20.)
making the A.L.J.’s decision the Commissioner’s final decision. (R. 1.) Plaintiff
filed this lawsuit on February 15, 2019.
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 ;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;
(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
the A.L.J. erred in not finding Plaintiff’s headaches to be a severe or non-severe
impairment. (Pl.’s Mem. of Law at 1, 14, ECF No. 10-1.) Second, Plaintiff
contends that the A.L.J. failed to properly evaluate opinion evidence provided

by Frank Luzi, M.D. (Id. at 1, 16.)
The A.L.J.’s RFC is not supported by substantial evidence due to error.
On May 4, 2016, Plaintiff underwent an independent medical
examination (“IME”) conducted by Frank Luzi, M.D., for Workers’
Compensation purposes. (R. 535–39.) After conducting a physical examination
of Plaintiff and reviewing her medical records, Dr. Luzi opined that Plaintiff
could return to work with restrictions. She should avoid repetitive
bending and twisting of her neck and waist. She should not lift or
carry objects weighing greater than 15 pounds. She should not sit,
stand or walk for continuous periods of time. She should not drive
for more than 1/2 hour continuously or two hours in an eight hour
day.

(R. 538.)
In her decision, the A.L.J. acknowledges that “Dr. Luzi opined that the
claimant could return to work with restrictions including avoiding repetitive
bending and twisting of her neck and waist.” (R. 23.) The A.L.J. even notes that

Dr. Luzi’s opinion that Plaintiff should avoid bending and twisting at the low
back is “consistent with evidence through claimant’s last date insured of
September 30, 2016,” in part because Plaintiff’s surgeon, Edward D. Simmons,
M.D., also recommended that Plaintiff “minimize and [sic] and bending and
twisting at the low back.” (Id.) In addition, the A.L.J. acknowledges that Dr.
Luzi concluded that Plaintiff “should not sit, stand, or walk for continuous

periods of time.” (R. 23.), Importantly, the A.L.J. states that she
has given greater weight to the opinions of Drs. Nunez and Luzi
(Exs. 1F/160 and 7F/18). Both indicated that the claimant could
work with lifting restrictions of 15 to 20 pounds (Ex. 1F/160 and
7F/18). Drs. Nunez and Luzi also provided postural limitations,
which the undersigned has incorporated into the residual
functional capacity. These assessments are therefore afforded
substantial weight.

(R. 27, emphasis added.)

The A.L.J.’s contention that Dr. Luzi’s postural limitations are included
in the RFC is incorrect. A simple reading of the ALJ’s RFC reveals that it does
not, in fact, incorporate Dr. Luzi’s postural limitations. (R. 20.) Indeed, despite
specifically reciting Dr. Luzi’s restrictions regarding repetitive bending and
twisting of Plaintiff’s neck and waist and those regarding Plaintiff’s ability to
sit, stand, or walk for continuous periods in her decision, these restrictions are
not included in the RFC. (Id.) It is not clear to the Court whether including Dr.
Luzi’s postural limitations in the RFC would have an impact on whether
Plaintiff would still be able to perform light work or whether it would result in
a finding of disability. “A misstatement of fact in the ALJ’s decision is material

when it prevents the reviewing court from following the adjudicator’s
reasoning.” Collins v. Berryhill, No. 17-CV-467, 2019 WL 2287787, at *4
(W.D.N.Y. May 28, 2019); Goss v. Astrue, No. 1:12-CV-1349, 2014 WL 888497,
at *10 (M.D. Pa. Mar. 6, 2014) (ALJ’s “error, which conflates daily and monthly
pain medication use, is highly material when examined in the context of
evaluating the credibility of the Plaintiff’s reported symptoms of pain ... and

undermines confidence in the outcome.”). When an “ALJ’s statement is
unsupported and inaccurate,” it may be “impossible for the Court to conduct a
review for substantial evidence.” Bell v. Comm'r of Soc. Sec., No. 6:15-CV-706-
Orl-22GJK, 2016 WL 4473467, at *5 (M.D. Fla. Aug. 8, 2016) (report and
recommendation adopted, 2016 WL 4441647 (Aug. 23, 2016)). Accordingly, this
matter must be remanded for clarification of Plaintiff’s RFC.
The ALJ improperly credited portions of Frank Luzi, M.D.’s opinion
while rejecting other portions without explanation.
If the A.L.J. meant to only credit portions of Dr. Luzi’s opinion, she was
required to explain why she chose those portions and not others. Maenza v.
Colvin, 2016 WL 1247210, at *12 (W.D.N.Y. Mar. 24, 2016) (“It is beyond
dispute that ‘an ALJ who chooses to adopt only portions of a medical opinion
must explain his or her decision to reject the remaining portions’”) (quoting

Raymer v. Colvin, 2015 WL 5032669, at *5 (W.D.N.Y. Aug. 25, 2015)); Searles
v. Astrue, No. 09-CV-6117, 2010 WL 2998676, *4 (W.D.N.Y. July 27, 2010) (“An
ALJ may not credit some of a doctor’s findings while ignoring other significant
deficits that the doctor identified. If the ALJ’s RFC assessment conflicts with

an opinion from a medical source, the adjudicator must explain why the
opinion was not adopted. Here, the ALJ failed to explain why he ignored
portions of an opinion for which he granted ‘significant weight.’ This selective
adoption of only the least supportive portions of a medical source’s statements
is not permissible.”) (internal quotations and citations omitted).
As discussed above, the A.L.J. assigned “significant weight” to Dr. Luzi’s

opinion, but failed to include all of the restrictions provided for in his opinion
in Plaintiff’s RFC. For example, the A.L.J. included Dr. Luzi’s restrictions that
Plaintiff should not lift more than 15 pounds and that she “cannot do driving
jobs.” (R. 20.) However, he did not include any of the postural limitations
included in Dr. Luzi’s opinion and provided no explanation for why those were
left out of the RFC. This is legal error which requires remand.
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, 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. 12). The case is remanded pursuant
to the fourth sentence of 42 U.S.C. § 405(g) for a hearing. The Clerk of the
Court will enter judgment in favor of the Plaintiff and close this case.

IT IS SO ORDERED.
DATED: September 1, 2020
Rochester, New York

/s/ Mark W. Pedersen
MARK W. PEDERSEN
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10362780. Public record. Not legal advice.