Smith v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_____________________________________________

KASANDRA ANN SMITH,

Plaintiff, DECISION & ORDER

19–CV–194–MJP

vs.

ANDREW SAUL,

Commissioner of Social Security,

Defendant.

_____________________________________________

INTRODUCTION

Pedersen, M.J. Kasandra Ann Smith (“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 her application for Supplemental Security

Income (“SSI”) under Title XVI of the Social Security Act (the 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. 12 & 13.) For the reasons set forth below, this matter must be remanded

for a rehearing.

PROCEDURAL BACKGROUND

Plaintiff was born on January 25, 1984. (R.1 29.) She has a limited

education and completed tenth grade but did not earn her GED. (R. 29, 50, 392,

477.) She has four children who do not reside with her. (R. 46.) She is engaged

and resides with her fiancé. (R. 46.) Her past work included cafeteria worker,

fast food worker, and grocery store worker. (R. 178–216, 237–44.)On June 25,

2015, Plaintiff protectively filed her SSI application alleging disa bility based

on lupus, degenerative disk disease, permanent nerve damage, uterus

problems, high blood pressure, morbid obesity, weight gain, skin sensitive-sun

exposure, leg nerve problems, borderline personality disorder, PTSD, anxiety,

and panic attacks (R. 172–77, 196.) Her application was denied initially. She

requested a hearing, and following a hearing, the Administrative Law Judge

(“A.L.J.”) issued a decision on March 16, 2018, finding Plaintiff not disabled

(R. 12–31, 38–71, 110–15.) The Appeals Council denied Plaintiff’s request for

review (R. 1–6.) The A.L.J. decision thus became the “final decision” of the

Commissioner subjec t to judicial review under 42 U.S.C. § 405(g.) This action

followed.

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

1 “R.” refers to the record of proceedings from the Social Security

Administration, filed on February 5, 2019, ECF No. 8.

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

Plaintiff claims that the A.L.J. improperly used selective reading of

evidence and opinions and that he failed to include a well-supported alternate

sit stand option, as well as off-task and missed work limitations, resulting in a

residual functional capacity (“RFC”) finding unsupported by substantial

evidence. (Pl.’s Mem. of Law at 16, ECF No. 12.)

The A.L.J. accorded “some” weight to treating doctor, Nancy Ciavarri,

M.D., but failed to adopt the limitations Dr. Ciavarri recommended, such as a

sitting limitation, and limitations that supported off-task and missed work

time. (R. 27–28, 2480–88.) In July 2015, March 2016, September 2016, July

2017, and October 2017, Dr. Ciavarri completed a medical examination of

Plaintiff for employability assessment, disability screening, and

alcoholism/drug addiction determination for Orleans County Department of

Social Services (“OCDSS”). (R. 2480–81, 2483–84, 2486–86, 2492–93.) Dr.

Ciavarri found her moderately or very limited in lifting, carrying, pushing,

pulling, bending, and stairs or climbing, and moderately limited in standing,

walking, and sitting. (R. 2479, 2481, 2484, 2487, 2493.) She found moderate

limitations in maintaining attention and concentration and functioning at a

consistent pace. (R. 2479, 2481, 2484, 2487, 2493.) In addition, in July 2015,

Dr. Ciavarri found she was unable to do heavy lifting, bending, and determined

Plaintiff could not carry more than ten pounds. (R. 2493.) In March and

September 2016, Dr. Ciavarri determined Plaintiff was unable to do repetitive

lifting and bending, or prolonged walking, sitting, and standing. (R. 2487,

2484.) In July 2017, Dr. Ciavarri concluded Plaintiff was unable to walk, climb

stairs, lift, and bend. (R. 2481.) In October 2017, Dr. Ciavarri determined that:

Plaintiff would likely decompensate in a high stress environment; she

emotionally needed a supportive environment; and she should avoid repetitive

heavy lifting, bending, and climbing. (R. 2479.)

An A.L.J. must consider all pertinent medical evidence in the record

regarding a plaintiff’s impairments and must explain why he relied on certain

opinions of record and not on others. Shaw v. Chater, 221 F.3d 126, 135 (2nd

Cir. 2000.) “Accordingly, an A.L.J. who chooses to adopt only portions of a

medical opinion must explain his or her decision to reject the remaining

portions.” Raymer v. Colvin, No. 14-CV-6009P, 2015 WL 5032669, *5

(W.D.N.Y. Aug. 25, 2015) (citations omitted); see also Caternolo v. Astrue, 6:11-

CV-6601 (MAT), 2013 WL 1819264, *9 (W.D.N.Y. Apr. 29, 2013.) In the instant

case, the A.L.J. accorded “some” weight to the opinions of Plaintiff’s treating

doctor, Dr. Ciavarri, but failed to adopt limitations such as a sitting limitation,

and limitations that support off-task and missed work time. (R. 27–28, 2480–

88.)

Moreover, “[w]hen a medical opinion stands uncontradicted, ‘[a]

circumstantial critique by non-physicians, however thorough or responsible,

must be overwhelmingly compelling in order to overcome’ it.” Giddings v.

Astrue, 333 Fed. App’x 649, 652 (2d Cir. 2009) (summary order) (quoting

Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 862 (2d Cir. 1990)).

An A.L.J. also may not use his own lay opinion against the expertise of a

doctor’s opinion. (“The A.L.J. ‘is free to resolve issues of credibility as to lay

testimony or to choose between properly submitted medical opinions, he is not

free to set his own expertise against that of a physician who submitted an

opinion or testified before him.’”); see Balsamo v. Chater, 142 F.3d 75, 81–82

(2d Cir. 1998); see also Rosa v. Callahan, 168 F.3d 72, 78 (2nd Cir. 1999);

Goldthrite v. Astrue, 535 F. Supp. 2d 329, 339 (W.D.N.Y. 2008); Frankhauser

v. Barnhart, 403 F. Supp. 2d 261 (W.D.N.Y. 2005.) Here, Hongbiao Liu, M.D.,

did not provide any opinion related to sitting or standing ability, and there is

no medical opinion besides Dr. Ciavarri’s regarding Plaintiff’s moderate

limitations in sitting and standing. Because the A.L.J. relied upon no medical

opinion when determining the RFC with regards to sitting and standing

limitations, it appears the A.L.J. used his own lay opinion to disregard Dr.

Ciavarri’s opinion. Plaintiff’s MRI showed she had a disc issue: “left

paracentral and foraminal disc protrusion at L5-S1 resulting in severe left

neural foraminal narrowing and chronic compression fracture deformity of T11

without retropulsion.” (R. 345, 1641). Dr. Ciavarri stated that prescriptions of

Oxycodone were not a long-term solution, and Plaintiff’s disc issue was not

responsive to injection. (R. 1677). The MRI in of itself does not support or

discount the medical opinion. Further, although the MRI exams appear to

support limitations and Dr. Ciavarri’s treatment, and Plaintiff’s reported

limitations, the A.L.J. did not discuss any of this evidence beyond merely

stating the medical results. (R. 25.)

If there is no supportive functional assessment from a physician, the

RFC can still be supported by substantial evidence, including treatment notes

and Plaintiff’s own testimony. See Johnson v. Colvin, 669 F. App’x 44 (2d Cir.

2016) (summary order); see also Monroe v. Colvin, 676 F. App’x 5 (2d Cir. 2017)

(summary order) (court found substantial evidence supported A.L.J.’s RFC for

unskilled work, despite lack of supportive functional assessment from medical

source. For substantial evidence, Court cited normal mental status findings

and extensive activities, including vacations and outdoor recreation.)

However, because the consultative examiner did not provide any opinion

related to Plaintiff’s sitting or standing ability, and there is no medical opinion

besides Dr. Ciavarri’s that opines Plaintiff had an ability or an inability to sit

and stand during the work day, the A.L.J. appears to have used his own lay

opinion to disregard Dr. Ciavarri’s medical opinion regarding Plaintiff’s

limitations on sitting and standing. Because a more severe sitting and standing

requirement could exclude Plaintiff from sedentary work, this error requires a

remand for further proceedings.

CONCLUSION

For the foregoing reasons, the Court grants Plaintiff’s motion for

judgment on the pleadings (ECF No. 12) and denies the Commissioner’s motion

for judgment on the pleadings (ECF No. 13.) 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: September 21, 2020

Rochester, New York

MARK W. PEDERSEN

United States Magistrate Judge