Crosby v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

______________________________________

JOHN C.,

DECISION

Plaintiff, and

v. ORDER

ANDREW M. SAUL, Commissioner of 20-CV-296F

Social Security, (consent)

Defendant.

______________________________________

APPEARANCES: LAW OFFICES OF KENNETH R. HILLER

Attorneys for Plaintiff

KENNETH R. HILLER, and

JEANNE ELIZABETH MURRAY, of Counsel

6000 North Bailey Avenue

Suite 1A

Amherst, New York 14226

JAMES P. KENNEDY, JR.

UNITED STATES ATTORNEY

Attorney for Defendant

Federal Centre

138 Delaware Avenue

Buffalo, New York 14202

and

ROBERTA G. BOWIE, and

CHRISTOPHER JOHN CARILLO

Special Assistant United States Attorneys, of Counsel

Social Security Administration

Office of General Counsel

1301 Young Street

Suite 350

Mailroom 104

Dallas, Texas 75202

JURISDICTION

On April 6, 2021, the parties to this action consented pursuant to 28 U.S.C. §

636(c) to proceed before the undersigned. (Dkt. 22). The matter is presently before the

court on motions for judgment on the pleadings filed by Plaintiff on November 30, 2020

(Dkt. 17), and by Defendant on March 1, 2021 (Dkt. 21).

BACKGROUND

Plaintiff John C. (“Plaintiff”), brings this action seeking judicial review of the

Commissioner of Social Security’s final decision denying Plaintiff’s application filed with

the Social Security Administration (“SSA”), on December 27, 2016, for Social Security

Disability Insurance (“SSDI”) under Title II of the Act (“disability benefits”). Plaintiff

alleges he became disabled on August 31, 2013, based on cervical spinal stenosis with

neuropathy, low back condition, upper body neuralgia, left torn meniscus, and post-

traumatic stress disorder (“PTSD”). AR1 at 254, 280-81. Plaintiff’s application initially

was denied on March 22, 2017, AR at 203-08, and at Plaintiff’s timely request, AR at

208-09, on January 18, 2018, a hearing was held in Buffalo, New York before

administrative law judge (“ALJ”) Stephen Cordovani (“the ALJ”). AR at 77-116 (“first

administrative hearing”). Appearing and testifying at the first administrative hearing via

video conference from Jamestown, New York were Plaintiff, represented by Steven

Ruotsi, Esq., and vocational expert Michael A. Klein (“Klein” or “the VE”).

On February 9, 2018, the ALJ denied Plaintiff’s claim, AR at 52-70 (“first ALJ

decision”), and Plaintiff timely filed a request for review of the first ALJ decision by the

Appeals Council, AR at 47-48. On May 25, 2018, the Appeals Council denied Plaintiff’s

request for review of the first ALJ decision, AR at 1-7, thereby making the first ALJ

decision the Commissioner’s final determination on the claim at that time. On July 24,

1 References to “AR” are to the page numbers of the Administrative Record Defendant electronically filed

in three parts on August 25, 2020 (Dkts. 10, 11 and 12).

2018, Plaintiff commenced his first action in this court challenging the Commissioner’s

determination on the first claim. Crosby v. Comm’r of Soc. Sec., 18-CV-805FPG

(W.D.N.Y.) (“first legal action”). On March 18, 2019, the parties stipulated to remand

the matter pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings, 18-

CV-805FPG, Dkt. 9, AR at 962-63, with judgment in Plaintiff’s favor entered March 19,

2019, 18-CV-805FPG, Dkt. 10, AR at 964. On June 17, 2019, the Appeals Council

issued a Remand Order vacating the first ALJ decision and remanded the matter for

further proceedings consistent with this court’s order including a new administrative

hearing. AR at 965-69.

In accordance with the Appeals Council’s remand order, on October 28, 2019, a

new administrative hearing was held in Buffalo, New York before the ALJ. AR at 858-99

(“second administrative hearing”). Appearing and testifying at the second administrative

hearing via video conference from Jamestown, New York were Plaintiff, represented by

Megan D. Kale, Esq., and Klein, the VE. On November 27, 2019, the ALJ issued an

unfavorable opinion (“second ALJ decision”). AR at 834-857. Plaintiff did not file for

review by the Appeals Council, but on March 11, 2020, commenced the instant action

seeking judicial review of the second ALJ decision.

On November 30, 2020, Plaintiff moved for judgment on the pleadings (Dkt. 17

(“Plaintiffs’ Motion”), attaching the Memorandum of Law in Support of Plaintiff’s Motion

for Judgment on the Pleadings (Dkt. 17-1) (“Plaintiff’s Memorandum”). On March 1,

2021, Defendant moved for judgment on the pleadings (Dkt. 20) (“Defendant’s Motion”),

attaching Commissioner’s Memorandum in Support of His Motion for Judgment on the

Pleadings and in Response to Plaintiff’s Brief, Pursuant to Local Rule 5.5 (Dkt. 20-1)

(“Defendant’s Memorandum”). Filed on March 22, 2021 was Plaintiff’s Response to

Commissioner’s Brief in Support and in Further Support for Plaintiff’s Motion for

Judgement on the Pleadings (Dkt. 21) (“Plaintiff’s Reply”). Oral argument was deemed

unnecessary.

Based on the foregoing, Plaintiff’s Motion is GRANTED; Defendant’s Motion is

DENIED; the matter is REMANDED for calculation of benefits.

FACTS2

Plaintiff John C. (“Plaintiff”), born December 11, 1974, was 42 years old when he

initially applied for disability benefits on December 27, 2016, and 44 years old as of

November 27, 2019, the date of the second ALJ decision. Plaintiff lived with his wife

and teenage son. AR at 864. Plaintiff graduated high school where he attended regular

classes, completed a two-year automotive technologies program at BOCES, and also

completed military training in weapons and combat. AR at 281. Plaintiff’s only work

history is 20 years as an infantryman with the United States Marines. AR at 282, 305,

872-73. In 2012, Plaintiff became sick while on active duty with what he maintains is a

“rare neurological disorder that the VA has been working to identify.” AR at 300.

According to Plaintiff, he “was stricken with this aliment overnight,” which led to his

discharge from the military in August 2013. AR at 305, 2120.

Plaintiff and his wife often provided care for their four-year old grandson who

stayed overnight at their house when his parents had to leave for work early. AR at

865-69. Plaintiff has a driver’s license and drives three times a week, mostly locally

2 In the interest of judicial economy, recitation of the Facts is limited to only those necessary for

determining the pending motions for judgment on the pleadings.

including to medical appointments, to the grocery store, and to transport his grandson to

pre-school, but sometimes to the Veterans Administration Hospital (“the VA”) in Buffalo

or Bath, New York, asserting he has to rest his arms on his legs while gripping the

steering wheel. AR at 869-72. Plaintiff also uses a riding lawn mower to mow his one-

acre yard, AR at 887, and with his neighbors’ assistance, clears fallen trees from trails

through the wooded portion of his 40-acre property with his neighbors doing most of the

work. AR at 886-890. On rare occasions, Plaintiff fishes in a pond on his property. AR

at 891-92. Plaintiff used to be an avid motorcycle rider, but has only ridden twice in the

last seven years. AR at 890.

Plaintiff received primary care through the VA hospitals in Buffalo and Bath

where Plaintiff was treated by, inter alia, Sherry Withiam-Leitch, M.D. (“Dr. Withiam-

Leitch”), nurse practitioner Rosetta Brown-Greaney (“NP Brown-Greaney”), and

psychologists Deborah Marshall, Psy.D. (“Dr. Marshall”), and Karen Klementowski,

Psy.D. (“Dr. Klementowski”). On October 17, 2013, NP Brown-Greaney completed a

general medical separation health assessment disability benefits questionnaire in

connection with Plaintiff’s discharge from the Marines, indicating Plaintiff has symptoms

attributable to peripheral nerve conditions in his upper extremities including constant

severe bilateral pain, and severe bilateral paresthesia (burning, tingling sensation) or

dysethesia (sensation of burning or tightening). AR at 2125-46. On January 15, 2016,

NP Brown-Greaney completed a disability benefits questionnaire regarding Plaintiff’s

hand and finger conditions, AR at 354-71, and regarding Plaintiff’s cervical spine. AR at

1932-43. On September 13, 2016, Dr. Withiam-Leitch completed a disability benefits

questionnaire related to Plaintiff’s peripheral nerve condition. AR at 346-54. On

February 5, 2018, NP Brown-Greaney completed a disability benefits questionnaire

regarding Plaintiff’s peripheral nerve condition. AR at 1423-40. Disability benefits

questionnaires concerning Plaintiff’s PTSD were completed by Dr. Marshall on October

22, 2013, AR at 2119-24, December 28, 2015, AR at 549-53, and by Dr. Klementowski

on September 6, 2016. AR at 338-45.

In connection with his disability benefits claim, on March 9, 2017, Plaintiff

underwent a psychiatric evaluation by Kristina Labarbera, Psy.D. (“Dr. Labarbera”), AR

at 568-72, and an internal medicine examination by Rita Figueroa, M.D. (“Dr.

Figueroa”). AR at 573-78. On March 21, 2017, state agency psychologist A. Dipeolu,

Ph.D. (“Dr. Dipeolu”), and state agency disability examiner Gary Ehlert, M.D. (“Dr.

Ehlert”) reviewed Plaintiff’s medical records. AR at 193-202. After remand of the first

ALJ decision, on July 13, 2019, Plaintiff underwent an internal medicine examination by

Russell Lee, M.D. (“Dr. Lee”). AR at 1213-16.

DISCUSSION

1. Standard and Scope of Judicial Review

A claimant is “disabled” within the meaning of the Act and entitled to disability

benefits when he is unable “to engage in any substantial gainful activity by reason of

any medically determinable physical or mental impairment which . . . has lasted or can

be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§

416(i)(1); 1382c(a)(3)(A). A district court may set aside the Commissioner’s

determination that a claimant is not disabled if the factual findings are not supported by

substantial evidence, or if the decision is based on legal error. 42 U.S.C. §§ 405(g),

1383(c)(3); Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).

In reviewing a final decision of the SSA, a district court “is limited to determining

whether the SSA’s conclusions were supported by substantial evidence in the record

and were based on a correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d

Cir. 2012) (internal quotation marks and citation omitted). “Substantial evidence is more

than a mere scintilla. It means such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Id. It is not, however, the district court’s

function to make a de novo determination as to whether the claimant is disabled; rather,

“the reviewing court is required to examine the entire record, including contradictory

evidence and evidence from which conflicting inferences can be drawn” to determine

whether the SSA’s findings are supported by substantial evidence. Id. “Congress has

instructed . . . that the factual findings of the Secretary,3 if supported by substantial

evidence, shall be conclusive.” Rutherford v. Schweiker, 685 F.2d60, 62 (2d Cir. 1982).

“Under this ‘very deferential standard of review,’ ‘once an ALJ finds facts, we can reject

those facts only if a reasonable factfinder would have to conclude otherwise.’” Bonet ex

rel. T.B. v. Colvin, 523 Fed.Appx. 58, 58-59 (2d Cir. 2013) (quoting Brault v. Social Sec.

Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (italics in original). Indeed, the issue

is not whether substantial evidence supports the claimant’s argument, but “whether

substantial evidence supports the ALJ’s decision.” Bonet ex rel. T.B., 523 Fed.Appx. at

59.

3 Pursuant to the Social Security Independence and Program Improvements Act of 1994, the function of

the Secretary of Health and Human Services in Social Security cases was transferred to the

Commissioner of Social Security, effective March 31, 1995.

2. Disability Determination

The definition of “disabled” is the same for purposes of receiving SSDI and SSI

benefits. Compare 42 U.S.C. § 423(d) with 42 U.S.C. § 1382c(a). The applicable

regulations set forth a five-step analysis the Commissioner must follow in determining

eligibility for disability benefits. 20 C.F.R. §§ 404.1520 and 416.920. See Bapp v.

Bowen, 802 F.2d 601, 604 (2d Cir. 1986); Berry v. Schweiker, 675 F.2d 464 (2d Cir.

1982). The five steps include (1) whether the plaintiff is currently engaged in substantial

gainful activity, 20 C.F.R. § 404.1520(b) and § 416.920(b); (2) whether the plaintiff has

at least one severe impairment limiting his mental or physical ability to perform basic

work activity, 20 C.F.R. § 404.1520(c) and § 416.920(c); (3) whether the plaintiff’s

severe impairments, considered together, meet or equal a listing in 20 C.F.R. Part 404,

Subpt. P, Appendix 1 of the regulations, and meet the duration requirement of at least

12 continuous months, 42 U.S.C. §§ 423(d)(1)(A) and 1382a(c)(3)(A); 20 C.F.R. §§

404.1520(d) and 416.920(d), (4) whether the plaintiff, despite his collective impairments,

retains the “residual functional capacity (“RFC”) to perform his past relevant work

(“PRW”), 20 C.F.R. 404.1520(e)-(f), and 416.920(e)-(f), and (5) if the plaintiff cannot

perform his PRW, whether any work exists in the national economy for which the

Plaintiff, given the applicant’s age, education, and past work experience, “retains a

residual functional capacity to perform. . . .” Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.

1999) (quotation marks and citation omitted); 20 C.F.R. §§ 404.1560(c) and 416.960(c).

The burden of proof is on the applicant for the first four steps, with the Commissioner

bearing the burden of proof on the final step. 20 C.F.R. §§ 404.1520(a)(4) and

416.920(a)(4); Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008).

In the instant case, the ALJ found Plaintiff meets the insured status requirements

for SSDI through December 31, 2018, AR at 839, Plaintiff has not engaged in SGA

since August 31, 2013, his alleged disability onset date (“DOD”), id., and has the severe

impairments of disorder of the left knee, degenerative disc disease (“DDD”) of the neck

and low back, and mild sensorineural hearing loss in the right ear, id. at 839-40, but that

there is no medical explanation supporting Plaintiff’s reported symptoms of upper

extremity pain, weakness, numbness and difficulty using his fingers, despite “[m]ultiple

exams and tests of every nature, including neurological and rheumatological,” such that

the condition is not medically determinable, id. at 840-41, that Plaintiff’s PTSD, although

medically determinable, is not severe, id. at 841-43, and that Plaintiff does not have an

impairment or combination of impairments meeting or medically equal in severity to a

listed impairment. AR at 843-44. The ALJ further found that despite his impairments,

Plaintiff retains the RFC for light work as defined in 20 C.F.R. § 404.1567(b), except that

Plaintiff can occasionally kneel, crouch, and crawl, cannot climb ladders, ropes or

scaffolds, cannot work around hazards such as loud noise, unprotected heights, moving

mechanical parts, or flammable liquids, and can occasionally use a telephone at work.

AR at 844-50. Plaintiff was unable to perform any PRW, AR at 850-51, but given his

age, education, ability to communicate in English, and despite transferability of skills

from his PRW not being relevant, is able to perform jobs existing in the national

economy including as a marker, office cleaner, and weigher. AR at 851-52. As such,

the ALJ found Plaintiff was not disabled as defined under the Act at any time through

the date of the ALJ’s decision.

In support of his motion, Plaintiff argues the ALJ erred at step two of the five-step

sequential analysis in not considering as severe impairments Plaintiff’s upper extremity

impairment, Plaintiff’s Memorandum at 17-27, as well as Plaintiff’s PTSD. Id. at 27-30.

In opposition, Defendant argues the findings contained in the various disability

questionnaires completed by medical personnel at the VA are not binding on the

Commissioner, Defendant’s Memorandum at 8-9, the ALJ properly considered the

opinions of the consultative examiners, id. at 10-12, the opinions of VA NP Brown-

Greaney were not issued by an “acceptable medical source” and thus are not entitled to

controlling weight, id. at 12, Dr. Lee’s opinion was issued after December 31, 2018, i.e.,

Plaintiff’s date last insured and, as such, is not pertinent to the relevant period, id. at 12-

13, Plaintiff thus fails to establish the ALJ erred at step two, id. at 13-15, and substantial

evidence supports the ALJ’s determination that PTSD did not qualify at step two as a

severe impairment. Id. at 15-17. In reply, Plaintiff reiterates that the ALJ erred at step

two in failing to find Plaintiff’s upper extremity impairment and PTSD constitute severe

impairments. Plaintiff’s Reply at 1-3.

Preliminarily, the court addresses the numerous opinions of record by VA

personnel, including psychologists Drs. Marshall and Klementowski, and Dr. Withiam

Leitch. As Defendant argues, Defendant’s Memorandum at 8-10, insofar as such

opinions were rendered in connection with Plaintiff’s VA disability benefits, the

determinations that Plaintiff is disabled are not based on SSA policy or definitions of

disability and, as such, are not entitled to controlling weight, although they remain

evidence the ALJ may consider. See Lohnas v. Astrue, 510 Fed.Appx. 13, 14 (2d Cir.

2013) (holding ALJ with SSA did not err in failing to consider VA’s determination that

claimant is disabled “[b]ecause the Commissioner is not bound by another agency’s

disability determination . . . .”) (citing Cutler v. Weinberger, 516 F.2d 1282, 1286 (2d Cir.

1975)). Nevertheless, a plain reading of the second ALJ decision establishes the ALJ

considered all these opinions. See AR at 849 (giving partial weight to opinion of Dr.

Withiam-Leitch), 850 (giving some weight to opinions of Drs. Klementowski and

Marshall).

Nor was the ALJ required to give controlling weight to the findings contained in

the disability benefits questionnaires completed by NP Brown-Greaney who, as a nurse

practitioner, is not considered an “acceptable medical source” under the relevant

regulation in effect when Plaintiff filed his disability benefits claim, filed prior to March

27, 2017. See 20 C.F.R. § 404.1502(a)(7) (defining a medical opinion as a statement

from an “acceptable medical source” which does not include nurse practitioners); see

also Genier v. Astrue, 298 Fed.Appx. 105, 108-09 (2d Cir. 2008) (holding ALJ was free

to discount medical assessments made by physician’s assistant and nurse practitioner

in favor of objective findings of medical doctors) (citing 20 C.F.R. § 416.913(d)(1)

(defining nurse practitioners and physician’s assistants as “other sources” who opinions

do not demand the same deference as those of a treating physician)). Thus, although

NP Brown-Greaney’s treatments notes are evidence of Plaintiff’s alleged impairments

the ALJ may consider, the ALJ was not required to give any particular weight to NP

Brown-Greaney’s assessments of Plaintiff.

With regard to Plaintiff’s PTSD, the ALJ considered the condition to be a

medically determinable impairment, although not severe because the evidence in the

record failed to establish the condition poses more than minimal limitation to claimant’s

ability to perform basic mental work activities. AR at 841-42. In support of this

determination, the ALJ relies on the fact that Plaintiff has not sought treatment for his

PTSD, AR at 841, as well as Dr. Labarbera’s March 9, 2017 psychiatric evaluation. Id.

(citing AR at 568-72). In particular, upon examining Plaintiff, Dr. Labarbera diagnosed

Plaintiff with PTSD. Id. at 571. Nevertheless, Dr. Labarbera’s evaluation of Plaintiff with

regard to the four mental functioning areas set forth in the regulations for evaluating

mental disorders referred to as the “paragraph B” criteria, failed to show Plaintiff with at

least one extreme or two marked limitations in the four areas of functioning, including

(1) a mild limitation in understanding, remembering, or applying information, particularly

with regard to recent and remote memory; (2) no limitation to interacting with others; (3)

mild limitation in concentrating, persisting, or maintaining pace; and (4) mild limitation in

adapting or managing himself, AR at 841-42 (citing AR at 570). Significantly, “‘the

opinion of a treating physician is not binding if it is contradicted by substantial evidence,

and the report of a consultative physician may constitute such evidence.’” Camille v.

Colvin, 652 Fed.Appx. 25, 28 (2d Cir. 2016) (quoting Mongeur v. Heckler, 722 F.2d

1033, 1039 (2d Cir. 1983))). Further, the report of a consultative psychologist also may

constitute substantial evidence. Petrie v. Astrue, 412 Fed.Appx. 401, 405-06 (2d Cir.

2011). Accordingly, the ALJ’s determination that Plaintiff’s PTSD was not severe is

supported by substantial evidence in the record.

Insofar as Plaintiff argues the ALJ erred in failing to determine Plaintiff has a

medically determinable severe impairment of his upper extremities, Plaintiff’s

Memorandum at 17-27, Defendant maintains the ALJ did not err in failing to find a

severe upper extremities impairment because no such impairment is supported by any

medically acceptable clinical and laboratory diagnostic techniques from an acceptable

medical source. Defendant’s Memorandum at 13-15. As Defendant argues,

Defendant’s Memorandum at 15, it is Plaintiff’s burden to establish he has a medically

determinable impairments that accounts for his alleged limitations. Pazik v. Comm’r of

Soc. Sec., 2020 WL 5511306, at * 3 (W.D.N.Y. Sept. 14, 2020). As explained in Social

Security Ruling (“SSR”)4 96-4p, Titles II and XVI: Symptoms, Medically Determinable

Physical and Mental Impairments, and Exertional and Nonexertional Limitations,

available at 1996 WL 374187 (SSA July 2, 1996) (“SSR 96-4p”), setting forth the

framework for evaluating symptoms in the adjudication of disability benefits claims,

“regardless of how many symptoms an individual alleges, or how genuine the

individual’s complaints may appear to be, the existence of a medically determinable

physical or mental impairment cannot be established in the absence of objective

medical abnormalities, i.e., medical signs and laboratory findings.” SSR 96-4p, 1996

WL 374187, at * 1. Further, “[n]o symptom or combination of symptoms by itself can

constitute a medically determinable impairment.” Id. at * 2. But, as Defendant

concedes, Defendant’s Memorandum at 15, Plaintiff’s upper extremities symptoms may

be attributable to his cervical DDD which the ALJ identified as a severe impairment.

Significantly, the ALJ did err in determining Plaintiff’s cervical degenerative disc

disease (“DDD”) is a severe impairment, then failing to find such impairment posed any

limitations to Plaintiff’s ability to perform basic work activities. In particular, the

regulations instruct that to qualify as severe,

4 “SSR” refers to Social Security Rulings which are agency rulings “published under the authority of the

Commissioner of Social Security and are binding on all components of the Administration. These rulings

represent precedent final opinions and orders and statements of policy and interpretations that [the SSA]

ha[s] adopted.” 20 C.F.R. § 402.35(b)(1).

Your impairment(s) must result from anatomical, physiological, or psychological

abnormalities that can be shown by medically acceptable clinical and laboratory

diagnostic techniques. Therefore, a physical or mental impairment must be

established by objective medical evidence from an acceptable medical source.

We will not use your statement of symptoms, a diagnosis, or a medical opinion to

establish the existence of an impairment(s). After we establish that you have a

medically determinable impairment(s), then we determine whether your

impairment(s) is severe.

20 C.F.R. § 404.1521

As defined in the relevant regulations, a “severe impairment” is one that “significantly

limits your physical or mental ability to do basic work activities. . . . ” 20 C.F.R. §

404.1520(c). “Basic work activities” include the ability and aptitude to perform most jobs

and include, as relevant here, “[p]hysical functions such as walking, standing, sitting,

lifting, pushing, pulling, reaching, carrying, or handling.” 20 C.F.R. § 404.1522(b)(1).

Here, the ALJ’s determination that Plaintiff’s cervical DDD is a “severe

impairment” establishes, pursuant to 20 C.F.R. § 404.1521, that such condition is

“shown by medically acceptable clinical and laboratory diagnostic techniques.” The

ALJ’s determination that Plaintiff’s cervical DDD impairment is “severe,” implies such

impairment “significantly limits” Plaintiff’s ability to perform “basic work activities.” 20

C.F.R. § 404.1520(c). As such, upon finding Plaintiff’s cervical DDD is a severe

impairment, the ALJ was required to incorporate into the RFC determination in the

second ALJ decision some limitations associated with such impairment, but failed to do

so. See Laura C. v. Commissioner of Soc. Sec., __ F.Supp.3d __, 2021 WL 1147300,

at * 5 (W.D.N.Y. Mar. 26, 2021) (remanding where the ALJ considered the plaintiff’s

Chron’s disease and irritable bowel syndrome (“IBS”) to be severe, but failed to explain

how any limitations to the plaintiff’s ability to perform basic work activities accounted for

the plaintiff’s symptoms attributed to Chron’s disease and IBS such that court was “left

to speculate” with regard to the severity of the plaintiff’s condition and thus deprived the

court of any meaningful review); Amanda F. v. Saul, 2021 WL 236015, at * 6 (W.D.N.Y.

Jan. 25, 2021) (holding the ALJ’s failure to include in the RFC determination any

limitations relating to the plaintiff’s bilateral carpal tunnel syndrome, which the ALJ

considered to be a severe impairment, was harmful error requiring remand for further

administrative proceedings).

The upper extremity symptoms attributed to Plaintiff’s cervical DDD include pain

muscle weakness, paresthesia, and decreased sensation to light touching and have

repeatedly been documented in Plaintiff’s medical records. See, e.g., AR at 347-38 (VA

Peripheral Nerve Condition Disability Benefits Questionnaire completed by Dr. Withiam-

Leitch on January 15, 2016). Significantly, on April 26, 2017, Plaintiff underwent at VA

Neurology Clinic a neurological evaluation for complaints of, as relevant here, bilateral

upper extremity weakness, and severe pain with weakness to finger extensors. AR at

588-91. It was noted Plaintiff had an MRI of his cervical spine on September 27, 2016,

that showed disc herniation at C6-C7 extending to the right neural foramen, secondary

severe right and neural foraminal and lateral recess stenosis, and impinging on the right

C7-C8 nerve roots. Id. Upon neurological examination, Plaintiff had bilateral web

space atrophy (muscle wasting between thumb and index finger), and generalized

upper extremity muscle wasting, dysmetria bilaterally on finger to nose testing (lack of

coordination in touching finger to nose), and reduced sensation to light touch, sharp,

and vibratory sense bilateral, which symptoms were found consistent with cervical

myelopathy (spinal cord injury caused by compression) of a worsening pathology, with

Plaintiff’s bilateral upper extremity weakness directly correlating with MRI cervical

findings. Id.

Findings made by Dr. Figueroa who consultatively examined Plaintiff on Mary 9,

2017, are consistent with Plaintiff’s complaints. AR at 573-77. In particular, Dr.

Figueroa reported that on his upper extremities, pinprick was not sensed in any portion

of Plaintiff’s left arm, and only in the triceps of Plaintiff’s right arm, AR at 576,

proprioception (body’s inability to perceive its own position in space) and two-point

discrimination (intended to assess if a patient is able to identify two close points on a

small area of skin) were absent, id., there was atrophy of Plaintiff’s right shoulder and

right biceps, id. at 577, and an overall decrease in tonicity (muscle tone). Id. Dr.

Figueroa diagnosed Plaintiff with diffuse myalgia and muscle weakness of unknown

etiology, and cervicalgia (neck pain), stating Plaintiff would have difficulty with activities

requiring moderate exertion, and moderate limitations to repetitive bending, lifting, and

carrying, as well as repetitive reaching, pushing and pulling. Id. Upon another

consultative examination by Dr. Lee on July 31, 2019, Plaintiff’s primary complaint was

cervical nerve impingement bilaterally at C7-C8, constant pain in his arms, burning pain

from his elbows to his fingertips, which worsened when Plaintiff raised his arms, and an

inability to hold onto items. AR at 1213-16. After examining Plaintiff, Dr. Lee diagnosed

nerve impingement of C7-C8 and unknown muscle disorder, stating Plaintiff has

moderate limitations for activities involving lifting, reaching above his head, and

bending. Id. In short, Plaintiff’s medical providers, including several physicians,

repeatedly found Plaintiff with muscle weakness, pain, and decreased sensation in his

bilateral upper extremities, and attributed such findings to Plaintiff’s cervical DDD. The

ALJ’s desire for more persuasive evidence such as diagnostic medical tests

establishing a diagnosed impairment of Plaintiff upper extremities impairment separate

from the severe impairment of cervical DDD is understandable; however, the record

establishes both Plaintiff’s treating and consultative sources repeatedly attribute

Plaintiff’s symptoms, including subjective symptoms such as pain and weakness, as

well as objectively determined symptoms including muscle wasting and paresthesia

relative to his upper extremities to his cervical DDD. The ALJ cannot insist on objective

medical tests to confirm subjective symptoms where no such tests exist. See Green-

Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir. 2003) (holding ALJ erred in requiring

“‘objective’ evidence for a disease that eludes such measurement” such that objective

findings were not required to find the claimant disabled by fibromyalgia).

Pursuant to § 205 of the Act, 42 U.S.C. § 405(g), courts may remand cases upon

finding the Commissioner “applied erroneous legal standards and arrived at a

determination unsupported by substantial evidence.” Aubeuf v. Schweiker, 649 F.2d

107, 116 (2d Cir.1981). “The fourth sentence of § 405(g) authorizes a court to enter ‘a

judgment affirming, modifying, or reversing the decision of the Secretary, with or without

remanding the cause for a rehearing.’” Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991)

(quoting Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990)); Raitport v. Callahan, 183

F.3d 101, 103–04 (2d Cir.1999). Where there are gaps in the administrative record or

the ALJ has applied an improper legal standard, the proper course is a remand to the

Commissioner for further proceedings. Rosa, supra, at 82–83 (citing Parker v. Harris,

626 F.2d 225, 235 (2d Cir.1980)). Where, however, there is no apparent basis to

conclude that a more complete record might support the Commissioner's decision, a

remand limited to calculation of benefits is in order. Rosa, supra (citing Balsamo v.

Chater, 142 F.3d 75, 82 (1998)); Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir.1987).

Although Plaintiff requests remand for further administrative proceedings,

Plaintiff’s Memorandum at 30; Plaintiff’s Reply at 3, where, as here, there are no gaps in

the administrative record, remand for further development of the record would be futile

because it is unlikely that any objective medical testing will definitively establish the

source of Plaintiff’s upper extremities symptoms. Further, as discussed, Discussion,

supra, at 14-16, the ALJ erroneously discredited Plaintiff's subjective complaints

regarding his cervical DDD despite a plethora of medical evidence attributing such

complaints to Plaintiff’s cervical DDD, substantially undermining the ALJ's decision,

which, as discussed, Discussion, supra, at 16-17, is heavily predicated on the

discrediting of such complaints based on the lack of diagnostic medical tests

corroborating the complaints. Moreover, a plain review of the transcript of the first

administrative hearing reveals the ALJ posed hypotheticals to the VE that included

limitations consistent with Plaintiff’s cervical DDD, specifically, limited reaching,

fingering, and handling, which limitations the VE testified would preclude any

competitive employment. AR at 114. Similarly, at the second administrative hearing,

the ALJ again posed a hypothetical to the VE that included limiting Plaintiff to occasional

handling and fingering, with the VE responding such limitations would preclude

performance of all competitive work. AR at 897-98. The record thus establishes that

remand for further administrative proceedings, including a new hearing with the ALJ

required to pose to the VE another hypothetical incorporating restrictions attributed to

Plaintiff’s cervical DDD would be futile. See Barbara K. v. Comm’r of Soc. Sec., 2021

WL 1163149, at * 17-18 (N.D.N.Y. Mar. 26, 2021) (remanding for calculation of benefits

where the VE’s hearing testimony in response to the ALJ’s hypothetical that included

limitations attributed to all of the plaintiff’s severe impairments, including fibromyalgia

and neuropathy, was that the plaintiff would not be capable of performing any

substantial gainful employment available in the national economy) (citing cases).

Accordingly, the ALJ’s finding that Plaintiff was not disabled between August 31,

1993, his alleged DOD, and December 31, 2018, his date last insured, is not supported

by substantial evidence in the record. As such, remand solely for calculation of benefits

is proper.

CONCLUSION

Based on the foregoing, Plaintiff’s Motion (Dkt. 17) is GRANTED; Defendant’s

Motion (Dkt. 20) is DENIED; the matter is REMANDED for calculation of benefits. The

Clerk of Court is directed to close the file.

SO ORDERED.

/s/ Leslie G. Foschio

______________________________________

LESLIE G. FOSCHIO

UNITED STATES MAGISTRATE JUDGE

DATED: April 20th, 2021

Buffalo, New York