Conboy v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

DEAN C., §

§

Plaintiff, §

§

v. § Case # 1:19-cv-1165-DB

§

COMMISSIONER OF SOCIAL SECURITY, § MEMORANDUM DECISION

§ AND ORDER

Defendant. §

INTRODUCTION

Plaintiff Dean C. (“Plaintiff”) brings this action pursuant to the Social Security Act (the

“Act”), seeking review of the final decision of the Commissioner of Social Security (the

“Commissioner”), that denied his application for Disability Insurance Benefits (“DIB”) under Title

II of the Act, and his application for supplemental security income (“SSI”) under Title XVI of the

Act. See ECF No. 1. The Court has jurisdiction over this action under 42 U.S.C. §§ 405(g), 1383(c),

and the parties consented to proceed before the undersigned in accordance with a standing order

(see ECF No. 19).

Both parties moved for judgment on the pleadings pursuant to Federal Rule of Civil

Procedure 12(c). See ECF Nos. 13, 16. Plaintiff also filed a reply brief. See ECF No. 18. For the

reasons set forth below, the Commissioner’s motion (ECF No. 16) is DENIED, and Plaintiff’s

motion (ECF No. 13) is GRANTED IN PART, and this matter is REMANDED to the

Commissioner for further administrative proceedings as set forth below.

BACKGROUND

Plaintiff protectively filed his applications for DIB and SSI on April 7, 2015, alleging

disability beginning February 7, 2015 (the disability onset date), due to bipolar disorder,

degenerative disc disease, left shoulder pain, right hip pain, and left foot pain.1 Transcript (“Tr.”)

127, 139. The claims were denied initially on September 3, 2015 (Tr. 153), after which Plaintiff

requested an administrative hearing (Tr. 161). Prior to the hearing, Plaintiff requested to amend

his alleged onset date to February 9, 2016. Tr. 312. On October 30, 2017, Administrative Law

Judge Michael Carr (the “ALJ”) presided over a video hearing from Falls Church, Virginia. Tr.

28, 51-93. Plaintiff appeared and testified at the hearing from Buffalo, New York, and was

represented by Daniel R. McComb, an attorney. Id. Deborah Bunn-Durham, an impartial

vocational expert (“VE”), also appeared and testified at the hearing. Id. The ALJ granted Plaintiff’s

pre-hearing request to amend his alleged onset date to February 9, 2016. Tr. 28.

On July 5, 2018, the ALJ issued an unfavorable decision, finding that Plaintiff was not

disabled. Tr. 28-44. On July 3, 2019, the Appeals Council denied Plaintiff’s request for further

review. Tr. 1-7. The ALJ’s July 5, 2018 decision thus became the “final decision” of the

Commissioner subject to judicial review under 42 U.S.C. § 405(g).

LEGAL STANDARD

I. District Court Review

“In reviewing a final decision of the SSA, this 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) (citing 42 U.S.C. §

405(g)) (other citation omitted). The Act holds that the Commissioner’s decision is “conclusive”

if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence means more

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

adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (citations

1 Plaintiff filed a prior application for benefits that was denied by the Appeals Council on August 14, 2009. Tr. 246.

omitted). It is not the Court’s function to “determine de novo whether [the claimant] is disabled.”

Schaal v. Apfel, 134 F. 3d 496, 501 (2d Cir. 1990).

II. The Sequential Evaluation Process

An ALJ must follow a five-step sequential evaluation to determine whether a claimant is

disabled within the meaning of the Act. See Parker v. City of New York, 476 U.S. 467, 470-71

(1986). At step one, the ALJ must determine whether the claimant is engaged in substantial gainful

work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not, the ALJ

proceeds to step two and determines whether the claimant has an impairment, or combination of

impairments, that is “severe” within the meaning of the Act, meaning that it imposes significant

restrictions on the claimant’s ability to perform basic work activities. Id. § 404.1520(c). If the

claimant does not have a severe impairment or combination of impairments meeting the durational

requirements, the analysis concludes with a finding of “not disabled.” If the claimant does, the

ALJ continues to step three.

At step three, the ALJ examines whether a claimant’s impairment meets or medically

equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the

“Listings”). Id. § 404.1520(d). If the impairment meets or medically equals the criteria of a Listing

and meets the durational requirement, the claimant is disabled. Id. § 404.1509. If not, the ALJ

determines the claimant’s residual functional capacity, which is the ability to perform physical or

mental work activities on a sustained basis notwithstanding limitations for the collective

impairments. See id. § 404.1520(e)-(f).

The ALJ then proceeds to step four and determines whether the claimant’s RFC permits

him or her to perform the requirements of his or her past relevant work. 20 C.F.R. § 404.1520(f).

If the claimant can perform such requirements, then he or she is not disabled. Id. If he or she

cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the

Commissioner to show that the claimant is not disabled. Id. § 404.1520(g). To do so, the

Commissioner must present evidence to demonstrate that the claimant “retains a residual

functional capacity to perform alternative substantial gainful work which exists in the national

economy” in light of his or her age, education, and work experience. See Rosa v. Callahan, 168

F.3d 72, 77 (2d Cir. 1999) (quotation marks omitted); see also 20 C.F.R. § 404.1560(c).

ADMINISTRATIVE LAW JUDGE’S FINDINGS

The ALJ analyzed Plaintiff’s claim for benefits under the process described above and

made the following findings in his July 5, 2018 decision:

1. The claimant meets the insured status requirements of the Social Security Act through

March 31, 2021;

2. The claimant has not engaged in substantial gainful activity since February 9, 2016, the

alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.);

3. The claimant has the following severe impairments: a lumbar spine impairment, a right

shoulder impairment, a cervical spine impairment, a right hip and pelvis impairment,

cannabis abuse, schizoaffective disorder, post-traumatic stress disorder and depression (20

CFR 404.1520(c) and 416.920(c));

4. The claimant does not have an impairment or combination of impairments that meets or

medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart

P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and

416.926);

5. The claimant has the residual functional capacity to perform light work as defined in 20

CFR 404.1567(b) and 416.967(b)2 except he can stand and/or walk for only four hours in

an eight- hour workday. The claimant can occasionally balance, crouch, crawl, kneel,

stoop and climb ramps and stairs, but he can never climb ladders, ropes or scaffolds. He

can occasionally reach overhead. The claimant can perform simple, routine tasks and he

2 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing

up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal

of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg

controls. To be considered capable of performing a full or wide range of light work, [the claimant] must have the

ability to do substantially all of these activities. If someone can do light work, [the SSA] determine[s] that he or she

can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit

for long periods of time.” 20 C.F.R. § 404.1567(b).

can work in an environment where change is minimal. He can tolerate occasional contact

with supervisors and coworkers, but he can have no contact with the general public;

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965);

7. The claimant was born on June 5, 1965 and was 50 years old, which is defined as an

individual closely approaching advanced age, on the alleged disability onset date (20 CFR

404.1563 and 416.963);

8. The claimant has at least a high school education and is able to communicate in English

(20 CFR 404.1564 and 416.964);

9. Transferability of job skills is not an issue in this case because the claimant’s past relevant

work is unskilled (20 CFR 404.1568 and 416.968);

10. Considering the claimant’s age, education, work experience, and residual functional

capacity, there are jobs that exist in significant numbers in the national economy that the

claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a));

11. The claimant has not been under a disability, as defined in the Social Security Act, from

February 9, 2016, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

Tr. 28-43.

Accordingly, the ALJ determined that, based on the application for a period of disability

and disability insurance benefits protectively filed on April 7, 2015, the claimant is not disabled

under sections 216(i) and 223(d) of the Social Security Act. Tr. 44. The ALJ also determined that

based on the application for supplemental security benefits protectively filed on April 7, 2015, the

claimant is not disabled under section 1614(a)(3)(A) of the Act. Id.

ANALYSIS

Plaintiff asserts two points of error. First, Plaintiff argues that the ALJ erred because he

developed the RFC based on his own lay judgment after rejecting all of the medical opinions of

record. See ECF No. 13-1 at 22-24. Next, Plaintiff argues that the ALJ erred because he failed to

fulfill his affirmative duty to develop the record. See id. at 24-29. The Commissioner argues in

response that the ALJ properly considered the evidence of record, including the medical opinion

evidence, and the ALJ had no further duty to develop the record. See ECF No. 16-1 at 13-25.

A Commissioner’s determination that a claimant is not disabled will be set aside when the

factual findings are not supported by “substantial evidence.” 42 U.S.C. § 405(g); see also Shaw v.

Chater, 221 F.3d 126, 131 (2d Cir. 2000). Substantial evidence has been interpreted to mean “such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. The

Court may also set aside the Commissioner’s decision when it is based upon legal error. Rosa, 168

F.3d at 77.

Upon review, the Court finds there is merit to Plaintiff’s argument that the record lacked

sufficient evidence to support the ALJ’s physical RFC finding. As discussed further below, none

of the treating or examining source medical opinions from the relevant time period include specific

functional limitations. Accordingly, remand is warranted with respect to the ALJ’s physical RFC

finding, However, Court finds that the ALJ properly considered the evidence regarding Plaintiff’s

mental impairments, including the medical opinions of record and the other record evidence, and

his determination that Plaintiff retained the RFC to perform simple, routine work that involved

minimal change and limited contact with others was supported by substantial evidence. Tr. 39-40.

A claimant’s RFC is the most he can still do despite his limitations and is assessed based

on an evaluation of all relevant evidence in the record. See 20 C.F.R. §§ 404.1520(e),

404.945(a)(1), (a)(3); SSR 96-8p, 61 Fed. Reg. 34,474-01 (July 2, 1996). At the hearing level, the

ALJ has the responsibility of assessing the claimant’s RFC. See 20 C.F.R. § 404.1546(c); SSR 96-

5p, 61 Fed. Reg. 34,471-01 (July 2, 1996); see also 20 C.F.R. § 404.1527(d)(2) (stating the

assessment of a claimant’s RFC is reserved for the Commissioner). Determining a claimant’s RFC

is an issue reserved to the Commissioner, not a medical professional. See 20 C.F.R. §

416.927(d)(2) (indicating that “the final responsibility for deciding these issues [including RFC]

is reserved to the Commissioner”); Breinin v. Colvin, No. 5:14-CV-01166(LEK TWD), 2015 WL

7749318, at *3 (N.D.N.Y. Oct. 15, 2015), report and recommendation adopted, 2015 WL 7738047

(N.D.N.Y. Dec. 1, 2015) (“It is the ALJ’s job to determine a claimant’s RFC, and not to simply

agree with a physician’s opinion.”).

Additionally, it is within the ALJ’s discretion to resolve genuine conflicts in the evidence.

See Veino v Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). In so doing, the ALJ may “choose between

properly submitted medical opinions.” Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998).

Moreover, an ALJ is free to reject portions of medical-opinion evidence not supported by objective

evidence of record, while accepting those portions supported by the record. See Veino, 312 F.3d

at 588. Indeed, an ALJ may formulate an RFC absent any medical opinions. “Where, [] the record

contains sufficient evidence from which an ALJ can assess the [plaintiff’s] residual functional

capacity, a medical source statement or formal medical opinion is not necessarily required.”

Monroe v. Comm’r of Soc. Sec., 676 F. App’x 5, 8 (2d Cir. 2017) (internal citations and quotation

omitted).

With respect to Plaintiff’s mental limitations, the ALJ gave some weight to the opinions of

non-examining state agency medical consultant Sefali Bhutwala, Ph.D. (“Dr. Bhutwala”). Tr. 41-

42, 131-38. Dr. Bhutwala reviewed the evidence of record as of September 2, 2015 and opined

that Plaintiff retained the ability to perform simple work in a low contact environment. Tr. 132.

Dr. Bhutwala further explained that, while Plaintiff’s ability to deal with co-workers and the public

would be somewhat reduced, he would be able to handle brief and superficial contact as well as

ordinary supervision. Id. A review of the ALJ’s decision shows that he not only gave weight to

Dr. Bhutwala’s opinion and incorporated the findings, but he also went further by prohibiting all

contact with the general public. Tr. 33, 132. Although the ALJ is not bound by any findings made

by state agency physicians, such doctors are highly qualified doctors who are also experts in Social

Security disability evaluations, and the ALJ is required to consider their findings. See 20 C.F.R.

§§ 404.1513a(b)(1), 416.913a(b)(1).

The ALJ also considered and gave some weight to the opinion of psychiatric consultative

examiner Janine Ippolito, Psy.D. (“Dr. Ippolito”). Tr. 41-42, 644-48. Dr. Ippolito examined

Plaintiff on July 21, 2015, and similar to Dr. Bhutwala, opined that Plaintiff was capable of

understanding and following simple directions and instructions; performing simple tasks

independently; maintaining attention and concentration; maintaining a regular schedule, learning

new tasks, and performing complex tasks independently with no limitation. Tr. 41, 647. Dr.

Ippolito further opined that Plaintiff could make appropriate decisions and relate adequately with

others with moderate limitations. Tr. 41-42, 647. Finally, she opined that Plaintiff could

“appropriately deal with [sic] moderate-to-marked limitations.”3 Id.

The evidence also showed that Plaintiff’s mental limitations were longtime impairments,

with records dating as far back as 2005. Tr. 38, 385-450, 530-72, 649-707. Plaintiff has been able

to work for many years with these impairments and worked full time milking cows until 2015. Tr.

31, 36-38, 61-62, 65, 239-41, 267-68, 304, 507, 511, 515, 517. As stated above, an ALJ may

properly consider that Plaintiff was able to work despite longstanding impairments. See, e.g.,

DeRosia, 2017 WL 4075622, at *22.

Additionally, the ALJ considered that Plaintiff has responded well to medication and

counseling for these impairments. Tr. 38-39. It is proper for the ALJ to consider improvement with

treatment. See Reices-Colon v. Astrue, 523 F. App’x 796, 799 (2d Cir. 2013) (improvement with

treatment is properly considered in concluding claimant not disabled); Rivera v. Colvin, No. 1:14-

3 Although the quoted phrase is taken verbatim from Dr. Ippolito’s report, there appears to be a missing word or other

syntax error. The Court presumes the missing word to be “stress” and thus reads the phrase as Plaintiff could

“appropriately deal with stress with moderate-to-marked limitations.”

CV-00816 (MAT), 2015 WL 6142860, at *6 (W.D.N.Y. Oct. 19, 2015) (citing Netter v. Astrue,

272 F. App’x 54, 56 (2d Cir. 2014)) (ALJ may consider conservative treatment). For example, at

the hearing, Plaintiff testified that he began taking Geodon in 2008 after experiencing some

symptoms of psychosis. Tr. 38-39, 76. He testified that, after he began taking this medication, he

had no more hallucinations. Tr. 78. Plaintiff also reported that his mental health was “much better”

following his neck surgery in 2016. Tr. 77, 82. As the ALJ noted, during the relevant period,

Plaintiff told his treatment providers he was “ok” overall, “feeling well” overall, or “doing well”

overall. Tr. 38, 987, 996, 1000, 1081. He also said that talking to a therapist was helpful. Tr. 38,

987. In September 2016, Plaintiff stated that Geodon does a “great deal to prevent his

hallucinations and stabilize his mood.” Tr. 38, 996, 1000. In November 2016, Plaintiff again said

his mood had been “pretty good,” that Geodon continued to work well to stabilize his mood, and

that Ativan was also “working well.” Tr. 1010.

Finally, the ALJ considered that objective findings by treating sources were inconsistent

with allegations of disability. Tr. 38-40. The ALJ noted that while providers observed some

abnormalities, such as being anxious on at least one occasion (Tr. 38, 927), having rapid speech at

times (Tr. 38, 932, 988), and a dysphoric or dysthymic mood at times (Tr. 38-39, 1082, 1010-11,

1018), examinations were generally unremarkable. For example, Plaintiff generally had a normal

affect (Tr. 38-40, 738, 988, 997, 1004, 1011, 1018, 1025, 1040, 1054, 1070), and his mood was

often described as “ok” (Tr. 38-40, 987, 1025, 1040, 1081) to euthymic (Tr. 38-40, 738, 988, 1004,

1054, 1070). He was consistently observed to be cooperative and pleasant (Tr. 38-40, 997, 988,

1004, 1011, 1018, 1025, 1040, 1053, 1069); he made direct eye contact (Tr. 38-40, 988, 997, 1004,

1011, 1018, 1025, 1040, 1054, 1070); and his motor activity was within normal limits (Tr. 38-40,

988, 997, 1004, 1011, 1018, 1025, 1040, 1053, 1070). On at least one occasion, Plaintiff exhibited

persecutory thought content, as he was “very fixated on health care professionals and insurance

companies intentionally keeping spinal diagnoses from him” (Tr. 38, 989), and on another

occasion, he was noted to be “somewhat” paranoid (Tr. 39, 937). Otherwise, however, he generally

exhibited normal thought processes. Tr. 38-40, 738, 989, 997, 1004, 1011, 1018, 1025, 1040, 1054,

1070. He consistently denied hallucinations, and his perception was “normal” with no evidence of

such. Tr. 38-40, 987, 989, 997, 999, 1002, 1004-05, 1011-12, 1016, 1018-19, 1025-26, 1040, 1054,

1070.

Examinations also showed Plaintiff’s concentration and memory were both intact. Tr. 38-

40, 989, 997, 1004, 1011, 1018, 1025, 1040, 1054, 1070, 1082. He generally exhibited fair insight

and impulse control (Tr. 38-39, 989, 997, 1004, 1007-08, 1025, 1040, 1054, 1070), intact judgment

(Tr. 38-40, 989, 997, 1004, 1011, 1018, 1025, 1040, 1054, 1070), and average intelligence (Tr. 38-

40, 989, 997, 1004, 1011, 1018, 1025, 1040, 1054, 1070).

Based on the foregoing, the ALJ properly considered the medical opinions of record in

conjunction with the other evidence concerning Plaintiff’s mental impairments in determining that

Plaintiff retained the RFC perform simple, routine work that involved minimal change, and limited

contact with others. Tr. 39-40.

However, the Court finds that the ALJ failed to support his physical RFC determination

with substantial evidence. As noted above, none of the treating or examining source medical

opinions from the relevant time period include specific functional limitations pertaining to

Plaintiff’s physical capabilities. In light of the record’s lack of useful medical opinions regarding

Plaintiff’s physical functioning, the ALJ failed in his affirmative duty to develop the record. The

only medical opinion containing specific physical functional limitations was provided by

consultative examiner Donna Miller, D.O. (“Dr. Miller”) prior to Plaintiff’s amended alleged onset

date (Tr. 636-39), but the ALJ discounted the opinion because it was outside of the relevant time

period and Dr. Miller did not have the benefit of examining Plaintiff during the relevant period of

alleged disability. Tr. 40, 42.

The ALJ also discounted the medical opinions of Plaintiff’s treating physicians, neurologist

Andrew Hilburger, M.D. (“Dr. Hilburger”), neurosurgeon Yan Michael Li, M.D. (“Dr. Li”), pain

management specialist Armando Villarreal, M.D. (“Dr. Villarreal”), and pain management

specialist Dr. Joseph Poli, M.D. (“Dr. Poli”), all of which provided percentage disability ratings to

the Worker’s Compensation Board relating to Plaintiff’s degenerative disc disease and shoulder

pain ranging from 50 to 100 percent. Tr. 40-42, 734-41, 744-52, 805-18, 854-89. See 20 C.F.R. §

404.1527(d) (an opinion on the ultimate issue of disability is not a medical opinion, and is not

entitled to any “special significance”); Robson v. Astrue, 526 F.3d 389, 393 (8th Cir. 2008); House

v. Astrue, 500 F.3d 741, 745 (8th Cir. 2007) (“A treating physician’s opinion that a claimant is

disabled or cannot be gainfully employed gets no deference because it invades the province of the

Commissioner to make the ultimate disability determination.”). The ALJ also noted that these

opinions lacked any functional assessment of Plaintiff’s work-related abilities. Tr. 41.

As explained above, determining a claimant’s RFC is an issue reserved to the

Commissioner, not a medical professional. See 20 C.F.R. § 416.927(d)(2). Furthermore, the

Commissioner’s regulations provide that a claimant is responsible for providing evidence upon

which to base an RFC assessment. See 20 C.F.R. §§ 404.1512(a); 416.912(a) and 404.1545(a)(3);

416.945(a)(3). However, “the ALJ generally has an affirmative obligation to develop the

administrative record [before making a disability determination]. This duty exists even when the

claimant is represented by counsel.” Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (internal

citation omitted). See also 20 C.F.R. §§ 404.1545, 416.945 (An ALJ is responsible for “making

every reasonable effort to help [the claimant] get medical reports from [the claimant’s] own

medical sources.”) (citing 20 C.F.R. §§ 404.1512(d) through (f), 416.912(d) through (f)). Where

the record is inadequate, the ALJ will first contact the claimant’s treating source to obtain the

information; or if the information is not readily available from the treating source, the ALJ may

ask the claimant to attend a consultative examination at the expense of the Social Security

Administration. 20 C.F.R §§ 404.1512(d)(1) through (2) and, 416.912(d)(1) through (2);

404.1512(e), 416.912(e).

Notably, “where the medical findings in the record merely diagnose the claimant’s . . .

impairments and do not relate those diagnoses to specific residual functional capabilities, the

general rule is that the Commissioner may not make the connection [him or her]self.” Guttierez v.

Berryhill, 333 F. Supp.3d 267, 271 (W.D.N.Y. 2018) (internal quotation marks and citations

omitted). Doing so results in an RFC determination that is not supported by substantial evidence.

Id. In lieu of a medical opinion, an ALJ may support his or her RFC determination with

contemporaneous treatment notes that provide evidence relevant to a claimant’s ability to perform

substantial gainful activity. See Monroe v. Comm’r of Soc. Sec., 676 F. App’x 5, 8 (2d Cir. 2017);

see also Muhammad v. Colvin, 2017 WL 4837583, at *4 (W.D.N.Y. Oct. 26, 2017) (“While in

some circumstances, an ALJ may make an RFC finding without treating source evidence, the RFC

assessment will be sufficient only when the record is clear and contains some useful assessment

of the claimant’s limitations from a medical source.”) (internal quotation and citation omitted).

With no medical source statement, consultative examination report, or other opinion

evidence from the relevant period providing physical functional limitations, the Court is unclear

how the ALJ assessed Plaintiff's physical capacity for work-related activities. See Nelson v.

Commissioner of Social Security, 351 F. Supp.3d 361, 368-69 (remanding where the record

appeared to lack evidence of plaintiff’s functional limitations relevant to the period of disability);

see also Judd v. Berryhill, 2018 WL 6321391, at *7 (W.D.N.Y. Dec. 4, 2018) (“It is unclear to the

Court how the ALJ, who is not a medical professional, determined the RFC without a medical

source statement or consultative examination report to assist her in correlating the medical

treatment notes into an assessment of Plaintiff's physical capacity for work-related activities. The

decision demonstrates the ALJ's reliance upon her own lay opinion to determine Plaintiff's RFC,

an error requiring remand”).

In this case, the treatment notes from Plaintiff’s medical providers repeatedly demonstrate

significant physical limitations that are not reflected in the RFC assessed by the ALJ. Dr.

Hilburger’s examinations during the relevant time period demonstrate that Plaintiff exhibited a

combination of some or all of the following: tenderness and limited range of motion of his cervical

spine; tenderness and limited range of motion of his lumbar spine; tenderness and limited range of

motion of his right shoulder; positive straight leg raising tests bilaterally; and an antalgic gait. See

Tr. 515, 517, 519, 521, 575, 856, 862, 868, 874, 885, 891, 897, 899, 905, 911, 917, 944.

Likewise, diagnostic testing and treatment notes from other physicians also support greater

functional limitations than the ALJ included in the RFC. A June 2015, MRI showed disc protrusion

with impression on the anterior thecal sac at the L5-S1 level. Tr. 526. On June 17, 2015, and July

22, 2015, Jin Y. Chang, M.D. (“Dr. Chang”), of UMMC Pain Center, noted that Plaintiff exhibited

a tenderness and decreased range of motion in his thoracic and lumbar spines, as well as a waddling

gait and abnormal heel walk. Tr. 841, 847. On October 21, 2015, Dr. Chang again noted that

Plaintiff exhibited a limited range of motion. Tr. 835-36. On November 15, 2016, Dr. Li noted that

Plaintiff had positive straight leg raising tests bilaterally and that imaging revealed herniated discs

with moderate foraminal stenosis and hypertrophic facet joints. Tr. 825. Dr. Li performed a

discectomy on Plaintiff in March 2015. Tr. 717-19. On April 28, 2016, Elaine Lemley, PA (“Ms.

Lemley”), at United Memorial Medical Center (“UMMC”), noted that Plaintiff exhibited a limited

range of motion in his neck. Tr. 927. A November 2016 MRI revealed multi-level disc disease and

multi-level neural foraminal narrowing. Tr. 732. On February 8, 2017, Suleman Ahmed, M.D.

(“Dr. Ahmed”), at UMMC, noted that Plaintiff exhibited a limited range of motion and reduced

strength in his right shoulder. Tr. 932. On May 22, 2017, Dr. Chang noted that Plaintiff

demonstrated a decreased range of motion in his thoracic and lumbar spine, and that he also

exhibited a “waddling” gait. Tr. 829-30. On November 9, 2017, Dr. Li noted that an MRI

demonstrated superimposed right posterior lateral disc protrusion. Tr. 965.

Based on the foregoing, it appears that the ALJ also did not rely on Plaintiff’s treatment

notes to assess Plaintiff’s physical functioning. With no medical source statement or consultative

examination report from the relevant period and no clear correlation to the treatment notes, the

Court remains unclear as to how the ALJ assessed Plaintiff's physical capacity for work-related

activities. See Nelson, 351 F. Supp.3d at 368-69; Judd, 2018 WL 6321391, at *7. The ALJ had

several options to fulfill his duty to develop the record, such as recontacting Plaintiff’s treating

physician, or ordering updated consultative examinations, but he failed to do so. See 20 C.F.R §§

404.1512(d)(1) through (2) and, 416.912(d)(1) through (2); 404.1512(e), 416.912(e). Thus, it is

entirely unclear what the ALJ used to develop the physical RFC, other than his own lay

interpretation of the record, which he is not permitted to do. See, e.g., Benman v. Comm’r of Soc.

Sec., 350 F. Supp.3d 252, 257 (W.D.N.Y. 2018) (“[a]n ALJ is prohibited from ‘playing doctor’ in

the sense that an ALJ may not substitute his own judgment for competent medical opinion.”)

(internal quotation marks and citations omitted)).

Because the ALJ failed to obtain competent medical opinion(s) that contained functional

limitations on which he could base Plaintiff’s physical RFC finding, the ALJ failed in his

affirmative duty to adequately develop the record, and his physical RFC finding was not supported

by substantial evidence. Accordingly, the Court finds that remand is warranted for the ALJ to

obtain an independent functional capacity evaluation for a more accurate assessment of Plaintiff’ □

work-related physical limitations. As noted above, the Court finds no other error in the ALJ’s

decision.

CONCLUSION

Plaintiffs Motion for Judgment on the Pleadings (ECF No. 13) is GRANTED IN PART,

the Commissioner’s Motion for Judgment on the Pleadings (ECF No. 16) is DENIED, and this

matter is REMANDED to the Commissioner for further administrative proceedings consistent

with this opinion pursuant to sentence four of 42 U.S.C. § 405(g). See Curry v. Apfel, 209 F.3d

117, 124 (2d Cir. 2000). The Clerk of Court is directed to enter judgment and close this case.

IT IS SO ORDERED.

DON D. BUSH

UNITED STATES MAGISTRATE JUDGE

15