# Conboy v. Commissioner of Social Security

> District Court, W.D. New York · April 21, 2021

URL: https://www.frixlaw.com/law-library/cases/10363695

## Case

- **Court:** District Court, W.D. New York
- **Decided:** April 21, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10363695. Public record. Not legal advice.