The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
LATRICIA S.,
DECISION AND ORDER
Plaintiff,
20-CV-1367L
v.
KILOLO KIJAKAZI,
Commissioner of Social Security,
Defendant.
________________________________________________
Plaintiff appeals from a denial of disability benefits by the Commissioner of Social Security
(“the Commissioner”). The action is one brought pursuant to 42 U.S.C. § 405(g) to review the
Commissioner’s final determination.
On July 24, 2017, plaintiff, then thirty-three years old, filed applications for disability
insurance benefits under Title II of the Social Security Act (the “Act”), and for supplemental
security income under Title XVI of the Act, alleging an inability to work as of July 1, 2017.
(Administrative Transcript, Dkt. #12 at 23). Her applications were initially denied. Plaintiff
requested a hearing, which was held on July 11, 2019 via videoconference before Administrative
Law Judge (“ALJ”) T. Kim. The ALJ issued a decision on July 18, 2019 concluding that plaintiff
was not disabled under the Social Security Act. (Dkt. #12 at 23-36). That decision became the final
decision of the Commissioner when the Appeals Council denied review on July 27, 2020. (Dkt.
#12 at 1-4). Plaintiff now appeals.
The plaintiff has moved for judgment remanding the matter for further proceedings (Dkt.
#13), and the Commissioner has cross moved (Dkt. #14) for judgment on the pleadings, pursuant
to Fed. R. Civ. Proc. 12(c). For the reasons set forth below, the plaintiff’s motion is granted, the
Commissioner’s cross motion is denied, and the matter is remanded for further proceedings.
DISCUSSION
Determination of whether a claimant is disabled within the meaning of the Social Security
Act follows a well-known five-step sequential evaluation, familiarity with which is presumed.
See Bowen v. City of New York, 476 U.S. 467, 470-71 (1986). See 20 CFR §§404.1509, 404.1520.
The Commissioner’s decision that a plaintiff is not disabled must be affirmed if it is supported by
substantial evidence, and if the ALJ applied the correct legal standards. See 42 U.S.C. §405(g);
Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002).
The ALJ’s decision summarizes plaintiff’s medical records, which reflect treatment for
Crohn’s disease, colitis, cervical radiculopathy, and mild obesity, which the ALJ concluded
together constituted a severe impairment not meeting or equaling a listed impairment. (Dkt. #12 at
26). The record also evidenced diagnoses of unspecified anxiety disorder, major depressive
disorder, and post-traumatic stress disorder. Applying the special technique for mental
impairments, the ALJ concluded that plaintiff is mildly limited in understanding, remembering,
and applying information, mildly limited in social interaction, mildly limited in concentrating,
persisting, and maintaining pace, and mildly limited in adapting or managing herself. The ALJ
therefore found plaintiff’s mental health impairments to be non-severe. (Dkt. #12 at 26-27).
Upon consideration of the record, the ALJ determined that plaintiff has the residual
functional capacity (“RFC”) to perform work at the medium exertional level – defined as requiring
the ability to lift up to fifty pounds at a time, with the frequent lifting and carrying of objects
weighing up to twenty-five pounds – and can frequently operate hand controls, reach, push, pull,
handle, finger, and feel with both upper extremities. Plaintiff can also frequently kneel, crouch,
stoop, balance, crawl, and climb stairs and ramps. Plaintiff can never climb ladders, ropes or
scaffolds, and can never be exposed to unprotected heights or moving mechanical parts. She can
tolerate occasional exposure to vibration. She is able to understand, carry out, and remember
simple instructions, and make simple work-related decisions. She will be off-task for 5% of the
workday. (Dkt. #12 at 28-29).
Given this RFC, vocational expert Sharon D. Ringenberg testified that plaintiff could not
return to her past relevant work as a housekeeper (which requires the ability to climb), but could
perform the representative unskilled, medium exertion positions of janitor, automobile detailer,
and patient escort. (Dkt. #12 at 35-36).
I find that the evidence of record does not support the ALJ’s findings concerning the nature
and extent of plaintiff’s exertional limitations, and that the ALJ may have overlooked material
evidence of record. The ALJ’s determination that the plaintiff was not disabled was not supported
by substantial evidence, and remand for further proceedings is necessary.
I. The ALJ’s Exertional RFC Finding
Plaintiff does not challenge the ALJ’s assessment with respect to plaintiff’s non-exertional
limitations (that is, the ALJ’s determination that plaintiff’s mental limitations are non-severe), but
argues that the ALJ’s finding that plaintiff can perform work at the “medium” exertional level is
not supported by substantial evidence. Specifically, plaintiff argues that there is insufficient
evidence that plaintiff can perform medium exertion tasks such as lifting up to fifty pounds at a
time, with frequent lifting and carrying objects up to twenty-five pounds, and that the ALJ
cherry-picked the record, overlooking objective evidence of record that contradicted the RFC
finding.
The Court concurs. The record simply does not contain any objective evidence assessing
plaintiff’s ability to lift and carry objects weighing up to fifty pounds, and the fact that some
assessments noted “full” strength or range of motion does not comprise substantial evidence that
plaintiff was able to perform the exertional requirements of medium work. As other courts have
noted, “a person without any medically recognizable impairments may be unable to lift and carry”
fifty pounds or more, Fraser v. Commissioner, 2013 U.S. Dist. LEXIS 164702 at *15-*16 (E.D.
Cal. 2013) (emphasis added), and a physician’s finding that a claimant’s strength is “normal” or
“5/5” does not mean that the claimant “had the maximum strength humanely possible”: an
assessment of full strength is simply “too vague” to comprise substantial evidence in support of an
ALJ’s conclusion that a claimant can lift and carry large amounts of weight. Catalano v. Berryhill,
2018 U.S. Dist. LEXIS 207133 at *23-*24 (S.D.N.Y. 2018) (ALJ erred in using objective
assessments of full strength to find that a sixty-year-old claimant could lift and carry 50 pounds
frequently and 100 pounds occasionally). See also Kaitlyn S. v. Commissioner, 2021 U.S. Dist.
LEXIS 169599 at *14-*15 (W.D.N.Y. 2021) (ALJ erred in determining that plaintiff could perform
work at all exertional levels, where there was no evidence to support the implicit conclusion that
the plaintiff was capable of lifting, e.g., objects weighing 50-100 pounds); Brown v. Colvin, 2017
U.S. Dist. LEXIS 141071 at *27-*28 (S.D.N.Y. 2017)(by rejecting the only physician opinion that
specifically assessed plaintiff’s lifting and carrying abilities, ALJ’s determination that plaintiff
could perform the requirements of medium work, due to examination findings of “full strength”
and “full range of motion,” was unsupported by substantial evidence).
Indeed, despite some objective findings of full strength and range of motion, there were
other opinions and evidence in the record that suggested the inability to perform medium work, all
of which the ALJ either ignored or discredited, mischaracterizing the record as wholly
unsupportive of plaintiff’s “reported symptoms of restricted movement with lifting and bending as
well as increased pain with walking and sitting.” (Dkt. #12 at 32). This was error.
For example, after plaintiff was involved in a motor vehicle accident on April 5, 2017,
sustaining the neck, back and shoulder injuries that gave rise to her severe impairment of cervical
radiculopathy, she treated at least fifteen times with physician Dr. Michael Calabrese. The ALJ
did not mention Dr. Calabrese in the decision, nor did the ALJ note Dr. Calabrese’s repeated and
consistent objective findings over the ensuing eighteen months that plaintiff had a limited range of
motion in her cervical spine, with tenderness and spasms, evidenced by marked straightening of
the normal curvature of the neck, limited range of motion in her shoulder, limited range of motion
in her lumbar spine with tenderness and bilateral spasms, and positive straight leg raising tests,
suggestive of spinal nerve root irritation or compression. (Dkt. #12 at 425, 430, 436, 1030-31,
1045, 1062, 1061, 1076, 1081-82, 1097-98, 1112).1
The ALJ’s choice not to acknowledge or distinguish Dr. Calabrese’s objective findings
suggests improper cherry-picking of the record. While an “ALJ is not obligated to ‘reconcile
explicitly every conflicting shred of medical testimony,’ [the ALJ] cannot simply selectively
choose evidence in the record that supports [the ALJ’s] conclusions.” Dioguardi v. Commissioner,
445 F. Supp.2d 288, 297 (W.D.N.Y. 2006)(quoting Gecevic v. Secretary of Health & Human
1 Indeed, Dr. Calabrese opined on several occasions between October 2017 and September 2018 that plaintiff’s spinal
injuries rendered her temporarily disabled to a “moderate” degree, and/or limited her to sedentary work. (Dkt. #12 at
1038, 1059, 1078). While the ALJ was not required to credit these opinions, as they pertained to the ultimate issue of
disability which is reserved for the Commissioner, the objective findings upon which they were based were relevant
to the ALJ’s analysis, and appear to have been erroneously ignored or overlooked.
Servs., 882 F. Supp. 278, 286 (E.D.N.Y. 1995)). The Court “cannot accept an unreasoned rejection
of evidence that supports plaintiff[’]s position.” Ellis v. Astrue, 2011 U.S. Dist. LEXIS 34203 at
*24 (E.D.N.Y. 2011)(quoting Pagan on Behalf of Pagan v. Chater, 923 F. Supp. 547, 556
(S.D.N.Y. 1996)). “[An] ALJ’s failure to acknowledge relevant evidence or to explain its implicit
rejection is plain error,” and deprives the Court of the ability to meaningfully review whether the
ALJ’s decision is supported by substantial evidence. Pagan, 923 F. Supp. 547 at 556. Here, the
ALJ’s implicit rejection of Dr. Calabrese’s findings, which flatly contradicted the ALJ’s
determination that plaintiff’s complaints of restricted movement and pain “are not reflected in her
medical findings,” was erroneous. (Dkt. #12 at 32).
The ALJ also failed to sufficiently explain the weight given to the opinion of physician Dr.
Nikita Dave, who was the only treating or examining physician who rendered an opinion
concerning plaintiff’s exertional capacity. Dr. Dave examined plaintiff on October 5, 2017, and
opined that due to Crohn’s disease, plaintiff may have “moderate” limitations in lifting, carrying,
pushing, and pulling of heavy objects, and more broadly, with respect to any activities involving
physical strain. Dr. Dave opined that plaintiff would benefit from a limitation to seated activities,
with “light activities such as standing and walking [being performed] on and off,” and allowances
for restroom breaks. (Dkt. #12 at 495). The ALJ rejected Dr. Dave’s opinion (finding it “somewhat
persuasive,” but declining to fully credit any of the limitations it suggested), citing plaintiff’s
largely normal examination findings, including full range of motion and strength, and her
“conservative” treatment history.
This was error. Initially, all of the limitations opined by Dr. Dave were explicitly intended
to account for the symptoms of Crohn’s disease, and were thus not contradicted by her examination
findings concerning plaintiff’s range of motion or strength. In some cases, it has been noted that
the symptoms of Crohn’s disease, an inflammatory bowel disorder associated with symptoms
including abdominal pain, diarrhea, and fatigue, can be triggered or aggravated by strenuous
physical activity, and thus can give rise to exertional and postural limitations. See generally Canty
v. Colvin, 2015 U.S. Dist. LEXIS 168244 at *7-*9 (W.D.N.Y. 2015) (ALJ erred in finding that
medical opinion imposing “moderate” limitations in “repetitive exertional activities” for Crohn’s
patient is consistent with the performance of medium work, because medium work requires
“considerable” lifting and carrying, and “frequent[]” bending and stooping). As such, the ALJ’s
rejection of Dr. Dave’s opinion, on the basis that her objective findings were inconsistent with the
limitations she had indicated to account for plaintiff’s Crohn’s disease symptoms, was erroneous.
Finally, and most significantly, the record before the ALJ was insufficient to support a
finding, based on substantial evidence, that plaintiff could perform the sitting, standing, walking,
lifting, carrying, and other functions required for work at the medium exertional level.2 “An ALJ
is not qualified to assess a claimant’s RFC on the basis of bare medical findings, and as a result an
ALJ’s determination of RFC without a medical advisor’s assessment is not supported by
substantial evidence.” Guttierez v. Berryhill, 333 F. Supp. 3d 267, 271 (W.D.N.Y. 2018)(citations
and quotation marks omitted). An ALJ may render a “common sense judgment about functional
capacity,” unaided by competent medical opinion, in cases where the record shows “relatively
little physical impairment.” See Rivera v. Saul, 2019 U.S. Dist. LEXIS 138434 at *17-*18
2 The only evidence of record that explicitly indicated that plaintiff could perform the requirements of medium work
was the opinion of non-examining state agency physician Dr. J. Koenig, whose terse, half-page assessment that
plaintiff could perform a full range of “medium” work was found to be “somewhat persuasive” by the ALJ. However,
Dr. Koenig never examined plaintiff or reviewed the full record: the evidence cited by Dr. Koenig consisted solely of
Dr. Dave’s report. (Dkt. #12 at 497-99). As discussed above, Dr. Dave’s report did not support a finding that plaintiff
was able to perform the lifting, carrying, postural and other requirements of medium work, and to the extent the ALJ
credited Dr. Koenig’s opinion concerning plaintiff’s exertional RFC over that of Dr. Dave, the ALJ erroneously failed
to provide any sound rationale for doing so. See Juan T. v. Kijakazi, 2021 U.S. Dist. LEXIS 204880 at *14-*15
(D. Conn. 2021)(for applications filed after March 27, 2017, the ALJ must consider medical opinions using factors
outlined in the regulations, particularly supportability and consistency with the record, and must “explain” how those
factors were considered).
(D. Conn. 2019)(quoting Barnes v. Berryhill, 2018 U.S. Dist. LEXIS 38596 at *11 (D. Conn.
2018)). However, the ALJ cannot do so where, as here, the record contains evidence of more
significant physical restrictions, and/or where the severe impairments identified by the ALJ (here,
Crohn’s disease, colitis, and cervical radiculopathy) may be expected to result in greater than
minimal exertional or postural limitations. Id.
Given the dearth of evidence that plaintiff could perform the significant physical and
postural requirements of “medium” work, despite the symptoms associated with her spinal
impairments, Crohn’s disease, and colitis, the ALJ’s RFC finding was not supported by substantial
evidence, and the ALJ’s duty to develop the record was not satisfied. Nor can the ALJ’s error be
considered harmless: the Commissioner relied solely on medium-exertion jobs to meet her burden
to show that there were other positions in the economy that plaintiff could perform, and thus, a
more limited RFC finding could lead to a different determination.
CONCLUSION
For the forgoing reasons, I find that the ALJ’s decision was not supported by substantial
evidence. The plaintiff’s motion for judgment on the pleadings (Dkt. #13) is granted, and the
Commissioner’s cross motion for judgment on the pleadings (Dkt. #14) is denied.
The Commissioner’s decision that plaintiff is not disabled is reversed, and the matter is
remanded for further proceedings, including but not limited to the obtainment and review of
additional evidence concerning plaintiff’s exertional capacity, a thorough review and discussion
of the record, evaluation of the medical opinion evidence in light of the proper factors, and the
issuance of a new decision.
IT IS SO ORDERED.
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
December 9, 2021.