The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
ROBERT K.,
DECISION AND ORDER
Plaintiff,
20-CV-7138L
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 August 18, 2017, plaintiff filed an application for a period of disability and disability
insurance benefits, alleging an inability to work since January 29, 2015. (Dkt. #8 at 16). His
application was initially denied. Plaintiff requested a hearing, which was held on December 4,
2019, by teleconference with administrative law judge (“ALJ”) Deirdre R. Horton. The ALJ issued
a partially favorable decision on January 31, 2020, finding plaintiff disabled for a closed period
from January 29, 2015, through October 18, 2018, and not disabled for the period on and after
October 19, 2018. (Dkt. #8 at 16-31). That decision became the final decision of the Commissioner
when the Appeals Council denied review on October 28, 2020 (Dkt. #8 at 1-3). Plaintiff now
appeals.
The plaintiff has moved pursuant to Fed. R. Civ. Proc. 12(c) for judgment vacating the
ALJ’s decision and remanding the matter for further proceedings (Dkt. #13), and the
Commissioner has cross moved for judgment dismissing the complaint (Dkt. #17). 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
Familiarity with the five-step evaluation process for determining Social Security disability
claims is presumed. See 20 CFR §404.1520. The Commissioner’s decision that plaintiff is not
disabled must be affirmed if it is supported by substantial evidence, and if the ALJ has applied the
correct legal standards. See 42 U.S.C. §405(g); Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.
2002).
I. The ALJ’s Decision
Plaintiff was born December 16, 1975, and was 39 years old on the alleged onset date, with
a high school education and past relevant work as a heavy equipment operator and inspector. (Dkt.
#8 at 25-26). His medical treatment records reflect a history of failed laminectomy post fusion
surgery (connected with serious spinal injuries sustained in a September 18, 2012 workplace
incident, in which plaintiff fell several feet from a loading dock, and landed on a steel bucket),
which the ALJ found to be a severe impairment not meeting or equaling a listed impairment. (Dkt.
#8 at 20, 952).
After reviewing the evidence of record, the ALJ determined that from January 29, 2015
through October 18, 2018, the plaintiff retained the residual functional capacity (“RFC”) to
perform sedentary work, with no more than occasional overhead reaching, and no more than
frequent handling and fingering. The claimant required the use of a cane to ambulate, and would
likely be off-task for 15% or more of the workday, due to pain. (Dkt. #8 at 21).
When presented with this RFC as a hypothetical at the hearing, vocational expert Michael
C. Dorsey testified that such an individual could not perform plaintiff’s past relevant work, or any
other jobs existing in the national economy. The ALJ accordingly found plaintiff disabled for the
period from January 29, 2015 through October 18, 2018.
For the period beginning October 19, 2018 through the date of her decision, the ALJ
determined that plaintiff had experienced medical improvement. She found that his RFC on and
after that date permitted sedentary work, with no more than occasional overhead reaching, and no
more than frequent handling and fingering. Plaintiff required the use of a cane to ambulate, and
the ability to stand and stretch during the course of the day for a few minutes at a time. He would
be off task for no more than 10% of the day. (Dkt. #8 at 28). In response to this RFC, the vocational
expert testified that although plaintiff could not return to his past relevant work, he could perform
the representative sedentary positions of final assembler, lens inserter, and circuit board screener.
(Dkt. #8 at 30). The ALJ thus found plaintiff not disabled on and after October 19, 2018.
II. The ALJ’s Assessment of Medical Opinion Evidence
Plaintiff alleges that the ALJ failed to properly consider the medical opinions of record,
and that her finding that plaintiff experienced medical improvement on and after October 19, 2018,
is not supported by substantial evidence. The Court agrees.
In assessing medical opinion evidence, the Commissioner “will not defer or give any
specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior
administrative medical finding(s), including those from [the claimant’s] medical sources.” 20
C.F.R. §§404.1520c(a), 416.920c(a). Rather, the Commissioner will consider all medical opinions
in light of five factors: (1) supportability; (2) consistency with other evidence of record; (3) the
source’s relationship with the claimant, including the length of the treatment relationship, the
frequency of examinations, and the nature, purpose and extent of the treating or examining
relationship; (4) area of specialization; and (5) any other factors that “tend to support or contradict
a medical opinion or prior administrative medical finding.” Id. at §§ 404.1520c(c), 416.920c(c).
The ALJ must articulate his or her consideration of the medical opinion evidence, including how
persuasive he or she finds the medical opinions of record, and must specifically explain how the
supportability and consistency factors were weighed. See Salleh D. v. Commissioner, 2022 U.S.
Dist. LEXIS 427 at *9-*11 (W.D.N.Y. 2022).
Here, all of the medical opinion evidence relevant to the period on and after October 19,
2018 was authored by plaintiff’s treating physician, Dr. Oliver Masaba. Unfortunately, the ALJ’s
assessment of that evidence and its persuasiveness was insufficiently explained, and her decision
to credit only those excerpts that supported her findings with respect to medical improvement
suggests improper cherry-picking of the record.
For example, the ALJ’s entire stated basis for finding medical improvement as of October
19, 2018, was that on that date, in response to a request by plaintiff for authorization to engage in
a return-to-work attempt, “[Dr. Masaba] released him to sedentary work at that time.” (Dkt. #8 at
27, 978, 983).
The ALJ’s cursory description of the return-to-work authorization as clearing plaintiff for
“sedentary work” ignored contemporaneous clinical findings and additional functional limitations
prescribed by Dr. Masaba. Specifically, plaintiff presented to Dr. Masaba on October 18, 2018,
and reported that although a brief trial with a surgical cord stimulator had given him 50% relief
from his back pain, since the device has been implanted, he had experienced only 5% relief in his
symptoms, and continued to experience weakness in his legs. He indicated that he was “mostly
sedentary as even performing minimal activity results in increasing pain . . . [plaintiff] states that
even though his pain remains about the same he was able to find a . . . job that he feels he may be
able to perform that is mostly sedentary.” (Dkt. #8 at 978). Dr. Masaba provided plaintiff with a
return-to-work form for a position “where he will mostly [be] driving a tractor,” but instructed him
to “be careful with potential continued vibration from being on a tractor [which] may result in
irritation.” (Dkt. #8 at 983). Dr. Masaba further opined that plaintiff was “87.7%” temporarily
disabled, could lift no more than 10-15 pounds, could not engage in repetitive bending, twisting,
or turning, could not climb, crawl, or crouch, and required the ability to change positions every
15-20 minutes. (Dkt. #8 at 982).
While the ALJ opted to credit Dr. Masaba’s conclusion that plaintiff could return to a
limited range of sedentary work, at least temporarily, the ALJ implicitly rejected all other parts of
his opinion. Her RFC finding for the period after October 18, 2018 did not incorporate all of the
limitations that were contained in the return-to-work authorization, such as avoidance of vibration,
and the inability to climb, crouch, or crawl, nor did she provide any rationale for omitting them.1
This was reversible error.
Similarly, the ALJ failed to sufficiently explain her finding that a November 15, 2019 RFC
opinion completed by Dr. Masaba, covering the entire period from September 18, 2012 through
November 15, 2019, was not persuasive. Specifically, Dr. Masaba opined that plaintiff could
perform sedentary work with, inter alia, no climbing, balancing, kneeling, crouching, or crawling,
and must avoid exposure to temperature extremes and environmental irritants that could exacerbate
his back and joint pain. He also indicted that plaintiff would have good days and bad days (but
1 Based on a review of plaintiff’s reported earnings, it does not appear that the anticipated work attempt ever came to
fruition.
“nearly always bad days”), during which he would be off-task due to pain for at least 20-25% of
the workday. (Dkt. #8 at 985-93).
The ALJ found this opinion to be “unsupported by Dr. Masaba’s findings during treatment
for this period,” but specified no treatment records or objective findings with which it actually
conflicted. (Dkt. #8 at 28-29). Indeed, contrary to the ALJ’s conclusion, Dr. Masaba’s treatment
records appear to be markedly consistent with his 2019 RFC opinion: they uniformly note severe
back pain radiating into the legs, and document the repeated failures of aggressive interventions to
control plaintiff’s symptom, including a raft of pain medications such as narcotics and high-dose
opioids, acupuncture, muscle relaxants, epidural injections, physical therapy, home exercises,
spinal fusion surgery, and the use of a spinal cord stimulator. Dr. Masaba repeatedly noted
significantly decreased range of motion, diffuse tenderness of the back, back spasms and stiffness,
poor balance, absent deep tendon reflexes, diminished strength in both legs, diminished sensation
in the right leg, positive straight leg raising tests, abnormal gait, and the need for a cane to
ambulate. (Dkt. #8 at 959, 964, 974, 978, 982-83).
Moreover, Dr. Masaba’s November 2019 opinion is highly consistent with a prior opinion
he rendered in May 2018, which the ALJ had found to be “generally supported by the clinical
findings…” in her disability determination for the period leading up to October 18, 2018. (Dkt. #8
at 24).2 The ALJ made no effort to explain why she found that Dr. Masaba’s 2018 opinion was
2 On May 16, 2018, Dr. Masaba opined that plaintiff could occasionally lift up to 20 pounds, with the ability to sit for
15 minutes at a time for up to three hours, walk for up to 20 minutes at a time for one hour, and stand for up to 20
minutes at a time for two hours, in an 8-hour workday. He could no more than frequently reach overhead, handle, and
finger, no more than occasionally push or pull, and never climb ladders or scaffolds, balance, kneel, crouch, crawl, or
work at unprotected heights or around pulmonary irritants or vibrations. Finally, plaintiff’s pain would cause him to
be off-task for more than 20-25% of the work day. (Dkt. #8 at 798-805). The ALJ purported to credit this opinion,
finding it to be “generally supported by the clinical findings showing that, despite aggressive treatment, the claimant
continued to have severe pain,” but failed to include all of the limitations mentioned in the opinion, or to explain the
reason for omitting them. (Dkt. #8 at 24). Nonetheless, such error is harmless to the extent that the ALJ nonetheless
found plaintiff disabled for the period preceding October 19, 2018.
“generally supported” by the record, whereas the substantially similar 2019 opinion, based on
similar contemporaneous treatment records, was not, nor did she otherwise engage with any of the
factors relevant to the determination of a medical opinion’s persuasiveness.
This error is not harmless, as crediting Dr. Masaba’s 2019 opinion would not only have
foreclosed any finding that plaintiff experienced medical improvement, but would have resulted
in an RFC finding for October 19, 2018 and after that equaled or exceeded the level of limitation
determined by the ALJ for the preceding period, thus compelling a finding of disability.
CONCLUSION
For the foregoing reasons, plaintiff's motion to vacate the ALJ’s decision and remand this
matter with respect to the period on and after October 19, 2018 (Dkt. #13) is granted, and the
Commissioner’s cross motion for judgment on the pleadings (Dkt. #17) is denied. The matter is
remanded for additional proceedings concerning the period on and after October 19, 2018 (when
the ALJ found plaintiff experienced medical improvement and was no longer disabled), to include
additional proceedings as appropriate, and the issuance of a new decision which takes account of
the entire record, properly weighs all medical evidence and opinions, and makes detailed findings
as to the persuasiveness of all medical opinions therein.
IT IS SO ORDERED.
□□□ Sarnnn
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
October 7, 2022.