The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________
DEIRDRE C.,
Plaintiff,
Case No. 1:21-cv-00616-TPK
v.
COMMISSIONER OF SOCIAL OPINION AND ORDER
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff filed this action under 42 U.S.C. §405(g) asking this Court to review a final
decision of the Commissioner of Social Security. That final decision, issued by an
Administrative Law Judge on January 20, 2021 following a remand from this Court, denied
Plaintiff’s applications for disability insurance benefits and supplemental security income.
Plaintiff has now moved for judgment on the pleadings (Doc. 10), and the Commissioner has
filed a similar motion (Doc. 11). For the following reasons, the Court will GRANT Plaintiff’s
motion for judgment on the pleadings, DENY the Commissioner’s motion, and REMAND the
case to the Commissioner for further proceedings pursuant to 42 U.S.C. §405(g), sentence four.
I. BACKGROUND
Plaintiff filed her applications for benefits on October 30, 2014, alleging that she became
disabled on that day. After initial administrative denials of that claim, a hearing was held before
an Administrative Law Judge on July 21, 2017. The ALJ denied the claim, and, following the
denial of review by the Appeals Council, the matter was appealed to this Court. In a decision
issued on September 3, 2019, the Court concluded that the ALJ did not have a sufficient
evidentiary basis for determining that Plaintiff was able to do light work if she could change
positions between sitting and standing every 25 minutes, and therefore remanded the case for
further proceedings. See Case No. 1:18-cv-00463 (September 3, 2019). After the Appeals
Council remanded the case, a hearing was held by a different ALJ on December 22, 2020. Both
Plaintiff and a vocational expert, Michelle Bishop, testified at the hearing.
The Administrative Law Judge issued an unfavorable decision on January 20, 2021. The
ALJ first found that Plaintiff met the insured status requirements of the Social Security Act
through December 31, 2017 and that she had not engaged in substantial gainful activity since her
alleged onset date. Next, he concluded that Plaintiff suffered from severe impairments including
obesity, bilateral knee osteoarthritis and degenerative joint disease, asthma, carpal tunnel
syndrome in both wrists, COPD, and right shoulder degenerative joint disease. However, the
ALJ determined that these impairments, taken singly or in combination, did not meet the criteria
for disability under the Listing of Impairments.
Moving forward with the sequential evaluation process, the ALJ then concluded that
Plaintiff had the ability to perform a limited range of light work. She could frequently operate
hand controls and reach, push, pull, and feel with both upper extremities. He further found that
she could occasionally operate foot controls or push or pull with her lower extremities, kneel,
crouch, stoop, balance, crawl, and climb stairs and ramps (but not ladders, ropes, or scaffolds).
She also could not be exposed to unprotected heights and moving mechanical parts, needed to
use a cane to ambulate, could tolerate occasional exposure to dust, mists, gases, noxious odors,
fumes, pulmonary irritants, vibration, and poor ventilation, and could understand, remember, and
carry out simple instructions and make simple work decisions. After making this determination,
the ALJ concluded that Plaintiff could not perform her past relevant work as a nurse assistant.
However, she could work as either an usher or a tanning salon attendant, and the ALJ determined
that those jobs existed in substantial numbers in the national economy. As a result, the ALJ
found that Plaintiff was not disabled within the meaning of the Social Security Act through
August 18, 2017. Plaintiff had filed subsequent applications for benefits which were granted
beginning on August 19, 2017, so that the ALJ’s unfavorable decision is limited to the time
period between October 30, 2014 and August 18, 2017.
Plaintiff, in her motion for judgment on the pleadings, raises two issues, arguing that: (1)
the ALJ did not properly evaluate the treating source opinions; (2) the ALJ did not fully evaluate
her need to use a cane. See Plaintiff’s Memorandum, Doc. 10-1, at 1.
II. THE KEY EVIDENCE
A. Hearing Testimony
Plaintiff’s testimony at the first administrative hearing is briefly summarized in the
Court’s prior opinion. The relevant portion of that testimony related to her knee pain arising
from bilateral osteoarthritis. See Tr. 1062. At the second hearing, Plaintiff, who, by then, was
57 years old, testified that she lived alone but that her children helped her with chores. She
reaffirmed that her knee problems kept her from working and that she used a cane for walking.
She also developed carpal tunnel syndrome in 2014 which caused numbness and loss of grip
strength, but most of those symptoms were alleviated by surgery, although she still could not use
a keyboard for very long. Plaintiff had both knees replaced in 2017 but was still experiencing
pain in her right knee. Between 2014 and 2017, she had days when she had to use a walker, and
her knee pain limited her lifting ability. She was able to stand for only ten minutes at a time and
always had pain while walking. Lastly, Plaintiff testified that she suffered from anxiety and
depression and had days where she did not want to get out of bed.
The vocational expert, Ms. Bishop, first testified that Plaintiff’s past work as a nurse’s
aide was a semi-skilled job ordinarily performed at the medium exertional level but that Plaintiff
performed it at the heavy exertional level. Next, she was asked questions about a hypothetical
person with Plaintiff’s vocational background who was restricted to light work with a number of
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restrictions on the use of her arms and legs, various postural restrictions, a limitation in exposure
to various environmental conditions, and who could do only simple work activities. She said
that such a person could not do Plaintiff’s past work , but he or she could be employed as an
usher, a children’s attendant, or a tanning salon attendant. She also gave numbers for those jobs
as they existed in the national economy. If the person also needed to use a cane to walk, the
position of children’s attendant would be eliminated, but not the other two jobs. Finally, if the
person were limited to sedentary work and needed to be off task for 20% of the time, no jobs
would be available. Answering additional questions from Plaintiff’s counsel, Ms. Bishop
testified that there was very little lifting involved in those jobs and that the tanning salon
attendant had a sit-stand option; she also said that at that time, given the COVID restrictions
which were in place, there were only a few tanning salon positions open, and no usher jobs
available, but there were such jobs during the period in question (from 2014 to 2017).
B. Treatment Records
The medical records which were admitted as part of the first round of administrative
proceedings are also summarized in the Court’s prior opinion, as follows:
During a consultative examination in March 2015, Plaintiff reported to Honbiao
Liu, M.D. (“Dr. Liu”) that she suffered from arthritis in her knees with 7 out of 10
pain, requiring her to change positions every five minutes while sitting or
standing. Tr. 669. Dr. Liu noted Plaintiff's knees had full range of motion with no
swelling or effusion of the joints but observed that she had difficulty rising from a
chair. Tr. 669-70. Dr. Liu ultimately opined that Plaintiff had moderate limitations
with prolonged walking, bending, and kneeling; mild to moderate limitation for
lifting, carrying, and fine manipulations with bilateral hands to zip, button, and
tie; and should avoid dust and other irritating factors to limit asthma attacks. Tr.
671. The ALJ accorded the opinion “some weight,” noting that Dr. Liu's
suggested limitations were consistent with the plaintiff's arthritis in her knees but
also found that the opinion “does not point to limitations so severe as to preclude
employment within the light residual functional capacity” where “musculoskeletal
findings ... were stable, except for limping gait.” Tr. 25. Dr. Liu did not address
the plaintiff's capacity for sitting and/or standing during the course of a standard
eight-hour workday within a five-day workweek.
In February 2016, the plaintiff was examined again by Dr. Dao for bilateral knee
pain from arthritis and was prescribed Ibuprofen and Tylenol. Tr. 703. In January
2017, Dr. Dao authored a medical source statement identifying the plaintiff's
treatment for chronic bilateral knee pain and stating that the plaintiff was able to
work full-time, “according to her skill,” with a reference to a prior referral letter
that he prepared in 2015 for the plaintiff to obtain a functional capacity evaluation
from a consultative examiner. Tr. 715. The ALJ accorded the opinion “great
weight” reasoning that Dr. Dao's statement was supported by unremarkable
physical findings during the plaintiff's follow-up visits in 2016. Tr. 26.
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Cunningham v. Berryhill, 2019 WL 4154483, at *4–5 (W.D.N.Y. Sept. 3, 2019).
Plaintiff has summarized additional medical records in her memorandum, including
treatment records concerning her carpal tunnel syndrome and surgery, which occurred in
February, 2015. The surgeon, Dr. Brown, limited her to occasional gross and fine manipulation
with her right hand. She also notes that at an office visit with a physician’s assistant in 2017, she
received cortisone injections in both knees, and that she later reported to Dr. Lapoint that her
knees would stiffen if she sat for a prolonged period of time and that she could not walk for any
length of time. Dr. Lapoint stated that Plaintiff was temporarily totally disabled as she recovered
from her impairments. Plaintiff also points out that Dr. Dao, in certifying her for a handicapped
parking sticker, said that she was severely limited in her ability to walk due to severe
osteoarthritis in her knees, and that in 2017 she was diagnosed with major depressive disorder.
C. Opinion Evidence
Dr. Liu’s opinions are set out above. Plaintiff was also seen on a consultative basis by a
psychologist, Dr. Fabiano, who thought that she had mild to moderate limitations in her ability to
relate to others and to deal with work stress. A state agency reviewer also commented on
Plaintiff’s mental functional capacity, concluding that she did not have a severe mental
impairment.
III. STANDARD OF REVIEW
The Court of Appeals for the Second Circuit has stated that, in reviewing a final decision
of the Commissioner of Social Security on a disability issue,
“[i]t is not our function to determine de novo whether [a plaintiff] is disabled.”
Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.1996). Instead, “we conduct a plenary
review of the administrative record to determine if there is substantial evidence,
considering the record as a whole, to support the Commissioner's decision and if
the correct legal standards have been applied.” Moran v. Astrue, 569 F.3d 108,
112 (2d Cir.2009); see also 42 U.S.C. § 405(a) (on judicial review, “[t]he findings
of the Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive.”).
Substantial evidence is “more than a mere scintilla.” Moran, 569 F.3d at 112
(quotation marks omitted). “It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id. (quotation marks omitted
and emphasis added). But it is still a very deferential standard of review—even
more so than the “clearly erroneous” standard. See Dickinson v. Zurko, 527 U.S.
150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999). The substantial evidence
standard means once an ALJ finds facts, we can reject those facts “only if a
reasonable factfinder would have to conclude otherwise.” Warren v. Shalala, 29
F.3d 1287, 1290 (8th Cir.1994) (emphasis added and quotation marks omitted);
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see also Osorio v. INS, 18 F.3d 1017, 1022 (2d Cir.1994) (using the same
standard in the analogous immigration context).
Brault v. Soc. Sec. Admin., Com'r, 683 F.3d 443, 447–48 (2d Cir. 2012).
IV. DISCUSSION
A. Evaluation of Dr. Dao’s Opinion
In her first claim of error, Plaintiff argues that the ALJ failed to give good reasons for
rejecting Dr. Dao’s opinion. She notes that the prior version of the “treating physician” rule
applies in this case but that the ALJ did not expressly discuss the relevant factors when
discounting Dr. Dao’s opinion and incorrectly stated that there was no evidence in the record to
support it. She also criticizes his reasoning process as too conclusory and asserts that he not
only failed to follow the applicable regulation but did not comply with this Court’s order of
remand. The Commissioner responds that the ALJ acted appropriately in considering Dr. Dao’s
opinion to be undefined and unsupported by the evidence.
The ALJ provided this rationale for discounting Dr. Dao’s opinion:
The undersigned considered the treating source statements of providers including
Robert K. Brown, M.D., and Tinh T. Dao, M.D., as well as temporary disability
ratings noted in the record, subject in part to the remand order of the Western
District of New York (See 7A; 8A; 10F; 12; 14F; 15F-5). The undersigned has
found these to be of limited weight and inconsistent with the medical evidence in
this case. These opinions provided generally that the claimant had temporary
disability ratings, or denote the claimant’s ability to perform certain actions. The
opinions consist of circled responses with undefined values, and no evidence is
provided in support of those responses. Furthermore, as described, these disability
and impairment ratings are temporary in nature, and do not encompass the full
period relevant to this determination. Finally, there is insufficient evidence
provided to support such ratings, which are already standalone in nature.
(Tr. 986).
Under the version of 20 C.F.R. §404.1527 in effect at the time of Plaintiff’s application,
“the opinion of a claimant's treating physician as to the nature and severity of the
impairment is given ‘controlling weight’ so long as it ‘is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record.’ ” [Burgess
v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008)] at 128 (quoting 20 C.F.R. §
404.1527(c)(2)). There are, of course, circumstances when it is appropriate for an
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ALJ not to give controlling weight to a treating physician's opinion. See, e.g.,
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam) (holding that
“the opinion of the treating physician is not afforded controlling weight where,
as here, the treating physician issued opinions that are not consistent with other
substantial evidence in the record, such as the opinions of other medical
experts”). Nevertheless, even when a treating physician's opinion is not given
controlling weight, SSA regulations require the ALJ to consider several factors
in determining how much weight the opinion should receive. See 20 C.F.R. §
404.1527(c)(2)(I), (2)(ii), (3)–(6). “[T]o override the opinion of the treating
physician, we have held that the ALJ must explicitly consider, inter alia: (1) the
frequen[c]y, length, nature, and extent of treatment; (2) the amount of medical
evidence supporting the opinion; (3) the consistency of the opinion with the
remaining medical evidence; and, (4) whether the physician is a specialist.”
Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013) (per curiam). “After
considering the above factors, the ALJ must ‘comprehensively set forth [his]
reasons for the weight assigned to a treating physician's opinion.’ ” Burgess, 537
F.3d at 129 (alteration in original) (quoting Halloran, 362 F.3d at 33). The
failure to provide “ ‘good reasons’ for not crediting the opinion of a claimant's
treating physician is a ground for remand.” Id. at 129–30 [citation omitted]. The
ALJ is not permitted to substitute his own expertise or view of the medical proof
for the treating physician's opinion or for any competent medical opinion. Id. at
131.
Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015); see also Halloran v. Barnhart, 362 F.3d 28,
33 (2d Cir. 2004) (“We do not hesitate to remand when the Commissioner has not provided
‘good reasons’ for the weight given to a treating physicians opinion and we will continue
remanding when we encounter opinions from ALJ's that do not comprehensively set forth
reasons for the weight assigned to a treating physician's opinion”).
It appears that the primary reason given by the ALJ for giving little weight to Dr. Dao’s
opinion - which consists of his having checked a box on a Department of Motor Vehicles form -
was that the functional limitation he indicated (“Severely limited in ability to walk due to an
arthritic, neurological or orthopedic condition”) is not defined. The ALJ also observed that the
was no evidence cited on the form in support of the opinion, which is a true statement, but not
one which takes into account any other evidence in the record apart from the form itself, which
did not ask for supporting evidence. He also reasoned that the disability indicated by these two
treating sources was temporary in nature, but that reason does not appear to apply to Dr. Dao’s
opinion but only Dr. Brown’s. Finally, the ALJ said, without any specificity, that the evidence
of record was “insufficient” to support either opinion. He did not, in that context, discuss how
the evidence from the numerous treatment notes showing that Plaintiff consistently experienced
bilateral knee pain and received treatment for that condition failed to support the conclusion that
she would have enough difficulty walking to qualify for a handicapped placard.
This case calls for a fairly straightforward application of the legal principles applicable to
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an ALJ’s decision to afford little to no weight to a treating source opinion. Nothing in the ALJ’s
decision indicates that he followed the required regulatory framework, nor did articulate his
reasoning with sufficient specificity to satisfy the “good reasons” requirement in effect at the
time Plaintiff filed her application for benefits. It bears noting that the ALJ’s comment that the
limitation expressed on the form in question was “undefined” is questionable; medical records
often speak of severe limitations to physical abilities. Nevertheless, if he believed the phrasing
was ambiguous, he could have asked for clarification, something especially relevant in a case
where the question is whether the claimant could perform the standing and walking requirements
of light work activity. Consequently, the case will be remanded for further consideration of this
issue.
B. Use of a Cane
Plaintiff also contends that the ALJ did not properly evaluate the effect of her need to use
a cane on the jobs identified by the vocational expert. She argues that any residual functional
capacity finding must incorporate specific limitations such as use of the dominant hand for
lifting and carrying that arise from use of the cane while walking, and that the ALJ’s finding in
this case did not meet this standard. See Plaintiff’s memorandum, Doc. 10-1, at 27, citing Sean
W. v. Comm’r of Soc. Sec., 2022 WL 472570 (W.D.N.Y. Feb. 16, 2022). The Commissioner
asserts that many light jobs do not require any substantial amount of walking, so that limitations
which may have existed while Plaintiff was walking do not necessarily apply to the jobs
identified by the vocational expert, particularly the tanning salon attendant job, which, according
to the vocational expert, permitted a sit/stand option.
In light of the fact that the case is being remanded based on Plaintiff’s first claim of error,
the Court need not reach the merits of this issue. However, it would be helpful if the ALJ, on
remand, would follow the reasoning process set out by this Court in Sean W. and clarify the
extent to which Plaintiff’s use of a cane affected her ability to satisfy the physical demands of
any job which the ALJ believes Plaintiff to be capable of performing.
V. CONCLUSION AND ORDER
For the reasons stated above, the Court GRANTS Plaintiff’s motion for judgment on the
pleadings (Doc. 10), DENIES the Commissioner’s motion (Doc. 11), and REMANDS the case
to the Commissioner for further proceedings pursuant to 42 U.S.C. §405(g), sentence four.
/s/ Terence P. Kemp
United States Magistrate Judge
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