Opinion
1:19-CV-00431 EAW
2021-03-10
BRIAN K., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Felice A. Brodsky, Lockport, NY, James P. Ratchford, Buffalo, NY, for Plaintiff. Avni Dinesh Gandhi, Office of the General Counsel Social Security Administration, Atlanta, GA, Jennifer J. Selby, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
Felice A. Brodsky, Lockport, NY, James P. Ratchford, Buffalo, NY, for Plaintiff.
Avni Dinesh Gandhi, Office of the General Counsel Social Security Administration, Atlanta, GA, Jennifer J. Selby, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Represented by counsel, Plaintiff Brian K. ("Plaintiff") brings this action pursuant to Title II of the Social Security Act (the "Act"), seeking review of the final decision of the Commissioner of Social Security (the "Commissioner," or "Defendant") denying his application for disability insurance benefits ("DIB"). (Dkt. 1). This Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties’ cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Dkt. 17; Dkt. 19), and Plaintiff's reply (Dkt. 20). For the reasons discussed below, Plaintiff's motion (Dkt. 17) is granted in part, the Commissioner's motion (Dkt. 19) is denied, and the matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order.
BACKGROUND
Plaintiff protectively filed his application for DIB on May 15, 2015. (Dkt. 7 at 19, 68). In his application, Plaintiff alleged disability beginning February 10, 2015, due to a neck fusion, low back fusion, left knee tears, lazy eye, difficulties reading and writing, and problems with comprehension. (Id. at 19, 69). Plaintiff's application was initially denied on October 1, 2015. (Id. at 19, 90-95). A video hearing was held before administrative law judge ("ALJ") Lisa B. Martin on October 25, 2017. (Id. at 19, 35-67). Plaintiff appeared in Buffalo, New York and the ALJ presided over the hearing from Falls Church, Virginia. (Id. ). On March 21, 2018, the ALJ issued an unfavorable decision. (Id. at 16-29). Plaintiff requested Appeals Council review; his request was denied on February 1, 2019, making the ALJ's determination the Commissioner's final decision. (Id. at 5-7). This action followed.
When referencing the page number(s) of docket citations in this Decision and Order, the Court will cite to the CM/ECF-generated page numbers that appear in the upper righthand corner of each document.
LEGAL STANDARD
I. District Court Review
"In reviewing a final decision of the [Social Security Administration ("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) (quotation omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner 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) (quotation 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. 1998) (quotation omitted); see also Wagner v. Sec'y of Health & Human Servs. , 906 F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary's decision is not de novo and that the Secretary's findings are conclusive if supported by substantial evidence). However, "[t]he deferential standard of review for substantial evidence does not apply to the Commissioner's conclusions of law." Byam v. Barnhart , 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley v. Heckler , 748 F.2d 109, 112 (2d Cir. 1984) ).
II. Disability Determination
An ALJ follows a five-step sequential evaluation to determine whether a claimant is disabled within the meaning of the Act. See Bowen v. City of New York , 476 U.S. 467, 470-71, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). At step one, the ALJ determines 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, in 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, the analysis concludes with a finding of "not disabled." If the claimant does have at least one severe impairment, 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 (id. § 404.1509), the claimant is disabled. If not, the ALJ determines the claimant's residual functional capacity ("RFC"), 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).
The ALJ then proceeds to step four and determines whether the claimant's RFC permits the claimant to perform the requirements of his or her past relevant work. Id. § 404.1520(f). If the claimant can perform such requirements, then he or she is not disabled. 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 the claimant's age, education, and work experience. Rosa v. Callahan , 168 F.3d 72, 77 (2d Cir. 1999) (quotation omitted); see also 20 C.F.R. § 404.1560(c). DISCUSSION
I. The ALJ's Decision
In determining whether Plaintiff was disabled, the ALJ applied the five-step sequential evaluation set forth in 20 C.F.R. § 404.1520. Initially, the ALJ determined that Plaintiff last met the insured status requirements of the Act on June 30, 2020. (Dkt. 7 at 21). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity since February 10, 2015, the alleged onset date. (Id. ).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of: "cervical disorder with fusion, lumbar disorder with fusion, radiculopathy, left hip bursitis, venous reflux, umbilical hernia status-post surgical repair, left knee disorder, carpal tunnel syndrome, anxiety, and depression." (Id. ). The ALJ further found that Plaintiff's medically determinable impairments of chronic obstructive pulmonary disease (COPD) and sleep apnea were non-severe. (Id. at 21-22). With respect to Plaintiff's representation that he suffered from a visual impairment, the ALJ concluded that this was not a medically determinable impairment. (Id. at 22).
At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of any Listing. (Id. at 22). The ALJ particularly considered the criteria of Listings 1.00, 2.00, 3.00, 4.00, 12.04, and 12.06 in reaching her conclusion. (Id. at 22-23).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC to perform the full range of light work as defined in 20 C.F.R. § 404.1567(b), except as follows:
[Plaintiff] needs an opportunity to briefly change positions throughout the workday as often as every 30 minutes for 1-2 minutes. [Plaintiff] is precluded from all ladders, ropes, or scaffolds climbing, and is precluded from all crawling activities. [Plaintiff] is precluded from all exposure [to] any dangerous work hazards, which would include unprotected heights and exposed moving machinery. He is limited to performing all other postural motions occasionally. [Plaintiff] requires a work environment that does [not] expose him ... [to any] concentrated pulmonary irritants or any extreme heat, humidity, and cold conditions. For the upper extremities, [Plaintiff] is limited to frequent, but not constant, reaching, handling, and fingering tasks. He is precluded from all overhead reaching tasks. [Plaintiff] is limited to detailed, but not complex, work tasks and not involving a fast assembly quota pace.
(Id. at 23-24). At step four, the ALJ found that Plaintiff was unable to perform any past relevant work. (Id. at 28).
At step five, the ALJ relied on the testimony of a vocational expert ("VE") to conclude that, considering Plaintiff's age, education, work experience, and RFC, there were jobs that exist in significant numbers in the national economy that Plaintiff could perform, including the representative occupations of cashier and marker. (Id. at 28-29). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id. at 29).
II. Remand of this Matter for Further Proceedings is Necessary
Plaintiff asks the Court to reverse or, in the alternative, remand this matter to the Commissioner, arguing that the ALJ improperly substituted her lay judgment for that of a doctor relating to Plaintiff's physical limitations, including by relying on a stale opinion by Donna Miller, D.O., by failing to evaluate the opinion of Plaintiff's treating neurosurgeon, Tobias Mattei, M.D., and for failing to develop the record. (Dkt. 17-1 at 1, 17-28). For the reasons set forth below, the Court finds that the ALJ erred in evaluating opinion evidence and the RFC is not supported by the record, and this error necessitates remand for further administrative proceedings.
In assessing the RFC, the ALJ gave the opinion offered by Dr. Miller "great weight." (Dkt. 7 at 27). Dr. Miller examined Plaintiff on September 2, 2015 and opined that he had "moderate limitation with heavy lifting, bending, carrying, pushing, and pulling." (Id. at 399-402). The ALJ found that the limitations assessed by Dr. Miller were "consistent with [Plaintiff's] history of musculoskeletal pain with surgical intervention," but explained that, due to Plaintiff's recent diagnosis of carpal tunnel syndrome, she also included manipulative limitations in the RFC. (Id. at 27). The ALJ further explained that due to Plaintiff's testimony regarding his history of respiratory impairments, she included environmental limitations in the RFC. (Id. ). The ALJ concluded that limiting Plaintiff to a light exertional level with frequent opportunities to change positions for comfort was consistent with Dr. Miller's findings, Plaintiff's hearing testimony, and his treatment history. (Id. ).
The RFC states, in relevant part, that "[t]he claimant requires a work environment that does expose him to or any concentrated pulmonary irritants or any extreme heat, humidity, and cold conditions." (Dkt. 7 at 24). The Court assumes that this sentence contains typographical errors and should state that Plaintiff requires a work environment that does not expose him to any concentrated pulmonary irritants or any extreme heat, humidity, and cold conditions.
The are several problems with the ALJ's assessment of Plaintiff's RFC. As an initial matter, the ALJ did not weigh or assess the December 2015 opinion offered by treating neurosurgeon Dr. Mattei. An ALJ is required to weigh all the opinion evidence in the record, see Garrett W. v. Comm'r of Soc. Sec. , No. 19-CV-1091MWP, 2021 WL 821833, at *4 (W.D.N.Y. Mar. 4, 2021) (citing 20 C.F.R. § 404.1527(c) ), and the opinions offered by treating physicians are entitled to particular deference, see Burgess v. Astrue , 537 F.3d 117, 128 (2d Cir. 2008) (explaining that, pursuant to the "treating physical rule," "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." (alteration in original) (internal quotations and citation omitted)). On December 28, 2015, Dr. Mattei examined Plaintiff following spinal surgery, and recommended that he not perform work involving physical activities, "including bending, twisting, or lifting more than 10 pounds." (Id. at 423). The ALJ did not discuss this opinion evidence, which is at odds with the RFC requiring that Plaintiff perform light work. Defendant acknowledges that the ALJ failed to evaluate Dr. Mattei's opinion, but states that her failure was harmless error because six months later Dr. Mattei "released Plaintiff to return to his regular physical activities and opined that ‘there is no restriction from a neurological standpoint for him.’ " ( Dkt. 19-1 at 21). Defendant's after-the-fact explanation as to why the ALJ was not required to credit Dr. Mattei's December 2015 opinion cannot serve as a substitute for the ALJ's findings. See Anne P. v. Saul , No. 1:19-CV-00711-MJR, 2021 WL 671894, at *6 (W.D.N.Y. Feb. 22, 2021) ("A post hoc explanation for why this impairment was seemingly ignored by the ALJ cannot be accepted."); Hall v. Colvin , 37 F. Supp. 3d 614, 626 (W.D.N.Y. 2014) (rejecting Commissioner's attempt to justify the ALJ's failure to incorporate a treating physician's opinion into his RFC); see also Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999) ("A reviewing court may not accept appellate counsel's post hoc rationalizations for agency action." (internal quotations and citation omitted)).
The regulations define "light work" to include "lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds," and to require "a good deal of walking or standing, or ... sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. § 404.1567(b).
--------
Second, the ALJ gave "great weight" to the opinion offered by Dr. Miller. While the opinions of consultative examiners may serve as substantial evidence supporting an RFC, see Deevine C. v. Saul , No. 19-CV-1606F, 2021 WL 848908, at *6 (W.D.N.Y. Mar. 4, 2021) ("[t]he ALJ is permitted to rely on the opinion of a consultative examiner provided the opinion is supported by and consistent with other evidence in the record"), a subsequent surgery may render that opinion stale, see Steve P. v. Comm'r of Soc. Sec. , No. 19-CV-0492MWP, 2021 WL 307566, at *5 (W.D.N.Y. Jan. 29, 2021) ("Generally, an ALJ should not rely on ‘stale’ opinions—that is, opinions rendered before some significant development in the claimant's medical history ..., and medical source opinions that are stale and based on an incomplete medical record may not be substantial evidence to support an ALJ's finding." (internal alterations, quotations and citations omitted)). "In considering whether a medical opinion is stale, courts have frequently pointed to surgeries occurring subsequent to the medical opinion as evidence of the claimant's deteriorating condition." Nagy v. Saul , No. 19-CV-300-MJR, 2020 WL 3118569, at *5 (W.D.N.Y. June 12, 2020).
Here, Dr. Miller rendered her opinion in September 2015. Thereafter, Plaintiff underwent lumbar spine surgery on December 11, 2015. (See Dkt. 7 at 426-27). Following the surgery, Plaintiff continued to experience pain in his hip, lower back, and knees, and received cortisone injections (see, e.g. , id. at 448-51), and he was also subsequently diagnosed with left carpal tunnel syndrome (id. at 648). Indeed, the ALJ explained that, in addition to the limitations assessed by Dr. Miller, she included manipulative limitations to account for Plaintiff's carpal tunnel diagnosis. Rather than assess these manipulative limitations herself, the ALJ should have obtained additional opinion evidence from which she could have reliably assessed Plaintiff's limitations for performing these activities. In other words, Dr. Miller's opinion did not account for Plaintiff's deteriorating condition.
Third, the RFC assessed by the ALJ is not entirely supported by the opinion offered by Dr. Miller—rather, portions of the RFC are based on the ALJ's own interpretation of the medical record. In deciding a disability claim, an ALJ is tasked with "weigh[ing] all of the evidence available to make an RFC finding that [is] consistent with the record as a whole." Matta v. Astrue , 508 F. App'x 53, 56 (2d Cir. 2013). An ALJ's conclusion need not "perfectly correspond with any of the opinions of medical sources cited in h[er] decision." Id. However, an ALJ is not a medical professional, and "is not qualified to assess a claimant's RFC on the basis of bare medical findings." Ortiz v. Colvin , 298 F. Supp. 3d 581, 586 (W.D.N.Y. 2018) (quotation omitted). In other words:
An ALJ is prohibited from ‘playing doctor’ in the sense that ‘an ALJ may not substitute his own judgment for competent medical opinion.... This rule is most often employed in the context of the RFC determination when the claimant argues either that the RFC is not supported by substantial evidence or that the ALJ has erred by failing to develop the record with a medical opinion on the RFC.
Quinto v. Berryhill , No. 3:17-cv-00024 (JCH), 2017 WL 6017931, at *12 (D. Conn. Dec. 1, 2017) (citations omitted). "[A]s a result[,] an ALJ's determination of RFC without a medical advisor's assessment is not supported by substantial evidence." Dennis v. Colvin , 195 F. Supp. 3d 469, 474 (W.D.N.Y. 2016) (quotation and citation omitted).
In assessing the RFC, the ALJ relied on the opinion by Dr. Miller, who found that Plaintiff had "moderate" limitations for heavy lifting, bending, carrying, pushing, and pulling. The ALJ then went on to assess a detailed RFC, which includes specific time limitations for changing positions, as well as limitations for reaching, handling, and fingering tasks. The ALJ apparently formulated those portions of the RFC based on her own interpretation of the medical evidence, because Dr. Miller's opinion does not include an assessment of Plaintiff's functional limitations for performing those activities. "A very specific RFC assessment—such as the specific amount of time a claimant can spend on certain activities—must be based on evidence in the record, not on ‘the ALJ's own surmise.’ " Heckman v. Comm'r of Soc. Sec. , No. 18-CV-6032, 2019 WL 1492868, at *3 (W.D.N.Y. Apr. 4, 2019) (quoting Cosnyka v. Colvin , 576 F. App'x 43, 46 (2d Cir. 2014) ). "So when the record provides no support for the specific amount of time that a claimant can sit or stand without relief, a specific finding toward that end is not supported by substantial evidence." ( Id. ). Rather than assess these limitations based on her own interpretation of the evidence, the ALJ should have obtained updated opinion evidence from a medical professional qualified to render an opinion on Plaintiff's functional limitations for performing those activities.
In sum, the ALJ's assessment of Plaintiff's RFC is not supported by the record. Not only did the written determination fail to explain why Dr. Mattei's opinion was not accounted for in the RFC, but the RFC was also based on opinion evidence that does not account for the full scale of Plaintiff's physical limitations. Rather than attempt to formulate an RFC based on her own interpretation of the medical evidence, the ALJ should have obtained a more current medical opinion addressing all of Plaintiff's physical impairments and the functional limitations caused by those impairments. Accordingly, remand for further administrative proceedings is required. On remand, the ALJ should work to develop the record to obtain a more useful medical opinion, from which she may reliably assess Plaintiff's RFC.
CONCLUSION
For the foregoing reasons, Plaintiff's motion for judgment on the pleadings (Dkt. 17) is granted to the extent that the matter is remanded to the Commissioner for further administrative proceedings, and the Commissioner's motion for judgment on the pleadings (Dkt. 19) is denied. The Clerk of Court is directed to enter judgment and close this case.
SO ORDERED.