Opinion
1:19-CV-01325 EAW
2021-02-23
KAREN BETH L., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Brandi Christine Smith, Kenneth R. Hiller, Law Offices of Kenneth Hiller, Amherst, NY, for Plaintiff. Blakely Pryor, Francis D. Tankard, Office of the General Counsel Social Security Administration, Kansas City, MO, for Defendant.
Brandi Christine Smith, Kenneth R. Hiller, Law Offices of Kenneth Hiller, Amherst, NY, for Plaintiff.
Blakely Pryor, Francis D. Tankard, Office of the General Counsel Social Security Administration, Kansas City, MO, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge INTRODUCTION
Represented by counsel, Plaintiff Karen Beth L. ("Plaintiff") brings this action pursuant to Titles II and XVI of the Social Security Act (the "Act"), seeking review of the final decision of the Commissioner of Social Security (the "Commissioner," or "Defendant") denying her applications for disability insurance benefits ("DIB") and supplemental security income ("SSI"). (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. 9; Dkt. 11), and Plaintiff's reply (Dkt. 12). For the reasons discussed below, Plaintiff's motion (Dkt. 9) is granted in part, and the Commissioner's motion (Dkt. 11) is denied.
BACKGROUND
Plaintiff protectively filed her application for DIB on January 28, 2016, and protectively filed her application for SSI on December 17, 2015. (Dkt. 6 at 84, 125-26). In her applications, Plaintiff alleged disability beginning November 27, 2015, due to anxiety, type II diabetes, chronic obstructive pulmonary disease ("COPD"), hypertension, agoraphobia, and panic attacks. (Id. at 84,127-28, 138-39). Plaintiff's applications were initially denied on April 13, 2016. (Id. at 84, 149-55). A video hearing was held before administrative law judge ("ALJ") Theodore Kim on September 4, 2018. (Id. at 84, 104-124). Plaintiff appeared in Buffalo, New York, and the ALJ presided over the hearing from Falls Church, Virginia. (Id. ). On October 3, 2018, the ALJ issued an unfavorable decision. (Id. at 81-99). Plaintiff requested Appeals Council review; her request was denied on August 6, 2019, making the ALJ's determination the Commissioner's final decision. (Id. at 5-8). 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.
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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 Parker 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), 416.920(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), 416.920(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), 416.920(d). If the impairment meets or medically equals the criteria of a Listing and meets the durational requirement (id. §§ 404.1509, 416.909), 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), 416.920(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), 416.920(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), 416.920(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 and 416.920. Initially, the ALJ determined that Plaintiff last met the insured status requirements of the Act on December 31, 2020. (Dkt. 6 at 87). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity since November 27, 2015, the alleged onset date. (Id. ).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of: "COPD; agoraphobia with panic attacks ; general anxiety disorder; and panic disorder." (Id. ). The ALJ further found that Plaintiff's medically determinable impairments of diabetes mellitus type II, hyperlipidemia, hypercholesterolemia, vitamin D deficiency, hypertension, and other cardiac conditions were non-severe. (Id. ).
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. ). The ALJ particularly considered the criteria of Listings 3.02 and 12.06 in reaching his conclusion. (Id. at 87-89).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC to perform medium work as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c), with the additional limitations that Plaintiff:
can never climb ladders, ropes, and scaffolds and can never be exposed to unprotected heights and moving mechanical parts. She can have occasional exposure to dust, mists, gases, noxious odors, fumes, pulmonary irritants, and poor ventilation. [Plaintiff] can tolerate occasional exposure to extreme cold, extreme heat, humidity, and wetness. In addition, [Plaintiff] is able to understand, carry-out, and remember simple instructions, make simple work related decisions and occasionally deal with supervisors, co-workers, and the public. She can occasionally deal with changes in a routine work setting. [Plaintiff] will be off task 10 percent of the workday.
(Id. at 33). At step four, the ALJ found that Plaintiff was unable to perform any past relevant work. (Id. at 97).
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 industrial sweeper/cleaner, salvage laborer, and day worker. (Id. at 97-98). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id. at 98-99).
II. Remand for Further Administrative Proceedings is Required
Plaintiff asks the Court to reverse or, in the alternative, remand this matter to the Commissioner, arguing: (1) the ALJ failed to properly evaluate Plaintiff's cardiac conditions; (2) the ALJ failed to properly evaluate Plaintiff's limitations interacting with others; and (3) the Appeals Council failed to properly evaluate evidence that undermined the ALJ's findings. (Dkt. 9-1 at 1, 13-21). As explained below, the Court finds that the ALJ erred in evaluating Plaintiff's cardiac impairments, and therefore remand is required for further administrative proceedings.
A. Evaluation of Plaintiff's Cardiac Conditions and COPD
Plaintiff argues that the ALJ failed to properly evaluate her cardiac conditions and erred by finding that her cardiac conditions were non-severe impairments. (Dkt. 9-1 at 13). Plaintiff further contends that while her cardiac conditions were initially treated with medications and observation, her symptoms eventually worsened in June 2018, prompting her treating cardiologist, Alan Meholick, M.D., to increase her medications and consider future surgical intervention. (Id. at 14). Finally, Plaintiff argues that in rejecting the opinion offered by consultative examiner Rita Figueroa, M.D., the ALJ's assessment of Plaintiff's impairments was improperly based on his lay opinion. (Id. at 14-15). In response, Defendant contends that the ALJ properly determined that Plaintiff's heart condition was non-severe, because the record contained little evidence of significant heart-related functional limitations. (Dkt. 11-1 at 20-24). 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 his 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).
As explained above, the ALJ found that Plaintiff's COPD was a severe impairment. (Dkt. 6 at 87). However, he found that Plaintiff's hypertension and other cardiac conditions, which were treated with medications, were non-severe. (Id. ). The ALJ explained that although Plaintiff testified that her heart "bangs" if she overexerts herself, and that the record showed she had a right bundle branch block, atherosclerotic heart disease of native coronary artery, and occlusion and stenosis of bilateral carotid arteries, Plaintiff's "left ventricular ejection fraction was considered normal on testing," treating cardiologists had not expressed any "overt concerns," and Plaintiff had not required hospitalization. (Id. ).
The Court find that the ALJ's evaluation of Plaintiff's impairments and his assessment of the RFC, particularly as it relates to Plaintiff's COPD and cardiac impairments, is not supported by the record. The only opinion evidence relevant to the assessment of the physical impairments was offered by Dr. Figueroa, who evaluated Plaintiff on March 8, 2016. (Id. at 94, 337). Following an examination, during which Plaintiff reported shortness of breath going up the stairs and vacuuming, as well as palpitations, Dr. Figueroa diagnosed COPD, hypertension, diabetes, and hypercholesterolemia, and found that Plaintiff "may have difficulty with activities requiring moderate exertion due to her COPD." (Id. at 337, 340).
The ALJ gave Dr. Figueroa's opinion "limited weight." (Id. at 94). The ALJ explained that Dr. Figueroa "failed to identify specific functional limitations." (Id. ). The ALJ further explained that although Plaintiff had pulmonary function testing which revealed "moderate disease," examinations revealing that she had a "prolonged expiratory phase," and reported that she had occasional shortness of breath with exertion and occasional wheezing, she also received conservative treatment, such as inhalers and medication, and he therefore concluded that the record "supports the residual functional capacity for a range of medium work." (Id. ). However, the ALJ concluded that Plaintiff had "further limitations for climbing and environmental conditions" (id. at 94); specifically, the ALJ explained that "[m]indful of the claimant's COPD, the claimant is limited to medium work, can never climb ladders, ropes, and scaffolds, and can never be exposed to unprotected heights and moving mechanical parts. She can have occasional exposure to dust, mists, gases, noxious odors, fumes, pulmonary irritants, and poor ventilation and can have occasional exposure to extreme cold, extreme heat, humidity, and wetness" (id. at 97).
It is not clear to the Court how the ALJ formulated the portion of the RFC addressing Plaintiff's physical impairments, including those caused by her COPD and cardiac impairments. The only opinion evidence in the record addressing these impairments was offered by Dr. Figueroa who, as explained above, found that Plaintiff would have "difficulty with activities requiring moderate exertion due to her COPD" and, as acknowledged by the ALJ, Dr. Figueroa's opinion did not shed light on any specific functional limitations that would be appropriate considering those impairments. While the RFC assessed by the ALJ need not "perfectly correspond with any of the opinions of medical sources cited in his decision," Matta , 508 F. App'x at 56, "it is critical that the ALJ's rationale for the RFC determination be ‘sufficiently discernible.’ " Julie Y. v. Comm'r of Soc. Sec. , No. 19-CV-1362-HBS, 2021 WL 431666, at *3 (W.D.N.Y. Feb. 8, 2021) (citation omitted). Without further explanation by the ALJ as to how he arrived at the specific limitations in the physical RFC, the Court is left to assume that he relied on his own lay opinion in assessing those limitations, which is error. See McGirr v. Comm'r of Soc. Sec. , No. 19-CV-1004-FPG, 2020 WL 3467416, at *2 (W.D.N.Y. June 25, 2020) ("If the ALJ does not explicitly articulate, or a reviewing court cannot otherwise discern, how the ALJ arrived at particular restrictions, it raises the specter that the ALJ either cherry-picked the evidence to justify a pre-ordained conclusion, or interpreted the medical evidence based on her own lay judgment—both of which constitute error."). Accordingly, to the extent the ALJ included limitations in the RFC assessing Plaintiff's physical impairments, those limitations are not supported by substantial evidence.
With regard to Plaintiff's cardiac impairments, additional evidence which appears to relate to the relevant period of disability, including a January 2018 carotid doppler test, appears to undermine, at least to some extent, the ALJ's rationale that Plaintiff's cardiac impairments did not require additional limitations. Plaintiff underwent a carotid doppler test on January 25, 2018, which revealed the following:
1-49% stenosis of the COMMON CAROTID ARTERY with heterogeneous plaque. Moderate irregular heterogeneous plaque in the INTERNAL CAROTID ARTERY producing 50-69% stenosis. There are increased velocities in the EXTERNAL CAROTID ARTERY. The vertebral artery flow is antegrade.
Elevated velocity noted in the left vertebral artery; clinical correlation is advised.
(Id. at 66-67; cf. id. at 87 (explaining that Plaintiff's left ventricular ejection fraction was "considered normal" on testing)). Although Defendant argues that there is no indication that these test results would have changed the ALJ's decision, the Commissioner—like the ALJ—is not a medical professional and is not qualified to interpret raw medical data. Further, even evidence that was before the ALJ at the time he issued his written determination, including the results of a December 2017 coronary angiogram, indicate that Plaintiff's cardiac testing was abnormal. (See id. at 540 (noting "palpitations, shortness of breath and abnormal EKG" and discussing results of December 13, 2017 angiogram which revealed "[right coronary artery] 100% stenosis with collaterals and 70% stenosis first marginal branch of circumflex")). Following the December 2017 angiogram, Plaintiff's cardiologist recommended that, if Plaintiff's exertional symptoms worsened, surgery should be considered. (See id. at 541 ("If clear-cut exertional symptoms worsen, consideration could be given for [right coronary artery] chronic total occlusion [percutaneous coronary intervention ] or further assessment of a 70% stenosis of first marginal branch of the circumflex.")). Given this evidence, which appears to contradict the ALJ's reasoning that Plaintiff's cardiac conditions were managed conservatively and non-severe, coupled with the lack of evidence of Plaintiff's functional limitations resulting from her physical impairments, the Court finds that remand for further administrative proceedings is required. On remand, the ALJ should consider all the evidence as it relates to Plaintiff's cardiac impairments and work to obtain evidence from which he can meaningfully assess Plaintiff's physical functional limitations, including those caused by her COPD and cardiac impairments.
B. Plaintiff's Remaining Arguments
As set forth above, Plaintiff has identified additional reasons why she contends the ALJ's decision was not supported by substantial evidence. However, because the Court has already determined, for the reasons previously discussed, that remand of this matter for further administrative proceedings is necessary, the Court declines to reach these issues. See, e.g., Bell v. Colvin , No. 5:15-CV-01160 (LEK), 2016 WL 7017395, at *10 (N.D.N.Y. Dec. 1, 2016) (declining to reach arguments "devoted to the question whether substantial evidence supports various determinations made by [the] ALJ" where the court had already determined remand was warranted); Morales v. Colvin , No. 13cv06844 (LGS) (DF), 2015 WL 13774790, at *23 (S.D.N.Y. Feb. 10, 2015) (the court need not reach additional arguments regarding the ALJ's factual determinations "given that the ALJ's analysis may change on these points upon remand."), adopted , 2015 WL 2137776 (S.D.N.Y. May 4, 2015).
CONCLUSION
For the foregoing reasons, Plaintiff's motion for judgment on the pleadings (Dkt. 9) is granted to the extent that the matter is remanded for further administrative proceedings, and the Commissioner's motion for judgment on the pleadings (Dkt. 11) is denied.
SO ORDERED.