Opinion
1:20-CV-00034 EAW
2021-05-24
SANDRA LEE M., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Felice A. Brodsky, Lockport, NY, James P. Ratchford, Buffalo, NY, for Plaintiff. Peter Colonna Romano, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
Felice A. Brodsky, Lockport, NY, James P. Ratchford, Buffalo, NY, for Plaintiff.
Peter Colonna Romano, 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 Sandra Lee M. ("Plaintiff") brings this action pursuant to Title 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 application for 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. 19; Dkt. 20), and Plaintiff's reply (Dkt. 23). For the reasons discussed below, the Commissioner's motion (Dkt. 20) is denied, and Plaintiff's motion (Dkt. 19) is granted to the extent that the matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order.
BACKGROUND
Plaintiff protectively filed her application for SSI on January 5, 2017. (Dkt. 11-2 at 16; Dkt. 11-3 at 2). In her application, Plaintiff alleged disability beginning January 1, 2014. (Dkt. 11-2 at 16; Dkt. 11-3 at 4). Plaintiff's application was initially denied on April 7, 2017. (Dkt. 11-2 at 16; Dkt. 11-4 at 2-7). At Plaintiff's request, a hearing was held before administrative law judge ("ALJ") Mary Sparks on January 23, 2019, with Plaintiff appearing in person in in Buffalo, New York, and the ALJ presiding via video from Albany, New York. (Dkt. 11-2 at 36-83). On May 3, 2019, the ALJ issued an unfavorable decision. (Id. at 13-35). Plaintiff requested Appeals Council review; her request was denied on November 25, 2019, making the ALJ's determination the Commissioner's final decision. (Id. at 2-7). 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. § 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. § 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. § 416.920(d). If the impairment meets or medically equals the criteria of a Listing and meets the durational requirement (id. § 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. § 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. § 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. § 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).
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. § 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity since January 5, 2017, the application date. (Dkt. 11-2 at 18).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of: "status-post ventilator dependent respiratory failure; chronic kidney disease, currently stage V; atherosclerotic heart disease without angina, NYHA class I functional status; diabetic retinopathy ; and obesity." (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. at 19). The ALJ did not discuss the criteria of any particular Listings in reaching her conclusion. (Id. ).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC to perform light work as defined in 20 C.F.R. § 416.967(b), except with the following additional limitations:
[Plaintiff can] never climb ladders ropes or scaffold to crawl [sic], could no more than occasionally climb ramps or stairs, stoop, crouch and kneel, and could no more than occasionally be exposed to irritants such as fumes, odors, dust, gases or poorly ventilated areas.
(Id. at 19).
At step four, the ALJ relied on the testimony of a vocational expert ("VE") to conclude that Plaintiff was capable of her past relevant work as a customs entry clerk and a machine operator. (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 either reverse or remand this matter to the Commissioner for further administrative proceedings, arguing that (1) the ALJ improperly relied on her own lay opinion in assessing Plaintiff's RFC and (2) the ALJ failed to consider whether Plaintiff was entitled to a closed period of disability. For the reasons set forth below, the Court disagrees that the ALJ improperly relied on her own lay opinion in making her RFC finding, but agrees with Plaintiff that the ALJ failed to properly consider whether she was entitled to a closed period of disability and that remand for further proceedings is accordingly required.
A. Assessment of Plaintiff's RFC
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 [her] 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). "[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 omitted).
In this case, the record contains medical opinions from consultative examiner Dr. John Schwab and state agency reviewing physician Dr. G. Feldman. Dr. Schwab examined Plaintiff on March 10, 2017. (Dkt. 11-3 at 27-30). Based on his examination of Plaintiff, Dr. Schwab opined that she had "no restrictions" in performing work-related functions. (Id. at 30). Dr. Feldman did not examine Plaintiff, but instead reviewed her medical records in April 2017. (Dkt. 11-3 at 9-11). Based on his review, Dr. Feldman opined that Plaintiff was capable of performing a full range of work at the medium exertional level. (Id. at 11).
In making her RFC finding, the ALJ afforded partial weight to both Dr. Schwab's and Dr. Feldman's opinions, but concluded that they were not adequately restrictive. (Dkt. 11-2 at 28). The ALJ accordingly considered the other evidence of record, including Plaintiff's own testimony, to reach an RFC finding that fully accounted for Plaintiff's limitations. Specifically, the ALJ took Plaintiff's testimony regarding her visual impairments into account in limiting her ability to climb, took Plaintiff's obesity and her cardiologist's recommendation that she strive for 30-45 minutes of exercise and 10,000 steps daily into account in limiting her to light (rather than medium) exertion, and took Plaintiff's statements regarding her history of asthma and her activities of daily living into account in limiting her exposure to respiratory irritants. (Dkt. 11-2 at 27-28). This was not error, and does not provide a basis to reverse or remand the ALJ's determination. See Hamilton v. Comm'r of Soc. Sec. , No. 19-CV-770 (JLS), 2020 WL 5544557, at *6 (W.D.N.Y. Sept. 16, 2020) ("[The plaintiff] essentially argues that the ALJ was wrong to accept portions of her testimony regarding her limitations, which were not covered in a medical source opinion. But this does not constitute reversible error."); Kearney v. Berryhill , No. 1:16-CV-00652-MAT, 2018 WL 5776422, at *5 (W.D.N.Y. Nov. 2, 2018) ("The ALJ explained that he had credited aspects of Plaintiff's testimony regarding her limitations, and so assessed a somewhat more restrictive RFC than identified by the consultative examiners. The Court finds no error in this determination by the ALJ.").
B. Failure to Consider a Closed Period of Disability
However, the Court does find merit in Plaintiff's contention that the ALJ should have considered whether she was entitled to a closed period of disability from November 24, 2014, to December 15, 2015. (See Dkt. 19-1 at 23-24).
As a threshold matter, the Court notes that Plaintiff did not apply for SSI until January 5, 2017, and that the "earliest month" for which SSI benefits can be paid is "the month following the month [a claimant] filed the application." 20 C.F.R. § 416.335. However, as Plaintiff notes in her moving papers, she had previously filed an application for disability insurance benefits ("DIB") that was denied on May 14, 2015. (Dkt. 11-2 at 40). Plaintiff asked the ALJ to reopen this prior determination (id. at 40-41), and the ALJ acknowledged the same (id. at 41, 63). See 20 C.F.R. § 404.988(b) (prior determination on DIB claim can be reopened "[w]ithin four years of the date of the notice of the initial determination" for "good cause"); 20 C.F.R. § 404.989 (a)(1) ("good cause" for reopening prior determination includes cases where "[n]ew and material evidence is furnished").
While the ALJ did not explicitly state that she was reopening Plaintiff's DIB application in her written determination, she did "review[ ] the entire record and render[ ] a decision on the merits," which the Second Circuit has held constitutes a constructive grant of the request to reopen. Byam v. Barnhart , 336 F.3d 172, 180 (2d Cir. 2003). For example, the ALJ discussed and considered at length evidence regarding Plaintiff's hospitalization in November and December of 2014 for pneumonia and acute renal failure and her hospitalization from March 20, 2015, to April 23, 2015, for cholecystitis. (Dkt. 11-2 at 21). Indeed, Defendant does not dispute that the ALJ constructively reopened the prior determination on Plaintiff's DIB application, but instead argues that Plaintiff failed to prove her entitlement to a closed period of disability. (Dkt. 20-1 at 20). Accordingly, the Court considers Plaintiff's argument regarding a closed period of disability on the merits.
"A closed period of disability refers to when a claimant is found to be disabled for a finite period of time which started and stopped prior to the date of the administrative decision granting disability status." Pettaway v. Colvin , 12-CV-2914 (NGG), 2014 WL 2526617 at *13 (E.D.N.Y. June 4, 2014) (quotation omitted). When deciding a disability claim, "if a claimant is disabled at any point in time, the ALJ should consider not only whether Plaintiff was disabled at the time of the hearing, but also whether Plaintiff was entitled to disability benefits for any closed, continuous period of not less than 12 months, following the date of [her] claim." Williams v. Colvin , No. 15-CV-144S, 2016 WL 3085426, at *4 (W.D.N.Y. June 2, 2016). "It is particularly necessary for the ALJ to consider whether a closed period of disability existed where the record shows that plaintiff's condition has improved significantly over time as the result of a discrete event, such as surgery." Robertson v. Berryhill , No. 6:16-CV-06481 (MAT), 2017 WL 3574626, at *2 (W.D.N.Y. Aug. 18, 2017).
Here, the record of evidence shows that Plaintiff's physical condition from late 2014 to late 2015 was dramatically different than her physical condition in 2016, 2017, and 2018. In particular, Plaintiff was hospitalized at Medina Memorial Hospital on November 22, 2014, due to pneumonia and acute renal failure. (Dkt. 11-2 at 21). Plaintiff's condition progressively deteriorated, and she was transferred to Mercy Hospital of Buffalo on November 27, 2014, because her pneumonia and sepsis had become respiratory failure. (Id. ). Plaintiff had to have a tracheostomy placed, but was eventually successfully weaned from the ventilator, and was ultimately discharged on December 26, 2014. (Id. ). Less than three months later, on March 20, 2015, Plaintiff was hospitalized again, due to abdominal pain, nausea, and vomiting, which she had been experiencing for "a few weeks." (Id. ). Plaintiff was discovered to be suffering from orthostatic hypotension and possible cholecystitis and underwent a laparoscopic cholecystectomy. (Id. ). Plaintiff's physicians determined that her orthostatic hypotension was likely a complication of her diabetes, and her medications were adjusted. (Id. at 22). She was ultimately discharged from the hospital on April 23, 2015, but continued to suffer from orthostatic hypotension throughout 2015, sometimes necessitating the use of a walker or a wheelchair, and sometimes causing her to faint. (Id. at 21-22). Plaintiff underwent treatment at the Dent Neurologic Institute and was able to cease using the walker by December 2015; by January 2016, her orthostatic hypotension was noted to no longer be symptomatic. (Id. at 22-23).
"In light of this record, [the ALJ] was required to consider whether plaintiff was totally disabled for a closed period of at least 12 months while [s]he recuperated from" her hospitalizations and surgery. Orta v. Berryhill , No. 17-CV-00676, 2019 WL 2428509, at *4 (W.D.N.Y. June 11, 2019). Contrary to Defendant's argument, the evidence discussed above plainly could support a finding that Plaintiff was unable to work for a 12-month period in 2014 and 2015, and the ALJ's failure to consider whether that was the case requires remand. Id. ; see also Robertson , 2017 WL 3574626, at *3 ("[T]he ALJ should have considered whether a closed period of disability had occurred following plaintiff's tibial fracture. His failure to do so warrants remand.").
CONCLUSION
For the foregoing reasons, the Commissioner's motion for judgment on the pleadings (Dkt. 20) is denied, and Plaintiff's motion for judgment on the pleadings (Dkt. 19) is granted to the extent that the matter is remanded for further administrative proceedings consistent with this Decision and Order.
SO ORDERED.