Herod-Zak v. Commissioner of Social Security

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________
RUTH H-Z.,
Plaintiff,
Case No. 1:23-cv-00773-TK
v.
COMMISSIONER OF SOCIAL OPINION AND ORDER
SECURITY,
Defendant.
OPINION AND ORDER
This case is before the Court to consider a final decision of the Commissioner of Social
Security which denied Plaintiff’s application for disability insurance benefits. That final decision
was issued by an Administrative Law Judge on May 26, 2023 following a remand from this
Court. After filing the complaint in this case, Plaintiff moved for judgment on the pleadings
(Doc. 4) and the Commissioner filed a similar motion (Doc. 5). 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 protectively filed an application for disability insurance benefits on August 14,
2018, alleging a disability beginning on June 30, 2010. After initial administrative denials of her
application, Plaintiff appeared at a hearing before an Administrative Law Judge on April 27,
2020, The ALJ issued an unfavorable decision on May 4, 2020, and the Appeals Council denied
review on December 1, 2020. Plaintiff then brought an action in this Court which resulted in an
order of remand dated July 8, 2022. See Ruth H-Z v. Comm’r of Soc. Sec., 2022 WL 2586533
(W.D.N.Y. July 8, 2022).
Following remand, another hearing was held on April 27, 2023, at which both Plaintiff
and a vocational expert, Christine Spaulding, testified. On June 1, 2023, the ALJ issued an
unfavorable decision. In that decision, the ALJ found, first, that Plaintiff met the insured status
requirements of the Social Security Act through December 31, 2016, and that she had not
engaged in substantial gainful activity since her alleged onset date. Next, the ALJ determined
that Plaintiff suffered from severe impairments including rheumatoid arthritis and left carpal
tunnel syndrome. The ALJ further found that none of these impairments, considered singly or in
combination, met or equaled the criteria for disability under the Listing of Impairments.
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Moving to the next step of the sequential evaluation process, the ALJ found that Plaintiff
had the ability to perform light work except that she could frequently, as opposed to
continuously, handle, finger, and feel bilaterally. Plaintiff had past relevant work as a personnel
clerk, and the ALJ determined, based on the testimony of the vocational expert, that Plaintiff
could still perform that job. As a result, the ALJ concluded that Plaintiff was not, prior to her
last insured date, under a disability as defined in the Social Security Act.
In her motion for judgment on the pleadings, Plaintiff raises a single issue, stated as
follows:
The ALJ improperly substituted his own medical judgment over that of any
physician.
Plaintiff’s memorandum, Doc. 4-1, at 1.
II. THE KEY EVIDENCE
A. Hearing Testimony
Plaintiff, who was 63 years old at the time of the first administrative hearing, first
testified that she lived in a house with her husband and that she had a high school education. She
had done some consulting work since her alleged onset date but otherwise had not been
employed since June 30, 2010. Her work was of a clerical nature from 1978 onward although the
position title changed from time to time. Her primary job duties were typing, doing data entry,
filing, creating databases, and doing payroll.
Plaintiff said that she stopped working in 2010 because her symptoms had gotten worse
in the prior year and she had an opportunity to take an early retirement. There had been times
when her hands were so painful that she could not use them. She started seeing a rheumatologist
in 2011. Plaintiff testified to an improvement of her symptoms since she stopped working,
which she attributed to medication and a change in routine. She still experienced hand pain if
she used her hands too much for activities like gardening, and she limited her lifting as well. She
also had swelling in the morning but it went down as the day went on, and she did not usually
have difficulty lifting and carrying small items. Lastly, Plaintiff said she experienced swelling in
her feet if she walked for too long.
At the second administrative hearing, Plaintiff agreed with the ALJ’s summary of her
earlier testimony, and she also said she had not really used a keyboard since she had stopped
working. In her previous job, however, she was using her hands almost all the time. She
confirmed that she had been taking time off for physical reasons prior to her retirement.
The vocational expert, Ms. Spaulding, was asked questions about a person with Plaintiff’s
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vocational profile who could do light work with a restriction to frequent handling, fingering, and
feeling. She responded that such a person could do Plaintiff’s past work and also a job called
data compiler, but there were only 1,000 such jobs in the national economy. If the person were
limited to occasional use of the hands, however, neither job could be done. Ms. Spaulding also
testified that Plaintiff’s past job could be done by someone limited to sedentary work. Being off
task for 20% of the time or missing two days of work per month would be job-preclusive,
however.
B. Medical Evidence
In Ruth H-Z, supra, the Court summarized the pertinent medical evidence this way:
The ALJ cited medical evidence in the administrative record relating to Plaintiff's
rheumatoid arthritis, which spanned over the course of multiple years, as part of
his analysis. He noted that plaintiff had an initial rheumatological evaluation with
Mark E. Schulte, M.D., of Rheumatology Consultants of WNY, P.C., on January
31, 2011, at which she reported progressive swelling, stiffness, and pain in the
joints of her hands, wrists, and feet since January of 2009, which had progressed
in the six months prior to the appointment. (Dkt. 10 at 400). She also reported
numbness and tingling in her hands with partial improvement from a warm
shower, activity throughout the day, and ibuprofen. (Id.). Dr. Schulte noted that
Plaintiff had inflammatory polyarthritis consistent with rheumatoid arthritis and
prescribed Prednisone and Methotrexate. (Id. at 400-01).
A July 1, 2011 treatment note with Dr. Schulte reflects Plaintiff's report that she
was 90% improved overall. (Id. at 396). She reported having occasional pain in
the hands and feet with activity, but had been active without significant limitation.
(Id.). Dr. Schulte noted that Plaintiff was “clinically much improved.” (Id.).
On a February 3, 2012 follow up, Plaintiff indicated that she had done well since
her last visit. (Id. at 392). She reported minimal morning stiffness although noted
that she was not being very active in the mornings. (Id.). On June 8, 2012,
Plaintiff indicated having to stop her medication for a short time due to an
infection and reported worsening stiffness and mild joint swelling, which
improved shortly after resumption of the medication. (Id. at 390). She reported
being active without limitation. (Id.). An October 12, 2012 treatment record
reflects that Plaintiff was doing well without a recent flare of joint swelling and
stiffness and though she noted mild achiness in her hands following work, she was
not limited to a significant degree. (Id. at 381).
On February 8, 2013, Plaintiff was seen for a follow up and reported no recent
flare and that she had been active without limitation. (Id. at 377). On June 28,
2013, and again on November 11, 2013, she reported some mild worsening
stiffness in her hands lasting about one hour each morning but indicated that she
was not limited by the symptoms and took nothing for the pain. (Id. at 375).
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On March 10, 2014, Plaintiff reported having stopped her medications as a result
of dental issues, but restarted after completing her antibiotics. (Id. at 371). On July
7, 2014, Plaintiff reported mild stiffness in the hands and feet without swelling or
erythema. (Id. at 362). On November 3, 2014, she again reported mild stiffness in
the hands and feet without swelling or erythema, but had been active without
limitation. (Id. at 359).
At a March 2, 2015 visit with Dr. Schulte, Plaintiff advised that she had
temporarily stopped her medications due to an upper respiratory infection but was
back on the medication and reporting little morning stiffness and no joint
swelling. (Id. at 355). But on June 10, 2015, Plaintiff reported worsening stiffness
and mild swelling in her hands since reducing her dose of Methotrexate. (Id. at
351). She returned to a higher weekly dose but did not notice a significant change.
(Id.). On September 30, 2015, Plaintiff reported a compete resolution of her joint
symptoms after a medication change to her thyroid hormone replacement dose.
(Id. at 345).
On January 27, 2016, Plaintiff reported doing well but with mild stiffness in her
hands and feet without swelling or erythema. (Id. at 341). A May 25, 2016
treatment record reported unchanged symptoms with continued mild stiffness in
the hands and feet. (Id. at 335). On October 4, 2016, Plaintiff reported having
marked worsening stiffness of her hands and wrists after a delay in getting an
Enbrel injection, but that her symptoms were resolved upon receipt of the
injection. (Id. at 326).
At a January 9, 2017 appointment with Dr. Schulte, Plaintiff indicated that she
continued to do well with only mild stiffness in her hands and feet without
significant swelling. (Id. at 321). A May 16, 2017 treatment note reported mild
stiffness in the hands and feet. (Id. at 316). Plaintiff tried to taper her medication
but noticed worsening stiffness in the hands which resolved after increasing the
dose. (Id.).
In November 2018, Dr. Schulte opined that Plaintiff had fairly good control of her
inflammation but continued to have activity-related pain and stiffness in her hands
which limited her ability to return to work. (Id. at 402 (“Despite fairly good
control of inflammation over time, Ruth continues to have activity related pain
and stiffness in the hands limiting her ability to return to work.”)). He noted that
she has “been successful at modifying her routine at home to avoid significant
flares of symptoms, however, would likely not be able to return to gainful
employment.” (Id.).
Ruth H-Z. v. Comm'r of Soc. Sec., 2022 WL 2586533, at *4–5 (W.D.N.Y. July 8, 2022).
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C. Opinion Evidence
Only two medical sources provided opinions as to Plaintiff’s functional capacity. Her
treating rheumatologist, Dr. Schulte, concluded in 2018 that Plaintiff had maintained fairly good
control of her inflammation over time but increased activity caused hand pain and limited her
ability to return to work. Two years later, Dr. Schulte completed a “Manipulative Limitation
Medical Source Statement” indicating that Plaintiff suffered from tenderness, pain, soft tissue
swelling, limitation of motion, and reduced grip strength and that she could lift and carry less
than five pounds. He did not believe that she could use her hand or fingers more than ten percent
of the time and could not reach in any direction more than 20% of the time. (Tr. 480-81). The
state agency reviewer, Dr. Brauer, who reviewed the records up through December of 2018,
concluded, on the basis of those records, that Plaintiff did not have a severe physical impairment.
(Tr. 61-67).
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);
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
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As noted above, Plaintiff’s memorandum raises only a single issue. She argues that the
ALJ crafted the residual functional capacity finding not on the basis of the two medical opinions,
both of which he found to be unpersuasive, but on his own lay interpretation of the raw medical
data. She further asserts that it is not clear how the ALJ came up with the determination that
Plaintiff could frequently handle and finger, and that if she were limited to performing those
activities only occasionally, she could not return to her previous work. The Commissioner
responds that a reasonable person interpreting the treatment records could have concluded, as the
ALJ did, that Plaintiff did have the ability to use her hands on a frequent basis. In reply, Plaintiff
argues that this case presents a classic example of “a judge playing doctor and elevating is(sic)
lay opinion over that of a physician.” Reply Memorandum, Doc. 6, at 6.
This Court has had many occasions to set forth the legal principles which apply to
Plaintiff’s claim. For example, in Deanna K. v. Comm'r of Soc. Sec., 2023 WL 5443901, at *5
(W.D.N.Y. Aug. 24, 2023), , this Court observed that
[t]he 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.” Benman v. Comm'r of Soc.
Sec., 350 F. Supp. 3d 252, 256-57 (W.D.N.Y. 2018) (quoting Matta v. Astrue, 508
F. App'x 53, 56 (2d Cir. 2013)). But an ALJ is “not a medical professional,” and
“is not qualified to assess a claimant's RFC on the basis of bare medical findings.”
Id. at 257 (quoting Ortiz v. Colvin, 298 F. Supp. 3d 581, 586 (W.D.N.Y. 2018)).
An ALJ may not, therefore, substitute his own judgment for competent medical
opinion, see Quinto v. Berryhill, No. 17-CV-24, 2017 WL 6017931, at *12 (D.
Conn. Dec. 1, 2017), and an ALJ's RFC determination “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).
However, “[a]n ALJ's conclusion need not perfectly correspond with any of the
opinions of medical sources cited in his decision.” Benman, 350 F. Supp. 3d at
257 (quoting Matta, 508 F. App'x at 56) (internal quotation marks omitted).
Moreover, “remand is generally not warranted where the ALJ's RFC finding is
more restrictive than the limitations set forth in the medical opinions of record,
inasmuch as any alleged error in this regard inures to the claimant's benefit.”
Baker v. Berryhill, No. 15-CV-943, 2018 WL 1173782, at *4 (W.D.N.Y. March 6,
2018).
The ALJ rejected Dr. Schulte’s very restrictive opinion as to Plaintiff’s ability to use her
hands and fingers, noting that the symptoms Dr. Schulte relied on were not reflected in the
treatment notes up to her last insured date and Plaintiff did not report any changes in her
activities of daily living. He did not find the state agency reviewer’s opinion persuasive as to
there being no limitations in her handling and fingering, however, because her “rheumatoid
arthritis and left carpal tunnel syndrome cause more than minimal restriction in her ability to
perform basic work activity functions through the date last insured.” (Tr. 494). The ALJ
observed that it was reasonable to conclude that full-time work would have caused Plaintiff to
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experience some limitations, and he gave Plaintiff “extreme deference to [her] subjective
complaints of pain, numbness, weakness, and lingering effects of overuse of her hands” even
though he believed that the treatment records did not support those complaints. Id.
The Court finds this to be a very close case. The result reached by the ALJ could be
characterized as simply picking a middle position between the two expert opinions, one of which
supported no limitations in handling and fingering, and one of which supported fairly extreme
limitations. The ALJ also provided an explanation, based on the treatment records and Plaintiff’s
description of her activities of daily living, for concluding that she was neither as capable as Dr.
Brauer believed her to be, nor as limited as Dr. Schulte described her. There are many examples
in the case law of a court upholding a residual functional capacity finding concerning
manipulative limitations which is based on balancing the expert opinions and other pertinent
evidence even if the finding does not correspond perfectly with either opinion, and especially
where it represents giving the claimant the benefit of the doubt and crediting her subjective
testimony. See, e.g., Tanya W. v. Comm’r of Soc. Sec., 2021 WL 4942092 (N.D.N.Y. Oct. 22,
2021).
The problem with making such a determination in this case, however, is the fact that the
other evidence, and even the treatment records, do not necessarily support the conclusion that
Plaintiff was able to continue to use her hands on a frequent basis in the work setting. Her
testimony on this issue was clear. She missed work before she retired due to pain in her hands
caused by performing her job duties. She only returned to work part-time in a consulting
capacity because she was not required to use her hands in the same way as when she was working
full-time. She experienced morning stiffness in her hands lasting for up to an hour. None of her
daily activities relied on by the ALJ to discount further limitations in the use of her hands
required the frequent use of hands for handling and fingering. The treatment records do not
indicate an absence of symptoms but show that she experienced symptoms, although mild, even
from engaging in daily activities not requiring the frequent use of her hands. In short, there is
nothing in this record that would have permitted the ALJ to conclude, once he rejected Dr.
Brauer’s opinion, that the limitations he found to exist extended to no more than a restriction to
frequent use of the hands. Without some additional evidence or explanation on this issue, the
ALJ’s decision is not supported by substantial evidence, and a remand is required. See, e.g.,
Walls v. Kijakazi, 2022 WL 4377379 (N.D. Ind. Sept. 22, 2022) (explaining that it is error for an
ALJ to equate activities of daily living with the ability to perform job functions on a daily basis
where there is no correlation between the two).
V. CONCLUSION AND ORDER
For the reasons stated above, the Court GRANTS Plaintiff’s motion for judgment on the
pleadings (Doc. 4), DENIES the Commissioner’s motion (Doc. 5), and REMANDS the case to
the Commissioner for further proceedings pursuant to 42 U.S.C. §405(g), sentence four.
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/s/ Terence P. Kemp
United States Magistrate Judge
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