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Donna A. Bogardus-Fry v. Michael J. Astrue

August 31, 2012


The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:



Plaintiff Donna A. Bogardus-Fry brings the above-captioned action pursuant to 42 U.S.C. § 405(g) seeking a review of the decision from the Commissioner of Social Security ("Commissioner") that denied her application for disability insurance benefits ("DIB") and supplemental social security income ("SSI").


On April 17, 2008, plaintiff protectively filed an application for DIB and SSI benefits. (T. 44, 100)*fn1 . Plaintiff was 32 years old at the time of he application with prior work experience as a cashier, daycare provider, waitress, and food preparer. (T. 25-27, 29). Plaintiff claimed that she became unable to work beginning on May 10, 2006 due to a lumbar disc herniation, a cervical disc herniation, fibromyalgia/myofascial pain syndrome, Crohn's disease, colitis, pulmonary nodules, and obesity. (T. 11, 29, 32-33, 35-36, 45). On August 5, 2008, plaintiff's application was denied and plaintiff requested a hearing by an Administrative Law Judge ("ALJ"), which was held on January 14, 2010. (T. 18). Plaintiff appeared with an attorney. On February 25, 2010, the ALJ issued a decision denying plaintiff's claim for benefits. (T. 16-17). The Appeals Council denied plaintiff's review on July 8, 2011, making the ALJ's decision the final determination of the Commissioner. (T. 1-5). This action followed.


The Social Security Act (the "Act") authorizes payment of disability insurance benefits to individuals with "disabilities." The Act defines "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). There is a five-step analysis for evaluating disability claims:

"In essence, if the Commissioner determines (1) that the claimant is not working, (2) that he has a 'severe impairment,' (3) that the impairment is not one [listed in Appendix 1 of the regulations] that conclusively requires a determination of disability, and (4) that the claimant is not capable of continuing in his prior type of work, the Commissioner must find him disabled if (5) there is not another type of work the claimant can do." The claimant bears the burden of proof on the first four steps, while the Social Security Administration bears the burden on the last step. Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (quoting Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002)); Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000) (internal citations omitted).

A Commissioner's determination that a claimant is not disabled will be set aside when the factual findings are not supported by "substantial evidence." 42 U.S.C. § 405(g); see also Shaw, 221 F.3d at 131. Substantial evidence has been interpreted to mean "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The Court may also set aside the Commissioner's decision when it is based upon legal error. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).

The ALJ found at step one that plaintiff has not engaged in substantial gainful activity since May 20, 2006. (T. 11). At step two, the ALJ concluded that plaintiff suffered from the following severe impairments: obesity, asthma, pulmonary nodules, Crohn's disease, colitis, degenerative cervical and lumbar disc disease, fibromyalgia/myofascial pain syndrome and cannabis abuse. (T. 11). At step three, the ALJ determined that plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in the Listing of Impairments. The ALJ then found the plaintiff had the Residual Functional Capacity ("RFC") to "lift and/or carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk for a total of six hours in an eight-hour workday, sit for a total of six hours in an eight-hour workday, and occasionally climb, balance, stoop, kneel, crouch and crawl. She should avoid more than moderate exposure to fumes, odors, dust, gases, poor ventilation, extreme temperatures and humidity." (T. 12). At step four, the ALJ concluded that plaintiff was not capable of performing any of her past relevant work. (T. 15). At step five, relying on the Medical-Vocational Guidelines ("the grids") set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 2, the ALJ found that plaintiff had the RFC to perform jobs existing in significant numbers in the national economy. (T. 16). Therefore, the ALJ concluded that plaintiff was not under disability as defined by the Act. (T. 16-17).

In seeking federal judicial review of the Commissioner's decision, plaintiff argues that the ALJ erred by failing to: (1) find that plaintiff's spine impairment met the criteria for Listing 1.04A in the Listing of Impairments; (2) properly review and weigh the medical evidence of record; (3) properly assess plaintiff's credibility; (4) properly assess plaintiff's RFC; and (5) support his conclusion with substantial evidence that plaintiff can perform other work that exists in the national economy in significant numbers.

I. Meet or Medically Equals a Listed Impairment--Listing § 1.04A

"The Listing of Impairments describes, for each of the major body systems, impairments which are considered severe enough to prevent a person from doing any gainful activity." 20 C.F.R. § 416.925(a). If the claimant's impairment or combination of impairments meets or equals a listed impairment, then the disability analysis ceases and the claimant is considered disabled without any further consideration undertaken in regard to the claimant's age, education, or work experience. See Campbell v. Astrue, No. 8:07-CV-0758, 2009 WL 2152314, at *4 (N.D.N.Y. July 14, 2009) (citing 20 C.F.R. § 416.920(a)(4)(iii)). A claimant is automatically entitled to benefits if her impairment(s) meets the criteria set forth in Appendix 1 to Subpart P of Part 404. McKinnev v. Astrue, 2008 WL 312758, *4 (N.D.N.Y. 2008). The burden is on the plaintiff to present medical findings which show that her impairments match a listing or are equal in severity to a listed impairment. Zwick v. Apfel, 1998 WL 426800, at *6 (S.D.N.Y.1998). In order to show that an impairment matches a listing, the claimant must show that her impairment meets all of the specified medical criteria. Pratt v. Astrue, 2008 WL 2594430, at *6 (N.D.N.Y.2008) (citing Sullivan v. Zebley, 493 U .S. 521, 530 (1990)) (holding that if a claimant's impairment "manifests only some of those criteria, no matter how severely," such impairment does not qualify). Courts have required an ALJ to provide an explanation as to why the claimant failed to meet or equal the Listings, "[w]here the claimant's symptoms as described by the medical evidence appear to match those described in the Listings." Rockwood v. Astrue, 614 F.Supp.2d 252, 273 (N.D.N.Y. 2009) (citation omitted).

The requirements of disability for spine disorders listed in 20 C.F.R. Part 404, Subpt. P, App. 1, state:

1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With:

A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine).

The plaintiff's medical records must demonstrate that plaintiff suffered from nerve root compression and each of the four characteristics required by the Listing for the relevant time period. See Sullivan, 493 U.S. at 530.

The ALJ is charged with carefully considering all the relevant evidence and linking his findings to specific evidence. Backus v. Astrue, 2008 WL 4519006, at *10 (N.D.N.Y. 2008) (citing Drapeau v. Massanari, 255 F.3d 1211, 1214 (10th Cir. 2001) (internal citations omitted) (holding that the record must demonstrate that the ALJ considered all of the evidence with a discussion of not only the evidence the ALJ relied upon but also the evidence he rejected)).

Courts do not hesitate to remand a case for the ALJ to set out his specific findings and his reasons for accepting or rejecting evidence at step three. Id. (citing Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir.1996)). "[I]n the absence of findings supported by specific weighing of the evidence, the Court c[an] not assess ALJ's conclusion that the appellant's impairments did not meet or equal any Listed Impairment, and whether he applied the correct legal standards to arrive at that conclusion." Peck v. Barnhart, 2006 WL 3775866, at *4-6 (10th Cir. 2006) (the ALJ's "bare conclusion" was "beyond meaningful judicial review").

Here, the ALJ concluded that, "[t]he clinical signs, symptoms and functional limitations from the claimant's impairments are not of the required severity to meet or equal the specific criteria of any listed impairments. The Administrative Law Judge paid particular attention to listings, 1.04, 3.03, 5.06, and 12.09." (T. 12).

Plaintiff claims that her spinal condition meets all the requisites of Listing 1.04(A) to qualify her for an automatic determination of disabled in step three of the disability analysis. (Dkt. No. 15, p. 13). Plaintiff also claims that the ALJ failed to "conduct any listings analysis whatsoever" and that this requires the case to be remanded for further consideration. In support, plaintiff cites to her various MRI films as specific evidence of nerve root compression. On July 10, 2006 and December 18, 2006, plaintiff underwent MRIs of her lumbar spine. Plaintiff's treating sources and medical providers reviewed these films and provided their opinions and interpretations. The July 10, 2006 films were taken at Claxton-Hepburn Medical Center and the report indicates, "moderate degenerative disc disease with diminished disc height and dessication as well as moderate posterior disc bulging at L4-5 and L5-S1." (T. 442). The report also provides, "exiting nerve roots appear normal". On December 6, 2006, Robert E. Hemond ("Hemond"), a physician's assistant at Fletcher Allen Spine Institute, opined that the films revealed a "broad based disc bulge at L4-5 with mild compression of the traversing L5 nerve on the left" and "a right central disc bulge with compression of the traversing S1 nerve root on the right." (T. 500).

On December 18, 2006, plaintiff had a second MRI of her lumbar spine at Canton-Potsdam Hospital. (T. 294). The report generated indicated that plaintiff suffered from slight protrusion identified at 5-1 and mild bulging at 4-5 with no other significant findings. The physician also concluded that the protrusion at the 5-1 level "does appear to be affecting the descending right S1 nerve root". On January 31, 2007, Hemond noted, "MRI of the LS spine dated December 18, 2006 is essentially unchanged from her previous films. T2-weighted axial images reveal mildly bulging disk at L4-5 with compression traversing L5 nerve root on the left that is mild and at L5-S1 there is a central disk bulge with compression of the S1 nerve roots bilaterally left greater than right." (T. 497). On July 11, 2007, plaintiff had an initial consultation with Dr. Ann Marie Gonzalez-Munoz at the Fletcher Allen Pain Management Clinic. Dr. Gonzalez-Munoz noted, " MRI studies per Mr. Hemond's report demonstrated mild disk bulge at L4-5 as well as L5-S1. This did result in mild neural foraminal narrowing with mild compression of the traversing L5 nerve root on the left and S1 nerve root on the right." (T. 472). The record also contains an MRI report from a third series of films performed approximately two years later on March 5, 2009 which revealed a "moderate sized central and left paracentral disc herniation at L4/5 level resting against the left L5 nerve root". The report also indicates "although not displacing the nerve root". (T. 588).

Plaintiff also cites to additional medical evidence in support of her claim that she meets the three remaining requirements for Listing 1.04A. To wit, plaintiff continually complained of pain and numbness radiating down her legs into her feet to her various treating physicians including Drs. Savage, Vazquez-Senior, Gonzalez-Munoz, Ames (T. 194, 220, 476) and to Nurse Jean Bellinger and Hemond. (T. 384, 486). Plaintiff also described her pain as constant, radiating and generally and "8 out of 10". Plaintiff routinely exhibited positive results on straight leg raising (T. 220, 476, 499) and displayed a limited range of motion as verified by the physician who examined plaintiff at the request of the agency. On March 2, 2009, James Naughten, D.O. performed an orthopedic examination. Upon examination, he noted that plaintiff favored her right leg to a mild degree and walked on heels and toes with mild difficulty. (T. 572). The examination of plaintiff's lumbar spine revealed "[f]lexion 50 degrees, extension 10 degrees, lateral flexion 10 degrees bilaterally", bilateral lumbar pain and spasm, paraspinal tenderness on palpation. (T. 573). Here, the ALJ failed to mention or discuss any of the aforementioned MRI films. Further, the ALJ did not discuss Hemond's interpretation of the films or Dr. Gonzalez-Munoz's opinions regarding the films at any step of the sequential analysis. Moreover, while the ALJ acknowledged that plaintiff made complaints of numbness, tingling and pain that were exacerbated by prolonged standing and sitting to her treating physicians and during the administrative hearing, he failed to address these complaints in the context of his analysis of the listings. (T. 13, 14). See Muntz v. Astrue, 540 F.Supp.2d 411, 420 (W.D.N.Y.2008) (evidence of neuro-anatomic pain found throughout the record where the plaintiff complained to treating and examining physicians of back pain with radiation of numbness and weakness). The ALJ also assigned "substantial weight" to Dr. Naughten's observations, but failed to mention or discuss the doctor's findings in the context of his analysis of the Listings.

The ALJ's decision contains no discussion of the specific Listing or any mention of the evidence that the ALJ considered or rejected in arriving at his conclusion at Step Three. Upon a review of the record, the Court finds that the ALJ's determination is not supported by substantial evidence. The ALJ improperly disregarded portions of the record that support plaintiff's claim that she met Listing § 1.04A. The ALJ must consider the entire record in accordance with his duty under 20 C.F.R. § 404.1520(3). Sutherland v. Barnhart, 322 F.Supp.2d 282, 289 (E.D.N.Y. 2004). The ALJ's failure to discuss the aforementioned evidence and explain why claimant's impairments did not satisfy the specific criteria of Listing § 1.04A was plain error. Walker ex rel. J.B. v. Astrue, 2010 WL 2287566, at *7 (N.D.N.Y. 2010) (citing Morgan, 913 F.Supp. at 188--189 (holding that a one-sentence denial is insufficient to support the determination, especially in light of the considerable evidence to the contrary)). The Second Circuit has held that, "[w]here there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to legal principles ." Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987). The ALJ should have considered all evidence available and provided some explanation as to why claimant's impairments do not meet the criteria of § 1.04A.

While there may be some evidence to support defendant's arguments and the ALJ's position, the ALJ's decision cannot be upheld due to his failure to articulate his rationale or to analyze the record in any meaningful way. The record contains at least some evidence that could provide a basis for the conclusion that plaintiff's impairments meet the criteria for Listing § 1.04A. It is well settled that "[w]here the claimant's symptoms as described by medical evidence appear to match those described in the Listings, the ALJ must explain a finding of ineligibility based on the Listings." Id. (citing Kerr v. Astrue, 2010 WL 3907121, at *3-5 (N.D.N.Y. 2010) ("[w]here there is significant probative evidence that a claimant meets the criteria for a Listing at step three, the case will be remanded if the court determines that the '[p]laintiff was owed a more substantive discussion of why [ ]he did not meet [a particular Listing]'"). "It is particularly important for an ALJ to specifically address conflicting probative evidence with respect to the step three analysis, because a claimant whose condition meets or equals that of a Listing is deemed disabled per se and eligible to receive benefits." Szarowicz v. Astrue, 2012 WL 3095798, 4 -5 (W.D.N.Y. 2012) (citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526).

The ALJ's failure to employ the correct legal standards at step three of the sequential analysis is reversible error, because the Court cannot engage in meaningful judicial review. See Baneky v. Apfel, 997 F.Supp. 543, 547 (S.D.N.Y.1998). A Court should not hesitate to remand a matter for further explanation when the Court is unable to fathom the ALJ's rationale in relation to evidence in the record. See Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir. 1982). The ALJ must provide sufficient rationale in support of his decision to not find a listed impairment. Id. The Court therefore remands this issue back to the Commissioner for further analysis consistent with this opinion.

II. Evaluation of Medical Evidence

Plaintiff argues that the ALJ should have assigned controlling weight to the January 8, 2010 Medical Source Statement ("MSS") prepared by RPAC Patricia Snider and Dr. Andrew Williams' opinions. Plaintiff claims that the MSS is supported by clinical notes and objective evidence and further contends that it is not contradicted by substantial evidence in the record. Defendant claims that the ALJ properly evaluated the ...

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