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Gray v. Colvin

United States District Court, W.D. New York

February 10, 2017

MARGARET MARIE GRAY, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          DECISION AND ORDER

          HON. MICHAEL A. TELESCA United States District Judge

         I. Introduction

         Represented by counsel, Margaret Marie Gray (“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”) denying her application for disability insurance benefits (“DIB”). The Court has jurisdiction over this 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. For the reasons discussed below, plaintiff's motion is granted to the extent that this case is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order.

         II. Procedural History

         The record reveals that in July 2011, plaintiff (d/o/b August 17, 1974) applied for DIB, alleging disability as of May 11, 2007. After her application was denied, plaintiff requested a hearing, which was held before administrative law judge Donald T. McDougall (“the ALJ”) on October 3, 2014.[1] The ALJ issued an unfavorable decision on October 16, 2014. The Appeals Council denied review of that decision and this timely action followed.

         III. The ALJ's Decision

         Initially, the ALJ found that plaintiff met the insured status requirements of the Social Security Act through December 31, 2012. At step one of the five-step sequential evaluation, see 20 C.F.R. § 404.1520, the ALJ determined that plaintiff had not engaged in substantial gainful activity since May 11, 2007, the alleged onset date. At step two, the ALJ found that plaintiff suffered from the severe impairments of right shoulder/arm workplace injury; rheumatoid arthritis and osteoarthritis; asthma; fibromyalgia; and obesity. 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 listed impairment.

         Before proceeding to step four, the ALJ determined that, considering all of plaintiff's impairments, plaintiff retained the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b) “except she should be able to change positions briefly (1-2 minutes) from sit to stand or vice versa at least every [half] hour; no exposure to extremes of heat, cold, wetness or humidity; no exposure to extremes of fumes, dusts, gases or other respiratory irritants; no more than occasional use of right arm/hand and shoulder; no lifting more than 10 pounds on the right; no kneeling or crawling; no more than occasional balancing, crouching or stooping; no ladders, ropes or scaffolds; no heights or dangerous moving machinery and no more than occasional stairs or ramps.” T. 20.

         At step four, the ALJ found that plaintiff could not perform any past relevant work. At step five, the ALJ found that considering plaintiff's age, education, work experience, and RFC, jobs existed in the national economy which plaintiff could perform. Accordingly, he found that plaintiff was not disabled.

         IV. Discussion

         A district court may set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by “substantial evidence” or if the decision is based on legal error. 42 U.S.C. § 405(g); see also Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). “Substantial evidence means ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000).

         Plaintiff contends that the ALJ failed to properly weigh the consulting state agency opinion of Dr. John Schwab, and that Dr. Schwab's opinion was rendered stale by the time of the ALJ's decision due to intervening changes in the plaintiff's medical condition. Dr. Schwab's consulting examination, performed on September 23, 2011, found that plaintiff had a positive straight leg raise (“SLR”) test, squatted to only half of normal “because she said her right knee hurt[], ” and demonstrated trigger point tenderness.[2] T. 458. Dr. Schwab diagnosed plaintiff with obesity (plaintiff was five feet five inches tall and weighed 327 pounds), polymyostitis, rheumatoid arthritis, osteoarthritis, fibromyalgia, asthma, right shoulder pain, and left ankle pain. Despite his findings on examination and his diagnoses of these several conditions, Dr. Schwab opined that plaintiff “should avoid any activity that triggers her asthma, [but] otherwise [had] no restrictions based on the findings of [his] examination.” T. 459.

         Plaintiff cites the case of Skupien v. Colvin, 2014 WL 3533425 (W.D.N.Y. July 16, 2014), in which the Court found that the same consulting examiner's opinion was internally inconsistent. In Skupien, the Court held that “Dr. Schwab's ‘no restrictions' opinion [was] inconsistent with his examination findings and the ALJ was required to reconcile the inconsistency or, if he could not do so, seek clarification from Dr. Schwab.” Id. at *4. The Commissioner argues that Skupien is distinguishable, contending that in comparison to Skupien, the abnormal findings in the instant consulting examination were “few . . . [and did] not suggest limitations beyond those assessed by the ALJ.” Doc. 11-1 at 20. Upon a thorough review of the administrative record, the Court disagrees and, for the reasons discussed below, finds that the ALJ failed to adequately explain reconcile the inconsistencies or, in the alternative, seek clarification from Dr. Schwab.

         The ALJ gave “significant” weight to Dr. Schwab's opinion, finding that “it was based on personal observations, examination findings and [was] consistent with the medical record as a whole.” T. 25. The ALJ additionally accorded “little” weight to the opinion of two physicians who examined plaintiff for purposes of workers compensation. A February 2010 independent medical examination (“IME”) performed by Dr. Michael Grant found that she had loss of use of the right upper extremity, due to a work-related shoulder injury, of 70 percent. An April 9, 2010 IME performed by Dr. Paul Mason found that plaintiff “may return to a light duty position . . . with work restrictions in place to include no repetitive overhead activities with respect to the right upper extremity.” T. 302. Plaintiff contends that because the ALJ gave little weight to these IME opinions, and great weight to the opinion of Dr. Schwab ...


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