United States District Court, N.D. New York
ROBERT C. CARDILLO, II, Plaintiff,
CAROLYN M. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.
of Peter M. Hobaica, LLC, Social Security Administration
Office of Regional General Counsel, Attorneys for Defendant
BROOKS BENSON, ESQ., CATHARINE L. ZURBRUGG, ESQ. OF COUNSEL:
MEMORANDUM-DECISION & ORDER
Christian F. Hummel, U.S. Magistrate Judge
Robert C. Cardillo II brings this action pursuant to 42
U.S.C. § 405(g) seeking review of a decision by the
Commissioner of Social Security (“Commissioner”
or “defendant”) denying his applications for
supplemental security income benefits (“SSI”) and
disability insurance benefits. Dkt. No. 1
(“Compl.”). Plaintiff moves for a finding of
disability, and the Commissioner cross moves for a judgment
on the pleadings. Dkt. Nos. 14, 16. For the following
reasons, the determination of the Commissioner is remanded.
was born on January 4, 1983. T at 72. Plaintiff graduated
from high school, and attended college for “a couple of
months.” Id. at 34. In school, plaintiff was
in “resource class” and had “some type of
learning disability.” Id. at 51-52.
Plaintiff's past work history includes a customer service
representative at Subway, a sandwich shop, and a customer
service representative at Defense Financing and Accounting
Services. Id. at 35-36. Plaintiff was unable to
continue his employment because “the stress of
everything . . . makes my MS [multiple sclerosis] kind of
flare up and my fingers don't work really, my hands are
numb, I can't really feel the keyboard, I don't know
what I'm typing. Id. at 37. Plaintiff resides
with his fiancee and her family. Id. at 37-38.
Plaintiff provided that he is 5' 5" tall and weighs
295 pounds. Id. at 38. Plaintiff spends his days
watching television and reading. Id. He does not
prepare meals or perform any household chores. Id.
at 38-39. Plaintiff has a driver's license and drives
approximately three times per week. Id. at 39. He is
able to bathe and toilet himself, and his fiancee helps him
dress. Id. at 41. Plaintiff smokes a half of a pack
of cigarettes per day. Id.
27, 2013, plaintiff protectively filed a Title II application
for a period of disability and disability insurance benefits
and a Title XVI application for supplemental security income.
T at 145-53. Plaintiff alleged disability beginning on June
3, 2013. Id. at 144. These applications were denied
initially on October 16, 2013. Id. at 90-94.
Plaintiff requested a hearing, and a hearing was held on June
19, 2014 before Administrative Law Judge (“ALJ”)
Gregory M. Hamel. Id. at 31-69; 98-100. The Appeals
Council denied plaintiff's request for review, making the
ALJ's findings the final determination of the
Commissioner. Id. at 1-4. Plaintiff commenced this
action on February 4, 2016. Dkt. No. 1
Standard of Review
reviewing a final decision of the Commissioner, a district
court may not determine de novo whether an individual is
disabled. See 42 U.S.C. §§ 405(g),
1383(c)(3); Wagner v. Sec'y of Health & Human
Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the
Commissioner's determination will only be reversed if the
correct legal standards were not applied, or it was not
supported by substantial evidence. Johnson v. Bowen,
817 F.2d 983, 986 (2d Cir. 1987); Berry v.
Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Substantial
evidence is “more than a mere scintilla, ”
meaning that in the record one can find “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Halloran v. Barnhart,
362 F.3d 28, 31 (2d Cir. 2004) (citing Richardson v.
Perales, 402 U.S. 389, 401 (1971) (internal citations
omitted)). The substantial evidence standard is “a very
deferential standard of review . . . . [This] means once an
ALJ finds facts, we can reject [them] only if a reasonable
factfinder would have to conclude otherwise.”
Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d
443, 448 (2d Cir. 2012) (internal quotation marks omitted).
Where there is reasonable doubt as to whether the
Commissioner applied the proper legal standards, the decision
should not be affirmed even though the ultimate conclusion
reached is arguably supported by substantial evidence.
Martone v. Apfel, 70 F.Supp.2d 145, 148 (N.D.N.Y.
1999) (citing Johnson v. Bowen, 817 F.2d 983, 986
(2d Cir. 1987)). However, if the correct legal standards were
applied and the ALJ's finding is supported by substantial
evidence, such finding must be sustained, “even where
substantial evidence may support the plaintiff's position
and despite that the court's independent analysis of the
evidence may differ from the [Commissioner's].”
Rosado v. Sullivan, 805 F.Supp. 147, 153 (S.D.N.Y.
1992) (citation omitted).
Determination of Disability
individual who is under a disability shall be entitled to a
disability . . . benefit . . . .” 42 U.S.C. §
423(a)(1). Disability is defined 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.” Id. §
423(d)(1)(A). A medically-determinable impairment is an
affliction that is so severe that it renders an individual
unable to continue with his or her previous work or any other
employment that may be available to him or her based on his
or her age, education, and work experience. Id.
§ 423(d)(2)(A). Such an impairment must be supported by
“medically acceptable clinical and laboratory
diagnostic techniques.” Id. § 423(d)(3).
Additionally, the severity of the impairment is “based
[upon] objective medical facts, diagnoses or medical opinions
inferable from [the] facts, subjective complaints of pain or
disability, and educational background, age, and work
experience.” Ventura v. Barnhart, No.
04-CV-9018 (NRB), 2006 WL 399458, at *3 (S.D.N.Y. Feb. 21,
2006) (citing Mongeur v. Heckler, 722 F.2d 1033,
1037 (2d Cir. 1983)).
Second Circuit employs a five-step analysis, based on 20
C.F.R. § 404.1520, to determine whether an individual is
entitled to disability benefits:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity.
If he [or she] is not, the [Commissioner] next considers
whether the claimant has a ‘severe impairment'
which significantly limits his [or her] physical or mental
ability to do basic work activities.
If the claimant suffers such an impairment, the third inquiry
is whether, based solely on medical evidence, the claimant
has an impairment which is listed in Appendix 1 of the
regulations. If the claimant has such an impairment, the
[Commissioner] will consider him [or her] disabled without
considering vocational factors such as age, education, and
work experience; the [Commissioner] presumes that a claimant
who is afflicted with a ‘listed' impairment is
unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant's severe
impairment, he [or she] has the residual functional capacity
to perform his [or her] past work.
Finally, if the claimant is unable to perform his [or her]
past work, the [Commissioner] then determines whether there
is other work which the claimant could perform.
Berry, 675 F.2d at 467 (spacing added). The
plaintiff bears the initial burden of proof to establish each
of the first four steps. DeChirico v. Callahan, 134
F.3d 1177, 1179-80 (2d Cir. 1998) (citing Berry, 675
F.2d at 467). If the inquiry progresses to the fifth step,
the burden shifts to the Commissioner to prove that the
plaintiff is still able to engage in gainful employment
somewhere. Id. at 1180 (citing Berry, 675
F.2d at 467).
addition, an ALJ must set forth the crucial factors
justifying his findings with sufficient specificity to allow
a court to determine whether substantial evidence supports
the decision.” Barringer v. Comm'r of Soc.
Sec., 358 F.Supp.2d 67, 72 (N.D.N.Y. 2005) (citing
Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.
1984)). However, a court cannot substitute its interpretation
of the administrative record for that of the Commissioner
where the record contains substantial support for the
ALJ's decision. See Yancey v. Apfel, 145 F.3d
106, 111 (2d Cir. 1998). If supported by substantial
evidence, the Commissioner's finding must be sustained
“even where substantial evidence may support the
plaintiff's position and despite that the court's
independent analysis of the evidence may differ from the
[Commissioner's].” Rosado v. Sullivan, 805
F.Supp. 147, 153 (S.D.N.Y. 1992). The Court must afford the
Commissioner's determination considerable deference, and
may not substitute “its own judgment for that of the
[Commissioner], even if it might justifiably have reached a
different result upon a de novo review.” Valente v.
Sec'y of Health & Human Servs., 733 F.2d 1037,
1041 (2d Cir. 1984).
the five-step disability sequential evaluation, the ALJ
determined that plaintiff had not engaged in substantial
gainful activity since June 3, 2013, the alleged date. T at
20. The ALJ found at step two that plaintiff had the severe
impairments of multiple sclerosis, pulmonary embolism, deep
vein thrombosis, and obesity. Id. at 21. At step
three, the ALJ determined that plaintiff did not have an
impairment or combination of impairments that met or
medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Id. at 22. The ALJ then concluded that plaintiff
retained the residual functional capacity ("RFC")
perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a) except that he can only occasionally climb stairs,
balance, stoop, kneel, crouch, and crawl; he cannot climb
ladders and similar devices; he cannot work in hazardous
environments; and he can use the hands for frequent but not
constant handling and fingering.
Id. at 22.
four the ALJ concluded that plaintiff “is capable of
performing past relevant work as a customer service
representative. This work does not require the performance of
work-related activities precluded by the claimant's
residual functional capacity.” T at 25. Thus, the ALJ
determined that plaintiff “has not been under a
disability, as defined in the Social Security Act, from June
3, 2013, through the date of this decision.”
Id. at 26.
argues that (1) the ALJ erred in his consideration of the
weight accorded to the opinions of treating physician Dr.
Jessica Robb, M.D. and consultative examiner Tanya
Perkins-Mwantuali, M.D.; (2) the ALJ failed to sufficiently
set forth his findings relating to plaintiff's
credibility; (3) the ALJ presented erroneous hypotheticals to
the Vocational Expert; and (4) the ALJ failed to evaluate
plaintiff's obesity properly. See generally Dkt.
Weight Given to Medical Opinions
argues that the ALJ erred in declining to give controlling
weight to Jessica Robb, M.D., plaintiff's neurologist,
who concluded that plaintiff's multiple sclerosis meets
listings 11.09A and 11.09 C. Dkt. No. 14 at 14. Plaintiff
further argues that the ALJ also erred in declining to give
controlling weight to Dr. Robb's opinion that plaintiff
has a less than sedentary RFC. Id. at 19. Finally,
plaintiff contends that the ALJ improperly
“cherry-picked” from the opinion of consultative
examiner Tanya Perkins-Mwantuali, M.D., and provided an
inconsistent report of the weight he accorded her opinion.
Id. at 21. Defendant argues that the ALJ properly
considered and declined to give controlling weight to Dr.
Robb's opinions about Listing 11.09 and plaintiff's
RFC as Dr. Robb's treatment was based on just two visits
and “out of proportion to the degree and type of
treatment Plaintiff had received.” Dkt. No. 19 at 7-13.
Defendant also contends that the ALJ's discussion of the
weight he accorded to the consultative examiner's opinion
was not inconsistent and was supported by substantial
evidence. Id. at 13-14.
Dr. Jessica Robb, M.D.
argues that the ALJ improperly fails to give controlling
weight to, or even mention, the Listing questionnaire, which
he argues establishes that plaintiff met the requirements of
Listing 11.09A - disorganization of motor function - and
11.09C - significant, reproducible fatigue of motor function
with substantial muscle weakness on repetitive activity
resulting from neurological dysfunction in areas of the
central nervous system known to be pathologically involved by
the multiple sclerosis process. Dkt. No. 14 at 14-26.
listed in Appendix 1 of the Social Security Regulations are
‘acknowledged by the [Commissioner] to be of sufficient
severity to preclude' substantial gainful activity.
Accordingly, a claimant who meets or equals a Listing is
‘conclusively presumed to be disabled and entitled to
benefits.'” Knight v. Astrue, 32 F.Supp.3d
210, 218 (N.D.N.Y. 2012) (quoting Dixon v. Shalala,
54 F.3d 1019, 1022 (2d Cir. 1995)). In order for a claimant
to demonstrate that his impairment meets or medically equals
a listing, “the claimant must show that his or her
impairments meet all of the specified criteria.”
Id. (citing Sullivan v. Zebley, 493 U.S.
521, 530 (1990); 20 C.F.R. § 416.925(d)). Further, where
“a claimant's impairment ‘manifests only some
of those criteria, no matter how severely, ' the
impairment does not qualify.” Id. (quoting
Sullivan, 493 U.S. at 530). The claimant bears the
burden of establishing that his or her impairment matches, or
is equal in severity to, a Listing. Naegele v.
Barnhart, 433 F.Supp.2d 319, 324 (W.D.N.Y. 2006)
(“It must be remembered that plaintiff has the burden
of proof at step 3 that she meets the Listing
requirements.”). “To satisfy this burden the
claimant must offer medical findings equal in severity to all
requirements, which findings must be supported by medically
acceptable clinical and laboratory diagnostic
techniques.” Knight, 32 F.Supp.3d at 218
(citing 20 C.F.R. § 416.926(b)). “When a
claimant's symptoms appear to match those described in a
listing, ‘the ALJ must explain a finding of
ineligibility based on the Listings.'” Peach v.
Colvin, No. 15-CV-104S, 2016 WL 2956230, at *4 (W.D.N.Y.
May 23, 2016).
A. Disorganization of motor function as described in 11.04B;
B. Visual or mental impairment as described under the
criteria in 2.02, 2.03, ...