United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA United States District Judge
by counsel, Lillian Vega (“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”) denying her application for supplemental
security income (“SSI”). 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.
record reveals that in September 2012, plaintiff (d/o/b
January 3, 1959) applied for SSI, alleging disability as of
January 1, 2002. After her application was denied, plaintiff
requested a hearing, which was held before administrative law
judge Eric L. Glazer (“the ALJ”) on March 4,
2014. The ALJ issued an unfavorable decision on May 27, 2014.
The Appeals Council denied review of that decision and this
timely action followed.
The ALJ's Decision
one of the five-step sequential evaluation, see 20 C.F.R.
§ 416.920, the ALJ found that plaintiff had not engaged
in substantial gainful activity since September 10, 2012, the
application date. At step two, the ALJ found that plaintiff
had the following medically determinable impairments:
“mood disorder, not otherwise specified
[“NOS”]; cannabis dependence/abuse, current;
cocaine dependence/abuse, in sustained remission; opioid
dependence/abuse, in sustained remission; backache; joint
pain; vertigo; and headaches.” T. 19. However, the ALJ
found that these impairments were not severe for purposes of
the step two analysis, and therefore denied plaintiff's
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).
at step two function “to screen out de minimis
claims.” Dixon v. Shalala, 54 F.3d 1019, 1030
(2d Cir. 1995). “A finding of not severe should be made
if the medical evidence establishes only a slight abnormality
which would have no more than a minimal effect on an
individual's ability to work.” Zenzel v. Astrue,
993 F.Supp.2d 146, 152 (N.D.N.Y. 2012) (internal quotation
contends that the ALJ erred in rejecting her claim at step
two, arguing specifically that the finding was inconsistent
with the only medical opinion in the record, which came from
state agency consulting physician Dr. Nikita Dave. Plaintiff
argues that the ALJ improperly substituted his own judgment
for the medical opinion of Dr. Dave, without providing an
adequate explanation for rejecting the opinion. The Court
December 3, 2012, Dr. Dave performed an internal medicine
examination on plaintiff at the request of the state agency.
On physical examination, Dr. Dave found that plaintiff was
“[u]nable to walk and step onto the left toes”;
she could squat only three-fourths of full; she carried an
assistive device that she had borrowed from a relative;
lumbar flexion was limited to 45 degrees (normal is 60
degrees); and plaintiff demonstrated slight tenderness in the
left lateral hip area on deep palpation. Dr. Dave noted that
plaintiff was five feet three inches tall and weighed 172
pounds. He diagnosed plaintiff with “[m]ental health
issues, ” which he did not specify; vertigo which he
noted to be questionable; headaches; and low back pain. T.
223-24. He opined that plaintiff “[s]hould avoid
ladders, heights, sharp instruments, and operating machinery
due to vertigo and loss of consciousness or other
diagnosis”; and that she had “[m]ild to moderate
limitations for repetitive bending/twisting through the
lumbar spine, prolonged sitting, standing, leaning, lifting,
carrying, pushing, and pulling of greater than moderately
weighted objects.” T. 224.
gave Dr. Dave's opinion “little weight because the
limitations assessed [were] clearly based on
[plaintiff's] self-reported symptoms rather than any
objective evidence of limitations. Significantly, . . . the
physical examination was essentially normal other than some
subjective tenderness in the left hip on deep
palpation.” T. 22. In summarizing the findings of Dr.
Dave's examination, the ALJ failed to note that
plaintiff's lumbar flexion was limited to 45 degrees.
ALJ's reasoning for rejecting Dr. Dave's opinion was
legally insufficient. As the only medical opinion evidence in
the record, Dr. Dave's opinion stood uncontradicted. In
Giddings v. Astrue, 333 F. App'x 649, 652 (2d
Cir. 2009), the Second Circuit explained that where an ALJ
rejects a consulting opinion without reference to conflicting
medical opinion evidence, the ALJ must give an
“overwhelmingly compelling” reason for rejecting
the opinion. Id. (citing McBrayer v. Sec. of
Health and Human Servs., 712 F.2d 795, 799 (2d Cir.
1983) (stating that “the ALJ cannot arbitrarily
substitute his own judgment for competent medical
opinion” and that “[w]hile an administrative law
judge is free to resolve issues of credibility as to lay
testimony or to choose between properly submitted medical
opinions, he is not free to set his own expertise against
that of a physician who testified before him” (citation
and internal quotation marks omitted)); Leste ...