[Derrick M.] v. Comm’r of Soc. Sec., No. 20-CV-05961 (FB), 2022 WL 2541390 (E.D.N.Y. July 7, 2022)

[Derrick M.] v. Comm’r of Soc. Sec., No. 20-CV-05961 (FB), 2022 WL 2541390 (E.D.N.Y. July 7, 2022)

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[Derrick M.] v. Comm’r of Soc. Sec., No. 20-CV-05961 (FB), 2022 WL 2541390 (E.D.N.Y. July 7, 2022) (Decision by Senior District Judge Frederic Block)

Briefs included:

  • Memorandum of Law in Support of Plaintiff’s Motion for Judgment on the Pleadings

  • Plaintiff’s Reply Brief 

Topics addressed:

  • Specific impairment: arm impairment

  • RFC - manipulative limitations

  • RFC - assistive device

  • RFC - need to consider severe and non-severe impairments

  • Improper substitution of opinion by the ALJ

  • Subjective complaints - improper focus on objective evidence

  • Subjective complaints - regulatory factors

  • Vocational testimony - hypothetical question

Rulings addressed:

  • Social Security Ruling 83-10

  • Social Security Ruling 96-8p

  • Social Security Ruling 96-9p

  • Social Security Ruling 16-3p

Issues briefed:

1)  The ALJ erred by failing to fully account for Derrick M.’s arm impairments in the residual functional capacity finding.

2) The ALJ improperly disregarded Derrick M.’s occasional need for a cane, despite the findings and opinion of Dr. Wells, a State agency examiner, who opined that a cane was needed for balance.

3) The ALJ’s reasons for discrediting Derrick M.’s subjective complaints are not supported by substantial evidence.

4) The testimony provided by the vocational witness cannot provide support for the ALJ’s findings as it was based on incomplete hypothetical questioning.

Court decision:
The court held that remand was warranted because the ALJ failed to “properly consider [Derrick M.’s] balance impairments and spinal injuries in determining his RFC.” 2022 WL 2541390 at *1. The court observed that to:

reach a valid RFC, the ALJ must consider all impairments in this assessment, not just those he deems severe. See 20 C.F.R. § 404.1545. Courts must assess a claimant’s RFC “based on all of the relevant and other evidence.” 20 C.F.R. § 416.945(3). Generally, an ALJ’s failure to explicitly identify a severe impairment at step two does not necessitate remand. See Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010); Reices-Colon v. Astrue, 523 F.App’x 796, 798 (2d Cir. 2013). However, “where the ALJ’s step-two error prejudiced the claimant at later steps in the sequential evaluation process, remand is required.” Southgate v. Colvin, No. 2:14-CV-166, 2015 WL 6510412, at *6 (D. Vt. Oct. 28, 2015) (collecting cases). Since the Court finds the ALJ’s error in considering [Plaintiff’s] balance issues and spinal injuries affected the RFC analysis, remand is appropriate.

Id. The court also found that in finding that Plaintiff was not disabled, “the ALJ appears to have substituted his own opinion for that of medical providers” which was error. Id. at *2 (citing Hilsdorf v. Comm’r of Soc. Sec., 724 F. Supp. 2d 330, 347 (E.D.N.Y. 2010). The ALJ had disregarded the opinions of two physicians in his RFC finding, “not acknowledging the limitations that [Plaintiff’s] use of a cane or spinal injuries present” which “was improper and necessitates remand.” Id. (citing Southgate, 2015 WL 6510412, at *6).

Additionally, the court held that the ALJ improperly discounted Plaintiff’s subjective complaints because “the ALJ discredited [Plaintiff’s self-reported complaints without supporting his finding with substantial evidence.” Id. The ALJ also failed to address the regulatory factors set forth in 20 C.F.R. 416.929(c)(3):

 

instead concluding that “[t]he longitudinal medical evidence of record does not completely support the claimant’s alleged loss of functioning.” A.R. 15. This conclusion reveals an insufficient review of the factors in considering a claimant’s subjective complaints as required by the regulations, as well as an insufficient review of [Plaintiff’s] self-reported symptoms and ability to function, which are supported in the record by the opinions of both Dr. Yevshikova and Dr. Wells. This was improper.

Id.