         09-3545-cv
         Meadors v. Astrue


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 23 rd day of March, two thousand and ten.
 5
 6       PRESENT: PIERRE N. LEVAL,
 7                ROBERT D. SACK,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12
13       MARYANN MEADORS,
14
15                                       Plaintiff-Appellant,
16
17                       -v.-                                                   09-3545-cv
18
19       MICHAEL J. ASTRUE,
20       Commissioner of Social Security,
21
22                                       Defendant-Appellee. *
23
24
25




                 *
                     The Clerk of the Court is respectfully directed to amend the official
         caption in this action to conform to the caption in this order.


                                                            1
 1   FOR APPELLANT:    JAYA A. SHURTLIFF, Olinsky & Shurtliff,
 2                     LLC, Syracuse, NY
 3
 4   FOR APPELLEE:     KARLA J. GWINN, STEPHEN P. CONTE, Office
 5                     of the General Counsel, Social Security
 6                     Administration, for Richard S. Hartunian,
 7                     United States Attorney for the Northern
 8                     District of New York, New York, NY
 9
10        Appeal from the United States District Court for the
11   Northern District of New York (Kahn, J.).
12
13       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

14   AND DECREED that the judgment of the district court be

15   AFFIRMED in part, REVERSED in part, and REMANDED for further

16   proceedings.

17       Plaintiff-appellant (“Appellant”) appeals from a

18   judgment of the United States District Court for the

19   Northern District of New York (Kahn, J.), affirming the

20   Commissioner of Social Security’s denial of her application

21   for Disability Insurance Benefits (“DIB”) and Supplemental

22   Security Income (“SSI”).   Meadors v. Astrue, No. 5:07-CV-

23   0623, 2009 WL 1706580 (N.D.N.Y. June 16, 2009).   We assume

24   the parties’ familiarity with the underlying facts, the

25   procedural history, and the issues presented for review.

26       Appellant filed applications for DIB and SSI benefits

27   on February 2, 2005, alleging disability from November 16,

28   2004, due to lower back pain, cervical radiculopathy,


                                   2
1    chronic obstructive pulmonary disorder (“COPD”), carpal

2    tunnel syndrome, sinusitis, and adjustment disorder with

3    anxiety and depressed mood.     Following the Commissioner’s

4    denial of those applications, Appellant requested a hearing

5    before an Administrative Law Judge (“ALJ”).     That hearing

6    occurred on September 26, 2006, and on September 28, 2006,

7    the ALJ issued a decision denying the Appellant’s

8    application.     The ALJ’s determination became the final

9    decision of the Commissioner when Appellant’s request for

10   review was denied by the Appeals Council on May 25, 2007.

11   Appellant then commenced an action in federal court for

12   review of that final decision, and on May 17, 2009,

13   Magistrate Judge Victor E. Bianchini issued a Report and

14   Recommendation advising that the Commissioner’s decision be

15   affirmed.    By decision and order issued on June 16, 2009,

16   District Judge Lawrence E. Kahn adopted that Report and

17   Recommendation in its entirety and dismissed Appellant’s

18   complaint.     This timely appeal followed.

19       Before a claimant may receive disability benefits, the

20   claimant must demonstrate that: (1) she is not currently

21   engaged in substantial gainful activity; (2) she suffers

22   from a “severe” impairment; and (3) the impairment meets or



                                     3
1    equals the criteria of an impairment listed in 20 C.F.R.

2    Part 404, Subpart P, Appendix 1.   If the impairment does not

3    satisfy that regulatory criteria, the claimant must

4    demonstrate instead that: (4) the severity of her impairment

5    nonetheless makes her incapable of performing her past

6    relevant work; and (5) given her age, education, past work

7    experience, and residual functional capacity (“RFC”), she is

8    incapable of performing other work which exists in the

9    national economy.   See Williams v. Apfel, 204 F.3d 48, 49

10   (2d Cir. 1999).

11       In reviewing the denial of Social Security benefits by

12   the Commissioner, this Court will “set aside the ALJ’s

13   decision only where it is based upon legal error or is not

14   supported by substantial evidence.”   Balsamo v. Chater, 142

15   F.3d 75, 79 (2d Cir. 1998).   Appellant argues that the ALJ

16   erred on several grounds: (1) his determination at Step 2

17   that Appellant’s only “severe” impairment was back pain with

18   lumbar radiculopathy was not supported by substantial

19   evidence; (2) he failed to afford Dr. Ahmed’s medical

20   opinion controlling weight, thereby violating the “treating

21   physician rule;” (3) he did not apply the proper legal

22   standard in assessing Appellant’s credibility and erred in


                                   4
1    his calculation of her RFC; and (4) he neglected to consult

2    a vocational expert at Step 5 to assess Appellant’s work

3    capacity in light of her significant non-exertional

4    limitations.

5        We find Appellant’s first claim of error to be without

6    merit, because the ALJ’s determination that her only severe

7    impairment is lower back pain with lumbar radiculopathy is

8    supported by substantial evidence in the record.    A “severe”

9    impairment is one that significantly limits an individual’s

10   physical or mental ability to do basic work activities.     20

11   C.F.R. §§ 404.1520(c), 416.920(c).    As to her COPD, her

12   medical records fail to indicate any shortness of breath,

13   and she reported to Nurse Practitioner Lomber and Dr. Ahmed

14   in April, 2006, that her symptoms were improving.     And, with

15   regard to Appellant’s cervical radiculopathy, there is scant

16   evidence in the record to support her claim that the

17   condition is serious. Although a nerve conduction study from

18   June of 2005 does indicate a pathology consistent with that

19   condition, her medical records fail to discuss it at all.

20   Indeed, Appellant herself testified that aside from her

21   lower back pain and COPD, none of her conditions are serious

22   enough to prevent her from working.    Because there is



                                  5
1    substantial evidence in the record to support the ALJ’s Step

2    2 determination with regard to those conditions, it will not

3    be disturbed.

4        Appellant next argues that the ALJ erred when he

5    afforded Dr. Ahmed’s opinion “little weight.”   We agree.   An

6    ALJ is required to give controlling weight to the medical

7    opinion of a claimant’s treating physician when that

8    opinion: (1) concerns the nature and severity of an

9    impairment; (2) is well-supported by medically acceptable

10   clinical and laboratory diagnostic techniques; and (3) is

11   not inconsistent with other substantial evidence in the case

12   record.   20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); see

13   Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993).

14       The ALJ was influenced by the fact that Dr. Ahmed is

15   not a specialist.   However, as her primary care physician to

16   whom Appellant complained on several occasions of severe

17   back pain, Dr. Ahmed would have had the opportunity to

18   review the clinical findings and opinions of specialists

19   with whom Appellant did consult.   And the findings of those

20   specialists – Dr. Kuthuru and Dr. Blecha – do not dispute

21   that Appellant suffers from significant back pain with

22   radiculopathy.



                                   6
1        The ALJ also relied on the fact that an MRI of

2    Appellant’s lumbar spine showed only “mild degenerative

3    changes,” and “no evidence of disc herniation or nerve root

4    entrapment.”    But the ALJ was not at liberty to substitute

5    his own lay interpretation of that diagnostic test for the

6    uncontradicted testimony of Dr. Ahmed, who is more qualified

7    and better suited to opine as to the test’s medical

8    significance.    See Balsamo, 142 F.3d at 80-81.   “[T]he ALJ

9    plainly did not choose between properly submitted medical

10   opinions, but rather improperly set his own expertise

11   against that of physicians who submitted opinions to him.”

12   Id. at 81 (internal quotation marks and brackets omitted).

13       To be sure, none of the objective medical evidence

14   cited by the ALJ undermines Dr. Ahmed’s opinion.     The

15   findings of Dr. Shayevitz, an orthopedic specialist,

16   diagnosing lower back pain with radiculopathy and “definite

17   limitations in any prolonged sitting, standing, walking, and

18   certainly in any heavy lifting and anything which require[s]

19   rapid neck movement,” does not impugn Dr. Ahmed’s judgment

20   that Appellant can only occasionally lift less than ten

21   pounds and cannot sit, stand, or walk for more than two

22   hours.   Neither does the recommendation of Dr. Kuthuru that



                                    7
1    Appellant pursue vocational retraining – which the ALJ

2    interpreted as conclusive evidence that Appellant is capable

3    of working – conflict with the opinion of Dr. Ahmed,

4    particularly because that recommendation was tendered in

5    response to Appellant’s complaints that she was required to

6    stand for much of the day at work.    We therefore vacate

7    those portions of the ALJ’s order giving the opinion of Dr.

8    Ahmed “little weight,” and remand with the instruction that

9    the ALJ afford Dr. Ahmed’s opinion proper deference.     See 20

10   C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).

11       Appellant next argues that the ALJ failed to employ the

12   correct standard in assessing her subjective complaints of

13   pain, and that his calculation of her RFC was unsupported by

14   substantial evidence.    Because we agree that the ALJ did not

15   properly evaluate the Appellant’s testimony regarding her

16   pain, we are unable to give his calculation of Appellant’s

17   RFC meaningful review.    On remand the ALJ must consider

18   Appellant’s subjective complaints of pain under the proper

19   standard and calculate her RFC accordingly.

20       Evidence of pain is an important element in the

21   adjudication of DIB and SSI claims, and must be thoroughly

22   considered in calculating the RFC of a claimant.    See Lewis



                                    8
1    v. Apfel, 62 F. Supp. 2d 648, 657 (N.D.N.Y. 1999).

2    “[S]ymptoms, including pain, will be determined to diminish

3    [a claimant’s] capacity for basic work activities to the

4    extent that ... [they] can reasonably be accepted as

5    consistent with the objective medical evidence and other

6    evidence.”     20 C.F.R. § 404.1529(c)(4).           To that end, the

7    Commissioner has established a two-step inquiry to evaluate

8    a claimant’s contentions of pain.            See Social Security

9    Ruling 96-7P, 1996 WL 374186 (S.S.A.); 20 C.F.R. §

10   404.1529(c).      First, the ALJ must determine whether the

11   claimant suffers from a “medically determinable impairment[]

12   that could reasonably be expected to produce” the pain

13   alleged.     20 C.F.R. § 1529(c)(1); see SSR 96-7P.              Second,

14   the ALJ must evaluate the intensity and persistence of those

15   symptoms considering all of the available evidence; and, to

16   the extent that the claimant’s pain contentions are not

17   substantiated by the objective medical evidence, the ALJ

18   must engage in a credibility inquiry.             See 20 C.F.R. §

19   1529(c)(3)(i)-(vii); 1 Taylor v. Barnhart, No. 03-6072, 83

           1
             That credibility inquiry implicates seven factors to be considered,
     including: (1) the claimant’s daily activities; (2) the location, duration,
     frequency, and intensity of the pain; (3) precipitating and aggravating
     factors; (4) the type, dosage, effectiveness, and side effects of any
     medications taken to alleviate the pain; (5) any treatment, other than
     medication, that the claimant has received; (6) any other measures that the
     claimant employs to relieve the pain; and (7) other factors concerning the


                                           9
1    Fed. Appx. 347 at *3 (2d Cir. Nov. 21, 2003)(summary order).

2          The ALJ eschewed that two-step inquiry.              He “did not

3    expressly consider the threshold question of whether

4    [Appellant] had demonstrated by objective medical evidence

5    an impairment capable of causing the degree and type of pain

6    she alleges.      Instead, the ALJ proceeded directly to

7    considering the credibility of her subjective allegations of

8    pain.”    Craig v. Chater, 76 F.3d 585, 596 (4th Cir. 1996)

9    (superseded by statute on other grounds).              He subjected

10   Appellant’s contentions of pain in their entirety to

11   scrutiny under § 404.1529(c)(3), supra note 1, and summarily

12   concluded that the Appellant’s “subjective complaints [of

13   pain] are less than fully credible.”             That was error.

14         “Where there is a reasonable basis for doubt whether

15   the ALJ applied correct legal principles, application of the

16   substantial evidence standard to uphold a finding of no

17   disability creates an unacceptable risk that a claimant will

18   be deprived of the right to have her disability

19   determination made according to the correct legal

20   principles.”      Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir.

21   1987).


     claimant’s functional limitations and restrictions as a result of the pain.   §
     404.1529(c)(3)(i)-(vii).


                                          10
1        Because the ALJ neglected to engage in the proper legal

2    standard we cannot subject his determination to meaningful

3    review.   “It is unclear whether the ALJ determined at the

4    first step of [his] credibility determination that

5    [Appellant’s] impairments could not reasonably be expected

6    to produce the pain ... alleged, or whether [he] determined

7    at the second step that [Appellant’s] allegations regarding

8    the intensity, persistence and limiting effects of [her]

9    pain ... were not consistent with the objective medical or

10   other evidence.”   Martin v. Astrue, No. 07 Civ. 3911(LAP),

11   2009 WL 2356118, at *10 (S.D.N.Y. July 30, 2009) (emphasis

12   added); see also Crysler v. Astrue, 563 F. Supp. 2d 418,

13   441-42 (N.D.N.Y. 2008)

14       Put another way, our Court is unable to discern whether

15   the ALJ found that: (1) Appellant’s contentions of pain are

16   not reasonably consistent with those medical conditions from

17   which she suffers; or (2) Appellant’s contentions of pain

18   are consistent with those medical conditions, but the

19   intensity and persistence she identifies are unsubstantiated

20   and her subjective allegations alone are not credible.

21   “This is important because at the first step in the

22   credibility analysis, [Appellant’s] allegations need not be


                                   11
1    substantiated by medical evidence, but simply consistent

2    with it.    The entire purpose of [§] 404.1529 is to provide a

3    means for claimants to offer proof that is not wholly

4    demonstrable by medical evidence.”    Hogan v. Astrue, 491 F.

5    Supp. 2d 347, 353 (W.D.N.Y. 2007) (emphasis in original;

6    internal quotation marks and ellipses removed).    “[O]nly

7    allegations beyond what is substantiated by medical evidence

8    are to be subjected to a credibility analysis.”    Id.

9    (internal quotation marks removed).

10       To be sure, the ALJ’s only evaluation of Appellant’s

11   pain contentions vis à vis the objective medical evidence

12   was to note in passing that “[Appellant’s] claim of

13   disabling back and leg pain is not well supported by the

14   objective medical evidence; her lumbar spine MRI showed no

15   evidence of disc herniation or nerve root entrapment.”       [Tr.

16   at 31].    By requiring that Appellant’s allegations of pain

17   be “well supported” by the medical evidence, the ALJ imposed

18   an undue burden on the Appellant at the credibility stage.

19   “A claimant who alleges a disability based on the subjective

20   experience of pain need not adduce direct medical evidence

21   confirming the extent of the pain, but [instead] medical

22   signs and laboratory findings which show that the claimant


                                    12
1    has a medical impairment which could reasonably be expected

2    to produce the pain.”   Snell v. Apfel, 177 F.3d 128, 135 (2d

3    Cir. 1999) (internal quotation marks and brackets removed);

4    see Barringer v. Comm. of Soc. Sec., 358 F. Supp. 2d 67, 81

5    n.25 (N.D.N.Y. 2005) (“A finding that a claimant suffers

6    from disabling pain requires medical evidence of a condition

7    that could reasonably produce pain.   It does not require

8    objective evidence of the pain itself or its degree.”)

9    (internal citation omitted).

10       Because the ALJ subjected Appellant’s pain contentions

11   to a credibility analysis at the outset (and in their

12   entirety), we must remand for a redetermination of

13   Appellant’s RFC under the correct standard.   The objective

14   evidence indicates that Appellant suffers from a laundry

15   list of back ailments, including lumbosacral radiculitis and

16   radiculopathy, spondylosis, bulging of the discs at L3-4 and

17   L4-5, central protrusion of the L5-S1 disc, hypesthesia in

18   the L5 and S1 nerve root distributions, and spinal stenosis.

19   On remand, the ALJ should first make an express finding

20   whether those conditions could reasonably be expected to

21   produce the debilitating pain of which she complains.     If

22   so, he must then evaluate the intensity and persistence of



                                    13
1    that pain; and, to the extent that her contentions exceed

2    that which might reasonably flow from her medical

3    conditions, the ALJ should undertake a credibility analysis

4    pursuant to § 1529(c)(3). 2        See Craig, 76 F.3d at 596;

5    Brownell v. Comm. of Soc. Sec., No. 1:05-CV-0588(NPM/VEB),

6    2009 WL 5214948 at *4 (N.D.N.Y. Dec. 28, 2009).

7          Because we conclude that the ALJ erred in assessing

8    Appellant’s credibility, thereby depriving us of the ability

9    to subject his RFC determination to meaningful review, we do

10   not reach the question of whether the ALJ was required to

11   consult a vocational expert at Step 5 of the sequential



           2
              We note that on remand, the ALJ should be mindful to consider each
     of the factors set forth in § 404.1529(c)(3). He attributed great weight to
     the fact that the Appellant “is able to do light cooking and can do housework
     and go shopping with help from her children.” But Appellant’s daily
     activities are only a single factor of many to be considered, and the ALJ’s
     characterization of those activities was less than fully accurate. Appellant
     noted that she could only cook “simple meals” because she is unable to stand
     for extended periods of time, and would only do so a “couple times a month.”
     She also testified that her daughters would have to lift the groceries if she
     went shopping, and perform any household chores she could not perform on her
     own (not specifying what chores, if any, she can perform.) She noted that her
     daily routine consisted of walking next door to her brother’s house to lie
     down, and then returning to her own house to lie down. Much of the day her
     legs remain elevated. The ALJ must, of course, assess the credibility of this
     testimony along with the remainder of the record, but he “cannot simply
     selectively choose evidence in the record that supports his conclusions.”
     Gecevic v. Sec’y of Health and Human Services, 882 F. Supp. 278, 286 (E.D.N.Y.
     1995). Neither may he mis-characterize a claimant’s testimony or afford
     inordinate weight to a single factor, because “[a] claimant need not be an
     invalid to be found disabled under the Social Security Act. ... If on remand
     the ALJ again reaches step four of his analysis, he should give proper weight
     to [Appellant’s] testimony, including consideration of all of the factors
     identified above as required by SSR 96-7P, and should not base a finding ...
     on her ability to undertake essential daily tasks of caring for her family.”
     Vasquez v. Barnhart, No 02-cv-6751, 2004 WL 725322, at *11 (E.D.N.Y. Mar. 2,
     2004) (internal quotation marks omitted).


                                          14
1    analysis.

2        For the foregoing reasons, the judgment of the district

3    court is hereby AFFIRMED in part, REVERSED in part, and

4    REMANDED to the Secretary for further proceedings consistent

5    with this order.

 6
 7                              FOR THE COURT:
 8                              Catherine O’Hagan Wolfe, Clerk
 9
10




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