UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

MEGAN J. Plaintiff, V. 1:19-CV-1021 (DJS) ANDREW M. SAUL, Commissioner of Social Security,’ Defendant.

APPEARANCES: OF COUNSEL: MEGAN J. Plaintiff Pro Se Hillsdale, New York 12529 SOCIAL SECURITY ADMIN. BENIL ABRAHAM, ESQ. OFFICE OF REG’L GEN. COUNSEL Attorney for Defendant Region II 26 Federal Plaza - Room 3904 New York, New York 10278 DANIEL J. STEWART United States Magistrate Judge MEMORANDUM-DECISION AND ORDER?’

Plaintiff brought this action pursuant to

(g) seeking review of a decision by the Commissioner of Social Security that Plaintiff was not entitled to

* Andrew M. Saul became the Commissioner of Social Security on June 17, 2019 and is substituted as the Defendant pursuant to Federal Rule of Civil Procedure 25(d). Upon Plaintiff's consent, the United States’ general consent, and in accordance with this District’s General Order 18, this matter has been referred to the undersigned to exercise full jurisdiction pursuant to

(c) and Federal Rule of Civil Procedure 73. See Dkt. No. 10 & General Order 18.

disability insurance benefits. Dkt. No. 1. Currently before the Court are Plaintiff's Motion for Judgment on the Pleadings and Defendant’s Motion for Judgment on the Pleadings. Dkt. Nos. 13 & 14. For the reasons set forth below, Plaintiff's Motion for Judgment on the Pleadings is granted and Defendant’s Motion is denied. The matter is remanded to the Commissioner for further proceedings. I. RELEVANT BACKGROUND A. Factual Background Plaintiff was born in 1983. Dkt. No. 11, Admin. Tr. (“Tr.”), p. 100. Plaintiff reported having earned a GED. Tr. at p. 209. She has past work experience as a cashier, bank teller, and pharmacy technician. Tr. at pp. 44 & 110. Plaintiff alleges disability “| based upon fibromyalgia, anxiety, and depression. Tr. at p. 100. B. Procedural History Plaintiff applied for disability and disability insurance benefits in August 2015. Tr. at pp. 178-184. She alleged a disability onset date of January 4, 2015. Tr. at p. 100. Plaintiff's application was initially denied on October 26, 2015, after which she timely

requested a hearing before an Administrative Law Judge (“ALJ”). Tr. at pp. 115-126 & 127-128. Plaintiff appeared at a hearing before ALJ Andrew J. Soltes, Jr. on June 12, 2017 at which she and a vocational expert testified. Tr. at pp. 26-99. On November 24, 2017, the ALJ issued a written decision finding Plaintiff was not disabled under the Social Security Act. Tr. at pp. 10-20. On June 17, 2019, the Appeals Council denied

Plaintiff's request for review, making the ALJ’s decision the final decision of the Commissioner. Tr. at pp. 1-5. C. The ALJ’s Decision In his decision, the ALJ made the following findings of fact and conclusions of First, the ALJ found that Plaintiff had not engaged in substantial gainful activity between her alleged onset date and her date last insured. Tr. at p. 12. Second, the ALJ found that Plaintiff had the following severe impairments: fibromyalgia, cervical stenosis, sciatica, anxiety disorder, and depressive disorder. Tr. at p. 13. Third, the ALJ found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in

, Subpart P, App. | (the “Listings”). Tr. at pp. 13-15. Fourth, the ALJ found that Plaintiff has the residual functional capacity (“RFC’”’) to perform light work except: she requires a sit/stand option every 30 minutes, but must remain on task during the sit/stand period. The claimant is also limited to a low-stress work environment defined as performing simple routine tasks, basic work-related decisions, rare changes in the workplace setting, and frequent interaction with the public, co-workers, and supervisors. In addition, she needs to avoid extreme humidity and temperatures. Further, the claimant may be off-task up to 5% of an eight-hour workday; and may have one unscheduled absence ” per month. Tr. at p. 15. Fifth, the ALJ found that Plaintiff was unable to perform past relevant work. Tr. at p. 18. Sixth, the ALJ found that Plaintiff was in the “younger individual age” category, had at least a high school education, and is able to communicate in English. Tr. atp. 19. Seventh, the ALJ found that there was work existing in significant numbers

in the national economy that Plaintiff could perform. Tr. at pp. 19-20. The ALJ, therefore, concluded that Plaintiff is not disabled. Tr. at p. 20. D. The Parties’ Positions Plaintiff makes two primary arguments in support of remand. First, she argues that the ALJ erred when he failed to find her lumbar degenerative disc disease to be a severe impairment and in finding that she did not meet Listing 1.04A. Dkt. No. 13, Pl.’s Mem. of Law at pp. 3-5. Second, Plaintiff argues that the ALJ’s RFC determination is not supported by substantial evidence. /d. at pp. 5-6. In response Defendant maintains that substantial evidence supports the ALJ’s determination as to both issues raised by Plaintiff. Dkt. No. 14, Def.’s Mem. of Law at pp. 5-15. First, Defendant contends that the ALJ properly addressed Plaintiff's lumbar condition at Steps Two and Three of the sequential analysis. /d. at pp. 5-8. Second, Defendant argues that the RFC determination was supported by substantial evidence.

. Il. RELEVANT LEGAL STANDARDS

A. Standard of Review A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled.

(g); Wagner v. Sec’y of Health & Human Servs.,

(2d Cir. 1990). Rather, the Commissioner’s determination will be reversed only if the correct legal standards were not applied, or it was not supported by substantial evidence. See Johnson v. Bowen,

(2d Cir. 1987) (“Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles.”); accord Grey v. Heckler,

(2d Cir. 1983), Marcus v. Califano,

(2d Cir. 1979). “Substantial evidence” is evidence that amounts to “more than a mere scintilla,” and has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales,

(1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner’s conclusion must be upheld. Rutherford “ly. Schweiker,

(2d Cir. 1982). “To determine on appeal whether the ALJ’s findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight.” Williams v. Bowen,

, 258 (2d Cir. 1988).

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,

(S.D.N.Y. 1992). In other words, this 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.,

(2d Cir. 1984). B. Standard to Determine Disability The Commissioner has established a five-step evaluation process to determine “) whether an individual is disabled as defined by the Social Security Act.

, 416.920. The Supreme Court has recognized the validity of this sequential evaluation process. Bowen v. Yuckert,

(1987). The five-step process is as follows: First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a “severe impairment” which significantly limits his 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 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 clatmant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant 1s unable to perform his past work, the [Commissioner] then ” determines whether there is other work which the claimant could perform. Under the cases previously discussed, the claimant bears the burden of the proof as to the first four steps, while the [Commissioner] must prove the final one. Berry v. Schweiker,

(2d Cir. 1982); accord McIntyre v. Colvin,

(2d Cir. 2014). “If at any step a finding of disability or non-disability can

be made, the SSA will not review the claim further.” Barnhart v. Thompson,

(2003). I. ANALYSIS A. The ALJ’s Listing Analysis Plaintiff contends that the ALJ erred in not finding that she met Listing 1.04A and thus should have been found disabled. Pl.’s Mem. of Law at pp. 3-4. Without making any judgment as to whether Plaintiff meets Listing 1.04, remand is necessary because the ALJ failed to provide any explanation of his conclusion that Plaintiff did not meet the Listing.? Prior to identifying the criteria for satisfying Listing 1.04, the ALJ’s decision “| states simply “the claimant’s physical impairments do not meet or equal listing 1.04.” Tr. at p. 13. No other discussion of those impairments or how they relate to the Listing criteria is offered by the ALJ in his discussion of the Listing. As a result, “[t]he ALJ’s decision .. . provides no meaningful explanation for his conclusion that plaintiff did not meet Listing 1.04A.” Ryan v. Astrue,

(S.D.N.Y. 2014). “The

ALJ is required to provide rationale in the written decision sufficient to allow this Court to conduct an adequate review of his findings.” Shanaye S.M. v. Comm’r of Soc. Sec.,

, at *4 (N.D.N.Y. May 6, 2019) (citing cases); see also Nicole F. v. Saul,

, at *3 (N.D.N.Y. Sept. 27, 2019). “Setting forth a single

3 Defendant suggests that this argument should be deemed waived by Plaintiff. Def.’s Mem. of Law at pp. 7-8. In light of the solicitude to which a pro se plaintiff is entitled, Malcolm M. v. Comm’r of Soc. Sec.,

, at *4 (N.D.N.Y. Jan. 14, 2019), the Court declines to nen that this argument has been waived.

sentence is insufficient.” Hamedallah ex rel. E.B. v. Astrue,

(N.D.N.Y. 2012). As the ALJ’s decision recognizes, Listing 1.04 can be satisfied through three distinct sets of diagnostic criteria, identified in the disjunctive. Tr. at pp. 13-14. The decision under review did not discuss these criteria individually or explain how or why Plaintiff failed to meet each. Instead, “[t]he ALJ provided a one-sentence, conclusory analysis without any recitation of the facts or medical evidence.” Hamedallah ex rel. E.B. vy. Astrue,

. As a result, “it is unclear from the ALJ’s decision which criteria . . . the plaintiff failed to meet.” Norman v. Astrue,

(S.D.N.Y. 2012). Despite the lack of a detailed explanation of the ALJ’s conclusion, caselaw does permit the Court to nonetheless affirm when “portions of the ALJ’s decision and the evidence before him indicate that his conclusion was supported by substantial evidence.” Berry v. Schweiker,

(2d Cir. 1982); see also Perozzi v. Berryhill,

(S.D.N.Y. 2018). Affirmance under this rule is not an appropriate option here because the remainder of the ALJ’s decision does not discuss

the diagnostic criteria for Listing 1.04A in sufficient detail for the Court to assess whether the conclusion was supported by substantial evidence. The remainder of the opinion, for example, does not specifically discuss whether Plaintiff suffered from nerve root compression or the various straight leg raising tests in the record. See Tr. at pp. 15- 18 (ALJ’s detailed discussion of Plaintiff's medical records). Indeed, as Defendant concedes, there 1s evidence of positive straight leg raise tests in the record, though

perhaps not specifically in the form required by the Listing. Def.’s Mem. of Law at p. 8. As aresult, here unlike in Berry, the Court is unable to “reasonably infer the particular criteria the ALJ found lacking.” Norman v. Astrue,

(citing Berry v. Schweiker,

). “Plaintiff is clearly owed a more substantive explanation of why [s]he did not meet the Listing.” Nashir v. Berryhill,

, at *5 (W.D.N.Y. Mar. 25, 2020). Therefore, the matter is remanded for further consideration and explanation of whether Plaintiff satisfies Listing 1.04. B. Nature of the Remand Plaintiff raises several additional issues, including whether the ALJ’s RFC “| determination is supported by substantial evidence. Pl.’s Mem. of Law at pp. 3-6. While the Step Three Listing issue is not directly tied to the RFC issue, in light of the decision to remand the matter, the Court chooses to exercise its discretion not to address the RFC issue. Beers vy. Comm’r of Soc. Sec.,

, at *6 (W.D.N.Y. Mar. 27, 2020) (declining to address whether RFC was supported by substantial evidence when

matter was remanded for consideration of whether plaintiff net listing requirement) (citing cases). IV. CONCLUSION ACCORDINGLY, it is ORDERED, that Plaintiff's Motion for Judgment on the Pleadings (Dkt. No. 13) is GRANTED; and it is further

ORDERED, that Defendant’s Motion for Judgment on the Pleadings (Dkt. No. 14) is DENIED; and it is further ORDERED, that the decision of the Commissioner is REMANDED pursuant to sentence four of

(g), for a proper evaluation of whether Plaintiff meets 4) Listing 1.04 and other proceedings consistent with this Decision; and it is further ORDERED, that the Clerk of the Court shall serve copies of this Memorandum- Decision and Order on the parties. Dated: June 30, 2020 Albany, New York

(olezrd iT Rehan) U.SMMfagistrate Judge

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