Giddings v. Astrue

333 F. App'x 649
CourtCourt of Appeals for the Second Circuit
DecidedJune 26, 2009
DocketNo. 08-1108-cv
StatusPublished

This text of 333 F. App'x 649 (Giddings v. Astrue) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Giddings v. Astrue, 333 F. App'x 649 (2d Cir. 2009).

Opinion

SUMMARY ORDER

Plaintiff-Appellant Deborah H. Giddings (“Giddings”) appeals from the March 3, 2008 decision and order of the District Court for the Northern District of New York (Peebles, M.J.)1 that affirmed Administrative Law Judge Zolezzi’s (“ALJ Zolezzi”) decision affirming a determination by the Commissioner of Social Security (“Commissioner”) that Giddings was not entitled to Social Security Disability Insurance from April 7, 2000 through May 1, 2002. On appeal to this Court, Giddings argues, inter alia, that the Residual Functional Capacity (“RFC”) determination made by ALJ Zolezzi, i.e., that she could “perform work at a light level of exertion” with certain accommodations, A.R. 549, is not supported by substantial evidence. We agree. Our analysis assumes the parties’ familiarity with the underlying facts, procedural history, and the issues for review.

We recently set forth the applicable standard of review:

When a district court has reviewed a determination of the Commissioner, “[w]e review the administrative record de novo to determine whether there is substantial evidence supporting the Commissioner’s decision and whether the Commissioner applied the correct legal standard.” Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.2002). Substantial evidence means “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938).

Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir.2009) (per curiam). “We undertake a plenary review of the administrative record, and our focus is on the administrative ruling more than on the district court’s decision.” Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 507 (2d Cir.2009).

At the outset, the parties dispute whether Giddings or the Commissioner has the [651]*651burden of proof as to Giddings’s RFC at the fifth step of the five-step sequential analysis. See 20 C.F.R. § 404.1520(a) (“This section explains the five-step sequential evaluation process we use to decide whether you are disabled.... At the fifth and last step, we consider our assessment of your residual functional capacity and your age, education, and work experience to see if you can make an adjustment to other work.”). Giddings argues that the standard set forth in Curry v. Apfel, 209 F.3d 117, 122-23 (2d Cir.2000) — under which, at the fifth step, the burden shifts to the Commissioner — applies to her application for benefits. The Commissioner contends that the 2003 revised regulation — under which the burden of proving RFC remains with the applicant at the fifth step — is applicable. See 20 C.F.R. § 404.1560(c)(2) (“We are not responsible for providing additional evidence about your residual functional capacity because we will use the same residual functional capacity assessment that we used to determine if you can do your past relevant work”). Even though Giddings’s application for benefits, dated June 8, 2000,- was filed before the effective date of the amended regulation, the Commissioner argues that the amended version of 20 C.F.R. § 404.1560(c)(2) applies retroactively. We need not resolve this dispute, however. We find that, even if Giddings retains the burden of proof at the fifth step of the sequential analysis, ALJ Zolezzi’s RFC determination was not supported by substantial evidence.2

ALJ Zolezzi found that Giddings’s RFC was a restricted range of light work. A.R. 549, 551. The Commissioner’s regulations define light work as follows:

Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.

20 C.F.R. § 404.1567(b). More specifically, ALJ Zolezzi found that Giddings had the RFC to “perform work at a light level of exertion; with the ability to change positions as needed using a sit/stand option every 30 minutes for sitting, and every 15 to 20 minutes for standing or walking,” among other restrictions. A.R. 549. We note that this determination is contradicted by the previous RFC determination by ALJ Gibbons, who found that, prior to May 1, 2002, Giddings’s RFC was limited to sedentary work. Id. 267. Thus, without referencing ALJ Gibbons’s prior RFC determination, ALJ Zolezzi found that Gid-dings’s RFC was greater than ALJ Gibbons had previously determined.

ALJ Zolezzi’s RFC determination, i.e., that Giddings retained the capacity to perform a restricted range of light work, also flatly contradicts the medical opinion of Dr. Hargraves, a neurosurgeon who conducted an examination of Giddings on May 31, 2000. Dr. Hargraves diagnosed her with “Degenerative disc disease.” Id. 214. He noted symptoms of lower back pain, burning in the lower back and left leg, and [652]*652numbness in the left leg. Id. He indicated that she could lift or carry a maximum of 20 pounds, and that her ability to stand and/or walk and sit was limited — though he did not specify how limited — and required unspecified “rest periods.” Id. 216. He recommended “conservative therapy for now.” Id. 215. At the time, Dr. Har-graves did not further specify the extent of these limitations. On December 12, 2003, however, ALJ Gibbons requested that Dr. Hargraves clarify the extent of the limitations on Giddings’s ability to sit, stand, and walk. Id. 529. Dr. Hargraves responded that, at least with respect to the period when he examined her, Giddings could stand or walk less than one hour in an eight-hour work day, and sit less than two hours in an eight-hour work day. Id. 531. These restrictions are inconsistent with ALJ Zolezzi’s RFC determination.

We recognize, of course, that Dr. Hargraves only examined Giddings once, and is not entitled to the deference of a treating physician. See Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir.2008) (“With respect to ‘the nature and severity of [a claimant’s] impairment(s),’ 20 C.F.R.

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