Selian v. Astrue

708 F.3d 409, 2013 WL 627702
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 21, 2013
DocketDocket 12-871
StatusPublished
Cited by1,376 cases

This text of 708 F.3d 409 (Selian 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
Selian v. Astrue, 708 F.3d 409, 2013 WL 627702 (2d Cir. 2013).

Opinion

PER CURIAM:

In this Social Security appeal, Petitioner-Appellant Robert Selian appeals from a *412 January 23, 2012, final judgment of the United States District Court for the Northern District of New York (Sharpe, /.), affirming the Social Security Commissioner’s denial of Selian’s application for disability insurance benefits. Selian seeks disability benefits on the ground that he is unable to work because he suffers from fibromyalgia, shoulder tendinitis, and depression. On appeal, he contends that the administrative law judge (“ALJ”) made several errors in reviewing the Commissioner’s denial. First, he argues that the ALJ’s determination that his alleged fibro-myalgia was not a severe impairment was not supported by substantial evidence. Second, he argues that the ALJ erred in finding his testimony about his pain not credible. Third, he contends that the ALJ’s determination of Selian’s residual functional capacity was not supported by substantial evidence, and that the ALJ incorrectly relied on the Medical-Vocational Guidelines to determine what work Seli-an could perform instead of obtaining the testimony of a vocational expert.

We hold that the ALJ’s finding that Selian did not suffer from fibromyalgia was not supported by substantial evidence. We likewise hold that the ALJ’s residual functional capacity determination that Seli-an could perform “light work” was not supported by substantial evidence. Finally, with respect to the ALJ’s reliance on the Medical-Vocational Guidelines, we hold that the ALJ erred in failing to determine whether Selian’s reaching limitation was non-negligible, which would preclude reliance on the Guidelines and require the testimony of a vocational expert.

I. Background

A. History of Physical and Mental Impairments

Selian began seeing Dr. Mark Corey on January 26, 2007, complaining of chronic pain in both shoulders, shortness of breath, and “severe” fatigue. Dr. Corey found that Selian had some tenderness in his shoulders and “weakly positive” impingement in both shoulders. Selian exhibited a good range of motion, and x-rays of his shoulders showed “no significant findings.” Dr. Corey diagnosed Selian with bilateral rotator cuff tendinitis and probable epicondylitis (i.e., tennis elbow), and initially treated Selian’s tendinitis by injecting both of his shoulders with Lido-caine (a pain reliever) and Depo-Medrol (a corticosteroid).

Following this evaluation, Selian filed his initial application for disability insurance with the Social Security Administration (“SSA”) on February 8, 2007. In this application, he claimed that he suffered from torn rotator cuffs in both shoulders, tendinitis in both elbows, and an underactive thyroid gland. On February 21, 2007, after Selian complained of continuing pain in his right shoulder, Dr. Corey prescribed Celebrex for Selian’s pain, assessed Selian as having persistent chronic rotator-cuff tendinitis, and recommended that he follow up with an orthopedist.

Approximately one month later, on March 29, 2007, Dr. James Naughten gave Selian a consultative physical examination. Selian complained to Dr. Naughten about his rotator-cuff injuries and asthma. He reported that he experienced “sharp pain,” made worse by lifting, but that his medication helped manage the pain. During Dr. Naughten’s physical examination, he observed that Selian’s stance was normal and that Selian could perform a full squat, but also that Selian walked with a stiff gait and was “unbalanced” when walking on his heels and toes. Selian did not need any assistance to walk or to change his clothes, but he had “mild difficulty” getting on and *413 off the examination table and rising from a chair.

Dr. Naughten also administered several physical tests during this examination. The “straight-leg-raising” test was negative on both sides, and Selian displayed a full range of motion in his elbows, forearms, wrists, hips, knees, and ankles. Examining Selian’s shoulders, Dr. Naughten administered several tests and found that Selian’s range of motion in his shoulders was limited. Selian also had reduced sensitivity to touch and pain in both shoulders at the acromioclavicular (“AC”) joints. His hand dexterity and finger dexterity were intact, but his grip strength was reduced on both sides. An x-ray of his left shoulder suggested the “possibility of rota-tor cuff impingement syndrome.” Dr. Naughten acknowledged in his notes that Selian had a history of bilateral rotator-cuff injuries, asthma, and substance abuse. Dr. Naughten concluded that Selian would have no limitations in his ability to see, hear, talk, sit, or stand, but would have moderate limitations in walking, climbing stairs, pushing, pulling, and reaching. He also opined that Selian could lift and carry “a mild degree of weight on an intermittent basis.”

The same day that Selian saw Dr. Naughten, he also saw Dr. Dennis Noia, who performed a consultative psychological examination. Selian reported that he was experiencing difficulty sleeping, a decreased appetite, and multiple symptoms of depression, including dysphoric moods, crying spells, guilty feelings, hopelessness, and difficulties with memory and concentration. At the time of the examination, Selian was taking Cymbalta (an anti-depressant), which had improved his condition but had not eliminated his symptoms. Dr. Noia found that Selian’s intellectual functioning was in the average range, and that his judgment and insight were good, but also that his recent and remote memory skills were “mildly impaired.” Dr. Noia diagnosed Selian with a depressive disorder. In Dr. Noia’s opinion, Selian was able to understand and follow simple and some complex tasks, both with supervision and independently. He could learn new tasks, make appropriate decisions, appropriately relate to and interact with others, maintain attention and concentration on tasks, and follow a routine.

By Selian’s next appointment with Dr. Corey on May 30, 2007, Selian had developed upper back spasms. He reported that another doctor “felt that he had fibro-myalgia.” On physical examination, Selian displayed a reasonable range of motion in his shoulders but with “marked muscular tenderness posteriorly” and “tender points in various locations.” Dr. Corey assessed “[f]ibromyalgia-type pain,” which he determined was also associated with Selian’s sleeping and mood problems. He prescribed Selian Elavil (an antidepressant), and encouraged Selian to follow up with a psychiatrist.

A few weeks later, on April 17, 2007, a State-agency psychologist, Dr. E. Kamin, conducted a psychiatric assessment of Seli-an. Dr. Kamin indicated that Selian had mild limitations in his daily activities, that he had mild difficulties maintaining social functioning, and moderate difficulties maintaining concentration, persistence or pace. In terms of Selian’s mental functional capacity, Dr. Kamin concluded that Selian was moderately limited in his ability to understand and remember detailed instructions, but that he could remember short and simple instructions or work locations and procedures. Selian appeared moderately limited in his ability to respond appropriately to changes in his work setting. Dr. Kamin ultimately concluded that Selian’s allegations of psychiatric symptoms were “partially credible but not to *414

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708 F.3d 409, 2013 WL 627702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/selian-v-astrue-ca2-2013.