Hunter v. Berryhill
Filing
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MEMORANDUM and ORDER: Hunters motion 14 for judgment on the pleadings is granted and the Commissioners motion 19 is denied and the matter is remanded.Ordered by Judge Frederic Block on 4/23/2019. (Innelli, Michael)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DASHAN HUNTER,
Plaintiff,
MEMORANDUM AND ORDER
Case No. 17-CV-4105 (FB)
-againstNANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
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Appearances:
For the Plaintiff:
KENNETH R. HILLER
Law Offices of Kenneth Hiller PLLC
6000 North Bailey Avenue
Buffalo, New York 14226
For the Defendant:
RICHARD P. DONOGHUE
United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201
By:
DARA A. OLDS
Assistant United States Attorney
BLOCK, Senior District Judge:
Dashan Hunter seeks review of the Commissioner of Social Security’s final
decision denying his application for Supplemental Security Income (“SSI”). Both
parties move for judgment on the pleadings. For the reasons stated below, Hunter’s
motion is granted, the Commissioner’s motion is denied, and the case is remanded
for further proceedings.
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I
Hunter, who was born in 1971, suffers from schizoaffective disorder, a serious
mental illness. Because of his condition, he has a limited work history, last working
briefly as a janitor in 2011.
Hunter applied for SSI in December 2012, alleging an onset date of July 11,
2011. After his application was denied, he sought a hearing before an administrative
law judge (“ALJ”), at which he was represented by counsel.
Extensive medical evidence was presented to the ALJ. Pertinent here are the
opinions of Kenneth Caccavale, M.D., and Sally Morcos, Psy.D.
Dr. Caccavale was Hunter’s treating psychiatrist. At the Commissioner’s
request, he provided a medical source statement in which he opined that Hunter had
moderate limitations with respect to complex instructions and decision-making, mild
limitations with respect to simple instructions and decision-making, and mild
limitations in his ability to function in a work setting. Dr. Caccavale further opined
that Hunter had “focus problems related to ongoing occasional auditory/visual
hallucinations.” AR 502.
Dr. Morcos, a consulting psychologist, conducted a mental status
examination.
She opined that Hunter could “follow and understand simple
directions and instructions,” “perform simple tasks independently,” “perform
complex tasks with one on one supervision,” and “make appropriate decisions.” AR
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351–52.
She further opined, however, that Hunter might have difficulty
“maintaining attention and concentration,” “maintaining a regular schedule,”
“learning new tasks,” “relat[ing] adequately with others,” and “appropriately
deal[ing] with stress.” AR 351–52.
In addition to the medical evidence, the ALJ also considered the testimony
from a vocational expert (“VE”). The ALJ asked that VE to consider an individual
who “could work at all exertion levels,” but who could “only do simple and routine
tasks” and could have “no contact with the public and only occasional contact with
coworkers.” AR 53. The VE responded that such an individual could work as a
machine operator, an unskilled job. The ALJ then posited “the additional limitation
that the person would be off task 15 percent of the time,” and asked, “[W]ould there
be work for that person?” The VE answered: “No, not competitively.” AR 53.
The ALJ rendered his decision on January 25, 2016. Applying the familiar
five-step sequential evaluation process,1 he concluded that (1) Hunter had not
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The Commissioner must determine “(1) whether the claimant is currently
engaged in substantial gainful activity; (2) whether the claimant has a severe
impairment or combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of Impairments; (4)
based on a “residual functional capacity” assessment, whether the claimant can
perform any of his or her past relevant work despite the impairment; and (5)
whether there are significant numbers of jobs in the national economy that the
claimant can perform given the claimant’s residual functional capacity, age,
education, and work experience.” McIntyre v. Colvin, 748 F.3d 146, 150 (2d Cir.
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engaged in substantial gainful activity since his application date, (2) his mental
disorder was severe, but (3) did not meet the criteria for a presumptively disabling
impairment in the Commissioner’s Listing of Impairments.
Before turning to steps four and five, the ALJ assessed Hunter’s residual
functional capacity (“RFC”).
Because Hunter did not have any physical
impairments, the ALJ found him able “to perform a full range of work at all
exertional levels.” AR 26. The ALJ further found, however, that Hunter’s mental
condition imposed a non-exertional limitation restricting him to “unskilled work.”
AR 26.
Returning to the five-step evaluation process, the ALJ found that Hunter (4)
did not have any past relevant work, but (5) could perform unskilled work that
existed in significant numbers in the national economy. In the later regard, he found
that Hunter’s non-exertional limitations “have little or no effect on the occupational
base of unskilled work at all exertional levels.” AR 30.
Based on his findings, the ALJ concluded that Hunter was not disabled. The
Commissioner’s Appeals Council declined to review the ALJ’s decision, making it
the final decision of the Commissioner. Hunter timely sought judicial review.
2014) (citing 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4)). The burden of proof is
on the claimant in the first four steps, but shifts to the Commissioner at the fifth
step. Id.
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II
“In reviewing a final decision of the Commissioner, a district court must
determine whether the correct legal standards were applied and whether substantial
evidence supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004);
see also 42 U.S.C. § 405(g). “[S]ubstantial evidence . . . means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Selian v. Astrue, 708 F.3d
409, 417 (2d Cir. 2013).
Hunter argues that the ALJ’s RFC assessment was erroneous because it did
not include limits on his ability to concentrate. The Court agrees.
The crux of the ALJ’s RFC assessment was that Hunter’s mental condition
limited him to unskilled work. He did not link that conclusion to any specific mental
limitations. Instead, he cited Social Security Ruling 85-15, which instructs ALJs
how to determine the effect of non-exertional impairments on a claimant’s ability to
work. With respect to mental impairments, an ALJ first considers whether the
impairment meets the criteria for a listed impairment. If not, the ALJ next considers
whether the impairment precludes the claimant’s past work. If so—or if, as here,
there is no relevant past work—“the final consideration is whether the person can be
expected to perform unskilled work.” SSR 85-15, 1985 WL 56857, at *4.
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SSR 85-15 then connects unskilled work to specific abilities: “The basic
mental demands of competitive, remunerative, unskilled work include the abilities
(on a sustained basis) to understand, carry out, and remember simple instructions; to
respond appropriately to supervision, coworkers, and usual work situations; and to
deal with changes in a routine work setting.” Id. Thus, Dr. Caccavale’s opinion
that Hunter had moderate limitations dealing with respect to complex instructions
was not inconsistent with the demands of unskilled work. Dr. Morcos’s opinion that
Hunter might have difficulty relating to others is greater cause for concern, but
another section of SSR 85-15 observes that unskilled jobs “ordinarily involve
dealing primarily with objects, rather than with data or people.” Id.
In any event, the ALJ incorporated those limitations into his first hypothetical
to the VE. The limitation on complex instructions was reflected in the assumption
that the hypothetical claimant could “only do simple and routine tasks,” AR 53,
while the limitation on social interactions was reflected in the assumption that he
could have “no contact with the public and only occasional contact with coworkers,”
AR 53. The VE opined that an individual with such limitations could still perform
the unskilled job of machine operator.
SSR 85-15 further reflects, however, that even unskilled work demands an
ability to perform the necessary tasks “on a sustained basis.” 1985 WL 56857, at
*4. The ALJ must have had that requirement in mind when he posed the second
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hypothetical to the VE, asking her to assume “the additional limitation that the
person would be off task 15 percent of the time.” AR 53; see also McIntyre v. Colvin,
758 F.3d 146, 152 (2d Cir. 2014) (“[A]n ALJ’s hypothetical should explicitly
incorporate any limitations in concentration, persistence, and pace.”).
The VE responded that there would be no work for such a person. If,
therefore, Hunter was limited in his ability to concentrate, then the ALJ’s conclusion
that his mental condition had “little or no effect on the occupational base of unskilled
work at all exertional levels,” AR 30, was error.
In fact, both Dr. Caccavale and Dr. Morcos identified just such a limitation
(“focus problems” in Dr. Caccavale’s phrasing, AR 502, and “difficulty maintaining
attention and concentration” in Dr. Marcos’s, AR 351–52).
The ALJ gave
“significant weight” to Dr. Caccavale’s opinion because he “is a treating source,”
“has a specialty in psychiatry,” “has a longitudinal history of treating the claimant
since at least 2012,” and because his opinion was well-supported and consistent with
the medical evidence. AR 29. He gave “some weight” to Dr. Morcos’s opinion,
noting that “she only examined the claimant on a one-time basis and her opinion
contained vague terms which were not quantified in a medical source statement.”
AR 29. In neither case, however, did the ALJ offer any reason for ignoring their
opinions on Hunter’s ability to concentrate while crediting them in all other respects.
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See Shaw v. Chater, 221 F.3d 126, 135 (2d Cir. 2000) (disapproving “inconsistent
use of the medical evidence”).
The Commissioner argues that Hunter has failed to connect Dr. Caccavale’s
opinion to any work-related limitations, and that lack of focus due to occasional
hallucinations is not necessarily inconsistent with the ability to do unskilled work.
The connection between “focus problems” and the ability to work “on a sustained
basis” is obvious.
It is reinforced by Dr. Marcos’s reference to “difficulty
maintaining attention and concentration.” There is, in short, at least a concern that
someone with focus problems or difficulty maintaining attention and concentration
could not do unskilled work as defined in SSR 85-15.
It is true that Dr. Caccavale described Hunter’s hallucinations as “occasional.”
It does not follow that an occasional hallucination could not significantly impact
concentration. Another Social Security Ruling defines “occasionally” as “occurring
from very little up to one-third of the time.” SSR 83-10, 1983 WL 31251, at *5. We
know from the VE’s testimony that anything over 15 percent of the time would
preclude gainful employment.
The Commissioner argues that Hunter bore the burden of proving his RFC.
But the ALJ is under a concomitant duty to develop the record, even if the claimant
is represented by counsel. See Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999)
(citing Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996)). That duty includes seeking
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additional information when the existing record “does not contain all the information
we need to make our determination or decision.” 20 C.F.R. § 416.920b(b). Instead
of ignoring Dr. Caccavale’s assessment of Hunter’s ability to focus, or assuming that
the assessment did not imply a significant limitation, the ALJ should have asked Dr.
Caccavale for clarification or sought evidence from another source.
See id.
§ 416.920b(b)(2). One potential source was Dr. Morcos; before giving her opinion
less weight because she used “vague terms,” AR 29, the ALJ should have asked her
to be more concrete in her assessment.
The current version of the Commissioner’s regulations leaves it to the ALJ’s
discretion to “determine the best way to resolve the inconsistency or insufficiency
[in the existing record].” 20 C.F.R. § 416.920b(b)(2). It still requires that the
inconsistency or insufficiency be resolved.
Therefore, the Court must remand. On remand, the ALJ should develop the
record regarding Hunter’s ability to concentrate.
He will presumably seek
clarification from Dr. Caccavale. See How We Collect and Consider Evidence of
Disability, 77 Fed. Reg. 10651, 10652 (Feb. 23, 2013) (“[W]e expect that
adjudicators will often contact a person’s medical source(s) first whenever the
additional information sought pertains to findings, treatment, and functional
capacity, because the treating source may be the best source regarding these
issues.”). He may also seek clarification from Dr. Morcos and additional opinion
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evidence from any acceptable source. Based on the supplemented record, the ALJ
should then determine whether and to what extent Hunter’s ability to concentrate is
limited. If the limitation means that Hunter would be off-task 15 percent of the time
or more, then he must find that Hunter cannot do unskilled worker and, therefore,
that he is disabled.
III
For the foregoing reasons, Hunter’s motion for judgment on the pleadings is
granted, the Commissioner’s motion is denied, and the matter is remanded. Because
the ALJ reached step five of the sequential evaluation process, and because Hunter
first applied for benefits in December 2012, the Court will impose time limits on the
proceedings on remand. See Butts v. Barnhart, 388 F.3d 377, 387 (2d Cir. 2004).
The ALJ must develop the record and render a decision within 120 days of this
memorandum and order. If the ALJ denies benefits, the Commissioner must render
a final decision within 60 days of the ALJ’s decision. If either time limit is exceeded,
the Commissioner shall immediately calculate benefits.
SO ORDERED.
/S/ Frederic Block_____________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
April 23, 2019
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