Del Priore v. Commissioner of Social Security

Filing 17

MEMORANDUM & ORDER granting 9 Motion for Judgment on the Pleadings; denying 13 Motion for Judgment on the Pleadings. The matter is REMANDED for further proceedings consistent with this Order. In light of this finding, the Court need not addres s Plaintiff's contention that the ALJ did not properly credit his work and earnings history. Plaintiff may address the issue on remand. The Clerk of the Court is directed to enter judgment accordingly and mark this case CLOSED. So Ordered by Judge Joanna Seybert on 9/16/2019. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
PAUL DEL PRIORE,
Plaintiff,
MEMORANDUM & ORDER
17-CV-5709(JS)

-againstCOMMISSIONER OF SOCIAL SECURITY,

Defendant.
-----------------------------------X
APPEARANCES
For Plaintiff:
Hannalore Merritt, Esq.
Osterhout Berger Disability Law
521 Cedar Way, Suite 200
Oakmont, Pennsylvania 15139
For Defendant:

Prashant Tamaskar, Esq.
United States Attorney’s Office
Eastern District of New York
271 Cadman Plaza East, 7th Floor
Brooklyn, New York 11201

SEYBERT, District Judge:
Plaintiff Paul Del Priore (“Plaintiff”) brings this
action pursuant to Section 205(g) of the Social Security Act (the
“Act”), 42 U.S.C. § 405(g), challenging the Commissioner of Social
Security’s (the “Commissioner”) denial of his application for
Social Security Disability Insurance Benefits.

(Compl., D.E. 1.)

Presently pending before the Court are the parties’ cross-motions
for judgment on the pleadings.

(Pl. Mot., D.E. 9; Comm’r Mot.,

D.E. 13.) For the following reasons, Plaintiff’s motion is GRANTED
and the Commissioner’s motion is DENIED.

BACKGROUND
The background is derived from the administrative record
filed by the Commissioner on December 29, 2017.

(R., D.E. 8.)

For purposes of this Memorandum & Order, familiarity with the
underlying

administrative

record

is

presumed.

The

Court’s

discussion of the evidence is limited to the challenges and
responses raised in the parties’ briefs.
Plaintiff filed an application for disability insurance
benefits

on

December

18,

2013,

to

physical

January 30,

2010,

due

depression.

(R. 14, 64.)

alleging

disability

conditions,

anxiety,

since
and

After Plaintiff’s claim was denied, he

requested a hearing before an administrative law judge (“ALJ”).
The ALJ held a video hearing on June 17, 2016.

(See R. 29-63.)

On June 24, 2016, the ALJ issued a decision finding Plaintiff was
not disabled during the relevant period.

(R. 14-24.)

The Appeals

Council denied Plaintiff’s request for review, making the ALJ’s
decision the final decision of the Commissioner.

(R. 2-6.)

This

action followed.
I.

The Record Evidence
Plaintiff worked as an airport operations duty manager

from 1972 to 2010.

(R. 169-70.)

year from 1971 to 2010.

Plaintiff had earnings every

(R. 165-66.)

He stopped working in 2010

due to back pain and mental-health related issues.
42.)

(R. 20, 41-

Plaintiff became depressed and anxious after September 11,
2

2001.

His office was in the World Trade Center.

He had been

working in one of the airports a 9/11 plane departed from.

He

tried to “forge[ ] through” but “at some point . . . it caught up
to [him] . . . it just built up and built up, and [he] just couldn’t
go to work.”

(R. 48.)

maintain attention[.]”

He could not “concentrate, or focus, or
(R. 48; see also R. 54.)

The job he had

“was a critical position where a mistake [ ] could cost someone
their life.”

(R. 49.)

for counseling.

From 2009 to 2010, he saw a psychologist

(R. 52.)

The Port Authority told him he had to

take leave and he had to see his own psychologist.

(R. 52.)

He

started taking Xanax after 9/11, almost daily, but after a year or
two, he was able to take it as needed, usually once or twice a
week.

(R. 53-54.)

At the time of the hearing, he could not sleep,

was “always afraid something’s going to go wrong,” and was “just
nervous.”

(R. 53.)1
The Dictionary of Occupational Titles states that an

“air transportation operations manager” is a “sedentary skilled
occupation.”

(R. 23, 58.)

At the hearing, the vocational expert

testified that someone with Plaintiff’s physical limitations would
be able to perform his past relevant work as an operations manager.
The expert further testified that someone who was limited to
unskilled work duties would be unable to perform the job.

(R. 23,

As Plaintiff’s physical impairments are not relevant to this
appeal, they are not discussed here.
1

3

59.)

The ALJ did not include any mental limitations in the

hypotheticals posed to the expert.2
DISCUSSION
If the Court finds that substantial evidence exists to
support the Commissioner’s decision, the decision will be upheld,
even if evidence to the contrary exists.
269 F. Supp. 2d 82, 84 (E.D.N.Y. 2003).
means more than a mere scintilla.
as

a

reasonable

conclusion.”

mind

might

See Johnson v. Barnhart,
“Substantial evidence

It means such relevant evidence

accept

as

adequate

to

support

a

Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009).

Here, the ALJ applied the familiar five-step process,
see 20 C.F.R. §§ 404.1520, 416.920, and found that Plaintiff had
the residual functional capacity (“RFC”) “to perform light work .
. . except he is limited to frequent postural activity (e.g.
Climbing, bending, stooping, crouching, crawling and kneeling) and
frequent handling and fingering with the dominant right upper
extremity.

He must avoid concentrated exposure to workplace

hazards such as open machinery and unprotected heights.”

(R. 19.)

The RFC did not account for any mental limitations.

The ALJ

further concluded that based upon the record and the vocational

The Court notes that the ALJ gave Plaintiff’s attorney an
opportunity to question the vocational expert. His attorney did
not pose hypotheticals with mental limitations either. (See R.
58-61.)
2

4

expert’s testimony, Plaintiff was able to perform his past relevant
work as an operations manager.

(R. 23.)

As relevant here, in evaluating a claimant with a mental
impairment, the ALJ must apply a “special technique” commonly
referred to as the “Psychiatric Technique” (“PRT”).

20 C.F.R. §

404.1520a. It requires the ALJ to assess how the mental impairment
impacts four functional areas: activities of daily living; social
functioning; concentration, persistence, or pace; and episodes of
decompensation.

20 CFR § 404.1520a(c)(3-4).

More generally,

“[a]ssessment of [mental] functional limitations is a complex and
highly individualized process that requires [the ALJ] to consider
multiple issues and all relevant evidence to obtain a longitudinal
picture of [the] overall degree of functional limitation.”

20

C.F.R. § 404.1520a(c)(1).
Here,
“[b]ecause

in

the

formulating

claimant’s

the

RFC,

medically

the

ALJ

found

determinately

that

mental

impairment causes no more than ‘mild’ limitation in any of the
first three functional areas and ‘no’ episodes of decompensation
which have been of extended duration in the fourth area, it is
nonsevere.”

(R. 18.)

Plaintiff argues that the ALJ’s RFC finding is legally
insufficient
limitations.

because

it

fails

to

account

for

his

mental

More specifically, he contends that any mental

limitation, even a “mild” one, would “patently impact [his] ability
5

to perform his highly skilled past work . . . .”
10, at 8.)

(Pl. Br., D.E.

Plaintiff further argues that the ALJ used this flawed

RFC in questioning the vocational expert, leading to the incorrect
conclusion that he could perform his past relevant work as an
operations manager. (Pl. Br. at 9, 12.) The Commissioner responds
that “Plaintiff’s mental impairment was not severe and, therefore
Plaintiff did not have any mental functional limitations that
needed to be included in the ALJ’s RFC finding.”

(Comm’r Br.,

D.E. 14, at 11.)
The

Commissioner

contends

that

“mild

[mental]

limitations . . . generally indicate that an impairment is not
severe

and

does

not

cause

more

than

minimal

limitations

in

Plaintiff’s ability to perform basic mental work activities.”
(Comm’r Br. at 12.)
prior

position

activities.”

Plaintiff’s argument, however, is that his

required

much

more

than

“basic

mental

work

Rather, it required highly skilled tasks to be

performed with focus, concentration, and ability.

(Pl. Br. at 6.)

Plaintiff states that any mental impairment would be critical to
his ability to perform his past relevant work as an operations
manager.

(Pl. Reply Br., D.E. 16, at 2.)
The Commissioner’s argument is flawed.

An RFC must

account for all of a claimant’s limitations, “even those that are
not severe.”

20 CFR 404.1545(e); see also Titles II & XVI:

Assessing Residual Functional Capacity in Initial Claims, SSR 966

8P (S.S.A. July 2, 1996) (“In assessing RFC, the adjudicator must
consider

limitations

and

restrictions

imposed

by

all

of

individual’s impairments, even those that are not ‘severe.’

an

While

a ‘not severe’ impairment(s) standing alone may not significantly
limit an individual’s ability to do basic work activities, it may-when considered with limitations or restrictions due to other
impairments--be critical to the outcome of a claim.” (emphasis
added)).

“[W]ith

[inability

to

mental

perform

impairments

substantial

of

gainful

lesser

severity,

activity]

must

be

demonstrated through a detailed assessment of the individual’s
capacity

to

perform

critical

to

work

and

sustain

performance.”

mental

activities

Titles

II

&

which

XVI:

are

Residual

Functional Capacity for Mental Impairments, SSR 85-16 (S.S.A.
1985) (emphasis added).

Thus, even if the ALJ found Plaintiff’s

mental impairments to be not severe for the reasons stated in the
decision, the ALJ was still required to account for the limitations
in the RFC.
Accordingly,

the

Court

supported by substantial evidence.
the

Plaintiff

could

perform

his

supported by substantial evidence.

finds

that

the

RFC

was

not

Further, the conclusion that
past

relevant

work

was

not

The vocational expert also did

not opine on whether Plaintiff had transferable skills, or whether,
with the record mental limitations, there were other jobs in the
national economy that Plaintiff could perform.
7

The matter is

REMANDED for further proceedings consistent with this Order.

In

light of this finding, the Court need not address Plaintiff’s
contention that the ALJ did not properly credit his work and
earnings history.

Plaintiff may address the issue on remand.

The Clerk of the Court is directed to enter judgment
accordingly and mark this case CLOSED.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

September
16__, 2019
Central Islip, New York

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