Dillenbeck v. Astrue

Filing 14

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for proceedings consistent with this Order. Signed by Chief Judge Gary L. Sharpe on 10/9/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
STACEY LYNN DILLENBECK,
Plaintiff,

3:12-cv-1461
(GLS)

v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Law Offices of Kenneth Hiller, PLLC
600 North Bailey Avenue - Suite 1A
Amherst, NY 14226
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261
Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Chief Judge

JAYA A. SHURTLIFF, ESQ.
KENNETH R. HILLER, ESQ.

ELIZABETH D. ROTHSTEIN
Special Assistant U.S. Attorney

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Stacey Lynn Dillenbeck challenges the Commissioner of
Social Security’s denial of Disability Insurance Benefits (DIB) and
Supplemental Security Income (SSI), seeking judicial review under 42
U.S.C. §§ 405(g) and 1383(c)(3). (Compl., Dkt. No. 1.) After reviewing the
administrative record and carefully considering Dillenbeck’s arguments, the
court reverses and remands the Commissioner’s decision.
II. Background
On September 29, 2008, Dillenbeck filed applications for DIB and
SSI under the Social Security Act (“the Act”), alleging disability since June
1, 2001. (Tr.1 at 62-63, 106-110.) After her applications were denied, (id.
at 64-69), Dillenbeck requested a hearing before an Administrative Law
Judge (ALJ), which was held on August 11, 2010, (id. at 32-61, 77-80). On
October 29, 2010, the ALJ issued an unfavorable decision denying the
requested benefits, which became the Commissioner’s final determination
upon the Social Security Administration Appeals Council’s denial of review.
(Id. at 1-4, 11-26.)
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Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 9.)
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Dillenbeck commenced the present action by filing her Complaint on
September 24, 2012 wherein she sought review of the Commissioner’s
determination. (See generally Compl.) The Commissioner filed an answer
and a certified copy of the administrative transcript. (Dkt. Nos. 8, 9.) Each
party, seeking judgment on the pleadings, filed a brief. (Dkt. Nos. 11, 12.)
III. Contentions
Dillenbeck contends that the Commissioner’s decision is tainted by
legal error and is not supported by substantial evidence. (Dkt. No. 11 at
12-25.) Specifically, Dillenbeck claims that the ALJ erred in: (1) concluding
that her mental health impairments are not severe; (2) determining her
residual functional capacity (RFC); (3) assessing her credibility; and (4)
failing to consult with a vocational expert. (Id.) The Commissioner
counters that the appropriate legal standards were used by the ALJ and
her decision is also supported by substantial evidence. (Dkt. No. 12 at 519.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (Dkt.
No. 11 at 3-10; Dkt. No. 12 at 2.)
V. Standard of Review
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The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g)2 is well established and will not be repeated here. For
a full discussion of the standard and the five-step process by which the
Commissioner evaluates whether a claimant is disabled under the Act, the
court refers the parties to its previous decision in Christiana v. Comm’r of
Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y.
Mar. 19, 2008).
VI. Discussion
A.

Severity Determination
First, Dillenbeck contends that the ALJ erred when she found

Dillenbeck’s mental impairments were non-severe. (Dkt. No. 11 at 12-15.)
According to Dillenbeck, the ALJ misstated the facts when she noted that
Dillenbeck “has undergone absolutely no mental/psychiatric treatment,
diagnostic testing, and/or ongoing monitoring/observation; and has no
record of psychiatric management of any kind.” (Dkt. No. 11 at 12-13; Tr.
at 18.) Further, Dillenbeck argues that the ALJ erred in rejecting the
opinions of the consultative examiner and the state agency review

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Review under 42 U.S.C. §§ 405(g) and 1383(c)(3) is identical. As such, parallel
citations to the Regulations governing SSI are omitted.
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physician. (Id. at 13-15.) The court agrees that remand is appropriate.
At step two of the sequential evaluation, a claimant has the burden of
establishing that she has a “severe impairment,” which is “any impairment
or combination of impairments which significantly limits [her] physical or
mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c); see
Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). As pertinent
here, basic work activities are “the abilities and aptitudes necessary to do
most jobs,” including: “[u]nderstanding, carrying out, and remembering
simple instructions; [u]se of judgment; [r]esponding appropriately to
supervision, co-workers and usual work situations; and [d]ealing with
changes in a routine work setting.” 20 C.F.R. § 404.1521(b)(3)-(6). An
ALJ’s evaluation of a claimant’s mental impairments must reflect her
application of the “special technique” set out in 20 C.F.R. § 404.1520a,
which necessitates her consideration of “four broad functional areas” that
include: “[a]ctivities of daily living; social functioning; concentration,
persistence, or pace; and episodes of decompensation.” 20 C.F.R.
§ 404.1520a(c)(3). The first three areas are rated on a five-point scale:
“[n]one, mild, moderate, marked, and extreme.” Id. § 404.1520a(c)(4). “[I]f
the degree of limitation in each of the first three areas is rated ‘mild’ or
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better, and no episodes of decompensation are identified, then the [ALJ]
generally will conclude that the claimant’s mental impairment is not
‘severe.’” Kohler v. Astrue, 546 F.3d 260, 266 (2d Cir. 2008) (quoting 20
C.F.R. § 404.1520a(d)(1)).
Here, the ALJ determined that Dillenbeck’s medically determinable
mental impairments of obsessive-compulsive disorder and drug addiction
and/or alcoholism and/or related substance abuse disorders were nonsevere. (Tr. at 17.) The ALJ further explained that, although consultative
examiner Mary Ann Moore diagnosed Dillenbeck with posttraumatic stress
disorder, panic disorder with agoraphobia, impulse control disorder NOS,
and personality disorder with obsessive-compulsive features, there was no
corroborative findings from Dillenbeck’s treating sources. (Id. at 17-18,
193-98.) Dillenbeck argues that the ALJ overlooked her treatment with Dr.
Brenda Schlaen, her primary care physician at United Medical Associates,
for anxiety disorder with panic attacks and insomnia. (Dkt. No. 11 at 1213; Tr. at 180-190.) However, the ALJ explicitly mentioned Dillenbeck’s
treatment at Untied Medical Associates since 2006 for “reported anxiety

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with sleeplessness.” (Tr. at 18-19.)3
In determining that Dillenbeck’s mental health impairments were nonsevere, the ALJ found that Dillenbeck suffered mild limitations in the areas
of activities of daily living, social functioning, and concentration,
persistence, or pace, and had experienced no episodes of
decompensation of extended duration. (Id. at 18.) The ALJ based this on
Dillenbeck’s self reported ability to watch television, care for her dog, read,
do some routine household chores, cook, shop, and visit with friends and
relatives. (Id.) Dillenbeck argues that the ALJ’s determination is contrary
to the opinions of Dr. Moore and psychological consultant M.C. Morog. (Id.
at 196, 207-27; Dkt. No. 11 at 12-15.)
Dr. Moore examined Dillenbeck in January 2009 and found her to be
cooperative with an adequate manner of relating socially. (Tr. at 195.)
Dillenbeck displayed fair hygiene, slightly restless behavior, and
appropriate eye contact. (Id.) Her expressive and receptive language

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Dillenbeck suggests that the ALJ failed to properly develop the record by failing to
recontact Dr. Schlaen for “updated records.” (Dkt. No. 11 at 13.) However, by Dillenbeck’s
own reports she had not treated with Dr. Schlaen since 2008. (Tr. at 38, 123-25, 135, 139.)
Although the ALJ “has an affirmative obligation to develop the administrative record,” Perez v.
Chater, 77 F.3d 41, 47(2d Cir. 1996), it is also true that this obligation is not limitless. Here, as
there were no obvious gaps, and the record presented “a ‘complete medical history,’” the ALJ
was under no duty to seek additional information before rejecting Dillenbeck’s claim. Rosa v.
Callahan, 168 F.3d 72, 79, n.5 (2d Cir. 1999) (citing Perez, 77 F.3d at 48).
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abilities were adequate, thought processes were coherent and goal
directed, affect was of full range and appropriate to speech and thought
content, and mood was euthymic. (Id.) In addition, her attention and
concentration was intact, but her recent and remote memory skills were
mildly impaired, possibly due to depression. (Id. at 195-96.) Finally,
Dillenbeck’s cognitive functioning appeared to be in the average range, her
insight was fair, and her judgment appeared “fair to guarded with
depression and anxiety including agoraphobia.” (Id. at 196.) Based on this
examination, Dr. Moore opined that Dillenbeck can follow and understand
simple instructions and consistently perform simple tasks. (Id.) According
to Dr. Moore, Dillenbeck has the “ability to complete simplistic and complex
tasks, although it may take her longer to learn and retain the complex
information.” (Id.) However, in Dr. Moore’s opinion, Dillenbeck “may have
difficulty dealing with stress as she does exhibit anxiety with agoraphobia
which could cause problems with relating adequately with others. Her
anxiety and depression could cause problems as well with making
appropriate work decisions and maintaining a regular schedule.” (Id.)
Dr. Morog reviewed Dillenbeck’s medical records, including Dr.
Moore’s report, and opined that Dillenbeck suffered mild restrictions in
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activities of daily living, moderate difficulties in maintaining social
functioning, and mild difficulties in maintaining concentration, persistence,
or pace. (Id. at 220.) Dr. Morog explained that Dillenbeck had not been
seen in outpatient psychiatric or psychological services as an adult,
although she had been treated by her primary care physician for anxiety
and occasional depressive symptoms. (Id. at 222.) Further, Dr. Morog
noted that Dillenbeck’s complaints to Dr. Moore that she cannot leave her
home unaccompanied, were not reported in her treating sources’ notes.
(Id.) Additionally, the results of Dr. Moore’s mental status examination
were within normal limits except for Dillenbeck’s motor behavior, which was
slightly restless. (Id.) Dr. Morog highlighted the fact that Dillenbeck’s
“mood was euthymic, she laughed and smiled appropriately, and there was
no evidence of significant anxiety within the [consultative examination]
setting.” (Id.) Ultimately, Dr. Morog opined that, although Dillenbeck's
allegations of complete inability to function outside of her home were not
supported by the medical evidence, the record as a hole indicates that
Dillenbeck suffers “a severe psychiatric diagnosis that causes mild to
moderate impairment in adaptive and functional abilities.” (Id.) However,
Dr. Morog concluded that the medical evidence did not support an
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impairment of sufficient severity to establish disability. (Id.)
Because the only medical opinions of record indicate that
Dillenbeck’s suffered more than mild limitation in the area of social
functioning, the ALJ erred in finding that her mental impairment was not
severe. See Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (“‘[A]n
[ALJ] is free to resolve issues of credibility as to lay testimony or to choose
between properly submitted medical opinions, [but s]he is not free to set
h[er] own expertise against that of a physician who [submitted an opinion
to or] testified before h[er].’” (quoting McBrayer v. Sec'y of Health and
Human Servs., 712 F.2d 795, 799 (2d Cir. 1983))). Because it is not clear
whether the ALJ would have arrived at the same conclusion regarding
Dillenbeck’s RFC had she properly evaluated the severity of her mental
impairment, remand is required. Cf. Johnson v. Bowen, 817 F.2d 983, 986
(2d Cir. 1987) (explaining that the need for agency reconsideration gives
way “where application of the correct legal principles to the record could
lead to only one conclusion”).
B.

Remaining Findings and Conclusions
Because Dillenbeck’s remaining contentions, (Dkt. No. 11 at 15-25),

may be impacted by the subsequent proceedings directed by this Order, it
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would be improper for the court to consider them at this juncture.
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is REVERSED and
REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for
proceedings consistent with this Order; and it is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
October 9, 2013
Albany, New York

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