Ives v. Astrue

Filing 14

MEMORANDUM-DECISION and ORDER - That the Clerk is directed to substitute Carolyn W. Colvin, Acting Commissioner of Social Security, for defendant Michael J. Astrue, and amend the caption accordingly. 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 the Memorandum-Decision and Order. Signed by Chief Judge Gary L. Sharpe on 5/15/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
CLARENCE HENREY IVES,
JR.,
Plaintiff,

5:12-cv-471
(GLS)

v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,1
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Binder, Binder Law Firm
60 East 42nd Street
Suite 520
New York, NY 10165
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261

CHARLES E. BINDER, ESQ.

REBECCA H. ESTELLE
Special Assistant U.S. Attorney

Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904

1

The Clerk is directed to substitute Carolyn W. Colvin, Acting Commissioner of Social
Security, for defendant Michael J. Astrue, and amend the caption accordingly. See Fed. R.
Civ. P. 25(d).

New York, NY 10278
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Clarence Henrey Ives, Jr. challenges the Commissioner of
Social Security’s denial of Disability Insurance Benefits (DIB), seeking
judicial review under 42 U.S.C. § 405(g). (See Compl., Dkt. No. 1.) After
reviewing the administrative record and carefully considering Ives’
arguments, the Commissioner’s decision is reversed and remanded.
II. Background
On June 30, 2009, Ives filed an application for DIB under the Social
Security Act (“the Act”), alleging disability since February 12, 2008. (See
Tr.2 at 50, 101-05.) After his application was denied, (see id. at 51-54),
Ives requested a hearing before an Administrative Law Judge (ALJ), which
was held on August 25, 2010, (see id. at 30-49, 57-58). On November 3,
2010, the ALJ issued an unfavorable decision denying the requested
benefits, which became the Commissioner’s final determination upon the
2

Page references preceded by “Tr.” are to the Administrative Transcript. (See Dkt. No.

6.)
2

Social Security Administration Appeals Council’s denial of review. (See id.
at 1-5, 14-29.)
Ives commenced the present action by filing his Complaint on March
15, 2012 wherein he sought review of the Commissioner’s determination.
(See generally Compl.) The Commissioner filed an answer and a certified
copy of the administrative transcript. (See Dkt. Nos. 5, 6.) Each party,
seeking judgment on the pleadings, filed a brief. (See Dkt. Nos. 9, 12.)
III. Contentions
Ives contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (See Dkt. No. 9 at 1124.) Specifically, Ives claims that the ALJ: (1) failed to follow the treating
physician rule; (2) failed to consider all of his severe impairments; (3)
improperly evaluated his obesity; (4) improperly evaluated his credibility;
and (5) erred by relying on the Medical-Vocational Guidelines. (See id.)
The Commissioner counters that the appropriate legal standards were
used by the ALJ and his decision is also supported by substantial
evidence. (See Dkt. No. 12 at 5-21.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (See
3

Dkt. No. 9 at 1-10; Dkt. No. 12 at 1.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g) 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
Among several other arguments, Ives contends that the ALJ failed to
consider all of his severe impairments. (See Dkt. No. 9 at 15-18.)
According to Ives, both his mental impairments and headaches constitute
severe impairments under the regulations. (See id.) The Commissioner
counters that the ALJ’s findings at step two of the sequential evaluation are
supported by substantial evidence. (See Dkt. No. 12 at 5-11.)
At step two of the sequential analysis, the ALJ must “determine
whether the claimant has a severe impairment.” Christiana, 2008 WL
759076, at *3; see 20 C.F.R. § 404.1520(a)(4)(ii), (c). A “severe
4

impairment” is “any impairment or combination of impairments which
significantly limits [his] physical or mental ability to do basic work activities.”
20 C.F.R. § 404.1520(c). Basic work activities are “the abilities and
aptitudes necessary to do most jobs,” including: “[p]hysical functions such
as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or
handling” as well as “[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). “The ‘mere
presence of a disease or impairment, or establishing that a person has
been diagnosed or treated for a disease or impairment’ is not, itself,
sufficient to deem a condition severe.” Bergeron v. Astrue, No. 09-CV1219, 2011 WL 6255372, at *3 (N.D.N.Y. Dec. 14, 2011) (quoting
McConnell v. Astrue, No. 6:03-CV-0521, 2008 WL 833968, at *2 (N.D.N.Y.
Mar. 27, 2008)). Indeed, when “medical evidence establishes only a slight
abnormality or a combination of slight abnormalities,” a finding of “not
severe” is warranted. SSR 85-28, 1985 WL 56856, at *3 (1985); see 20
C.F.R. § 404.1521(a). Notably, the omission of an impairment at step two
may be deemed harmless error, particularly where the disability analysis
5

continues and the ALJ later considers the impairment in her residual
functional capacity determination (RFC).3 See Tryon v. Astrue, No. 5:10CV-537, 2012 WL 398952, at *4 (N.D.N.Y. Feb. 7, 2012); see also Plante
v. Astrue, No. 2:11-CV-77, 2011 WL 6180049, at *4 (D. Vt. Dec. 13, 2011).
Here, the ALJ found that Ives’ post traumatic stress disorder, history
of drug and alcohol dependence, and depression, considered singularly
and in combination, did not cause more than minimal limitations in Ives’
ability to perform the basic mental activities of work. (See Tr. at 20.)
According to the ALJ, Ives suffered mild limitations to his activities of daily
living, social functioning, and concentration, persistence, and pace. (See
id.) The ALJ also found that Ives had experienced no documented
episodes of decompensation. (See id.) In addition, the ALJ determined
that Ives’ migraine headaches were not severe because he did not receive
regular treatment for them and managed them with over-the-counter
medications. (See id. at 19.) The ALJ further noted that Ives did not follow
his doctors instruction to make a diary of his headaches. (See id.)
3

A claimant’s RFC “is the most [he] can still do despite [his] limitations.” 20 C.F.R.
§ 404.1545(a)(1). In assessing a claimant’s RFC, an ALJ must consider “all of the relevant
medical and other evidence,” including a claimant’s subjective complaints of pain. Id.
§ 404.1545(a)(3). An ALJ’s RFC determination must be supported by substantial evidence in
the record. See 42 U.S.C. § 405(g). If it is, that determination is conclusive and must be
affirmed upon judicial review. See id.; Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).
6

With respect to Ives’ mental impairments, substantial evidence
supports the ALJ’s determination that they did not significantly limit his
ability to do basic work activities. Specifically, the ALJ noted that Ives can
feed, dress, and bathe himself, cook meals on a daily basis, clean and
perform household chores, such as mowing the lawn, and drive a vehicle.
(See id. at 20, 128-30.) Ives also reported that he was very close to his
family and loved spending time with them, and regularly attended church,
narcotics anonymous meetings, and alcoholics anonymous meetings.
(See id.) Finally, although Ives reported that he “sometimes” has problems
paying attention, he also reported that he reads, watches television, plays
chess, and plays cards. (Id. at 133; see id. at 20, 131.) In any event, as
the ALJ proceeded with the disability analysis and considered Ives’ mental
impairments in making her RFC determination, there is no basis to remand
this matter based upon that finding. (See id. at 23); Tryon, 2012 WL
398952, at *4.
Turning to Ives’ headaches, he contends that the ALJ erred by failing
to consider the opinion of treating physician Mitu Maskey. (See Dkt. No. 9
at 14; Tr. at 19.) Dr. Maskey opined that Ives suffered daily migraine
headaches that lasted approximately one hour and caused
7

photosensitivity, visual disturbances, mood changes, and mental confusion
or an inability to concentrate. (See id. at 810-15.) According to Dr.
Maskey, the headaches interfered with Ives’ attention and concentration
frequently, and, as a result of the headaches, Ives was not capable of
tolerating even low stress and would be absent from work more than three
days a month. (See id. at 813-14.) Further, during times Ives suffered a
headache, he would generally be precluded from performing even basic
work activities. (See id. at 814.) In addition to omitting an evaluation of
this evidence from Dr. Maskey, Ives argues that the ALJ erred in finding
that his treatment related to his headaches was sporadic. (See Dkt. No. 9
at 17.)
The Commissioner claims that, because Dr. Maskey’s opinion was
internally inconsistent, the opinion was not entitled to “significant weight.”
(Dkt. No. 12 at 7.) In particular, Dr. Maskey opined that Ives’ pain had
been completely resolved with medication. (See Tr. at 813.) Further, the
Commissioner argues that Dr. Maskey is a specialist in internal medicine,
as opposed to a relevant specialty, and, thus, does not deserve great
weight. (See Dkt. No. 12 at 13.) However, the ALJ did not simply assign
improper weight to Dr. Maskey’s opinion, she failed to consider the opinion
8

at any point in her analysis. (See Tr. at 19-24.) Further, contrary to the
Commissioner’s assertion, (see Dkt. No. 12 at 6), Ives continued to
complain of headaches after September 2009, (see Tr. at 634-35).
Specifically, in November 2009 he reported to Dr. Maskey that he suffers
migraines that are “8/10” and cause spots in front of his eyes, in February
2010 he complained to Dr. Maskey of suffering from a migraine during his
appointment, and in May 2010 he noted to his psychiatrist that he suffered
chronic pain and migraines. (Id. at 707; see id. at 778-79, 799-800.)
Moreover, even if Ives’ headaches were not severe, the ALJ failed to
consider them during her subsequent RFC determination, as required by
the applicable regulations. (See id. at 21-24); 20 C.F.R. § 404.1545(a)(2).
Although the ALJ noted that Ives claimed disability, in part, based on his
headaches, she failed to discuss the limitations Ives alleged related to, and
Dr. Maskey attributed to, his headaches. (See Tr. at 21-24, 39-40, 48,
810-15.) While the limitations resulting from his headaches may not be
debilitating, the ALJ’s failure to discuss why no limitations relating to his
headaches were included in the RFC, in light of the above cited evidence,
necessitates remand. See Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.
1984) (requiring the Commissioner to set forth “the crucial factors in [her]
9

determination . . . with sufficient specificity to enable [the court] to decide
whether the determination is supported by substantial evidence”).
Finally, because Ives’ remaining contentions may be impacted by the
subsequent proceedings directed by this Order, it 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 Clerk is directed to substitute Carolyn W. Colvin,
Acting Commissioner of Social Security, for defendant Michael J. Astrue,
and amend the caption accordingly; and it is further
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 Memorandum-Decision and 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.
May 15, 2013
Albany, New York

10