Sappah v. Colvin
MEMORANDUM-DECISION & ORDER: It is Ordered that the Commissioner's # 17 Motion for Judgment on the Pleadings is DENIED, that Plaintiff's # 13 Motion for Judgment on the Pleadings is GRANTED, therefore the and the # 1 Complaint filed by Veronica Lynn Sappah and the Decision of the Commissioner are REMANDED for additional proceedings consistent with this Court's decision and pursuant to sentence four of 42 USC section 405(g). Signed by Magistrate Judge Christian F. Hummel on 3/30/2017. (jmb)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
VERONICA LYNN SAPPAH,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE
Osterhout Disability Law
Attorneys for Plaintiff
521 Cedar Avenue, Suite 200
Oakmont, Pennsylvania 15139
KARL E. OSTERHOUT, ESQ.
Olinsky Law Group
Attorneys for Plaintiff
One Park Place
300 South State Street, Suite 420
Syracuse, New York 13202
PAUL B. EAGLIN, ESQ.
Social Security Administration,
Office of General Counsel
Attorneys for Defendant
26 Federal Plaza - Room 3904
New York, New York 10278
MARIA P. FRAGASSI SANTANGELO, ESQ.
Special Assistant U.S. Attorney
MEMORANDUM-DECISION AND ORDER
Plaintiff Veronica Lynn Sappah (“Plaintiff”) brings this action pursuant to 42 U.S.C. §
405(g) seeking review of a decision by the Commissioner of Social Security
(“Commissioner”) denying her application for benefits under the Social Security Act (“Act”).
Plaintiff moves for a finding of disability, or in the alternative, for the matter to be remanded
for further proceedings, and the Commissioner cross-moves for a judgment on the
pleadings. Dkt. Nos. 1, 10.
On November 13, 2012, plaintiff filed an application for disability insurance benefits
pursuant to the Social Security Act, 42 U.S.C. § 401 et seq., claiming an alleged onset date
of February 1, 2012. T.1 141-44. The application was denied on January 29, 2013. Id. at
67-76. Plaintiff requested a hearing before an administrative law judge (“ALJ”), which was
held before ALJ Gregory M. Hamel on January 14, 2014. Id. at 29-66 (transcript of
hearing). In a decision dated March 28, 2014, the ALJ held that plaintif f was not entitled to
disability benefits. Id. at 9-28. Plaintiff filed a timely request for review with the Appeals
Council, and on July 8, 2015, the request was denied, thus making the ALJ’s findings the
final decision of the Commissioner. Id. at 1-7. This action followed.
A. Standard of Review
In reviewing a final decision of the Commissioner, a court must determine whether
the correct legal standards were applied and whether substantial evidence supports the
decision. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Substantial ev idence is
“‘more than a mere scintilla,’” meaning that in the record one can find “‘such relevant
“T.” followed by a number refers to the pages of the administrative transcript filed by the
Commissioner. Dkt. No. 12.
evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971) (internal quotation marks omitted)).
“In addition, an ALJ must set forth the crucial factors justifying his findings with
sufficient specificity to allow a court to determine whether substantial evidence supports the
decision.” Barringer v. Comm’r of Soc. Sec., 358 F. Supp. 2d 67, 72 (N.D.N.Y. 2005) (citing
Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)). However, a court cannot substitute
its interpretation of the administrative record for that of the Commissioner if the record
contains substantial support for the ALJ's decision. Yancey v. Apfel, 145 F.3d 106, 111 (2d
Cir. 1998). If the Commissioner’s finding is supported by substantial evidence, it is
conclusive. 42 U.S.C. § 405(g); see Halloran, 362 F.3d at 31.
B. Determination of Disability
“Every individual who is under a disability. . . shall be entitled to a disability. . . benefit
. . . .” 42 U.S.C. § 423(a)(1). Disability is defined as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment . . . which has lasted or can be expected to last for a continuous period of not
less than 12 months.” Id. § 423(d)(1)(A). A medically-determinable impairment is an
affliction that is so severe that it renders an individual unable to continue with his or her
previous work or any other employment that may be available to him or her based upon
age, education, and work experience. Id. § 423(d)(2)(A). Such an impairment must be
supported by “medically acceptable clinical and laboratory diagnostic techniques.” Id. §
423(d)(3). Additionally, the severity of the impairment is “based [upon] objective medical
facts, diagnoses or medical opinions inferable from [the] facts, subjective complaints of pain
or disability, and educational background, age, and work experience.” Ventura v. Barnhart,
No. 04 Civ. 9018(NRB), 2006 WL 399458, at *3 (S.D.N.Y. Feb. 21, 2006) (citing Mongeur v.
Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983)) (additional citation om itted).
The Second Circuit employs a five-step analysis, based on 20 C.F.R. § 404.1520, to
determine whether an individual is entitled to disability benefits:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he [or she] is
not, the [Commissioner] next considers whether the claimant has
a “severe impairment” which significantly limits his [or her] physical
or mental ability to do basic work activities. If the claimant suffers
such an impairment, the third inquiry is whether, based solely on
medical evidence, the claimant has an impairment which is listed
in Appendix 1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him [or her] disabled
without considering vocational factors such as age, education, and
work experience; the [Commissioner] presumes that a claimant
who is afflicted with a “listed” impairment is unable to perform
substantial gainful activity. Assuming the claimant does not have
a listed impairment, the fourth inquiry is whether, despite the
claimant's severe impairment, he [or she] has the residual
functional capacity (“RFC”) to perform his [or her] past work.
Finally, if the claimant is unable to perform his [or her] past work,
the [Commissioner] then determines whether there is other work
which the claimant could perform.
Berry, 675 F.2d at 467. The plaintiff bears the initial burden of proof to establish each of the
first four steps. DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 19 98) (citing Berry,
675 F.2d at 467). If the inquiry progresses to the fifth step, the burden shifts to the
Commissioner to prove that the plaintiff is still able to engage in gainful employment
somewhere. Id. at 1180 (citing Berry, 675 F.2d at 467).
C. ALJ Hamel’s Findings
Plaintiff, represented by counsel, testified at the hearing held on January 14, 2014.
T. 29-66. Using the five-step sequential evaluation, ALJ Hamel found that plaintiff (1) had
not engaged in substantial gainful activity since February 1, 2012, the alleged onset date;
(2) had the following severe medically-determinable impairments: degenerative disc disease
of the lumbosacral and thoracic spine (lumbar spondylosis), pes planus2 with right inversion
ankle and tibial insufficiency, obesity, degenerative joint disease and impingement
syndrome affecting the right shoulder, and degenerative changes of the right hip; (3) did not
have an impairment, alone or in combination, sufficient to meet the listed impairments in
Appendix 1, Subpart P of Social Security Regulation Part 404; (4) maintained “the residual
functional capacity to perform light work as defined in 20 CFR 404.1567(b) but cannot climb
ladders or similar devices or work in hazardous environments such as at heights or around
dangerous machinery. The claimant is further limited to no more than occasional climbing
stairs, balancing, stooping, kneeling, crouching, or crawling”; and, thus (5) was capable of
performing her past relevant work as a hotel desk clerk and convenience store clerk. Id. at
D. Plaintiff’s Contentions
Plaintiff contends that the ALJ (1) erred in failing to properly apply the treating
physician rule to the opinions of plaintiff’s treating physicians: Dr. Michael McNulty, M.D.
and Dr. Elizabeth Hutton Lykling, M.D.; and (2) erred in failing to find plaintiff’s mental
Pes planus is a condition in which the longitudinal arch of the foot is broken down, the entire sole
touching the ground. The condition is also known as “flatfoot.” STEDMAN’S MEDICAL DICTIONARY 1468 (28th
impairments severe at step two of the sequential evaluation. See Dkt. No. 13.
RFC describes what a claimant is capable of doing despite his or her impairments
considering all relevant evidence, which consists of physical limitations, symptoms, and
other limitations beyond the symptoms. Martone v. Apfel, 70 F. Supp. 2d 145,150
(N.D.N.Y. 1999); 20 C.F.R. §§ 404.1545, 416.945. “In assessing RFC, the ALJ’s findings
must specify the functions plaintiff is capable of performing; conclusory statements
regarding plaintiff’s capacities are not sufficient.” Martone, 70 F. Supp. 2d at 150. RFC is
then used to determine whether the claimant can perform his or her past relevant work in
the national economy. New York v. Sullivan, 906 F.2d 910, 913 (2d Cir. 1990); 20 C.F.R.
§§ 404.1545, 416.960 (2003). The Second Circuit has clarified that, in step five of the
Commissioner’s analysis, once RFC has been determined “the Commissioner need only
show that there is work in the national economy that the claimant can do; he need not
provide additional evidence of the claimant’s [RFC].” Poupore v. Astrue, 566 F.3d 303, 306
(2d Cir. 2009).
a. Treating Physician Rule
Plaintiff argues that the ALJ erred in failing to provide good, specific, and supported
reasons for affording less than controlling weight to the opinions of Dr. McNulty and Dr.
Lykling. Dkt. No. 13 at 4-15.
When evaluating a claim seeking disability benefits, factors to be considered include
objective medical facts, clinical findings, the treating physician’s diagnoses, subjective
evidence of disability, and pain related by the claimant. Harris v. R.R. Ret. Bd., 948 F.2d
123, 126 (2d Cir. 1991). Generally, more weight is given to a treating source. Under the
regulations, a treating physician’s opinion is entitled to controlling weight if it is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is
consistent with other substantial evidence in the record. 20 C.F.R. § 404.1527(d)(2) (2005);
Shaw, 221 F.3d at 134. “This rule applies equally to retrospective opinions given by treating
physicians.” Campbell v. Astrue, 596 F. Supp. 2d 445, 452 (D. Conn. 2009) (citations
omitted). Before a treating physician’s opinion can be discounted, the ALJ must provide
“good reasons.” Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998).
The ALJ is required to assess the following factors in determining how much weight
to accord the physician’s opinion: “(i) the frequency of examination and the length, nature,
and extent of the treatment relationship; (ii) the evidence in support of the opinion; (iii) the
opinion's consistency with the record as a whole; (iv) whether the opinion is from a
specialist; and (v) other relevant factors.” Schaal, 134 F.3d at 503. If other evidence in the
record conflicts with the opinion of the treating physician, this opinion will not be deemed
controlling or conclusive, and the less consistent the opinion is, the less weight it will be
given. Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999). Ultimately, the final determination
of disability and a claimant’s inability to work rests with the Commissioner. Id. at 133-34;
see 20 C.F.R. § 404.1527(e).
Dr. Lykling completed a depression and anxiety questionnaire, as well as a physical
RFC assessment. T. 383-90. Dr. McNulty completed a physical RFC assessment. T. 35659.
i. Assessment of Plaintiff’s Physical Impairments
On December 16, 2013, Dr. Lykling opined that plaintiff could frequently carry ten
pounds, but no more than that amount, due to her right hip and back pain. T. 387. She
could stand for a maximum of two hours during an eight-hour workday, and sit for less than
two hours during an eight-hour workday. Id. She would need breaks during the time that
she sits. Id. Dr. Lykling opined that plaintiff could only sit or stand for ten minutes before
needing to change positions. Id. at 388. She must walk around every ten minutes, for 10
minutes at a time. Id. Plaintiff would further need to be able to shift from sitting to standing
or walking at will. Id. Dr. Lykling further opined that plaintiff would need to lie down at
unpredictable intervals during an eight-hour workday, and that this would occur every fifteen
or twenty minutes. Id. Dr. Lykling attributed these limitations to plaintiff’s hip pain and sleep
apnea. Id. Plaintiff could occasionally twist or climb stairs, but she could never stoop,
bend, crouch, or climb ladders. Id. She could perform reaching, handling, fingering, and
feeling, but she could not perform pushing or pulling, due to her right hip pain. Id. at 389.
Dr. Lykling opined that plaintiff should avoid even moderate exposure to extreme heat and
cold, and high humidity. Id. Plaintiff should further avoid concentrated exposure to fumes,
odors, dusts, gases, soldering fluxes, solvents and cleaners, and chemicals. Id.
Dr. Lykling noted that plaintiff’s most severe limitations were due to her “severe
uncompensated sleep apnea/hypoxia with hypersomnia.”3 T. 389. She further attributed
the limitations to plaintiff’s hip pain. Id. On average, Dr. Lykling estimated that plaintiff
would be absent from work more than four days per month due to her impairments and
Hypersomnia is “[a] condition in which sleep periods are excessively long, but the person responds
normally in the intervals[.]” STEDMAN’S MEDICAL DICTIONARY 926.
treatment for her impairments. Id. at 390.
Dr. McNulty submitted a medical opinion on December 4, 2013. T. 356-59. Dr.
McNulty indicated that plaintiff could lift and carry no more than twenty pounds on an
occasional basis, and no more than ten pounds on a frequent basis. Id. at 356. Her
maximum ability to stand and walk (with normal breaks) was limited to less than two hours,
and her maximum ability to sit (with normal breaks) was limited to about two hours. Id.
Plaintiff could sit for thirty minutes before needing to change positions. Id. at 357. She
could stand for thirty minutes before needing to change positions. Id. Plaintiff would need
to walk around every thirty minutes, for thirty minutes. Id. She would also need to be able
to shift at will from sitting to standing or walking. Id. Dr. McNulty noted that it was
“unknown” whether plaintiff would need to sometimes lie down at unpredictable intervals
during the workday. Id. Plaintiff could occasionally twist and stoop or bend, but she could
never crouch, climb stairs, or climb ladders, due to pain with movement. Id. Dr. McNulty
opined that plaintiff had no limitations in reaching, handling, fingering, feeling, pushing, or
pulling. Id. at 358. He also opined that plaintiff did not have any environmental restrictions.
Id. Lastly, Dr. McNulty anticipated that plaintiff’s impairments or treatment from her
impairments would cause her to be absent from work about four days per month. Id. at
The ALJ assigned “little weight” to Dr. Lykling’s opinion because it was not well
supported by the evidence as a whole. T. 21. The ALJ afforded “greater weight” to Dr.
McNulty’s opinion. Id. To the extent that the ALJ discounted Dr. Lykling and Dr. McNulty’s
opinions, the ALJ noted that the opinions were inconsistent with the doctors’ own treatment
notes and, in the case of Dr. Lykling’s opinion, inconsistent with the treatment notes of Dr.
Glady Jacob, M.D., who treated plaintiff for her sleep-related issues. Id.
In citing to Dr. Jacob’s treatment notes as support for assigning little weight to Dr.
Lykling’s opinion, the ALJ notes that on December 9, 2013, plaintiff exhibited normal
coordination, gait, and bilateral deep tendon reflexes. T. 21, 375. Dr. Jacob’s notes also
indicated that plaintiff’s sensation was grossly intact, and that she had full bilateral upper
extremity motor strength and normal muscle tone and bulk bilaterally. Id. at 375. Dr.
Jacob’s treatment note also indicates that plaintiff’s sleep-related issues are likely due to
hypersomnia, and that plaintiff was advised not to drive. Id.
Dr. Lykling began treating plaintiff in November 2012. T. 251. At that time, Dr.
Lykling noted that plaintiff was suffering from depression and anxiety, and had experienced
weight gain while taking Paxil. Id. at 251. She also reported low back pain, and shoulder
pain for which she was having surgery the following week. Id. Plaintiff walked with a slightly
antalgic gait. Id. at 252. Prior treatment notes from Boonville Family Care, the practice
where Dr. Lykling saw plaintiff, indicated plaintiff’s longstanding issues with chronic back
pain. See T. 259, 262, 264, 266. The treatment notes also indicate that plaintiff
complained that her legs would periodically give out. Id. at 262, 264. MRI results of
plaintiff’s back from April 12, 2012 indicated a small left lateral disc herniation at L5-S1
mildly narrowing the left L5-S1 neural foramen, and mild disc bulging at L3-4, L4-5, and L5S1. Id. at 169-70. MRI results of plaintiff’s hips from February 9, 2013 showed significant
degenerative changes in the right hip, cartilage thinning in the anterior/superior hip joint, and
a subchondral cyst in the anterior acetabulum. Id. at 309. Later MRI results of plaintiff’s
hips from August 27, 2013 indicated that her condition had n ot changed as to her right hip,
and milder degenerative changes were seen as to her left hip. Id. at 311. Dr. Lykling’s own
treatment notes indicate plaintiff’s longstanding issues with pain due to her physical
impairments. Id. at 252, 303. On January 10, 2013, Dr. Lykling described plaintiff’s pain as
“uncontrolled” by pain medication. Id. at 303.
The Court notes that Dr. Lykling’s opinion is further supported by Dr. McNulty’s
treatment notes and opinion. As plaintiff correctly notes, Dr. McNulty examined plaintiff
more than once per month during the relevant time period. Dkt. No. 13 at 4 (citing T. 17385, 331-51, 438-39). When Dr. McNulty examined plaintiff on October 18, 2012, plaintiff
reported her pain as a seven out of ten. T. 183. Dr. McNulty observed moderate
tenderness of plaintiff’s lumbar spine and paraspinals. Id. at 184. Plaintif f’s extension was
only ten degrees, with pain. Id. Her right and left hip abductions were 0/5. Id. Dr. McNulty
assessed plaintiff’s x-rays, MRI, and EMG/NCV results as showing multilevel degenerative
changes of the thoracic spine, small lateral disc herniation at L5-S1 mildly narrowing the
foramen in the lumbar spine, and possible lumbosacral radiculopathy. Id. Indeed, a
previous nerve conduction study revealed a pinched nerve in her lower back. Id. at 210.
Because previous conservative treatments had failed, Dr. McNulty recommended epidural
injections. Id. at 185. However, plaintiff reported no pain relief from the epidural injections
during her follow-up appointment on November 13, 2012. Id. at 174-75. Further epidural
injections yielded no relief. Id. at 349. In March 2013, Dr. McNulty observed that plaintiff
experienced moderate tenderness of the SI joint, lumbar spine. Id. at 345. She was able to
flex with fingers six inches from the floor with mild pain. Id. Dr. McNulty noted that plaintiff
continued to experience lumbar pain with right lower extremity pain to her knee and ankle at
times. Id. at 346. Dr. McNulty further noted that elements of sacroiliitis4 were present. Id.
He noted that plaintiff would continue her use of Fentanyl patches. Id. Plaintiff received an
injection in her right sacroiliac joint on March 27, 2013. Id. at 342. T his injection did not
help her pain symptoms, and on May 10, 2013, Dr. McNulty noted that plaintiff should
possibly see a different surgical provider for an opinion, as well as a podiatrist for orthotics.
Id. at 341. Dr. McNulty continued to observe tenderness in plaintiff’s lumbar and thoracic
spines, 0/5 hip abduction on both sides, and decreased rang e of extension. Id. at 340.
These objective observations were largely the same in August and October 2013, and
January 2014. See id. 332, 336, 439.
Despite the medical records described above, including significant MRI, x-ray, and
EMG results, along with objective observations of plaintiff’s limitations, the ALJ did not
afford controlling weight to Dr. Lykling or Dr. McNulty’s opinions. See T. 21. The ALJ
further failed to discuss the required factors in deciding to assign less than controlling
weight to either opinion. Burgess v. Astrue, 537 F.3d 117, 129-30 (2d Cir. 2008) (f inding
error where the ALJ did not consider the required factors in determining how much weight a
treating physician’s opinion receives). The ALJ’s determination that plaintiff can perform
light work, which requires “a good deal of walking or standing” or “sitting most of the time
with some pushing and pulling of arm or leg controls,” 20 C.F.R. § 404.1567(b), is
unsupported by Dr. Lykling and Dr. McNulty’s opinions. Dr. McNulty opined that plaintiff’s
maximum ability to stand and walk during an eight-hour workday was limited to less than
two hours. T. 356. Dr. Lykling limited plaintiff’s maximum ability to stand and walk to about
Sacroiliitis is inflammation of the sacroiliac joint. STEDMAN’S MEDICAL DICTIONARY 1714.
two hours. Id. at 387. Dr. McNulty opined that plaintiff would be able to sit for a maximum
amount of time of about two hours. Id. at 356. Dr. Lykling limited plaintiff’s maximum ability
to sit to less than two hours. Id. at 387. Further, Dr. Lykling opined that plaintiff could lift
and carry no more than ten pounds frequently. Id. at 387. Dr. McNulty opined that plaintiff
could lift twenty pounds occasionally and ten pounds frequently. Id. at 356. Further, Dr.
McNulty indicated that plaintiff would be absent from work four days per month due to her
physical impairments and her treatment for her physical impairments. Id. at 359. Dr.
Lykling estimated plaintiff would be absent more than four days per month. Id. at 390.
These estimations of plaintiff’s absences from work indicate that “she would not be able to
participate in full time, competitive employment[.]” Marrese v. Colvin, No. 15-CV-6369,
2016 WL 5081481, at *2 (W.D.N.Y. Sept. 16, 2016). Despite these well-supported
opinions, the ALJ concluded that plaintiff could perform light work.
Lastly, the only other opinion on record as to plaintiff’s physical impairments is from a
consultative examiner, Dr. Tanya Perkins-Mwantuali, M.D., to whom the ALJ affords “little
weight.” T. 19; 224-30. The consultative examiner noted that plaintiff’s gait is abnormal,
and that she throws her right hip forward before placing the right foot on the floor. T. 226.
She is able to walk on heels and toes, but she is unstable. Id. She observ ed that plaintiff
could fully squat, and that she had no trouble changing for the exam, or getting on or off the
exam table. Id. at 226-27. Dr. Perkins-Mwantuali observed tenderness in plaintiff’s back,
and limited range of motion. Id. at 227-28. She noted that plaintif f’s prognosis was
“guarded” and offered the following medical source statement: “The claimant has a
moderate limitation for any activity requiring the use of the right arm above the level of the
shoulder. The claimant should avoid respiratory triggers. She has a mild to moderate
limitation with walking, bending, climbing, and twisting.” Id. at 229. The ALJ described Dr.
Perkins-Mwantuali’s opinion as “vague and imprecise,” and noted that she had failed to give
specific work-related limitations. Id. at 19.
Based on the foregoing, the Court finds that the ALJ improperly applied the treating
physician rule by substituting his own opinion for that of plaintiff’s treating physician. As
stated above, Dr. Lykling and Dr. McNulty’s opinion are supported by the record, and the
ALJ’s decision to substitute his own expertise for that of the treating physicians’ is a
reversible error requiring remand. See Richardson v. Barnhart, 443 F. Supp. 2d 411, 422
(W.D.N.Y. 2006)(finding error where the ALJ substituted his own judgment for that of the
treating physician’s); Ruiz v. Apfel, 98 F. Supp. 2d 200, 208 (D. Conn. 1999)(f inding that the
ALJ was not qualified to know which symptoms were necessary to support the treating
physician’s opinion). The ALJ assigned “limited” or “little” weight to all of the medical
opinions of record, and in so doing, he failed to set forth good reasons in rejecting the
treating physicians’ opinions, as required by the treating physician rule. Rolon v. Comm’r of
Soc. Sec., 994 F. Supp. 2d 496, 509 (S.D.N.Y. 2014)(remanding where the ALJ did not cite
to any medical opinion to dispute the treating physicians’ conclusions)(citing Balsamo v.
Chater, 142 F.3d 75, 81 (2d Cir. 1998)).
Accordingly, this matter is remanded, and the ALJ is directed to properly apply the
treating physician rule in considering Dr. Lykling’s and Dr. McNulty’s opinions as to the
nature and severity of plaintiff’s physical impairments.
ii. Assessment of Plaintiff’s Mental Impairments
Plaintiff contends that the ALJ erred in finding plaintiff’s mental impairments non-14-
severe, and further erred in formulating plaintiff’s RFC that did not reflect the practical
implications of plaintiff’s mental impairments. Dkt. No. 13 at 15-20.
The claimant bears the burden of presenting evidence establishing severity. Miller v.
Comm'r of Soc. Sec., No. 05-CV-1371, 2008 W L 2783418, at *6-7 (N.D.N.Y. July 16, 2008);
see also 20 C.F.R. § 404.1512(a). In determining the severity of a mental impairment, the
ALJ must apply the “special technique” set out in 20 C.F.R. § 404.1520a. W here the ALJ
recognizes that a claimant has a “medically-determinable mental impairment,”
the ALJ must “rate the degree of functional limitation resulting from
the impairment(s) in accordance with paragraph (c),” which
specifies four broad functional areas: (1) activities of daily living; (2)
social functioning; (3) concentration, persistence, or pace; and (4)
episodes of decompensation. 20 C.F.R. § 404.1520a(c)(3). The
first three areas (i.e., activities of daily living; social functioning; and
concentration, persistence, or pace) are rated on a five-point scale:
“[n]one, mild, moderate, marked, and extreme.” 20 C.F.R. §
Piazza v. Colvin, No. 13-CV-2230 JS, 2014 W L 4954598, at *8 (E.D.N.Y. Sept. 30, 2014).
Although the Second Circuit has held that this step is limited to “screen[ing] out de minimis
claims,” Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995), the “m ere presence of a
disease or impairment, or establishing that a person has been diagnosed or treated for a
disease or impairment” is not, by itself, sufficient to render a condition “severe.” Coleman v.
Shalala, 895 F. Supp. 50, 53 (S.D.N.Y. 1995); Bergeron v. Astrue, No. 09-CV-1219, 2011
WL 6255372, at *3 (N.D.N.Y. Dec. 14, 2011). Indeed, a “finding of ‘not severe’ should be
made if the medical evidence establishes only a ‘slight abnormality’ which would have ‘no
more than a minimal effect on an individual's ability to work.’” Rosario v. Apfel, No.
97-CV-5759, 1999 WL 294727, at *5 (E.D.N.Y. Mar. 19,1999) (quoting Bowen v. Yuckert,
482 U.S. 137, 154 n.12 (1987)).
As pertinent here, 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
Chavis v. Colvin, No. 5:12-cv-1634, 2014 WL 582253, at *2 (N.D.N.Y. Feb. 13, 2014)
(quoting 20 C.F.R. § 404.1521(b)(1), (3)-(6)).
In determining the severity of plaintiff’s impairments, the ALJ was required to apply
the treating physician rule to the opinions of record in determining the severity of plaintiff’s
mental impairments. Monge v. Astrue, No. 11-CV-5019 (DAB)(DF), 2014 W L 5025961, at
*20 (S.D.N.Y. Sept. 29, 2014) (citing 20 C.F.R. § 404.1527(c)) (additional citations omitted).
The only opinion of record as to plaintiff’s mental impairments was a depression and anxiety
questionnaire completed by Dr. Lykling on December 16, 2013. T. 383-86. Dr. Lykling
opined that plaintiff exhibited depressive syndrome characterized by anhedonia or pervasive
loss of interest in almost all activities; appetite disturbance with a change in weight; sleep
disturbance; psychomotor agitation or retardation; decreased energy; feelings of guilt or
worthlessness; difficulty concentrating or thinking; and hallucinations, delusions or paranoid
thinking. Id. at 383. Dr. Lykling also noted that plaintiff exhibited generalized persistent
anxiety accompanied by motor tension, autonomic hyperactivity, and apprehension
expectation. Id. at 384. She further noted that plaintiff exhibits a fear of enclosed spaces
and large numbers of people, experiences recurrent panic attacks, and experiences
recurrent and intrusive recollections of when she was held hostage in a convenience store,
which is a source of marked distress. Id. Based on plaintiff’s symptoms, Dr. Lykling
concluded that plaintiff has moderate limitation in restriction of activities of daily living, and
extreme limitations in maintaining social functioning, and maintaining concentration,
persistence, and pace. Id. at 385. There was insufficient evidence to determine whether
plaintiff experiences episodes of decompensation. Id. Dr. Lykling noted that plaintiff also
suffered from sleep apnea, and that she was being evaluated for neurologic and cognitive
findings related to that ailment. Id.
In affording little weight to Dr. Lykling’s opinion, the ALJ concluded that plaintiff had
received only “conservative treatment” for her mental impairments, and had not engaged in
psychological intervention until right before the hearing, indicating that her symptoms were
not as severe as she alleged. T. 17. The Court finds that the ALJ committed legal error in
failing to credit Dr. Lykling’s opinion, and plaintiff’s own statements and testimony, based on
the fact that she did not seek treatment until just prior to the hearing. It is well-established
in the Second Circuit that an ALJ may not discount a claimant’s failure to seek treatment
without first exploring the reasons why the claimant did not seek treatment, especially where
the lack of treatment pertains to a plaintiff’s mental impairments. See Shaw v. Chater, 221
F.3d 126, 133 (2d Cir. 2000); Melia v. Colvin, No. 1:14-CV-00226 MAD, 2015 W L 4041742,
at *22 (N.D.N.Y. July 1, 2015) (noting that an ALJ may not discount a plaintiff’s symptoms
“based upon [p]laintiff's failure to seek mental health treatment, without considering the
[p]laintiff's explanation for her failure to seek treatment and the impact poor judgment
resulting from her mental health impairments . . . may have had on the failure”). The ALJ’s
failure to seek an explanation from plaintiff is particularly pertinent here, where plaintiff
indicated to Dr. Lykling in a January 25, 2013 treatment note that she sought out the
services of a counselor, but did not feel comfortable with that counselor after meeting with
her. T. 302. Thus, the ALJ’s decision to afford little weight to Dr. Lykling’s opinion and
plaintiff’s statements constituted error requiring remand.
Further, Dr. Lykling’s opinion, coupled with plaintiff’s testimony and the medical
evidence of record, indicates that plaintiff’s mental impairments caused more than a
minimal effect on plaintiff’s ability to work. Plaintiff testified that she does not engage in
social activities or visit friends or relatives because of her anxiety. T. 39-40. As of the date
of the hearing, plaintiff was seeing a psychiatrist because “the anxiety [was] driving [her]
crazy.” Id. at 43. She testified that her anxiety causes slurred speech, and that she stays in
bed for extended periods of time. Id. at 47. She has difficulty concentrating on the
television, or reading a book. Id. at 48. Her medical records indicate that she frequently
complained of depression and anxiety symptoms to Dr. Lykling, and indicated that she had
difficulty in finding a medication regimen that worked for her. Id. at 251-52, 267-70, 273-76,
Accordingly, the Court finds that the ALJ’s severity determination was not supported
by substantial evidence, and this matter is remanded on this ground. The ALJ is directed to
assess the severity of plaintiff’s mental impairments in compliance with the treating
F. Remaining Contentions
To the extent that plaintiff objects to the ALJ’s decision based the ALJ’s error in
assessing plaintiff’s credibility, and the ALJ’s questioning of the vocational expert, the
undersigned declines to consider these contentions at t his juncture, as the remaining
contentions may be impacted by the subsequent proceedings directed by this Order.
Having reviewed the administrative transcript and the ALJ’s findings, the Court
concludes that the ALJ’s determination is not supported by substantial evidence. Remand
for further administrative action consistent with this Memorandum-Decision and Order is
needed. Accordingly, it is hereby
ORDERED that plaintiff Veronica Lynn Sappah’s motion for judgment on the
pleadings is GRANTED (Dkt. No. 13). The matter is remanded to the Commissioner for
additional proceedings consistent with the above, pursuant to sentence four of 42 U.S.C.
405(g); and it is further
ORDERED that the Commissioner’s motion for judgment on the pleadings (Dkt. No.
17) is DENIED; and it is further
ORDERED that the Clerk of the Court serve copies of the Memorandum Decision
and Order on the parties in accordance with Local Rules.
IT IS SO ORDERED.
March 30, 2017
Albany, New York
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