Snyder v. Berryhill

Filing 14

MEMORANDUM-DECISION & ORDER that pltf's motion for judgment on the pleadings is GRANTED; that deft's motion for judgment on the pleadings is DENIED; and that deft's decision denying pltf disability benefits is VACATED, and this case is REMANDED, pursuant to Sentence Four of 42 U.S.C. 405(g) for proceedings consistent with this Order. Signed by Magistrate Judge Christian F. Hummel on 9/19/2018. (see)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JESSE S.,
Plaintiff,
v.

No. 8:17-CV-0854
(CFH)

COMM’R OF SOC. SEC.,
Defendant.

APPEARANCES:

OF COUNSEL:

Schneider & Palcsik
57 Court Street
Plattsburgh, New York 12901
Attorney for Plaintiff

MARK A. SCHNEIDER, ESQ.

Social Security Administration
Office of Regional General Counsel,
Region II
26 Federal Plaza, Rm. 3904
New York, New York 10278
Attorney for Defendant

ANDREEA L. LECHLEITNER, ESQ.

CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE
MEMORANDUM-DECISION AND ORDER
Currently before the Court, in this Social Security action filed by Jesse S. (“Plaintiff”)
against the Commissioner of Social Security (“Defendant” or “the Commissioner”) pursuant
to 42 U.S.C. §§ 405(g) and 1383(c)(3), are Plaintiff’s motion for judgment on the pleadings
and Defendant’s motion for judgment on the pleadings. (Dkt. Nos. 12 and 13.)1 For the

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Parties consented to direct review of this matter by a Magistrate Judge pursuant to 28 U.S.C. §
636(c), FED. R. CIV. P. 73, N.D.N.Y. Local Rule 72.2(b), and General Order 18. Dkt. No. 6.

reasons set forth below, Plaintiff’s motion for judgment on the pleadings is granted and
Defendant’s motion for judgment on the pleadings is denied.

I. RELEVANT BACKGROUND
A. Factual Background
Plaintiff was born in 1979, making him 34 years old at his alleged onset date and 36
years old at the date of the ALJ’s decision. Plaintiff reported completing the eleventh grade
and obtaining a GED. Plaintiff has past work as a maintenance worker, painter, and selfemployed daycare provider. At the initial level, Plaintiff alleged disability due to depression
from pain, back pain with nerve damage, and chronic sciatica with pain down both of his
legs.

B. Procedural History
Plaintiff applied for a period of disability and disability insurance benefits and
Supplemental Security Income on December 31, 2013, alleging disability beginning July
15, 2013. Plaintiff’s applications were initially denied on March 28, 2014, after which he
timely requested a hearing before an Administrative Law Judge (“ALJ”). Plaintiff appeared
at a hearing before ALJ Carl E. Stephan on September 15, 2015. (T. 25-44.)

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On

February 10, 2016, the ALJ issued a written decision finding Plaintiff was not disabled
under the Social Security Act. (T. 7-24.) On July 19, 2017, the Appeals Council denied

2
The Administrative Transcript is found at Dkt. No. 8. Citations to the Administrative
Transcript will be referenced as “T.” and the Bates-stamped page numbers as set forth therein will be
used rather than the page numbers assigned by the Court’s CM/ECF electronic filing system.

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Plaintiff’s request for review, making the ALJ’s decision the final decision of the
Commissioner. (T. 1.)

C. The ALJ’s Decision
Generally, in his decision, the ALJ made the following seven findings of fact and
conclusions of law. (T. 12-20.) First, the ALJ found that Plaintiff met the insured status
requirements of the Social Security Act through December 31, 2017. (T. 12.) Second, the
ALJ found that Plaintiff has not engaged in substantial gainful activity since July 15, 2013,
the alleged onset date. (Id.) Third, the ALJ found that Plaintiff’s lumbar spondylolisthesis,
lumbar stenosis, facet arthropathy, lumbar radiculopathy, and chronic lumbar myofascitis
are severe impairments. (Id.) Fourth, the ALJ found that Plaintiff does not have an
impairment or combination of impairments that meets or medically equals the severity of
one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (T. 15.)
Specifically, the ALJ considered Listing 1.04 (disorders of the spine). (Id.) Fifth, the ALJ
found that Plaintiff has the residual functional capacity (“RFC”) to perform the full range of
light work. (T. 16.) Sixth, the ALJ found that Plaintiff is unable to perform any past relevant
work. (T. 19.) Seventh, and last, the ALJ found that Plaintiff is capable of performing jobs
existing in significant numbers in the national economy. (Id.) The ALJ therefore concluded
that Plaintiff is not disabled.

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D. The Parties’ Briefings on Their Cross-Motions
1. Plaintiff’s Motion for Judgment on the Pleadings
Generally, Plaintiff makes four arguments in support of his motion for judgment on
the pleadings. (Dkt. No. 12, at 11-29 [Pl.’s Mem. of Law].) First, Plaintiff argues that the
ALJ erred by not giving sufficient weight to the findings and opinions of the treating medical
sources. (Id. at 11-18.) Specifically, Plaintiff argues that the ALJ erroneously failed to give
proper weight to Plaintiff’s May 2013 MRI results (showing a disc extrusion at L3-L4 with
central canal stenosis and nerve encroachment as well as degenerative changes at L4-L5)
and the opinions of treatment providers David Dempsey, DNP, and Lai Kuang, M.D. (Id.
at 16-18.) Plaintiff additionally argues that, if the ALJ needed more records from NP
Dempsey, he should have requested them. (Id. at 18.) Plaintiff also argues that the ALJ
failed to give sufficient weight to the findings and conclusions of treating psychiatrist
Joshua Frank, M.D., consultative examiner Carly Melcher, Psy.D., and non-examining
psychiatric medical expert Rita Clark, M.D., indicating that Plaintiff had major depressive
disorder with at least moderate limitations. (Id.) Plaintiff argues in particular the ALJ failed
to consider Dr. Clark’s opinion that Plaintiff was limited to low stress work with no strict
production or time requirements. (Id.)
Second, Plaintiff argues that he is disabled by the combination of his spinal
impairments, pain, and mental illness. (Id. at. 18-24.) Specifically, Plaintiff argues that,
although he does not appear to meet Listing 1.04 for spinal impairments, he does appear
to equal that Listing because he has limitations in walking, standing, sitting, bending, and
squatting from his lumbar radiculopathy. (Id. at 21-22.) Plaintiff argues that, even if his
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impairments do not formally equally those of the Listing, his exertional and non-exertional
physical limitations were not accurately included in the ALJ’s RFC. (Id. at 22.) Plaintiff
argues that non-examining medical expert Louis Fuchs, M.D., opined only that Plaintiff did
not meet Listing 1.04A and did not address whether or not Plaintiff’s spinal impairment
equaled the Listing. (Id.)
Plaintiff also argues that he did not have the RFC to perform work because of his
non-exertional limitation of pain. (Id. at 22-23.) Plaintiff argues that the ALJ erred by failing
to credit Plaintiff’s subjective testimony of pain, even though it was supported by objective
medical evidence regarding his spinal disorder, and that the ALJ did not consider his pain
as a non-exertional limitation in determining the RFC. (Id. at 23.)
Plaintiff additionally argues that he was unable to work because of his nonexertional mental limitations, and that the ALJ erred by not finding Plaintiff’s mental
impairment to be a severe impairment at Step Two. (Id. at 23-24.) Plaintiff argues that the
ALJ failed to properly evaluate his mental limitations at Step Two and failed to include them
in the RFC, noting that Dr. Clark opined Plaintiff could only do a low stress job within his
physical limitations with no strict production or time requirements. (Id. at 24.)
Third, Plaintiff argues that the ALJ erred by not crediting his well-supported
testimony regarding his limitations. (Id. at 24-27.) Specifically, Plaintiff argues that the
ALJ’s decision does not provide any explanations supporting the adverse credibility finding,
identify any substantive inconsistencies in Plaintiff’s testimony, or provide any medical
evidence contradicting his testimony. (Id. at 27.) Plaintiff also argues that none of the

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treating sources ever stated he exaggerated his pain and that the objective medical
evidence supports his testimony. (Id.)
Fourth, Plaintiff argues the Commissioner did not meet her burden of proof at Step
Five. (Id. at 27-29.) In support of this argument, Plaintiff contends that the opinion of
consultative examiner Nader Wassef, M.D., (indicating moderate limitations in standing,
sitting, lifting, bending, squatting, pushing, pulling, and handling) does not support the
ALJ’s conclusion that Plaintiff can perform a full range of light work. (Id. at 29.) Plaintiff
argues that Dr. Fuchs’ non-examining opinion does not consider Plaintiff’s non-exertional
limitation of pain and is not substantial evidence that Plaintiff can perform light work. (Id.)
Finally, Plaintiff argues that the Commissioner did not meet her burden to prove he can
perform other work in the economy and that this Court should remand for payment of
benefits. (Id.)

2. Defendant’s Motion for Judgment on the Pleadings
Defendant makes four arguments in support of her general argument that the
Commissioner’s determination is supported by substantial evidence. (Dkt. No. 13, at 6-23
[Def.’s Mem. of Law].) First, Defendant argues that the ALJ properly evaluated the medical
evidence about Plaintiff’s back impairment when he determined that Plaintiff could do light
work, and that the RFC finding is supported by the opinions of Dr. Fuchs, Dr. Wassef and
NP Dempsey as well as Plaintiff’s treatment notes. (Id. at 7-12.) Specifically, Defendant
contends that Dr. Fuchs was asked whether Plaintiff had an impairment that met or
equaled a Listing and he replied that Plaintiff did not have such an impairment. (Id. at 8.)
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Defendant argues that Plaintiff has proffered no explanation or evidence to rebut Dr.
Fuchs’ opinion regarding the Listing or the RFC, and therefore this opinion supports the
ALJ’s findings regarding the Listings and the RFC for light work. (Id.) Defendant argues
that the opinions of an agency medical consultant like Dr. Fuchs may constitute substantial
evidence in support of a denial of benefits. (Id. at 8-9.)
Defendant also argues that the ALJ explained that he gave great weight to Dr.
Fuchs’ opinion because it was consistent with other evidence in the record, including Dr.
Wassef’s findings. (Id. at 9.) Defendant argues that, contrary to Plaintiff’s argument, Dr.
Wassef’s opinion, rather than being vague, is consistent with the ability to do light work.
(Id. at 9-10.) Defendant additionally argues that the opinions from Dr. Wassef and Dr.
Fuchs are consistent with the June 2014 and March 2015 assessments of NP Dempsey
(indicating moderate limitations in standing, walking, sitting, lifting, and carrying). (Id. at
10.) Defendant argues that NP Dempsey did not state Plaintiff was permanently unable
to work, as Plaintiff claims, but rather that his moderate restrictions were permanent and
he should avoid labor-intensive work, which is consistent the RFC finding. (Id.)
Defendant also argues that, although the ALJ did not explicitly discuss NP
Dempsey’s opinions in his decision, this does not mean he did not consider them. (Id. at
10-11.)

Defendant additionally argues that, in determining the RFC, the ALJ also

considered Plaintiff’s treatment notes (explaining the examination findings were benign)
and the MRI findings (explaining that the fact that the record contained diagnostic evidence
of a condition did not mean that Plaintiff had functional limitations from that condition). (Id.
at 11-12.)
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Second, Defendant argues that the ALJ properly found Plaintiff did not have a
severe mental impairment because he did not have more than mild limitations in his ability
to do basic work-related mental activities. (Id. at 12-19.) Specifically, Defendant argues
that the opinion of Dr. Melcher, the opinion of NP Dempsey, most of the opinion of Dr.
Clark, and Plaintiff’s treatment notes indicate he did not have a severe mental impairment.
(Id. at 19.)
Defendant argues that the ALJ explained his reasoning, relying in part on the
opinion and findings of consultative examiner Dr. Melcher, which Defendant argues may
serve as substantial evidence in support of the ALJ’s decision. (Id. at 14.) Defendant also
argues that the ALJ reasonably relied upon Dr. Melcher’s opinion because it was wellsupported by her examination findings and, as the ALJ noted, Plaintiff’s statements to Dr.
Melcher regarding his activities of daily living. (Id. at 14-15.)
Defendant also argues that the ALJ’s finding that Plaintiff did not have a severe
mental impairment is supported by NP Dempsey’s March 2015 assessment, indicating no
mental limitations at all, and NP Dempsey’s June 2014 assessment, which indicated no
limitations in most areas except for a moderate limitation in Plaintiff’s ability to function in
a work-setting at a consistent pace. (Id. at 15.)
Defendant additionally argues that the ALJ relied upon portions of Dr. Clark’s
opinion and reasonably concluded that Dr. Clark’s opinion did not preclude Plaintiff from
doing simple (unskilled) work. (Id. at 15-16.) Defendant argues that it is not clear that Dr.
Clark’s opinion, in its entirety, is at odds with the ALJ’s finding that Plaintiff’s mental
impairment was not severe, despite Dr. Clark’s opinion restricting Plaintiff to low stress
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work with no shift or time requirements. (Id. at 16-17.) Specifically, Defendant argues that
Dr. Clark did not define “low stress” to mean Plaintiff could not respond appropriately to
supervision, carry out simple tasks, or deal with changes in a routine and that her narrow
definition of low stress work suggests that Plaintiff was not precluded from performing basic
work-related mental activities. (Id. at 17.) Defendant also argues that, even if Dr. Clark’s
restriction to low stress work can be broadly read as showing Plaintiff had a limitation in
performing basic work-related activities, it was reasonable for the ALJ not to adopt this
limitation because it was inconsistent with the rest of Dr. Clark’s opinion. (Id.) Defendant
argues that the ALJ was entitled to rely on most of Dr. Clark’s opinion, which was
supported by the evidence, and reject the portion which was not consistent with the record
as a whole (which was also more ambiguous). (Id.)
Defendant also argues that the ALJ considered Plaintiff’s treatment notes, which
further supported his finding that Plaintiff did not have a severe mental impairment. (Id. at
17-19.) Defendant also argues that any error in the ALJ’s finding at Step Two would be
harmless because the ALJ found Plaintiff had other severe impairments. (Id. at 19.)
Third, Defendant argues that the ALJ properly evaluated Plaintiff’s subjective
allegations of symptoms in accordance with the regulatory framework and reasonably
found that they were inconsistent with other evidence in the record.

(Id. at 19-22.)

Specifically, Defendant argues that the ALJ reviewed Plaintiff’s treatment and found his
allegations of disability were not supported by his clinical findings (which were benign). (Id.
at 20-21.) Defendant also argues that the ALJ considered Plaintiff’s activities of daily living

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and acknowledged that, although Plaintiff’s activities were limited, he remained able to
engage in many daily tasks. (Id. at 21-22.)
Fourth, Defendant argues that the ALJ properly concluded Plaintiff could do other
work. (Id. at 22-23.) Specifically, Defendant reiterates that the burden is on Plaintiff to
prove his RFC, and that the ALJ met his burden at Step Five by relying upon MedicalVocational Rule 202.17 to conclude that Plaintiff could perform other work. (Id. at 22-23.)

II. RELEVANT LEGAL STANDARD
A. Standard of Review
A court reviewing a denial of disability benefits may not determine de novo whether
an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health & Human Servs.,
906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s determination will be
reversed only if the correct legal standards were not applied, or it was not supported by
substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (“Where
there is a reasonable basis for doubt whether the ALJ applied correct legal principles,
application of the substantial evidence standard to uphold a finding of no disability creates
an unacceptable risk that a claimant will be deprived of the right to have her disability
determination made according to the correct legal principles.”); accord Grey v. Heckler, 721
F.2d 41, 46 (2d Cir. 1983), Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). “Substantial
evidence” is evidence that amounts to “more than a mere scintilla,” and has been defined
as “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971).
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Where evidence is deemed susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60,
62 (2d Cir. 1982).

“To determine on appeal whether the ALJ’s findings are supported by

substantial evidence, a reviewing court considers the whole record, examining evidence
from both sides, because an analysis of the substantiality of the evidence must also
include that which detracts from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir.
1988). If supported by substantial evidence, the Commissioner’s finding must be sustained
“even where substantial evidence may support the plaintiff’s position and despite that the
court’s independent analysis of the evidence may differ from the [Commissioner’s].”
Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court
must afford the Commissioner’s determination considerable deference, and may not
substitute “its own judgment for that of the [Commissioner], even if it might justifiably have
reached a different result upon a de novo review.” Valente v. Sec’y of Health & Human
Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

B. Standard to Determine Disability
The Commissioner has established a five-step evaluation process to determine
whether an individual is disabled as defined by the Social Security Act. 20 C.F.R. §§
404.1520, 416.920. The Supreme Court has recognized the validity of this sequential
evaluation process. See Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The five-step
process is as follows:

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First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is not,
the [Commissioner] next considers whether the claimant has
a “severe impairment” which significantly limits his 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
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 has the residual functional capacity to perform
his past work. Finally, if the claimant is unable to perform his
past work, the [Commissioner] then determines whether there
is other work which the claimant could perform. Under the
cases previously discussed, the claimant bears the burden of
the proof as to the first four steps, while the [Commissioner]
must prove the final one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord McIntyre v. Colvin, 758 F.3d
146, 150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can be made,
the SSA will not review the claim further.” Barnhart v. Thompson, 540 U.S. 20, 24 (2003).

III. ANALYSIS
A. Whether Substantial Evidence Supports Plaintiff’s
Mental Impairment, RFC, and the Opinion Evidence
At Step Two, the ALJ must determine whether the claimant has a severe impairment
that significantly limits his physical or mental abilities to do basic work activities. 20 C.F.R.
§§ 404.1520(c), 416.920(c). Basic work activities include walking, standing, sitting, lifting,
carrying, pushing, pulling, reaching, handling, seeing, hearing, speaking, understanding,
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remembering and carrying out simple instructions, using judgment, and responding
appropriately to supervision, co-workers, and usual work situations. See Taylor v. Astrue,
32 F. Supp. 3d 253, 265 (N.D.N.Y. 2012) (citing Gibbs v. Astrue, No. 07-CV-10563, 2008
WL 2627714, at *16 (S.D.N.Y. July 2, 2008); 20 C.F.R. §§ 404.1521(b)(1)-(5)). “Although
the Second Circuit has held that this step is limited to ‘screening out de minimis claims,’
[] 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, by itself, sufficient to render a
condition severe.” Taylor, 32 F. Supp. 3d at 265 (quoting Dixon v. Shalala, 54 F.3d 1019,
1030 (2d Cir. 1995); Coleman v. Shalala, 895 F. Supp. 50, 53 (S.D.N.Y. 1995)). Overall,
the claimant retains the burden of presenting evidence to establish severity. Id. (citing
Miller v. Comm’r of Soc. Sec., No. 05-CV-1371, 2008 WL 2783418, at *6-7 (N.D.N.Y. July
16, 2008)).
This Court has indicated the failure to find a specific impairment severe at Step Two
is harmless where the ALJ concludes (a) there is at least one other severe impairment, (b)
the ALJ continues with the sequential evaluation, and (c) the ALJ provides explanation
showing she adequately considered the evidence related to the impairment that is
ultimately found non-severe. See Fuimo v. Colvin, 948 F. Supp. 2d 260, 269-70 (N.D.N.Y.
2013) (citing Dillingham v. Astrue, No. 09-CV-0236, 2010 WL 3909630 (N.D.N.Y. Aug. 24,
2010), Report and Recommendation adopted by 2010 WL 3893906 (N.D.N.Y. Sept. 30,
2010)); see also Reices-Colon v. Astrue, 523 F. App’x 796, 798 (2d Cir. 2013) (summary
order) (finding that any error in failing to find plaintiff’s anxiety and panic disorder severe
at Step Two would be harmless because the ALJ found other severe impairments present,
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continued through the sequential evaluation process, and specifically considered plaintiff’s
anxiety and panic attacks at those subsequent steps).
RFC is defined as “‘what an individual can still do despite his or her limitations . . .
Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work activities
in an ordinary work setting on a regular and continuing basis.’” Pardee v. Astrue, 631 F.
Supp. 2d 200, 210 (N.D.N.Y. 2009) (quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.
1999)). “In making a residual functional capacity determination, the ALJ must consider a
claimant’s physical abilities, mental abilities, symptomology, including pain and other
limitations which could interfere with work activities on a regular and continuing basis.”
Pardee, 631 F. Supp. 2d at 210 (citing 20 C.F.R. § 404.1545(a)). “Ultimately, ‘[a]ny
impairment-related limitations created by an individual’s response to demands of work
. . . must be reflected in the RFC assessment.’” Hendrickson v. Astrue, No. 11-CV-0927,
2012 WL 7784156, at *3 (N.D.N.Y. Dec. 11, 2012) (quoting Social Security Ruling (“SSR”)
85-15, 1985 WL 56857, at *8). The RFC determination “must be set forth with sufficient
specificity to enable [the Court] to decide whether the determination is supported by
substantial evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
Here, the ALJ found that Plaintiff’s lumbar spondylolisthesis, lumbar stenosis, facet
arthropathy, lumbar radiculopathy, and chronic lumbar myofascitis are severe impairments.
(T. 12.) The ALJ found that Plaintiff has the RFC to perform the full range of light work.
(T. 16.)
At Step Two, the ALJ noted Plaintiff’s reported history of depression and mental
health treatment. (T. 13-14, 178-279, 362-412.) The ALJ also noted Dr. Melcher’s March
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2014 consultative examination (indicating a diagnosis of a recurrent major depressive
disorder and opiate/alcohol dependence in remission) and medical expert Dr. Clark’s
review of the file (indicating a diagnosis of major depression). (T. 14, 285-90, 475-83.)
The ALJ concluded that Plaintiff’s medically determinable mental impairment (indicated as
major depression) does not cause more than minimal limitation in his ability to perform
basic mental work activities and is therefore not severe. (T. 14.) The ALJ also found that
Plaintiff has a mild limitation in activities of daily living, no limitation in social functioning,
a mild limitation in concentration, persistence or pace, and no episodes of decompensation
of extended duration. (T. 14-15.) Within his RFC analysis, the ALJ noted the opinions of
Dr. Melcher and Dr. Clark and indicated that Plaintiff’s ability to perform simple tasks is
unaffected. (T. 18.) The ALJ indicated that a severe impairment is predicated upon the
inability to perform simple tasks. (Id.)
In March 2014, consultative examiner Dr. Melcher observed Plaintiff was
cooperative and related adequately. (T. 286.) He had a coherent and goal-directed
thought process, a full range affect that was dysphoric and flat at times, a euthymic mood,
clear sensorium, intact attention and concentration, mildly impaired recent and remote
memory skills due to emotional distress secondary to depression, average cognitive
functioning, and fair insight and judgment.

(T. 287.)

Dr. Melcher diagnosed major

depressive disorder (recurrent), opiate dependence in remission, and alcohol dependence
in remission. (T. 288.) She opined Plaintiff is able to follow and understand simple
directions and instructions, perform simple tasks independently, maintain attention and
concentration, and make appropriate decisions. (Id.) She also opined Plaintiff has mild
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limitations maintaining a regular schedule, learning new tasks, performing complex tasks
independently, and relating to others. (Id.) She opined he has a mild-to-moderate
limitation appropriately dealing with stress and noted that the results of the examination
appeared to be consistent with psychiatric problems, but this in itself, did not appear to be
significant enough to interfere with his ability to function on a daily basis. (Id.) She noted
Plaintiff would need assistance to manage funds due to recent remission from substance
abuse. (T. 288.) The ALJ indicated Dr. Melcher’s opinion was entitled to considerable
weight and that her opinion was consistent with Dr. Clark’s opinion. (T. 18.)
In December 2015, medical expert Dr. Clark responded to medical interrogatories
and noted a diagnosis of major depression. (T. 475.) She indicated Plaintiff did not meet
a Listing. (T. 477-78.) Dr. Clark opined that Plaintiff has mild restriction of activities of daily
living, no difficulties in maintaining social functioning, moderate difficulties in maintaining
concentration, persistence or pace, and one hospitalization in 2011. (T. 476.) She also
opined Plaintiff has moderate limitations in the ability to understand, remember and carry
out complex instructions and make judgments on complex work-related decisions. (T.
480.) In response to a question asking her to identify what Plaintiff could still do in a work
setting on a sustained basis despite his mental impairment, she indicated a low stress job
within his physical limitations and having no strict production or time requirements. (T.
479.) The ALJ found that Dr. Clark’s opinion was entitled to considerable weight. (T. 18.)
Plaintiff argues that the ALJ failed to properly evaluate his mental limitations at Step
Two and failed to include them in the RFC. (Dkt. No. 12, at 24 [Pl.’s Mem. of Law].) The
Court finds this argument persuasive in light of the ALJ’s RFC finding which does not
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contain any mental limitations. (T. 16.) Generally, the failure to find an impairment severe
at Step Two may be considered harmless, and the Court would be inclined to find such a
failure to be harmless error, since the ALJ found other impairments to be severe and
continued with the sequential evaluation. However, the opinion evidence (and the ALJ’s
treatment of that evidence, discussed further infra), calls into question whether the ALJ
properly considered the evidence related to this impairment.
Plaintiff argues that the ALJ failed to properly consider the opinion evidence
regarding his mental impairment and resulting limitations.3 (Dkt. No. 12, at 18 [Pl.’s Mem.
of Law].) The Court agrees.
First, the ALJ’s analysis of Dr. Clark’s opinion fails to address her indication that
Plaintiff can do a low stress job within his physical limitations and having no strict
production or time requirements. (T. 18, 479.) The ALJ provides no explanation of how
he analyzed this portion of Dr. Clark’s opinion, leaving the Court unable to determine if he
considered it at all. (T. 18.) Defendant argues that, even if Dr. Clark’s restriction to low
stress work can be broadly read as showing Plaintiff had a limitation in performing basic
work-related activities, it was reasonable for the ALJ not to adopt this limitation because
it was inconsistent with the rest of Dr. Clark’s opinion. (Dkt. No. 13, at 17 [Def.’s Mem. of

The Court notes that Plaintiff also argues that the ALJ failed to properly consider the
opinion evidence regarding his physical impairments and resulting limitations as well as his nonexertional limitation of pain. (Dkt. No. 12, at 11-18 [Pl.’s Mem. of Law].) The Court’s review of
this portion of the ALJ’s analysis indicates that a physical RFC for the full range of light work is
generally supported by the record, including Plaintiff’s treatment history and the opinions of Dr.
Fuchs, Dr. Wassef, and NP Dempsey indicating mainly moderate physical limitations. (T. 18-19,
291-95, 431, 433, 414-15, 465-74.) However, because remand is necessary to address the
deficiencies in the ALJ’s analysis of Plaintiff’s mental RFC, the ALJ should also conduct an
analysis of Plaintiff’s physical RFC as part of that review to the extent that it is impacted by the
analysis of Plaintiff’s mental impairments.
3

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Law].) More specifically, Defendant argues that the ALJ was entitled to rely on most of Dr.
Clark’s opinion, which was supported by the evidence, and reject the portion which was not
consistent with the record as a whole and was also more ambiguous. (Id.)
However, the ALJ did not provide sufficient analysis indicating such a rejection or
explaining why this portion of Dr. Clark’s opinion was rejected.4 (T. 18.) The ALJ is
required to provide rationale in the written decision sufficient to allow this Court to conduct
an adequate review of his findings. See Booker v. Astrue, No. 07-CV-0646, 2011 WL
3735808, at *5 (N.D.N.Y. Aug 24, 2011) (“The crucial factors in an ALJ’s decision must be
set forth in sufficient detail as to enable meaningful review by the court.”) (citing Ferraris,
728 F.2d at 587); Hickman ex rel. M.A.H. v. Astrue, 728 F. Supp. 2d 168, 173 (N.D.N.Y.
2010) (“The ALJ must ‘build an accurate and logical bridge from the evidence to [his]
conclusion to enable a meaningful review.’”) (quoting Steele v. Barnhart, 290 F.3d 936, 941
(7th Cir. 2002)). Defendant’s after-the-fact attempts to cure deficiencies in the ALJ’s
decision cannot be accepted as a substitute for explanation from the ALJ.
Second, the ALJ’s RFC analysis regarding Plaintiff’s mental impairment and
resulting limitations lacks sufficient specificity and rather focuses on Plaintiff’s ability to
perform simple tasks without fully addressing limitations. (T. 16-19, 479.) Specifically,
The Court notes a similar issue with the ALJ’s analysis of medical expert Dr. Fuchs’
opinion, to which the ALJ afforded great weight. (T. 18.) The ALJ failed to sufficiently address Dr.
Fuchs’ opined limitations including that Plaintiff can continuously lift and/or carry up to 10 pounds
and frequently lift and/or carry up to 20 pounds; sit for two hours at a time for a total of eight
hours, stand for one hour at a time for a total of three hours, walk for one hour at a time for a total
of three hours, occasionally climb ladders or scaffolds, stoop, kneel, crouch and crawl, frequently
climb stairs and ramps, occasionally tolerate exposure to humidity, wetness and extreme
cold/heat, and never tolerate exposure to vibrations. (T. 469-72.) While purporting to afford great
weight to his opinion, the ALJ provides no explanation as to why portions of Dr. Fuchs’ opinion
(including postural and environmental limitations) were not included in the RFC, which indicates a
full range of light work. (T. 16, 18.)
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within his analysis of Dr. Clark’s opinion, the ALJ emphasized that Plaintiff’s ability to
perform simple tasks was unaffected. (T. 18.) The ALJ noted that Dr. Clark indicated
moderate deficits in Plaintiff’s concentration and attention, but “that she refined her opinion,
finding that [Plaintiff] had no deficits in his ability to understand and remember simple
instructions, carry out simple instructions, and make judgments on simple work-related
decisions. Deficits in attention [and] concentration imposed moderate restrictions on
[Plaintiff’s] ability to understand and carry out complex tasks only.” (T. 18.) The ALJ
provides no explanation as to why Plaintiff was therefore not limited to simple work or if that
limitation was considered in light of Dr. Clark’s opinion. (Id.)
Third, the Court finds the ALJ’s emphasis on the non-severity of Plaintiff’s mental
impairment troubling because it appears that he conflates severity with disability by
explicitly stating that a “severe impairment is predicated upon the inability to perform simple
tasks” and ultimately including no mental limitations in the RFC. (T. 18; citing 20 C.F.R.
§§ 404.1521, 416.921.) It is therefore not clear that the ALJ applied the correct legal
standard when assessing the severity of Plaintiff’s mental impairment, and consequently,
the RFC. This troubling conclusion combined with the ALJ’s lack of sufficient analysis of
Dr. Clark’s opinion renders the Court unable to find that the severity and mental RFC
determinations are supported by substantial evidence.
For the reasons above, the Court finds that the severity and RFC determinations
and the ALJ’s consideration of the opinion evidence regarding Plaintiff’s mental impairment
are not supported by substantial evidence. Remand is therefore required on this basis.

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B. Whether Substantial Evidence Supports the ALJ’s Listing,
Credibility and Step Five Findings
Because remand is necessary and the ALJ will be required to address the abovenoted deficiencies in considering Plaintiff’s RFC and the opinion evidence when issuing a
new decision, the Court declines to reach a finding regarding Plaintiff’s other arguments.
(Dkt. No. 12, at 18-24 [Pl.’s Mem. of Law].) However, on remand, the ALJ should also
conduct a complete analysis of all steps of the sequential evaluation to reflect his
reconsideration of the findings related to severity and the RFC consistent with this Decision
and Order as part of that review.

IV. CONCLUSION
WHEREFORE, for the reasons stated above, it is hereby:
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 12) is
GRANTED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 13) is
DENIED; and it is further
ORDERED that Defendant’s decision denying Plaintiff disability benefits is
VACATED, and this case is REMANDED, pursuant to Sentence Four of 42 U.S.C. § 405(g)
for proceedings consistent with this Decision and Order.
IT IS SO ORDERED.
Dated:

September 19, 2018
Albany, New York

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