Scott v. Colvin et al
Filing
34
OPINION & ORDER re: 23 MOTION for Judgment on the Pleadings filed by Commissioner of Social Security: For the reasons discussed above, the Commissioner's motion for judgment on the pleadings (Dkt. No. 23) is DENIED, and the case is remanded to the Commissioner for further proceedings. The Clerk of Court shall close the case. (Signed by Magistrate Judge Andrew J. Peck on 7/18/2016) (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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WANDA SCOTT,
:
Plaintiff,
:
-against:
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF THE SOCIAL
:
SECURITY ADMINISTRATION
and COMMISSIONER OF SOCIAL SECURITY, :
Defendants.
15 Civ. 8785 (AJP)
OPINION & ORDER
:
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ANDREW J. PECK, United States Magistrate Judge:
Plaintiff Wanda Scott, represented by counsel, brings this action pursuant to § 205(g)
of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner
of Social Security (the "Commissioner") denying her Supplemental Security Income ("SSI")
benefits. (Dkt. No. 6: Compl.) Presently before the Court is the Commissioner's motion for
judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). (Dkt. No. 23: Comm'r Notice of Mot.)
The parties have consented to decision of this case by a United States Magistrate Judge pursuant to
28 U.S.C. § 636(c). (Dkt. No. 33.)
For the reasons set forth below, the Commissioner's motion (Dkt. No. 23) is
DENIED, and the case is remanded to the Commissioner for further proceedings.
FACTS
Procedural Background
On May 29, 2014, Scott protectively filed for SSI, alleging disability since October
1, 2013. (Dkt. No. 21: Administrative Record ("R.") 57, 110.) After the Commissioner denied
2
Scott's application (R. 58-68), she requested a hearing (R. 70-72), which was held before ALJ Gitel
Reich on May 12, 2015 (R. 27-43). On May 28, 2015, ALJ Reich issued a decision finding Scott
not disabled and able to perform unskilled sedentary work. (R. 12-22.) The Appeals Council denied
review on September 10, 2015. (R. 1-5.)
Non-Medical Evidence and Testimony
Scott, born in 1966, was forty-seven years old at the alleged October 1, 2013 onset
of her disability. (R. 110.) Scott was in special education but completed a GED and one year of
college. (R. 376.) She lives in a shelter for domestic violence victims. (R. 32, 109.) Scott has had
only odd jobs since the 1980s, and she last worked in 2013. (R. 32.) Scott was convicted of three
felonies for which she served approximately fifteen years in prison (R. 378), and most recently was
released in August 2012 after a drug trafficking conviction (R. 40-41, 451, 711). Scott has a history
of drug abuse (marijuana, heroin, cocaine, pain killers, opiates) and is currently on a Methadone
maintenance program. (R. 31, 260, 372, 378.) She reported that while she was unable to do
household chores, she was capable of traveling by public transportation. (R. 142.) Scott does not
spend time with other people (R. 141) and has had issues getting along with authority figures, losing
a job as a result (R. 138).
Scott testified that both mental and physical conditions prevented her from working.
(R. 34.) Scott testified that she had bipolar disorder, PTSD, attention deficit disorder, memory loss,
obsessive compulsive disorder, depression, "really bad anxiety," "very bad nightmares," seizures
and panic attacks. (R. 34-37, 41, 133, 138, 152.) While Scott acknowledged that medications
helped her "[t]o a certain degree," she stated that the medication had the side effect of causing
"twitching in the legs," and she still hated people, hated to be in crowds, and had auditory
hallucinations. (R. 35-37, 41-42.) Scott stated that because of these conditions, she was unable to
3
concentrate (R. 152), unable to go out alone (R. 142), did not like people and crowds (R. 133), did
not keep up with acquaintances (R. 37) and was locked in an isolated unit in prison for exhibiting
behavioral problems (R. 40). In terms of physical conditions, Scott testified that she suffered from
a torn meniscus in both knees, chronic asthma or chronic obstructive pulmonary disease, back pain
and acute migraines. (R. 37-40.) Scott stated that her physical conditions kept her from lifting
objects, sitting for long periods of time and walking or climbing stairs. (R. 38-39.)
Relevant Medical Evidence Before ALJ Reich
Treating Sources
F.E.G.S./WeCare
Scott was assessed by Dr. Robert London of F.E.G.S./WeCare on July 9, 2013. (R.
193.) The exam notes show that Scott had "limited sustained concentration and limited attention,"
some insight, logical thinking form and fair judgment. (R. 194.) Scott showed some nonexertional
work limitations: emotional ("mood swings, low stress tolerance"), interpersonal ("unstable
interpersonal relationships and limited work h[istory]") and general ("limited pace and limited
productivity"). (R. 196-97.) Dr. London diagnosed Scott with bipolar disorder, post-traumatic
stress disorder, obsessive-compulsive disorders, antisocial personality disorder, paranoid personality
disorder, and epilepsy. (R. 197-98.) Dr. London determined that Scott's medical condition would
"[l]ast [f]or [a]t [l]east 12 [m]onths" and make Scott unable to work. (R. 198.)
The F.E.G.S. records include a biopsychosocial summary prepared by F.E.G.S. social
worker Vanessa Thompson in January 2007. (R. 222.) The summary noted that Scott was
diagnosed with and received treatment for paranoid schizophrenia in 2006 and in the years prior to
1995. (R. 227.) The summary also identified that Scott was severely depressed when evaluated, that
she had asthma, seizures, anxiety, psychosis; she was diagnosed with post-traumatic seizure
4
disorder. (R. 228, 233, 235.)
The F.E.G.S. records also include an evaluation by Robin Kaynor conducted on June
27, 2013. (R. 238-39.) Scott traveled independently by public transportation to this appointment.
(R. 242.) Kaynor concluded that Scott suffered no exertional limitations and the only nonexertional
limitations noted were emotional ("low stress environment"), respiratory (need to be working
"indoors with good ventilation," "[a]void irritants/chemicals") and environmental limitations
("need[] seizure precautions; no unprotected heights; patient should not drive vehicles or operate
machinery"; "[a]void extreme temperatures"). (R. 272-74.) Kaynor diagnosed Scott with asthma
and anxiety. (R. 278-79.)
Kings County Hospital Center
Believing that she had a psychiatric problem, Scott sought a psychosocial assessment
at Kings County Hospital Center on November 20, 2012. (R. 446.) Scott reported that she did not
care about her family, had no friends, drugs made her feel normal and that her parental rights were
terminated. (R. 448.) Scott also was an abuse victim: she was molested as a child by her uncle and
was physically abused and locked in closets by her mother. (R. 446, 449.) She had been
hospitalized for psychiatric reasons more than 10 times since she was 15 years old. (R. 450.) Scott
had a GAF score of 65, and was diagnosed with psychotic disorder NOS, rule out SCAF bipolar
type, rule out PTSD, and seizure disorder. (R. 457.) In a letter dated March 30, 2015, Nurse
Falconer of Kings County Hospital Center confirmed that Scott was diagnosed with PTSD and mood
disorder, and was receiving individual and group mental health treatment and medication
management at the hospital. (R. 686.)
Kings County Hospital records reflect that Scott went to the emergency room for
injury and pain to her right knee on December 4, 2014 (R. 659), and for asthma on September 23,
5
2013 (R. 338-39, 348-49, 366). During an examination on August 28, 2013, Scott was diagnosed
with unspecified episodic mood disorder and generalized convulsive epilepsy. (R. 521-23.) Scott
received a brain MRI on September 23, 2013 because of her diagnosis of "[g]eneralized convulsive
epilepsy" (R. 364), which revealed no acute findings (R. 365). During the September 23, 2013 visit,
doctors also examined Scott's left knee (R. 367) and concluded that there were "[s]mall intercondylar
notch osteophytes" (R. 368). A bilateral knee evaluation on December 4, 2014 revealed normal
findings. (R. 665.) During the visit, Scott "suddenly became irate and began to verbally abuse staff"
and others. (R. 667.)
Lincoln Medical and Mental Health Center
On May 25, 2013, Scott was transported to Lincoln Medical Center by EMS for
"aggressive behavior very[] combative towards people at the shelter." (R. 403-04.) Scott had a GAF
score of 35, and was diagnosed by Dr. Pronoy Roy with epilepsy, substance induced mood disorder,
bipolar II disorder, OCD by history and opiates dependence. (R. 405-06.) Scott also was diagnosed
with "Schizophrenia, Residual, Chronic w/Acute Exacerbation" (R. 383-87), but did not meet the
involuntary admission criteria (R. 400).
SUNY Downstate Medical Center
SUNY Downstate Medical Center's attestation report dated April 14, 2014 and April
15, 2014 noted that Scott was diagnosed with unspecified episodic mood disorder, suicidal ideation,
opioid type dependence unspecified use, post-traumatic stress disorder, asthma, epilepsy without
intractable epilepsy, cocaine dependence unspecified use, bipolar disorder, borderline personality
disorder and schizoaffective disorder. (R. 530, 532.) The records also include evaluation reports
leading to the above diagnoses. (R. 550-630.)
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Lutheran Family Health Centers
Scott was evaluated by Dr. Eric Yu at Lutheran Family Health Centers on October
15, 2013. (R. 458-61.) Scott reported "a long history of stressors, including physical abuse from
her mother, molestation from her uncle, witnessing her father murder her uncle [and] being in
solitary confinement while incarcerated." (R. 458.) Scott further stated a history of OCD
symptoms, mood instability and auditory hallucinations. (Id.) Dr. Yu diagnosed Scott with PTSD,
obsessive-compulsive disorders, and bipolar disorder. (R. 460.)
State of Connecticut Department of Correction
The Connecticut Department of Correction records state that Scott was released on
August 31, 2012. (R. 711.) The August 31, 2012 release report notes that Scott had "[m]ood
[d]isorder NOS, PSD, PTSD," and seizure disorder. (R. 712.) When Scott was incarcerated, she
spent much of the time in a restrictive housing unit due to behavioral issues. (Id.) The release report
further notes that Scott "has a history of trauma starting at an early age[,] [h]as a history of mood
lability, depression, anxiety, and anger issues [and has] visual and auditory hallucinations." (Id.)
Brightpoint Health
Scott visited Brightpoint Health on March 27, 2015 for knee pain "due to bilateral
meniscus tears of both knees." (R. 720.) Nurse Nancy Partos noted that Scott had "pain/difficulty
going up and down stairs which causes her to have unsteady gait and puts her at risk for falls." (Id.)
Dr. Sydelle Ross evaluated Scott and in a letter dated April 16, 2015, stated that "[o]n physical
exam, [Scott had] obvious limitation to her functional status as indicated by increased pain with full
extension of the knee." (R. 719.) Dr. Ross further stated that Scott's "ability to flex the knee is
limited to only 90 degrees on the right and 60 degrees on the left because of increased pain.
Normally, someone should be able to flex the knee to 120 degrees." (Id.) Dr. Ross therefore
7
recommended that Scott "avoid activities that involve standing or walking for long periods of time."
(Id.) Scott was referred to an orthopedic surgeon for further treatment for the meniscus tears in both
knees. (R. 726.)
Consultative Medical Evidence
Dr. Dipti Joshi
Dr. Joshi performed a consultative examination of Scott on September 16, 2014. (R.
371.) Dr. Joshi described Scott's complaints of migraine headaches, photophobia, phonophobia,
nausea, vomiting, seizures, asthma, COPD, PTSD, bipolar disorder, schizoaffective disorder, and
knee pain. (Id.) Although Scott "[c]annot walk on heels and toes," she required no assistance to
"get[] on and off [the] exam table." (R. 372.) She "appeared to be in no acute distress." (Id.) Dr.
Joshi diagnosed Scott with seizures, migraine headaches, a history of substance abuse, bipolar
disorder, post-traumatic stress disorder, schizoaffective disorder, asthma, chronic obstructive
pulmonary disease, grand mal seizures, and left knee pain. (R. 374.) Dr. Joshi stated that Scott
"should avoid working from heights, operating heavy machinery, and driving [a] motor vehicle. She
should avoid dust, smoke, fumes, and strenuous activity, as well as chemicals and perfumes." (Id.)
Dr. Joshi referred Scott for a psychology evaluation. (Id.)
Dr. Arlene Broska
Dr. Arlene Broska performed a consultative psychiatric evaluation of Scott on
September 16, 2014. (R. 376-81.) Dr. Broska first reviewed Scott's psychiatric and treatment
history. (R. 376.) Scott received psychiatric treatment while she was imprisoned, and after release
she continued to receive treatment from Nurse Falconer once per week and Dr. Chung twice a month
at Kings County Hospital Center. (Id.) In the current functioning section, Dr. Broska discussed
Scott's descriptions of her symptoms. (R. 376-78.) Scott described that she "wakes up three times
8
per night," "d[id] not have a good appetite" and "gets irritated." (R. 376.) She stated that she
"like[d] animals more than people," experienced frequent mood changes and tried to commit suicide
on at least seven occasions. (R. 377.) Scott reported that she was abused in the past by her wife
who tried to kill her, and her memory of abuse could be triggered by a wide range of factors. (Id.)
She experienced breathing problems, dizziness and sometimes got nauseous and wanted to vomit.
(Id.) When her anxiety gets severe, Scott becomes aggressive. (Id.) Scott stated that she washed
herself frequently and will "rewash" anything touched. (Id.) Scott reported that she was sexually
assaulted by a prison guard at the age of 46 and by her former boyfriend when she was 22, and was
physically and sexually tortured as a 5-year-old child by her mother and uncle. (R. 377-78.) Scott
further described that she had "auditory and visual hallucinations" where voices told her to kill
herself or to "do 'strange things.'" (R. 378.)
In her mental status examination, Scott appeared well groomed, spoke clearly and
fluently, had clear thought and had a neutral mood. (R. 379.) She was oriented times three and had
normal memory skills. (Id.) She displayed no sign of hallucinations, delusions or paranoia. (Id.)
Scott's insight and judgment, however, were "[p]oor." (Id.) Broska diagnosed Scott with
unspecified bipolar and related disorder, post traumatic stress disorder, unspecified obsessivecompulsive and related disorder, opiate use disorder, cannabis use disorder and history of PCP use
disorder. (R. 380.) Dr. Broska concluded that
Vocationally, there is no evidence of limitation in [Scott's] ability to follow and
understand simple directions and instructions, perform simple and complex tasks
independently, maintain attention and concentration, and learn new tasks. There is
evidence for moderate limitation in maintaining a regular schedule . . . . There is
evidence for marked limitation in making appropriate decisions, relating adequately
with others, and appropriately dealing with stress.
The results of the examination appear to be consistent with psychiatric and substance
abuse problems and this may significantly interfere with [Scott's] ability to function
9
on a daily basis.
(R. 380.) Dr. Broska recommended psychiatric treatment, individual psychological therapy and
substance abuse treatment. (Id.) Scott's prognosis was "[g]uarded." (Id.)
Dr. Irene Chow
Dr. Irene Chow performed a consultative medical examination of Scott on January
8, 2014. (R. 488-94.) After reviewing Scott's psychiatric history beginning at age 15 (R. 489-90),
Dr. Chow diagnosed Scott with a history of seizure disorder, a history of migraine headaches,
asthma, left knee pain, methadone program, and substance use - recent relapse (R. 493). Dr. Chow
concluded that "there are mild to moderate limitations to prolonged walking, stair-climbing and
heavy lifting. [Scott] should avoid driving, operating machinery or working in environments near
heavy machinery or heights due to her seizure disorder. [Scott] should avoid dust, smoke or known
respiratory irritants." (R. 493-94.) Dr. Chow called for a psychological evaluation. (R. 494.)
Reviewer Dr. S. Juringa
On October 6, 2014, reviewer Dr. S. Juriga reviewed the record to determine if Scott
was disabled. (R. 45-56.) Dr. Juriga found that Scott had asthma, epilepsy, affective disorders and
substance abuse disorders. (R. 50.) He found that these disorders resulted in a "[m]ild" limitation
on maintaining concentration, persistence or pace, but a "[m]oderate" limitation on maintaining
social functioning. (Id.) Moreover, he found that Scott was moderately limited in performing
activities with a schedule, and maintaining regular attendance. (R. 53.) He also found moderate
limitations on proximity to others without being distracted by them; moderate limitations on
interacting with the public, getting along with co-workers, and accepting instructions or criticism
from supervisors. (R. 53-54.)
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ALJ Reich's Decision
On May 28, 2015, ALJ Reich denied Scott's application for benefits. (R. 22.) ALJ
Reich applied the five-step analysis in her decision. (R. 15-16.) At step one, ALJ Reich found that
Scott "ha[d] not engaged in substantial gainful activity since May 29, 2014, the application date."
(R. 17.)
At step two, ALJ Reich found that Scott "ha[d] the following severe impairments:
bilateral meniscus tears, seizure disorder, asthma, PTSD, bipolar disorder, and a history of substance
abuse." (Id.)
At step three, ALJ Reich determined that Scott "d[id] not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1." (Id.) ALJ Reich found that Scott's
mental impairments "d[id] not meet or medically equal the criteria of listing 12.04" because Scott
had only moderate difficulties in social functioning and in concentration, persistence or pace, no
restriction in activities of daily living, and "experienced no episodes of decompensation when she
[wa]s not abusing drugs." (R. 17-18.)
ALJ Reich found that Scott "ha[d] the residual functional capacity to perform
sedentary work as defined in 20 CFR 416.967(a). [Scott] is capable of performing simple, routine,
and repetitive work that has only occasional contact with people. She cannot work around heights,
dangerous machinery, or drive motor vehicles. She can have only occasional exposure to respiratory
irritants." (R. 18.) In reaching this conclusion, ALJ Reich "considered all symptoms and the extent
to which these symptoms can reasonably be accepted as consistent with the objective medical
evidence and other evidence, based on the requirements of 20 CFR 416.929 and SSRs 96-4p and 967p[, and] also considered opinion evidence in accordance with the requirements of 20 CFR 416.927
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and SSRs 96-2p, 96-5p, 96-6p and 06-3p." (R. 19.)
After "consider[ing] all records and reports," ALJ Reich determined that Scott's "own
activities and the medical evidence of record does not support the degree of limitations alleged" by
Scott. (R. 21.) ALJ Reich found that Scott had "some history of bipolar disorder and several other
impairments, but her most recent GAF score showed only low moderate depressive symptoms and
the results of her consultative psychiatric examination showed only moderate limitations when she
is sober" and "she [wa]s able to travel on her own." (R. 21, record citations omitted.)
ALJ Reich assigned "only some weight to Dr. Joshi's opinion . . . because he did not
fully address [Scott's] limitations." (Id.) ALJ Reich also assigned only "some weight to Dr.
Broska's opinion . . . because it is not consistent with the balance of the record that indicates [Scott]
has at most, moderate mental limitations when she is not using drugs." (Id.) Moreover, ALJ Reich
assigned "some weight to the DDE mental consultant's [Dr. Juriga's] opinion . . . because he/she is
not a treating or examining source and his/her, opinion is not consistent with objective medical
evidence." (Id.) ALJ Reich assigned considerable weight to Dr. Chow's opinion because ALJ Reich
found Dr. Chow's "opinion is consistent with the evidence in the record." (Id.)1/
At step four, ALJ Reich found that "[t]ransferability of job skills is not an issue
because the claimant does not have past relevant work." (R. 22.)
At step five, ALJ Reich found that "[c]onsidering [Scott's] age, education, work
experience, and residual functional capacity, there are jobs that exist in significant numbers in the
national economy that [Scott] can perform." (Id.) ALJ Reich determined that:
If the claimant had the residual functional capacity to perform the full range of
1/
ALJ Reich "assign[ed] considerable weight to Dr. Joshi's opinion (Exhibit 17F)". (R. 21.)
Exhibit 17F, however, contains Dr. Chow's opinion, not Dr. Joshi's. (R. 489.)
12
sedentary work, considering the claimant's age, education, and work experience,
Medical-Vocational Rule 201.18 would direct a finding of "not disabled". However,
the additional limitations have little effect on the performance of unskilled sedentary
work. A finding of "not disabled" is therefore appropriate under the framework of
rules 85-15 and 96-9p.
(R. 22.) Based on this finding, ALJ Reich concluded that Scott has "not been under a disability, as
defined in the Social Security Act since May 29, 2014, the date the application was filed." (Id.)
Additional Medical Evidence Submitted to and Considered by the Appeals Council
After ALJ Reich's decision, Scott was evaluated at Kings County Hospital Center on
June 24, 2015 by Nurse Falconer. (R. 734-36.) During this evaluation, Nurse Falconer diagnosed
Scott with mood disorder NOS, post-traumatic stress disorder, borderline personality disorder,
seizures, asthma, migraines and knee problems. (R. 735.) Scott had a GAF score of 60. (R. 736.)
Scott also was assessed by Dr. Mayumi Benavides at Columbia University on May
12, 2015 and June 2, 2015. (R. 730-33.) Dr. Benavides diagnosed Scott with mood disorder NOS,
psychotic disorder NOS, rule out bipolar disorder, rule out schizoaffective disorder, PTSD, rule out
OCD, opiate dependence on replacement therapy (methadone), rule out borderline personality
disorder, TBI, seizure disorder and asthma. (R. 733.) Scott had a GAF score of 50. (Id.)
ANALYSIS
I.
THE APPLICABLE LAW
A.
Definition of Disability
A person is considered disabled for Social Security benefits purposes when he is
unable "to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A); see, e.g., Barnhart v. Thomas, 540 U.S. 20, 23, 124 S. Ct. 376, 379 (2003); Barnhart
13
v. Walton, 535 U.S. 212, 214, 122 S. Ct. 1265, 1268 (2002); Impala v. Astrue, 477 F. App'x 856,
857 (2d Cir. 2012).2/
An individual shall be determined to be under a disability only if [the combined
effects of] his physical or mental impairment or impairments are of such severity that
he is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him,
or whether he would be hired if he applied for work.
42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); see, e.g., Barnhart v. Thomas, 540 U.S. at 23, 124 S.
Ct. at 379; Barnhart v. Walton, 535 U.S. at 218, 122 S. Ct. at 1270.3/
In determining whether an individual is disabled for disability benefit purposes, the
Commissioner must consider: "(1) the objective medical facts; (2) diagnoses or medical opinions
based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or
others; and (4) the claimant's educational background, age, and work experience." Mongeur v.
Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam).4/
2/
See also, e.g., Salmini v. Comm'r of Soc. Sec., 371 F. App'x 109, 111 (2d Cir. 2010);
Betances v. Comm'r of Soc. Sec., 206 F. App'x 25, 26 (2d Cir. 2006); Surgeon v. Comm'r
of Soc. Sec., 190 F. App'x 37, 39 (2d Cir. 2006); Rodriguez v. Barnhart, 163 F. App'x 15,
16 (2d Cir. 2005); Malone v. Barnhart, 132 F. App'x 940, 941 (2d Cir. 2005); Butts v.
Barnhart, 388 F.3d 377, 383 (2d Cir. 2004), amended on other grounds, 416 F.3d 101 (2d
Cir. 2005); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Draegert v. Barnhart, 311
F.3d 468, 472 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Brown v.
Apfel, 174 F.3d 59, 62 (2d Cir. 1999); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999);
Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d
Cir. 1998); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).
3/
See also, e.g., Salmini v. Comm'r of Soc. Sec., 371 F. App'x at 111; Betances v. Comm'r of
Soc. Sec., 206 F. App'x at 26; Butts v. Barnhart, 388 F.3d at 383; Draegert v. Barnhart, 311
F.3d at 472; Shaw v. Chater, 221 F.3d at 131-32; Rosa v. Callahan, 168 F.3d at 77; Balsamo
v. Chater, 142 F.3d at 79.
4/
See, e.g., Brunson v. Callahan, No. 98-6229, 199 F.3d 1321 (table), 1999 WL 1012761 at
(continued...)
14
B.
Standard of Review
A court's review of the Commissioner's final decision is limited to determining
whether there is "substantial evidence" in the record as a whole to support such determination. E.g.,
42 U.S.C. § 405(g); Giunta v. Comm'r of Soc. Sec., 440 F. App'x 53, 53 (2d Cir. 2011).5/ "'Thus,
the role of the district court is quite limited and substantial deference is to be afforded the
Commissioner's decision.'" Morris v. Barnhart, 02 Civ. 0377, 2002 WL 1733804 at *4 (S.D.N.Y.
July 26, 2002) (Peck, M.J.).6/
The Supreme Court has defined "substantial evidence" as "'more than a mere scintilla
[and] 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); accord, e.g.,
Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013); Rosa v. Callahan, 168 F.3d at 77; Tejada v.
4/
(...continued)
*1 (2d Cir. Oct. 14, 1999); Brown v. Apfel, 174 F.3d at 62.
5/
See also, e.g., Prince v. Astrue, 514 F. App'x 18, 19 (2d Cir. 2013); Salmini v. Comm'r of
Soc. Sec., 371 F. App'x 109, 111 (2d Cir. 2010); Acierno v. Barnhart, 475 F.3d 77, 80-81 (2d
Cir.), cert. denied, 551 U.S. 1132, 127 S. Ct. 2981 (2007); Halloran v. Barnhart, 362 F.3d
28, 31 (2d Cir. 2004); Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir. 2003); Veino v.
Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.
2000); Brown v. Apfel, 174 F.3d 59, 61 (2d Cir. 1999); Rosa v. Callahan, 168 F.3d 72, 77
(2d Cir. 1999); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Perez v. Chater, 77 F.3d
41, 46 (2d Cir. 1996); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Mongeur v.
Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam); Dumas v. Schweiker, 712 F.2d
1545, 1550 (2d Cir. 1983).
6/
See also, e.g., Florencio v. Apfel, 98 Civ. 7248, 1999 WL 1129067 at *5 (S.D.N.Y. Dec. 9,
1999) (Chin, D.J.) ("The Commissioner's decision is to be afforded considerable deference;
the reviewing court should 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."
(quotations & alterations omitted)).
15
Apfel, 167 F.3d at 773-74.7/ "[F]actual issues need not have been resolved by the [Commissioner]
in accordance with what we conceive to be the preponderance of the evidence." Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212, 103 S. Ct. 1207 (1983). The
Court must be careful not to "'substitute its own judgment for that of the [Commissioner], even if
it might justifiably have reached a different result upon a de novo review.'" Jones v. Sullivan, 949
F.2d 57, 59 (2d Cir. 1991).8/
The Court, however, will not defer to the Commissioner's determination if it is "'the
product of legal error.'" E.g., Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at *7 (S.D.N.Y.
Mar. 29, 2000) (Peck, M.J.); see also, e.g., Douglass v. Astrue, 496 F. App'x 154, 156 (2d Cir.
2012); Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004), amended on other grounds, 416 F.3d 101
(2d Cir. 2005); Tejada v. Apfel, 167 F.3d at 773 (citing cases).
The Commissioner's regulations set forth a five-step sequence to be used in
evaluating disability claims. 20 C.F.R. §§ 404.1520, 416.920; see, e.g., Barnhart v. Thomas, 540
U.S. 20, 24-25, 124 S. Ct. 376, 379-80 (2003); Bowen v. Yuckert, 482 U.S. 137, 140, 107 S. Ct.
2287, 2291 (1987). The Supreme Court has articulated the five steps as follows:
Acting pursuant to its statutory rulemaking authority, the agency has promulgated
regulations establishing a five-step sequential evaluation process to determine
disability. If at any step a finding of disability or nondisability can be made, the SSA
will not review the claim further. [1] At the first step, the agency will find
nondisability unless the claimant shows that he is not working at a "substantial
gainful activity." [2] At step two, the SSA will find nondisability unless the claimant
shows that he has a "severe impairment," defined as "any impairment or combination
7/
See also, e.g., Halloran v. Barnhart, 362 F.3d at 31; Jasinski v. Barnhart, 341 F.3d at 184;
Veino v. Barnhart, 312 F.3d at 586; Shaw v. Chater, 221 F.3d at 131; Brown v. Apfel, 174
F.3d at 61; Perez v. Chater, 77 F.3d at 46.
8/
See also, e.g., Campbell v. Astrue, 465 F. App'x 4, 6 (2d Cir. 2012); Veino v. Barnhart, 312
F.3d at 586.
16
of impairments which significantly limits [the claimant's] physical or mental ability
to do basic work activities." [3] At step three, the agency determines whether the
impairment which enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled; if so, the claimant
qualifies. [4] If the claimant's impairment is not on the list, the inquiry proceeds to
step four, at which the SSA assesses whether the claimant can do his previous work;
unless he shows that he cannot, he is determined not to be disabled. [5] If the
claimant survives the fourth stage, the fifth, and final, step requires the SSA to
consider so-called "vocational factors" (the claimant's age, education, and past work
experience), and to determine whether the claimant is capable of performing other
jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 540 U.S. at 24-25, 124 S. Ct. at 379-80 (fns. & citations omitted).9/
The claimant bears the burden of proof as to the first four steps; if the claimant meets
the burden of proving that he cannot return to his past work, thereby establishing a prima facie case,
the Commissioner then has the burden of proving the last step, that there is other work the claimant
can perform considering not only his medical capacity but also his age, education and training. See,
e.g., Barnhart v. Thomas, 540 U.S. at 25, 124 S. Ct. at 379-80.10/
II.
ALJ REICH ERRED IN TREATING THE GRID AS DISPOSITIVE GIVEN
SCOTT'S NONEXERTIONAL PSYCHOLOGICAL LIMITATIONS
In the fifth step, the burden shifts to the Commissioner, "who must produce evidence
to show the existence of alternative substantial gainful work which exists in the national economy
and which the claimant could perform, considering not only his physical capability, but as well his
9/
Accord, e.g., Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012); Rosa v. Callahan, 168
F.3d at 77; Tejada v. Apfel, 167 F.3d at 774; see also, e.g., Jasinski v. Barnhart, 341 F.3d
at 183-84; Shaw v. Chater, 221 F.3d at 132; Brown v. Apfel, 174 F.3d at 62; Balsamo v.
Chater, 142 F.3d 75, 79-80 (2d Cir. 1998); Perez v. Chater, 77 F.3d at 46; Dixon v. Shalala,
54 F.3d 1019, 1022 (2d Cir. 1995); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
10/
See also, e.g., Selian v. Astrue, 708 F.3d at 418; Betances v. Comm'r of Soc. Sec., 206 F.
App'x 25, 26 (2d Cir. 2006); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003);
Rosa v. Callahan, 168 F.3d at 80; Perez v. Chater, 77 F.3d at 46; Berry v. Schweiker, 675
F.2d at 467.
17
age, his education, his experience and his training." Parker v. Harris, 626 F.2d 225, 231 (2d Cir.
1980).11/
In meeting her burden under the fifth step, the Commissioner:
may rely on the medical-vocational guidelines contained in 20 C.F.R. Part 404,
Subpart P, App. 2, commonly referred to as "the Grid". The Grid takes into account
the claimant's residual functional capacity in conjunction with the claimant's age,
education and work experience. Based on these factors, the Grid indicates whether
the claimant can engage in any other substantial gainful work which exists in the
national economy. Generally the result listed in the Grid is dispositive on the issue
of disability.
Zorilla v. Chater, 915 F. Supp. 662, 667 (S.D.N.Y. 1996) (fn. omitted); see, e.g., Heckler v.
Campbell, 461 U.S. 458, 461-62, 465-68, 103 S. Ct. 1952, 1954-55, 1956-58 (1983) (upholding the
promulgation of the Grid); Roma v. Astrue, 468 F. App'x at 20-21; Martin v. Astrue, 337 F. App'x
87, 90 (2d Cir. 2009); Rosa v. Callahan, 168 F.3d at 78; Perez v. Chater, 77 F.3d 41, 46 (2d Cir.
1996); Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986).
However, "relying solely on the Grids is inappropriate when nonexertional limitations
'significantly diminish' plaintiff's ability to work so that the Grids do not particularly address
plaintiff's limitations." Vargas v. Astrue, 10 Civ. 6306, 2011 WL 2946371 at *13 (S.D.N.Y. July
20, 2011); see also, e.g., Travers v. Astrue, 10 Civ. 8228, 2011 WL 5314402 at *10 (S.D.N.Y. Nov.
2, 2011) (Peck, M.J.), R. & R. adopted, 2013 WL 1955686 (S.D.N.Y. May 13, 2013); Lomax v.
Comm'r of Soc. Sec., No. 09-CV-1451, 2011 WL 2359360 at *3 (E.D.N.Y. June 6, 2011) ("Sole
reliance on the grids is inappropriate, however, where a claimant's nonexertional impairments
'significantly limit the range of work permitted by his exertional limitations.'").
11/
See, e.g., Roma v. Astrue, 468 F. App'x 16, 20 (2d Cir. 2012); Arruda v. Comm'r of Soc.
Sec., 363 F. App'x 93, 95 (2d Cir. 2010); Butts v. Barnhart, 388 F.3d 377, 381 (2d Cir.
2004), amended on other grounds, 416 F.3d 101 (2d Cir. 2005); Rosa v. Callahan, 168 F.3d
72, 77 (2d Cir. 1999).
18
Rather, where the claimant's nonexertional limitations "'significantly limit the range
of work permitted by his exertional limitations,' the ALJ is required to consult with a vocational
expert." Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Bapp v. Bowen, 802 F.2d at
605); see also, e.g., Selian v. Astrue, 708 F.3d 409, 421 (2d Cir. 2013) ("We have explained that the
ALJ cannot rely on the Grids if a non-exertional impairment has any more than a 'negligible' impact
on a claimant's ability to perform the full range of work, and instead must obtain the testimony of
a vocational expert."); Rosa v. Callahan, 168 F.3d at 82 ("Where significant nonexertional
impairments are present at the fifth step in the disability analysis, however, 'application of the grids
is inappropriate.' Instead, the Commissioner 'must introduce the testimony of a vocational expert
(or other similar evidence) that jobs exist in the economy which claimant can obtain and perform.'"
(quoting & citing Bapp v. Bowen, 802 F.2d at 603, 605-06)); Suarez v. Comm'r of Soc. Sec., No.
09-CV-338, 2010 WL 3322536 at *9 (E.D.N.Y. Aug. 20, 2010) ("If a claimant has nonexertional
limitations that 'significantly limit the range of work permitted by his exertional limitations,' the ALJ
is required to consult with a vocational expert." (quoting Zabala v. Astrue, 595 F.3d at 411)).
ALJ Reich relied exclusively upon the medical-vocational guidelines to determine
that "there are jobs that exist in significant numbers in the national economy that [Scott] can
perform." (R. 22; see page 11 above.) In doing so, ALJ Reich wrote that Scott's "additional
limitations have little effect on the performance of unskilled sedentary work." (R. 22; see page 11
above.) ALJ Reich already had determined that Scott's nonexertional limitations limited her to
"simple, routine, and repetitive work that has only occasional contact with people. [Scott] cannot
work around heights, dangerous machinery, or drive motor vehicles. [Scott] can have only
occasional exposure to respiratory irritants." (R. 18; see page 10 above.) ALJ Reich further noted
that Scott "has some psychotic features but they are not disabling" and Scott's "consultative
19
psychiatric examination showed only moderate limitations when she is sober." (R. 21, emphasis
added.) At step five, however, ALJ Reich did not further explain her conclusion that these
"additional limitations" had "little effect" on the range of work open to Scott. (See R. 22.)
In relying upon the Grids, rather than the testimony of a vocational expert, ALJ Reich
was obligated to explain her finding that Scott's nonexertional limitations had only a negligible
impact on the range of work permitted by her exertional limitations. See, e.g., Chaparro v. Colvin,
15 Civ. 2349, 2016 WL 213430 at *18 (S.D.N.Y. Jan. 19, 2016) (Peck, M.J.) ("In relying upon the
Grids, rather than the testimony of a vocational expert, ALJ Edgell was obligated to explain her
finding that [the claimant's] nonexertional limitations had only a negligible impact on the range of
work permitted by his exertional limitations."); Hernandez v. Colvin, 13 Civ. 3035, 2014 WL
3883415 at *15 (S.D.N.Y. Aug. 7, 2014) ("Although an ALJ has discretion to conclude that the Grid
adequately addresses a plaintiff's non-exertional impairments, courts in this Circuit have held that
the ALJ is obligated to explain such a finding."); Cruz v. Colvin, 12 Civ. 7346, 2013 WL 3333040
at *19 (S.D.N.Y. July 2, 2013) (Peck, M.J.) (Where the ALJ "treated the Grid as dispositive because
he found that [claimant's] nonexertional limitations did not significantly reduce, or only had a
negligible impact on, [claimant's] work capacity . . . [the ALJ] was obligated to explain that
finding."), R. & R. adopted, 2014 WL 774966 (S.D.N.Y. Feb. 21, 2014).
Moreover, courts in this district consistently have found it to be reversible error for
ALJs to rely solely on the Grids when a plaintiff has moderate psychiatric limitations resulting in
nonexertional limitations. See, e.g., Chaparro v. Colvin, 2016 WL 213430 at *18; Kessler v.
Colvin, 14 Civ. 8201, 2015 WL 6473011 at *2, *6-7 (S.D.N.Y. Oct. 27, 2015) (remand where ALJ
"did not . . . address whether [the plaintiff's] impairments required expert testimony" and did not
"identify types of unskilled jobs [the plaintiff] could perform" because the ALJ should have
20
explained why vocational expert testimony was unnecessary for a plaintiff who could not perform
his past relevant work and whose "'sole impairment [was] a mental impairment'"); CorrealeEnglehart v. Astrue, 687 F. Supp. 2d 396, 442 (S.D.N.Y. 2010) ("[P]laintiff's mental health
symptoms -- including the noted impact of pain on her psychological status -- potentially constituted
non-exertional limitations on her ability to work. Without an explanation by the ALJ of why her
mental health problems did not constitute nonexertional limitations, he was obligated to conduct a
non-grid assessment of her work capability under step five. It was therefore improper for the ALJ
to rely solely on the grids as the exclusive determinant of disability status . . . . In this situation it
would be necessary for the ALJ to call a vocational expert, submit other evidence of jobs that an
individual with her limitations could perform, or to explain fully why plaintiff's limitations are not
significant enough to warrant the opinion of such an expert." (fns. omitted)); Baldwin v. Astrue, 07
Civ. 6958, 2009 WL 4931363 at *28 (S.D.N.Y. Dec. 21, 2009) ("[W]e consider the ALJ's
conclusion that the plaintiff's non-exertional limitations did not significantly impact his employment
prospects to be erroneous.")
Thus, as Scott argues, because she "needs to be in contact with others, [and to] relate
appropriately to others . . . even [for] unskilled work, application of the Medical-Vocation
Guidelines is erroneous." (Dkt. No. 27: Scott Br. at 29.) Scott's medical records reflect a variety
of mental conditions, which are documented through multiple diagnoses and self-reports. (See page
2-9 above.) Although the Commissioner argues that "[v]ocational expert evidence was not
warranted, as the RFC finding did not include nonexertional limitations that 'significantly diminish'
the occupational base of sedentary work" (Dkt. No. 32: Comm'r Reply Br. at 8), ALJ Reich was at
a minimum obligated to explain her findings. Thus, ALJ Reich should not have made a blanket
conclusion that Scott's nonexertional limitations would have little impact on the performance of
21
sedentary work, and should have provided more explanation in this regard.
As for the two Second Circuit decisions cited by the Commissioner (Comm'r Reply
Br. at 7), neither Zabala v. Astrue, 595 F.3d at 411, nor Zedanovich v. Astrue, 361 F. App'x 245,
246 (2d Cir. 2010), supports the proposition that an ALJ may determine that a claimant's
nonexertional limitations had little or no effect on the occupational base without any further
explanation. In Zedanovich v. Astrue, the Second Circuit upheld the ALJ's determination where he
had "'carefully analyzed plaintiff's nonexertional impairments and determined that there was no
significant limitation in the range of unskilled sedentary work that plaintiff could perform.'"
Zedanovich v. Astrue, 361 F. App'x at 246 (emphasis added). In Zabala v. Astrue, 595 F.3d at 411,
the Second Circuit upheld an ALJ's reliance on the Grids following the ALJ's finding that a
claimant's nonexertional limitations "did not result in an additional loss of work capacity" because
the "ALJ found that Petitioner's mental condition did not limit her ability to perform unskilled work,
including carrying out simple instructions, dealing with work changes, and responding to
supervision." Zabala v. Astrue, 595 F.3d at 411. In contrast, although ALJ Reich determined that
Scott "is capable of performing simple routine, and repetitive work that has only occasional contact
with people," she also found a history of bipolar disorder and several other psychiatric impairments
with moderate depressive symptoms and other moderate limitations. (See pages 10-11 above.) ALJ
Reich did not discuss how these findings related to her step five determination. (See pages 11-12
above.) Nor did ALJ Reich provide any other discussion of what evidence she relied on to
determine that Scott's "moderate [mental] limitations" had only a negligible impact on the
occupational base of unskilled sedentary work. (See id.)
Therefore, because ALJ Reich failed to explain why Scott's nonexertional limitations
had only a negligible impact on the range of work available, this case is remanded for vocational
22
expert testimony and a more detailed explanation from ALJ Reich why Scott's mental impairments
do not affect her ability to do sedentary work.12/
CONCLUSION
For the reasons discussed above, the Commissioner's motion for judgment on the
pleadings (Dkt. No. 23) is DENIED, and the case is remanded to the Commissioner for further
proceedings. The Clerk of Court shall close the case.
SO ORDERED.
Dated:
New York, New York
July 18, 2016
_______________________________
Andrew J. Peck
United States Magistrate Judge
Copies ECF to:
12/
All Counsel
Scott also argues that ALJ Reich failed to properly weigh the medical opinion evidence
(Scott Br. at 14-19), erred in formulating the residual functional capacity (Scott Br. at 14-19,
25-27), failed to perform a proper evaluation of Scott's history of substance abuse (Scott Br.
at 23-25) and failed to properly evaluate Scott's credibility (Scott Br. at 21-23), and that the
Appeals Council erred when it determined that Scott's new evidence did not warrant review
(Scott Br. at 19-21). Because ALJ Reich's erroneous reliance on the Grids requires remand,
it is not necessary for the Court to address these arguments. On remand, the SSA should
consider Scott's arguments.
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