Lark v. Colvin

Filing 19

-CLERK TO FOLLOW UP- DECISION AND ORDER denying 14 Commissioner's Motion for Judgment on the Pleadings; granting 15 Plaintiff's Motion for Judgment on the Pleadings; and reversing and remanding this matter solely for the calculation and payment of benefits. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 3/30/16. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

KENNETH LARK,
Plaintiff,
-vs-

No. 1:13-CV-00334
(MAT)
DECISION AND ORDER

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

I.

Introduction
Represented by counsel, Kenneth Lark (“plaintiff”)

brings this action pursuant to Title XVI of the Social
Security Act (“the Act”), seeking review of the final
decision of the Commissioner of Social Security (“the
Commissioner”) denying his application for supplemental
security income (“SSI”).

The Court has jurisdiction over

this matter pursuant to 42 U.S.C. § 405(g).
before

the

Court

are

the

parties’

Presently

cross-motions

for

judgment on the pleadings pursuant to Rule 12(c) of the
Federal

Rules

of

Civil

Procedure.

For

the

reasons

discussed below, plaintiff’s motion is granted, and the

matter

is

reversed

and

remanded

solely

for

the

calculation and payment of benefits.
II. Procedural History
The record reveals that in February 2007, plaintiff
(d/o/b January 30, 1959) applied for SSI. After his
application was denied, plaintiff requested a hearing,
which was held before administrative law judge Robert T.
Harvey (“the ALJ”) on July 23, 2009. The ALJ issued an
unfavorable decision on August 18, 2009. On December 23,
2010, the Appeals Council reversed and remanded the ALJ’s
decision, with various instructions including directing
the

ALJ

to

further

evaluate

plaintiff’s

mental

impairments in accordance with the special technique set
out in 20 C.F.R. 416.920a, “documenting application of
the

technique

findings

and

in

the

decision

appropriate

by

rationale

providing
for

each

specific
of

the

functional areas described in 20 C.F.R. § 416.920a(c).”
T. 116.
A new hearing was held before the ALJ on April 6,
2011, at which plaintiff alleged disability as of an
amended onset date of February 27, 2007. The ALJ issued
2

an unfavorable decision on June 13, 2011. The Appeals
Council denied review and this timely action followed.
III.

The ALJ’s Decision
At step one of the five-step sequential evaluation,

see

20

C.F.R.

§

416.920,

the

ALJ

determined

that

plaintiff had not engaged in substantial gainful activity
since February 27, 2007, the application date. At step
two, the ALJ found that plaintiff suffered from the
following severe impairments: discogenic and degenerative
disease

of

the

cervical

and

lumbar

spine,

obesity,

depression, and anxiety. At step three, the ALJ found
that plaintiff did not have an impairment or combination
of impairments that met or medically equaled the severity
of any listed impairment. Regarding plaintiff’s mental
impairments,

the

ALJ

found

that

plaintiff

had

mild

restrictions in activities of daily living (“ADLs”),
social functioning, and concentration, persistence or
pace. The ALJ did not provide any supporting reasoning or
facts in relation to the findings regarding plaintiff’s
mental limitations.

3

Before proceeding to step four, the ALJ determined
that,

considering

all

of

plaintiff’s

impairments,

plaintiff retained the RFC to perform light work as
defined

in

20

C.F.R.

§

416.967(b),

with

various

nonexertional limitations. At step four, the ALJ found
that plaintiff had no past relevant work. At step five,
the

ALJ

found

that

considering

plaintiff’s

age,

education, work experience, and RFC, jobs existed in
significant
plaintiff

numbers

could

in

the

perform.

national

economy

Accordingly,

he

found

which
that

plaintiff was not disabled.
IV. Discussion
A district court may set aside the Commissioner’s
determination that a claimant is not disabled only if the
factual

findings

are

not

supported

by

“substantial

evidence” or if the decision is based on legal error. 42
U.S.C. § 405(g); see also Green-Younger v. Barnhart, 335
F.3d 99, 105-06 (2d Cir. 2003). “Substantial evidence
means ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
4

Plaintiff contends that the ALJ failed to properly
weigh the opinions of record, including the March 22,
2011 opinion of treating psychiatrist Dr. Belito Arana.1
Dr. Arana stated that he could not “render an opinion on
[plaintiff’s] employability”; however, he provided the
following

opinion

regarding

plaintiff’s

functional

capacity:
Based
on
our
clinical
observations,
[plaintiff’s] primary mental health issues
(depression, anxiety, and agoraphobia) have the
potential to adversely affect attendance and
even require that he take additional breaks to
calm symptoms of anxiety. Typical work stressors
would likely exacerbate his symptoms of anxiety
and lead to decompensation. [Plaintiff’s] mental

1

Plaintiff also contends that the ALJ failed to properly
follow the instructions of the Appeals Council on remand. The Court
does not reach this contention because, as discussed below, Dr.
Arana’s treating source opinion is dispositive on the issue of
disability. However, the Court notes that the ALJ failed to follow
several of the Appeals Council’s instructions on remand. For
example, the ALJ’s discussion of plaintiff’s mental impairments,
with regard to the special technique set forth in 20 C.F.R. §
416.920a, was devoid of “specific findings and appropriate
rationale,” see T. 116, in support of the ALJ’s conclusions as to
plaintiff’s limitations in the four broad functional domains. In
fact, a comparison of the ALJ’s original August 18, 2009 decision
to his June 13, 2011 decision reveals that his discussion of the
four broad functional areas is exactly the same in both. The Court
notes that, had a remand for calculation not been warranted based
on the ALJ’s failure to properly apply the treating physician rule,
this error would have separately warranted remand. See Ellis v.
Colvin, 29 F. Supp. 3d 288, 299 (W.D.N.Y. 2014) (“The failure of an
ALJ to abide by the directives in an Appeals Council remand order
constitutes legal error requiring remand.”).
5

health issues significantly interfere with his
activities of daily living and any expectation
of sustained attention and concentration on a
full-time basis is unrealistic. [Plaintiff]
shows no signs or symptoms of malingering.
T. 354. The record reflects that plaintiff was initially
evaluated by Dr. Arana in June 2009, and that he was
treated by Dr. Arana as recently as February 2011. During
the time period from June 2010 through February 2011,
plaintiff

saw

Dr.

Arana

four

times

for

medication

management and treatment. Those treatment notes reflect
that,

despite

medication,
paranoia

plaintiff’s

and

medications

management

social

included

of

his

chronic

anxiety,

condition

symptoms,

persisted.

Wellbutrin

(an

with

including
Plaintiff’s

antidepressant),

Seroquel (an antipsychotic Dr. Arana noted was prescribed
to

control

plaintiff’s

auditory

hallucinations),

and

Ambien (a sleep aid). In July 2010, Dr. Arana increased
plaintiff’s Seroquel dosage, and maintained plaintiff on
the increased dosage from that point forward.
The record also contains a detailed panic attack
journal, maintained by plaintiff, which recorded episodes
numbering from one to six attacks in any given month from
6

August

2009

through

February

2011,

and

the

symptoms

associated therewith. T. 723-67. Dr. Arana indicated in
a letter dated September 27, 2011 that he was deferring
a formal diagnosis of panic disorder. T. 905.
Although the treatment notes contained within the
record are relatively sparse, it is apparent from the
record that additional treatment notes likely existed but
were not provided to the Administration. For example, at
plaintiff’s initial June 2009 evaluation, Dr. Arana noted
that a follow-up four week appointment was scheduled,
although a note of such treatment does not appear in the
record. However, in the next treatment note dated June
2010, there is no indication that any gap in treatment
had taken place, and Dr. Arana recorded adjustment of
plaintiff’s already-existing prescriptions. It appears
from

Dr.

Arana’s

treatment

notes

that

he

had

been

treating regularly for the time period from his initial
evaluation through the most recent treatment note.
The ALJ gave little weight to Dr. Arana’s opinion,
for the sole reason that Dr. Arana “[did] not have a
longitudinal treatment history with [plaintiff].” T. 20.
7

However, as discussed above, it appears from the record
that

Dr.

initial

Arana

treated

evaluation

in

plaintiff
June

2009

regularly

his

throughout

and

from

the

relevant time period. At the very least, Dr. Arana had an
eight-month

(June

2010

through

February

2011)

longitudinal relationship with plaintiff. Treatment notes
from that time period indicate that plaintiff had been
diagnosed

with

generalized

anxiety

disorder

and

depressive disorder, not otherwise specified (“NOS”), and
was prescribed Seroquel, an antipsychotic medication.
Dr.
plaintiff

Arana’s
as

limitations,
treatment

March

2011

opinion,

suffering

from

significant

is

notes

consistent
and

with

with

the

which

assessed

work-related

findings

plaintiff’s

of

his

prescription

medication regimen. Importantly, there is nothing in the
record which contradicts Dr. Arana’s opinion. Under these
circumstances, as plaintiff argues, Dr. Arana’s opinion
was

entitled

established

to

controlling

treating

weight

physician

rule.

under
See

the
20

wellC.F.R.

§ 416.927(c)(2) (“If we find that a treating source’s
opinion on the issue(s) of the nature and severity of
8

your

impairment(s)

is

well-supported

by

medically

acceptable clinical and laboratory diagnostic techniques
and

is

not

inconsistent

with

the

other

substantial

evidence in your case record, we will give it controlling
weight.”).
Given

the

controlling

weight

to

which

it

was

entitled, Dr. Arana’s opinion establishes that plaintiff
was disabled as a matter of law. Dr. Arana opined that
plaintiff’s mental impairments limited him to such an
extent

that

exacerbate

“[t]ypical
his

decompensation,”

work

symptoms
“mental

stressors

of

anxiety

health

issues

would
and

likely

lead

to

significantly

interfere[d] with his activities of daily living[,] and
any expectation of sustained attention and concentration
on a full-time basis is unrealistic.” T. 354 (emphasis
added).

As

plaintiff’s

the

vocational

hearing

expert

recognized,

who
such

testified

at

significant

limitations would result in plaintiff being unable to
maintain a full-time work schedule. See T. 79-82; see
also SSR 96-8p (defining “regular and continuing basis”

9

as “8 hours a day, for 5 days a week, or an equivalent
work schedule”).
The

Court

therefore

finds

that,

after

a

proper

application of the treating physician rule, plaintiff’s
disability

status

was

established

by

Dr.

Arana’s

controlling opinion. The standard for directing a remand
for

calculation

of

benefits

is

met

when

the

record

persuasively demonstrates the claimant's disability, see
Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980), and
where there is no reason to conclude that the additional
evidence might support the Commissioner's claim that the
claimant is not disabled, see Butts v. Barnhart, 388 F.3d
377, 385–86 (2d Cir. 2004). For the reasons stated above,
that standard is met in this case. Additionally, the
Second

Circuit

“has

recognized

delay

as

a

factor

militating against a remand for further proceedings where
the record contains substantial evidence of disability.”
McClain v. Barnhart, 299 F. Supp. 2d 309, 310 (S.D.N.Y.
2004) (citations omitted). Reversal for calculation of
benefits is particularly appropriate in this case because
plaintiff's benefits claim has been pending for over nine
10

years, and has already been remanded once by the Appeals
Council. Considering the egregious delay plaintiff has
experienced, and the convincing evidence of disability in
this case, the Court remands this case solely for the
calculation and payment of benefits.
V.

Conclusion
For the foregoing reasons, the Commissioner’s motion

for judgment on the pleadings (Doc. 14) is denied and
plaintiff’s motion (Doc. 15) is granted. This matter is
reversed and remanded solely for the calculation and
payment of benefits. The Clerk of the Court is directed
to close this case.
ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

March 30. 2016
Rochester, New York.

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