Johnson v. Colvin

Filing 14

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 8 Motion for Judgment on the Pleadings to the extent that this matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order; denying 11 Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 2/17/16. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ALEXIS JOHNSON,
Plaintiff,
-vs-

No. 1:14-CV-00353 (MAT)
DECISION AND ORDER

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

I.

Introduction
Represented by counsel, Alexis Johnson (“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 her application for
supplemental security income (“SSI”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g). Presently before
the Court are the parties’ 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

to

the

extent

that

this

matter

is

remanded

to

the

Commissioner for further administrative proceedings consistent with
this Decision and Order.
II.

Procedural History
The record reveals that in April 2011, plaintiff (d/o/b

March 9, 1983) applied for SSI, alleging disability as of November
25, 2010. After her application was denied, plaintiff requested a
hearing, which was held before administrative law judge Eric L.

Glazer

(“the

ALJ”)

on

December

12,

2012.

The

ALJ

issued

an

unfavorable decision on February 6, 2013. The Appeals Council
denied review of that decision and this timely action followed.
III. The ALJ’s Decision
The ALJ followed the well-established five-step sequential
evaluation

promulgated

by

the

Commissioner

for

adjudicating

disability claims. See 20 C.F.R. § 404.1520. At step one, the ALJ
determined that plaintiff had not engaged in substantial gainful
activity since April 27, 2011, the application date. At step two,
the ALJ found that plaintiff suffered from the following severe
impairments: schizoaffective disorder, post-concussion syndrome,
and migraine headaches. At step three, the ALJ found that plaintiff
did not have an impairment or combination of impairments that met
or medically equaled a listed impairment.
Before proceeding to step four, the ALJ determined that,
considering all of plaintiff’s impairments, plaintiff retained the
RFC to perform a full range of work at all exertional levels but
with the following nonexertional limitations: she retained the
ability to perform the basic mental demands of unskilled work,
including the ability to understand, remember, and carry out simple
instructions, with occasional contact with the public supervisors,
and coworkers.
At step four, the ALJ found that plaintiff could perform her
past relevant work as a dishwasher. Alternately, at step five, the

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ALJ found that considering plaintiff’s age, work experience, and
RFC, there were significant numbers of jobs in the national economy
which she could perform. Accordingly, he found that she 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. Barnhard, 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).
Plaintiff’s primary contention is that the ALJ erred in
failing to properly develop the record, given that the record
indicates that regular treatment notes exist from plaintiff’s
weekly mental health treatment, but the ALJ did not recontact
treating sources in order to obtain them. The Court agrees with
plaintiff that the ALJ did not properly develop the record in this
case, which resulted in a finding unsupported by substantial
evidence.
The medical record in this case is sparse. The earliest record
of treatment reveals that from June 19, 2007 through July 5, 2007,
plaintiff was hospitalized at Erie County Medical Center (“ECMC”)

3

following an incident in which she was found rummaging through a
stranger’s car and when caught, pulled a steak knife on the
stranger. Treatment notes stated that plaintiff could not “give an
account of herself,” noting that she was “somewhat grandiose about
writing a book, winning a contest.” T. 268. She was noted as
“increasingly

odd,”

demanding

that

her

friend

was

her

wife,

behavior which resulted in that friend obtaining an order of
protection.
Plaintiff, who was age 24 at the time, was diagnosed with
bipolar disorder, manic, with psychotic features, with notes to
rule out schizoaffective disorder and alcohol dependence. During
her hospital stay, she was started on Geodon (an antipsychotic
medication for treatment of schizophrenia and bipolar disorder),
which resulted in a gradual decrease in her grandiosity. However,
because she “remained somewhat hyperactive with an elevated affect
and mood,” she was prescribed a gradually increasing dose of
Depakote (an anticonvulsant and mood stabilizer, used for treatment
of seizures, bipolar disorder, and migraines), after which she
“show[ed] improvement in her mood control and remained in good
behavioral control.” T. 269. Her global assessment of functioning
at discharge was assessed at 45-50, indicating serious symptoms
(such as suicidal ideation) or a serious impairment in social or
occupational functioning.. See

Am. Psych. Ass'n, Diagnostic and

Statistical Manual of Mental Disorders–Text Revision (“DSM–IV–TR”),

4

at 34 (4th ed., rev. 2000). Although this hospitalization occurred
prior to the relevant time period in this case, it is certainly
informative regarding plaintiff’s serious mental health history.
Plaintiff also received treatment for conditions resulting
from a fall in late November 2010. She reported to ECMC that she
had been pushed

down,

hit

her

face,

and

lost

consciousness.

Plaintiff sustained a left frontal skull fracture and facial
fractures. On observation in the hospital, she was agitated and
“required one-on-one observation”; it was noted that she had a
history of bipolar disorder with psychotic features. T. 265. In
April 2011, plaintiff treated at Community Health Center (“CHC”) in
Buffalo, reporting dizziness, nausea, vomiting, and forgetfulness
since her fall. She also reported that although she had been
diagnosed with bipolar disorder, she was not taking medications at
that time. Plaintiff was diagnosed with bipolar disorder and
postconcussion syndrome. Medical records also indicate that since
her fall, she reported chronic headaches.
The

record

indicates,

and

plaintiff

testified,

that

she

treated at Northwest Community Health Center (“NCHC”) for mental
health issues, on a weekly basis from September 2011 through at
least November 2012. The Administration requested treatment records
from ECMC; however, in November 2012 Amanda A. Prus, LMSW submitted
a letter “in lieu of records from 9/10/[11] to present.” T. 289.
The letter stated that plaintiff had three periods of treatment

5

with NCHC, beginning in 2007, and most recently in September 2011
when she “request[ed] help with getting back on her psychotropic
medications.” Id. LMSW Prus stated that plaintiff had been treating
weekly

for

medication

management

with

a

nurse

practitioner.

According to LMSW Prus, plaintiff had had issues with medication
compliance1 and using alcohol, but “[had] however been able to stay
out of the hospital and jail.” Id. Her current prescriptions were
Haldol (an antipsychotic), Depakote, and Cogentin (for treatment of
side effects of antipsychotic medications), and she carried a
diagnosis of shizoaffective disorder. Despite LMSW Prus’s clear
statement that regular mental health treatment notes existed in
plaintiff’s case, the ALJ did not make any further attempt to
obtain those documents.
Dr.

Jeffrey

questionnaire,

Grace,

also

in

of

NCHC,

November

completed

2012.

Dr.

a

Grace

mental
noted

RFC
that

plaintiff had not had a psychiatric admission since 2007. He
confirmed plaintiff’s prescriptions and reported that she was

1

The ALJ pointed out in his decision that in July 2011, consulting
examiner Dr. Susan Santarpia noted that plaintiff denied any current treatment
or medications. Additionally, Dr. Santarpia noted a guarded diagnosis “given
current lack of treatment.” T. 218. The ALJ appeared to hold plaintiff’s lack of
treatment against her, stating that she did not obtain treatment “from her
alleged onset date until September 2011,” and that “[e]ven then, her attendance
was only ‘fair’ and her compliance with medications was not always consistent.”
T. 29. These statements by the ALJ were improper given plaintiff’s psychiatric
diagnoses. Rather than indicating a lack of a serious mental impairment,
plaintiff’s noncompliance was very possibly a further indicator that her mental
health impairments interfered with her functioning. See, e.g., Reals v. Astrue,
2010 WL 654337, *2 (W.D. Ark. Feb. 19, 2010) (“According to the DSM, patients
suffering from . . . bipolar disorder also suffer from . . . poor insight . . .
predispos[ing] the individual to noncompliance with treatment[.]”).

6

diagnosed

with

schizoaffective

disorder,

stating,

“[s]chizoaffective disorder is an uninterrupted period of illness
during which, at some time, there is . . . a mood disorder episode
concurrent

with

two

or

mor[e]

of

the

following:

delusions,

hallucinations, disorganized speech, catonic [sic] behavior, or
negative symptoms.” T. 291. Dr. Grace noted that plaintiff was
“currently stable but in past has [had] manic depressive symptoms,
delusions, hallucinations, and negative symptoms.” Id. Her symptoms
also included impairment in impulse control, mood disturbance,
paranoid thinking or inappropriate suspiciousness, intense and
unstable interpersonal relationships and impulsive and damaging
behavior, inflated self-esteem, and pressures of speech.
Dr. Grace declined to give any assessment of plaintiff’s
functional capacities, stating that he could not “determine due to
never observing [plaintiff] in a work setting.” T. 293. Although
Dr. Grace noted that plaintiff could maintain socially appropriate
behavior for 50-minute sessions with her counselor, she “[did] have
an[] underlying psychotic process.” T. 295.
It is unclear from Dr. Grace’s statements, which indicated
that plaintiff was “known to [the] agency since [2007],” whether he
was actually one of plaintiff’s regular treating providers. It is
also unclear whether LMSW Prus was plaintiff’s treating counselor
or whether she merely provided a narrative summary of plaintiff’s
treatment. Similarly, it cannot be determined from this record the

7

extent of the role played by the nurse practitioner in plaintiff’s
treatment.
The regulations state that although a claimant is generally
responsible for providing evidence upon which to base an RFC
assessment,

before

determination,

the

the
ALJ

Administration
is

“responsible

makes
for

a

disability

developing

[the

claimant’s] complete medical history, including arranging for a
consultative

examination(s)

if

necessary,

and

making

every

reasonable effort to help [the claimant] get medical reports from
[the

claimant’s]

own

medical

sources.”

20

C.F.R.

§

416.945

(emphasis supplied) (citing 20 C.F.R. §§ 416.912(d) through (e)).
Although an ALJ has no duty to further develop the record “where
there are no obvious gaps” and where the ALJ possesses a “complete
medical history,” see Rosa v. Callahan, 168 F.3d 72, 79 n.5
(2d Cir. 1999), the record in this case indicated a significant gap
in plaintiff’s medical history.
Given the clear indications in the record that important
treatment notes were missing, the ALJ failed in his duty to further
develop the record in order to obtain a full longitudinal picture
of plaintiff’s mental health treatment. See, e.g., Simcox v.
Colvin, 2016 WL 228359, *4 (W.D.N.Y. Jan. 19, 2016) (remanding
where plaintiff testified, and record further indicated, that
plaintiff treated regularly for mental health issues, but ALJ
failed to obtain those records) (citing Corey v. Astrue, 2009 WL

8

4807609, *4 (N.D.N.Y. Dec. 8, 2009) (noting that ALJ had duty to
develop record where there was a “gap in the record that must be
remedied”); Metaxotos v. Barnhart, 2005 WL 2899851, *5 (S.D.N.Y.
Nov. 3, 2005) (remanding where ALJ failed to develop the record by
not

obtaining

treatment

notes,

records,

or

opinions

from

plaintiff's treating psychiatrist)).
The ALJ’s error was especially significant in this case for
several reasons. First, the history of plaintiff’s mental health
treatment that does appear in the record indicates a diagnosis of
schizoaffective disorder accompanied by quite serious symptoms,
which were managed with antipsychotic medications designed to treat
the

mood

instability

and

psychotic

features

of

bipolar

and

schizoaffective disorder. The record also indicates a history of a
bipolar disorder diagnosis, although the ALJ did not find this to
be a severe impairment in his decision. At the time of the ALJ’s
decision, plaintiff was prescribed Haldol, Depakote, and Cogentin,
apparently by a treating nurse practitioner at NCHC. Considering
these circumstances, it is clear that regular notes of plaintiff’s
mental health

treatment

were

necessary

for

the

ALJ

to fully

evaluate plaintiff’s mental impairments.
Second, the ALJ’s decision to give “significant” weight to the
opinions of the “consulting examiners,” including non-examining
state agency review psychiatrist Dr. D. Mangold, was especially
erroneous considering the fact that neither of these medical

9

professionals had the opportunity to review plaintiff’s complete
longitudinal history as of the time of the ALJ’s decision. By the
time the ALJ made his decision, more than a year following the
issuance

of

the

consulting

opinions,

additional

evidence

of

plaintiff’s treatment existed. However, the ALJ elected not to
obtain this evidence and instead relied on the opinions of a
consulting examiner and a non-examining review psychiatrist. These
medical sources

could

not provide

the

valuable

insight

of a

“detailed, longitudinal picture” of a claimant's condition. See
20 C.F.R. § 416.927(c)(2).
Third, as plaintiff points out, on this record it is unclear
whether Dr. Grace was a treating physician for purposes of the
treating physician rule. See 20 C.F.R. § 416.927(c). Consequently,
the ALJ could not have known whether the treating physician rule
applied to Dr. Grace’s assessment. Although Dr. Grace did not opine
as to work-related functional limitations, he did opine that
plaintiff carried a diagnosis of schizoaffective disorder, took
serious

psychotropic

medications

for

its

treatment,

and

had

significant symptoms as a result of her condition, including
delusions and hallucinations. Because the nature and extent of
Dr. Grace’s treatment relationship with plaintiff is unknown, the
ALJ could not have known whether Dr. Grace’s opinion was entitled
to controlling weight.

10

For the above reasons, the Court concludes that the ALJ failed
to properly develop this record and the case is therefore remanded
for further consideration. On remand, the ALJ is specifically
directed to:
(1) clarify Dr. Grace’s treatment relationship with plaintiff;
(2)

obtain

an

opinion

from

Dr.

Grace,

or

another

of

plaintiff’s treating providers, as to whether plaintiff suffers
from a medically determinable impairment to the degree described in
Listing

12.03

(Schizophrenic,

paranoid

and

other

psychotic

disorders) or 12.04 (Affective disorders). See 20 C.F.R., Pt. 404,
Subpt. P, App. 1 §§ 12.03, 12.04. The ALJ should also explicitly
address any other listing indicated by plaintiff’s full medical
record, when developed;
(3)

obtain

a

detailed

functional

assessment

regarding

plaintiff’s work-related capabilities from a treating source at
NCHC

who

is

fully

familiar

with

plaintiff’s

treatment

and

longitudinal history; and
(4) obtain a full record of treatment notes from NCHC.
These instructions should not be read to preclude the ALJ from
seeking out any additional medical records or opinion evidence as
he deems necessary for a proper consideration of plaintiff’s RFC.
The Court declines to address plaintiff’s second and final
contention, that the RFC improperly failed to incorporate the
reviewing state agency psychologist’s finding that plaintiff had

11

moderate difficulties

in

concentration,

persistence,

or pace.

Because the record on remand will “necessarily be altered” upon its
further development, see Crowley v. Colvin, 2014 WL 4631888, *5
(S.D.N.Y. Sept.15, 2014), the ALJ’s analysis of the substantial
evidence of record will be altered as well.
V.

Conclusion
For the foregoing reasons, the Commissioner’s motion for

judgment on the pleadings (Doc. 11) is denied and plaintiff’s
motion (Doc. 8) is granted to the extent that this matter is
remanded to the Commissioner for further administrative proceedings
consistent with this Decision and Order. 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:

February 17, 2016
Rochester, New York.

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