Mitchell v. Colvin
Filing
17
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 7 Plaintiff's Motion for Judgment on the Pleadings to the extent that this matter is reversed and remanded solely for the calculation and payment of benefits; denying 9 Commissioner's Motion for Judgment on the Pleadings; and adopting Report and Recommendations re 11 Report and Recommendations. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 11/15/16. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ADRIAN L. MITCHELL,
Plaintiff,
-vs-
No. 1:14-CV-00418 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
I.
Introduction
Represented by counsel, Adrian Mitchell (“plaintiff”) brings
this action pursuant to Titles II and XVI of the Social Security
Act (“the Act”), seeking review of the final decision of the
Commissioner of Social Security (“the Commissioner”) denying his
applications
for
disability
insurance
benefits
(“DIB”)
and
supplemental security income (“SSI”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g). The matter was
initially before the Court on the parties’ cross motions for
summary judgment.1 The parties’ motions were referred to Magistrate
Judge Leslie G. Foschio for consideration of the factual and legal
issues
presented,
and
to
prepare
and
file
a
Report
and
Recommendation (“R&R”) containing a recommended disposition of the
issues raised.
1
This case was originally assigned to Judge Richard Arcara, who referred
it to Magistrate Judge Foschio for a Report and Recommendation, which was
completed and filed on June 10, 2016. See doc. 11. The case was referred to this
Court by order dated November 8, 2016.
By R&R dated June 10, 2016, Magistrate Judge Foschio found
that plaintiff met the requirements of Listing 12.05(B), and
therefore recommended that this case be reversed and remanded
solely for the payment and calculation of benefits. Doc. 11. The
Commissioner filed Objections on June 23, 2016. Doc. 12. For the
reasons set forth below, the Court adopts the R&R in its entirety.
II.
Procedural History
The record reveals that in July 2010, plaintiff (d/o/b May 30,
1985) applied for DIB and SSI, alleging disability as of January 1,
2010. After his applications were denied, plaintiff requested a
hearing. However, plaintiff failed to appear for hearings scheduled
for November 29, 2011 and April 13, 2012. ALJ Nancy Pasiecznik
(“the ALJ”) issued a notice to show cause for failure to appear at
the hearings. Plaintiff responded and stated that his learning
disability caused him “extreme difficulty with dates and times,”
and further explained that he did not appear for the April 13, 2012
hearing because of “extreme low back and leg pain.” T. 153. The ALJ
found that plaintiff did not have a good reason for missing his
hearings, and proceeded to decide plaintiff’s application based
solely on the administrative record which included plaintiff’s
medical record
submitted
by
his
attorney.
The
ALJ
issued
an
unfavorable decision on September 28, 2012. The Appeals Council
denied review of that decision and this timely action followed.
The R&R contains a thorough summary of the medical record and
the administrative hearing, as well as a summary of the ALJ’s
2
decision. The Court incorporates those portions of the R&R by
reference.
III. Report and Recommendation
The
R&R
specifically
focused
evidence
on
of
plaintiff’s
intellectual
mental
disability
impairments,
pursuant
to
Listing 12.05(B). That listing provides, in relevant part, that a
plaintiff is intellectually disabled if he or she has significantly
subaverage
general
intellectual
functioning
with
deficits
in
adaptive functioning initially manifested during the developmental
period, and has a valid verbal, performance, or full-scale IQ of 59
or less. See 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.05(B).
Dr. Thomas Ryan, Ph.D., a consulting state agency psychologist,
conducted an intelligence evaluation, the results of which he
“considered a valid and reliable estimate of [plaintiff’s] current
functioning.” T. 344. Dr. Ryan found that plaintiff had a fullscale IQ of 59. He noted that plaintiff was unable to complete
processing speed tasks due to a hand injury, but that “the Full
Scale IQ was prorated accordingly.” T. 345. Thus, Dr. Ryan assessed
plaintiff with a full-scale IQ of 59, even considering plaintiff’s
deficits in processing speed due to physical impairment.
State agency consultant Dr. Mangold, who reviewed the record
but did not examine plaintiff, opined in a Psychiatric Review
Technique
(“PRT”)
questionnaire
that
Dr.
Ryan’s
IQ
score
“appear[ed] to be an underestimate of [plaintiff’s] intellectual
abilities.” T. 363. Dr. Mangold based this finding on plaintiff’s
3
report that he had a driver’s license (although he did not drive)
and the fact that plaintiff had “held a number of jobs entailing
simple repetitive work and appear[ed] to be mentally capable of
doing such work.” T. 363. The ALJ rejected Dr. Ryan’s full-scale IQ
result, instead giving weight to Dr. Mangold’s conclusion that the
score “underestimated” his functioning.
The R&R found that the ALJ erred in crediting Dr. Mangold’s
opinion over Dr. Ryan’s. Ultimately, the R&R concluded that the
record persuasively established plaintiff’s disability and that
further
administrative
proceedings
would
serve
no
purpose.
Accordingly, the R&R recommended that the case be reversed and
remanded solely for the calculation and payment of benefits.
IV.
Discussion
When reviewing a magistrate judge’s report and recommendation,
a district court must “make a de novo determination of those
portions
of
the
report
or
specified
proposed
findings
or
recommendations to which objection is made[,]” 28 U.S.C. § 636(b),
and “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge[.]” Id.
Where
an
objection
does
not
raise
new
arguments
but
merely
reiterates those raised on the original motion, the Court reviews
an R&R for clear error. See, e.g., Jaroszynski v. Barnhart, 2004 WL
1812706, *2 (W.D.N.Y. Apr. 28, 2004).
The Commissioner objects to the R&R and argues that it suffers
from clear error. Specifically, the Commissioner argues that the
4
R&R “err[ed] in conflating the term ‘valid’ with whether the IQ
test was ‘properly conducted.’” Doc. 12 at 4. The Commissioner
contends that, despite Dr. Ryan’s finding that plaintiff had a
full-scale IQ of 59, the ALJ properly discounted the IQ result in
favor of Dr. Mangold’s conclusion that the IQ score underestimated
plaintiff’s abilities. The Court disagrees, and finds no clear
error in the R&R.
Dr. Ryan opined that the results of his IQ testing were valid
and a reliable estimate of plaintiff’s functioning. Dr. Mangold’s
opinion to the contrary did not constitute substantial evidence
supporting the ALJ’s decision to discard Dr. Ryan’s assessment that
plaintiff’s full-scale IQ was 59. “[I]t is improper to rely on the
opinion
of
a
non-treating,
non-examining
doctor
because
the
inherent subjectivity of a psychiatric diagnosis requires the
physician
rendering
the
diagnosis
to
personally
observe
the
patient.” Maldonado v. Comm’r of Soc. Sec., 2014 WL 537564, *15
(E.D.N.Y. Feb. 10, 2014)(quoting Fofana v. Astrue, 2011 WL 4987649,
*20 (S.D.N.Y. Aug. 9, 2011) (quoting Velazquez v. Barnhart, 518 F.
Supp. 2d 520, 524 (W.D.N.Y. 2007)). “Accordingly, ‘the conclusions
of a physician who merely reviews a medical file and performs no
examination are entitled to little, if any, weight.’” Id. (quoting
Filocomo v. Charter, 944 F. Supp. 165, 170 n.4 (E.D.N.Y. 1996)).
Here, there is no indication that Dr. Ryan’s IQ result was
invalid, and the ALJ’s sole reasoning for rejecting Dr. Ryan’s
assessment was Dr. Mangold’s non-examining opinion. See T. 26-27.
5
For the reasons stated in the R&R, however, Dr. Ryan’s full-scale
IQ assessment provided persuasive evidence of disability. As such,
a remand for further consideration would serve no useful purpose.
See doc. 11 at 22-23 (citing Muntz v. Astrue, 540 F. Supp. 2d 411,
421 (W.D.N.Y. 2008). Accordingly, the Court adopts the R&R in its
entirety.
V.
Conclusion
For the reasons discussed in this Decision and Order as well
as those set forth in the R&R, the Commissioner’s motion for
judgment on the pleadings (Doc. 9) is denied and plaintiff's motion
(Doc. 7) is granted to the extent that this matter is reversed and
remanded for solely for the calculation and payment of benefits.
The Commissioner’s objections to the R&R (doc. 12) are overruled.
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:
November 15, 2016
Rochester, New York.
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