Childs v. Commissioner of Social Security

Filing 17

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 10 Plaintiff's 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; and denying 13 Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 3/23/16. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

KUILIMA CHILDS,
Plaintiff,
-vs-

No. 1:14-CV-00462 (MAT)
DECISION AND ORDER

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

I.

Introduction
Represented by counsel, Kuilima Childs (“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.
granted

to

For the reasons discussed below, plaintiff’s motion is
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

June

2011,

plaintiff

(d/o/b

February 13, 1973) applied for SSI. After her application was
denied, plaintiff requested a hearing, which was held before
administrative law judge David S. Lewandowski (“the ALJ”) on

October 24,

2012.

The

ALJ

issued

an

unfavorable

decision

on

December 26, 2012. The Appeals Council denied review of that
decision and this timely action followed.
III. Summary of the Evidence
The relevant medical records in this case focus on plaintiff’s
mental impairments. Plaintiff was diagnosed, at different times,
with depressive disorder, bipolar disorder, and schizoaffective
disorder. Prior to August 2011, plaintiff apparently received
mental health treatment from her primary care physician, who noted
a diagnosis of depressive disorder.
Dr. Susan Santarpia, a pyschologist, completed a psychiatric
evaluation at the request of the state agency in July 2011. At that
time, plaintiff’s “psychotropic medication [was] currently being
managed through her primary care physician.” T. 325. On mental
status examination, plaintiff demonstrated dysphoric affect and
mood, and judgment and insight were poor. Dr. Santarpia opined that
plaintiff

“appear[ed]

able

to

follow

and

understand

simple

directions and instructions, perform simple tasks independently,
maintain attention and concentration, maintain a regular schedule,
and learn new tasks within normal limits.” T. 327. According to Dr.
Santarpia, plaintiff would be mildly limited in “performing complex
tasks

independently,

relating

adequately

with

others,

and

appropriately dealing with stress,” and she would have mild to
moderate difficulty in making appropriate decisions. Id.

2

About

a

month

later,

in

August

2011,

plaintiff

was

hospitalized for approximately one week after cutting her wrist.
Upon admission to Buffalo General Hospital, plaintiff’s “degree of
symptoms [were] severe.” T. 379. Plaintiff reported hearing voices
which told her to kill herself or her husband, with whom she
reported

a

long

history

of

abusive

patterns.

According

to

plaintiff’s reports, she and her husband had both been repeatedly
charged with assault and had appeared in court in alternating roles
of

victim

and

defendant.

Plaintiff

was

diagnosed

with

manic

depression, and participated in group and individual therapy during
her admission, which treatment was noted to be beneficial. During
her hospital stay, plaintiff admitted to self-medicating with
alcohol, and a history of alcohol and cocaine dependence were
noted. Discharge medications included Lexapro, an antidepressant.
After that hospitalization, plaintiff began treating regularly
at Mid-Erie Counseling and Treatment Services (“Mid-Erie”). Upon
initial assessment, plaintiff was diagnosed with schizoaffective
disorder,

alcohol

dependence,

cocaine

dependence,

nicotine

dependence, and borderline personality disorder. She treated with
counselors for psychotherapy and with psychiatrist Dr. Nady Shehata
for medication

management.

Dr.

Shehata

maintained

plaintiff’s

prescription for Lexapro, and additionally prescribed Risperdal, an
antipsychotic.

The

treatment

records

reflect

that

plaintiff

continued to report auditory hallucinations through October 2011,

3

over time reporting that the hallucinations began to “fad[e] into
the background and she [stopped] paying attention to them.” T. 632.
After

October

2011,

plaintiff

did

not

again

report

auditory

hallucinations.
Over the next year, plaintiff’s chief complaints related to
substance abuse issues, financial problems, and family dysfunction.
Plaintiff was noted to have six children, all of whom were in
foster care. During the fall of 2012, plaintiff volunteered in a
kitchen and noted that she liked this because it “[gave] her
something to do.” T. 621. She reported “want[ing] to look for work
as she [was] bored with just sitting around.” T. 622. However, a
mental

residual

functional

capacity

assessment,

submitted

by

plaintiff’s counselor at Mid-Erie and dated November 14, 2012,
opined that plaintiff was “unable to maintain mood stability for
prolonged periods of time and [had] frequent mood [s]wings that
interfere[d] with performing activities of daily living, holding a
steady job or maintaining a steady schedule.” T. 666. According to
her counselor, plaintiff had “been in treatment for a long period
of time and [had] made minimal progress though she continue[d] to
work toward all her goals.” Id.
IV.

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 June 2, 2011, the application

4

date. At step two, the ALJ found that plaintiff suffered from the
following

severe

impairments:

asthma,

arthritis,

and

major

depressive disorder with psychotic features. 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.
Before proceeding to step four, the ALJ determined that,
considering all of plaintiff’s impairments, plaintiff retained the
RFC to perform less than the full range of light work as defined in
20 C.F.R. § 416.967(b), in that she could frequently perform
postural activities; could frequently twist and turn the lumbar
spine;

could

understand,

remember,

and

carry

out

simple

instructions, perform simple tasks, occasionally interact with
others, and occasionally tolerate changes in a work setting; could
comply with a regular, simple schedule, but should not have to
utilize public transportation as a job duty; and should avoid
pulmonary irritants. 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 numbers in the national economy which plaintiff
could

perform.

Accordingly,

he

disabled.

5

found

that

plaintiff

was

not

V.

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).
Plaintiff contends that the ALJ erred in failing to find that
she suffered from shizoaffective disorder, as a severe mental
impairment, at step two of the sequential evaluation. At step two,
the ALJ found that plaintiff suffered from depressive disorder with
psychotic features. As discussed more fully below, the ALJ actually
found that plaintiff did not suffer from schizoaffective disorder,
a finding that was factually incorrect.
The

Commissioner

cites

the

well-established

rule

that

generally, “an error in an ALJ's severity assessment with regard to
a given impairment is harmless . . . when it is clear that the ALJ
considered the claimant's [impairments] and their effect on his or
her ability to work during the balance of the sequential evaluation
process.” Diakogiannis v. Astrue, 975 F. Supp. 2d 299, 311-12
(W.D.N.Y. 2013) (emphasis added) (internal quotation marks and
citations omitted). Here, however, the ALJ’s decision indicates
6

that he failed to consider her schizoaffective disorder at steps
two, and three, of the sequential evaluation process.
In fact, the ALJ made an explicit credibility determination
against plaintiff based partially on his inaccurate reading of the
record: “Contrary to [plaintiff’s] testimony, she has never been
diagnosed with schizophrenia, but rather with depression and rule
out

diagnoses

of

bipolar

disorder

and

post-traumatic

stress

disorder.” T. 19. While the Court recognizes that schizophrenia and
schizoaffective disorder are two closely related yet distinct
diagnoses, the ALJ’s statement and the surrounding context strongly
suggest

that

consequently

his

review

he

failed

of

the

to

record

properly

was

not

consider

complete

and

plaintiff’s

schizoaffective disorder diagnosis. Additionally, the ALJ noted
that plaintiff’s medications, per her report at Dr. Santarpia’s
consulting examination, as including Lexapro. However, the ALJ
never went on to recognize that, subsequent to Dr. Santarpia’s
examination,

plaintiff

was

eventually

diagnosed

with

schizoaffective disorder and prescribed more serious antipsychotic
medication on a continuous basis.
Plaintiff’s diagnosis of schizoaffective disorder – her most
recent psychiatric diagnosis – is clearly stated in the record.
T. 613. This diagnosis was made at the outset of her regular
treatment at Mid-Erie, which is well-documented and went on to span
more than a year. Moreover, the record indicates that, as a result

7

of this diagnosis, Dr. Shehata modified plaintiff’s prescriptions
to include Risperdal, an antipsychotic medication generally used
for

the

treatment

schizophrenia

and

of

psychotic

bipolar

features

disorder.

associated

Additionally,

with

plaintiff

continued to be prescribed Lexapro, an antidepressant.
A reading of the ALJ’s decision leaves no other conclusion
than that he failed to thoroughly review plaintiff’s complete
medical record, as he was required to do under the regulations.
In this case, the ALJ did not determine that plaintiff’s
schizoaffective disorder was non-severe; rather, he concluded that
she did not suffer from the disorder at all. Consequently, at a
minimum, the ALJ failed in his duty to consider the “combined
impact of [plaintiff’s medically-determinable] impairments . . .
throughout

the

disability

determination

process.”

20

C.F.R.

416.923; see Bigwarfe v. Comm'r Of Soc. Sec., 2008 WL 4518737, *6
(N.D.N.Y. Sept. 30, 2008) (“Where a claimant alleges multiple
impairments, the combined effects of all impairments must be
considered, regardless of whether any impairment, if considered
separately, would be of sufficient severity.”).
The ALJ’s failure to consider plaintiff’s schizoaffective
disorder at both steps two and three of the sequential evaluation
process constituted reversible error, because a full consideration
of plaintiff’s disorder could have affected the outcome of her
application. See, e.g., Elliott v. Comm'r of Soc. Sec., 2011 WL

8

1299623, *4 (D. Or. Mar. 31, 2011) (“The general proposition that
failures at step two may be harmless if the ALJ discusses the
impairments

and

assesses

limitations

as

a

result

of

that

impairment, . . . underscores the significance of the error in this
case – the ALJ failed to adequately discuss the impairments at
issue, and a determination as to whether plaintiff's limitations
were

fully

assessed

in

connection

with

these

impairments

is

impossible to ascertain.”) (emphasis added); Hamilton v. Astrue,
2012 WL 7682462, *6 (N.D.N.Y. Mar. 29, 2012) (holding the ALJ's
step-two error not harmless where there was “no indication in the
decision

that

the

ALJ

considered

the

impact

of

[plaintiff’s

impairment] on his ability to perform work-related functions”)).
Additionally, the ALJ’s step two error prejudiced plaintiff at
step three, where he considered only Listing 12.04 (affective
disorders), yet failed to consider Listing 12.03 (schizophrenic,
paranoid and other psychotic disorders). See Chandler v. Soc. Sec.
Admin., 2013 WL 2482612, *10 (D. Vt. June 10, 2013) (“[W]here the
omitted

impairment

was

not

accounted

for

in

the

ALJ's

RFC

determination, or in other words, where the ALJ's step-two error
prejudiced the claimant at later steps in the sequential evaluation
process, remand is required[.]”) (emphasis added).
The ALJ’s attribution of no significant weight to the mental
RFC submitted by plaintiff’s counselor at Mid-Erie further supports
the Court’s conclusion that the ALJ did not fully consider the

9

impact of this opinion in determining plaintiff’s psychiatric
disorder. The ALJ discounted the Mid-Erie assessment, in part,
because it “lack[ed] any documentation as to who completed the
form.” T. 20. However, the record clearly indicates that, although
the report itself was not signed, it was submitted via fax by JoAnn
Krieger, plaintiff’s counselor at Mid-Erie. See T. 663; 620-22,
638-46 (documenting JoAnn Krieger as plaintiff’s regular counselor
from February through October 2012).
Ms. Krieger’s report indicated, in a detailed comment page,
that plaintiff suffered from serious psychiatric symptoms which
could have an obvious affect upon her ability to sustain full-time
work. Had the ALJ properly considered plaintiff’s schizophrenia
diagnosis and serious psychiatric symptoms associated therewith, he
may not have discounted the only functional assessment in the
record

from

a

treating

provider.

This

error

is

especially

significant considering that the ALJ gave the “greatest weight” to
Dr. Santarpia’s opinion, which was issued before plaintiff’s August
2011 hospitalization and subsequent regular treatment at Mid-Erie.
T. 20-21.
In light of the foregoing, this case is reversed and remanded
for

further

proceedings.

On

remand,

the

ALJ

must

consider

plaintiff’s diagnosis of schizoaffective disorder, as well as her
other

psychiatric

diagnoses,

at

steps

two

and

three

of

the

sequential evaluation. The ALJ is directed to reconsider the

10

opinion from Ms. Krieger, plaintiff’s counselor at Mid-Erie, in
determining the functional limitations stemming from plaintiff’s
psychiatric diagnoses.
Having found remand necessary, the Court declines to address
plaintiff’s argument regarding credibility. Plaintiff’s credibility
must be reconsidered on remand upon thorough consideration of the
administrative record.
VI.

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

judgment on the pleadings (Doc. 13) is denied and plaintiff’s
motion (Doc. 10) 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:

March 23, 2016
Rochester, New York.

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