Simcox v. Commissioner of Social Security

Filing 13

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 6 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; denying 9 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 1/19/16. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

PAMELA SIMCOX,
Plaintiff,
-vs-

No. 1:14-CV-00787 (MAT)
DECISION AND ORDER

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

I.

Introduction
Represented by counsel, Pamela Simcox (“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 her
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). 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 March 2011, plaintiff (d/o/b

April 8, 1965) applied for DIB and SSI, alleging disability as of
January 1, 2006. After her applications were denied, plaintiff

requested a hearing, which was held before administrative law judge
Timothy M. McGuan (“the ALJ”) on October 4, 2012. The ALJ issued an
unfavorable decision on January 17, 2013. The Appeals Council
denied review of that decision and this timely action followed.
III. Summary of Evidence
Plaintiff’s medical record indicates continuing diagnoses of
obesity, moderate obstructive airways disease, diabetes mellitus
(type 2), and asthma. Although plaintiff was consistently diagnosed
with diabetes and required insulin, the medical record does not
reflect complications from this diagnosis, even where plaintiff
reported

that

her

medications

insurance.

Upon

treatment

repeatedly

mentioned

no

were

for

limited

diabetes

complications

due

to

management,
as

a

result

lack

of

plaintiff
of

this

condition, and when asked, she denied nephropathy, neuropathy, and
retinopathy. See T. 251, 278, 326, 399-400, 415-18. Other than
recorded high sugar levels, the only evidence in the record as to
symptoms

resulting

from

diabetes

came

from

plaintiff’s

own

testimony that during “high sugar attacks” she became groggy and
unable to control her bladder, and that during “low sugar attacks”
she became disoriented, broke out in sweats, and “[got] . . .
wiggly in the knees to where [she] could barely support [her]self.”
T. 31, 33. These complaints are not recorded throughout her medical
records.
Plaintiff also treated for obstructive airways disease (noted
as moderate in October 2009) and asthma. Dr. James Cumella, who
2

treated plaintiff for asthma from approximately March 2009 through
the date of the ALJ’s decision, noted initially that plaintiff’s
asthma was poorly controlled, with a 7/25 asthma control score.
Plaintiff’s control score improved, however; in August 2012 he
noted that her score was 17/25 and opined that her “symptoms [did]
not interfere with normal activity.” T. 420. Over the course of
plaintiff’s treatment for her various medical conditions, she
consistently was recorded as taking approximately ten to twenty
different medications, which treated symptoms of diabetes, asthma,
and

gastroesophageal

reflux.

Notably,

none

of

plaintiff’s

medications were for the treatment of a mental health condition.
Dr. Nikita Dave completed a consulting internal medicine
examination, at the request of the state agency, in May 2011.
Plaintiff reported a history of asthma, eczema, knee pain, sleep
apnea,

and

diabetes,

which

she

stated

had

required

insulin

treatment since 1985. She reported that her “sugars [were] always
high.” T. 337. In terms of activities of daily living (“ADLs”),
plaintiff reported cooking, cleaning, and doing laundry as needed;
shopping once per week; dressing and bathing herself daily; and
watching television, radio, reading, going to church, and seeing
friends. Plaintiff’s physical examination was unremarkable, with
the exception of bilateral knee flexion limited to 130 degrees.
According to Dr. Dave, plaintiff “would need to avoid dust, fumes,
smoke,

inhalants,

chemicals,

outdoor

environmental

allergens,

strong chemicals, and fumes due to environmental allergies/asthma.”
3

T. 340. Dr. Dave opined that she “may need to avoid direct exposure
for prolonged periods of time to the sun/outdoors due to eczema
history,” and that she had “[m]ild to moderate limitations for
standing, walking, squatting, kneeling, and crawling due to [her]
left knee.” T. 341.
Dr.

Gregory

Fabiano

completed

a

consulting

psychiatric

examination, at the request of the state agency, in June 2011.
Plaintiff reported that she “started seeing a counselor on an
outpatient basis every two weeks in 2006 and she continue[d] to
receive this intervention.” T. 343. Plaintiff reported symptoms of
depression, including “dysphoric mood, psychomotor retardation,
crying spells, a loss of usual interests, fatigue and loss of
energy, a diminished sense of self-esteem, a diminished sense of
pleasure, social withdrawal, and recurrent thoughts of death or
suicide.” T. 344. On mental status examination, plaintiff exhibited
depressed affect, dysthymic mood, and mildly impaired recent and
remote memory skills, which Dr. Fabiano opined “may have been
secondary to some of the depression or emotional distress she was
experiencing during the interview.” T. 345. In Dr. Fabiano’s
opinion, plaintiff’s “examination appear[ed] to be consistent with
psychiatric problems, but in itself this [did] not appear to be
significant enough to interfere with [her] ability to function on
a daily basis.” T. 346.
Dr. T. Andrews completed a psychiatric review technique form
in June 2011. Upon review of the medical record, Dr. Andrews opined
4

that plaintiff had mild restrictions of ADLs; moderate difficulties
maintaining

social

functioning

and

maintaining

attention,

concentration, persistence, or pace; and no past episodes of
decompensation.

A

mental

residual

functional

capacity

(“RFC”)

completed by Dr. Andrews found that plaintiff had various moderate
limitations consistent with these restrictions. Dr. Andrews opined
that plaintiff could perform substantial gainful activity in a low
contact setting. Dr. Andrews also noted that plaintiff had treated
at Trott Access Center, but that no records from that institution
appeared in the file.
IV.

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. Initially, the ALJ
determined that plaintiff met the insured status requirements of
the Social Security Act through September 30, 2012. At step one,
the ALJ determined that plaintiff had not engaged in substantial
gainful activity since January 6, 2006, the alleged onset date. At
step two, the ALJ found that plaintiff suffered from the following
severe impairments: mild to moderate obstructive airway disease
with

severe

small

airways

dysfunction,

and

obesity.

The

ALJ

specifically found that plaintiff’s diabetes mellitus, asthma, and
mental health impairments were non-severe. 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.
5

Before proceeding to step four, the ALJ determined that
plaintiff retained the RFC to perform light work as defined in
20 C.F.R. §§ 404.1567(b) and 416.967(b), except that she should
avoid exposure to respiratory irritants including fumes, dusts, and
gases. At step four, the ALJ determined that plaintiff was not
capable of performing past relevant work as a personal care aide or
bus

driver.

plaintiff’s

At
age,

step
work

five,

the

ALJ

experience,

found

that

considering

RFC,

jobs

existed

and

in

significant numbers in the national economy that plaintiff could
perform. The ALJ thus found that plaintiff was not disabled.
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. 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).
A.

Step Two Finding

Plaintiff contends that the ALJ’s step two finding, that
plaintiff’s diabetes mellitus (Type II) and asthma were not severe
impairments, constituted reversible error. The ALJ found that
plaintiff’s diabetes was non-severe, noting that plaintiff denied
complications such as retinopathy and neuropathy associated with
6

her diabetes, and that when she was medicated, her condition was
well-controlled. The ALJ also found plaintiff’s asthma to be nonsevere, noting that the condition was “adequately controlled” with
use of her Albuterol inhaler, and that plaintiff had most recently
reported using the inhaler only three times a week and “testing
showed only mild exacerbation.” T. 15.
To the extent the ALJ erred in finding these impairments to be
non-severe, that error was harmless “because the ALJ concluded that
[p]laintiff had established other impairments considered severe
under the Act . . . and continued with the sequential disability
analysis.” Taylor v. Astrue, 32 F. Supp. 3d 253, 267 (N.D.N.Y.
2012). Moreover, in this case, the ALJ’s RFC finding adequately
accounted for any limitations associated with plaintiff’s diabetes
and asthma. “As a general matter, 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) (internal quotation marks
and citations omitted). The ALJ’s discussion at step two made clear
that

he

considered

the

record

evidence

regarding

plaintiff’s

diabetes and asthma, and the RFC finding regarding functional
limitations

resulting

from

those

conditions

substantial evidence as discussed below.

7

was

supported

by

B.

RFC Finding
1. Diabetes and Asthma

Plaintiff

contends

that

the

ALJ’s

RFC

finding

did

not

adequately account for limitations resulting from her diabetes,
asthma,

knee

pain,

and

mental

health

impairments.

Regarding

plaintiff’s diabetes, although her medical records indicate high
sugar levels on multiple occasions, plaintiff consistently either
denied complications from the condition or reported no associated
complications. Upon its review of the record, the Court finds that
the RFC finding adequately considered the effects of plaintiff’s
diabetes on her overall RFC. As to plaintiff’s asthma, the Court
finds that the RFC finding requiring avoidance of exposure to
respiratory irritants including fumes, dusts, and gases, adequately
accounted

for

any

limitations

stemming

from

her

asthma

and

obstructive airways disease. As noted above, the most recent
treatment

note

from

plaintiff’s

treating

asthma

provider,

Dr. Cumella, indicated that plaintiff’s asthma symptoms did not
interfere with normal activity.
2.

Left Knee Restrictions

Plaintiff contends that the ALJ erred in failing to credit the
portion of Dr. Dave’s consulting opinion which found that she had
moderate limitations in standing and walking secondary to left knee
pain. The Court notes that there is no record of treatment for left
knee pain within plaintiff’s medical record. Nevertheless, there is
nothing in the record which contradicts Dr. Dave’s opinion as to
8

mild to moderate limitations in the left knee. “[A]n ALJ who makes
an RFC determination in the absence of supporting expert medical
opinion has improperly substituted his own opinion for that of a
physician, and has committed legal error.” Hilsdorf v. Comm'r of
Soc. Sec., 724 F. Supp. 2d 330, 347 (E.D.N.Y. 2010).
Here,

the

ALJ

impermissibly

substituted

his

own

medical

judgment by discarding this limitation, which was assessed by
Dr. Dave based on plaintiff’s subjective complaints as well as
Dr. Dave’s objective finding from his examination revealing limited
flexion. The ALJ rejected this limitation because of the absence of
any substantial evidence in the record, from a medical source,
supporting any contrary finding. Therefore, the case must be
remanded for a reconsideration of plaintiff’s RFC in light of
Dr. Dave’s finding regarding plaintiff’s left knee restriction. If
the ALJ deems it necessary, he may request treatment notes or an
opinion from a treating physician regarding plaintiff’s left knee
limitations.
3.

Mental Impairments

Plaintiff’s final contention is that the ALJ erred in failing
to properly consider her mental impairments in considering her RFC.
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
9

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.

§

404.1545

(emphasis supplied); see also 20 C.F.R. § 416.945.
In this case, consulting examiner Dr. Fabiano diagnosed major
depressive disorder and post-traumatic stress disorder. The ALJ
gave significant weight to Dr. Fabiano’s finding that plaintiff’s
“examination appear[ed] to be consistent with psychiatric problems,
but in itself this [did] not appear to be significant enough to
interfere with [her] ability to function on a daily basis.” T. 346
(emphasis added).
At the examination, however, plaintiff indicated that she had
been in treatment for psychiatric symptoms, on a biweekly basis,
since 2006. The record also indicates that in 2006, plaintiff was
referred

by

a

Dr.

Mary

Webb

to

a

rape

counseling

center.

Additionally, Dr. Andrews’ psychiatric review technique noted that
plaintiff treated for mental health symptoms at Trott Access
Center, but that he did not have records from that institution in
plaintiff’s file. Considering Dr. Dave’s mental status examination,
which noted some abnormalities, along with the additional evidence
in the record indicating that plaintiff was in regular treatment
for psychiatric issues, the Court finds that the ALJ did not
adequately develop the record with regard to plaintiff’s mental
impairments.

See,

e.g,

Corey

v.

Astrue,

2009

WL

4807609,

*4

(N.D.N.Y. Dec. 8, 2009) (noting that ALJ had duty to develop record
10

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).
On remand, the ALJ is directed to contact plaintiff’s treating
mental health sources for treatment notes and for an opinion as to
functional limitations, if any, resulting from any mental health
impairments. In determining plaintiff’s RFC, the ALJ must consider
plaintiff’s mental health impairments, if any, in combination with
plaintiff’s other impairments in accordance with the regulations.
VI.

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

judgment on the pleadings (Doc. 9) is denied and plaintiff’s motion
for remand (Doc. 6) 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:

January 19, 2016
Rochester, New York.

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