Lewis v. Colvin

Filing 19

DECISION AND ORDER granting 7 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 the Commissioners motion for judgment on the pleadings (Doc. 15). (Clerk to close case.) Signed by Hon. Michael A. Telesca on 6/23/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DWANE B. LEWIS,
Plaintiff,
-vs-

No. 1:14-CV-00794 (MAT)
DECISION AND ORDER

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

I.

Introduction
Represented by counsel, Dwane B. Lewis (“plaintiff”) brings

this action pursuant to Title II 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
disability insurance benefits (“DIB”). 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

case

is

remanded

to

the

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

Procedural History
Plaintiff (d/o/b July 8, 1960), a veteran, applied for DIB in

October 2011, alleging disability beginning February 1, 2008. After
his application was denied, plaintiff requested a hearing, which
was held before administrative law judge Grenville Harrop, Jr.

(“the ALJ”) on March 5, 2013. The ALJ issued an unfavorable
decision on March 27, 2013. The Appeals Council denied review of
that decision and this timely action followed.
III. The ALJ’s Decision
At step one of the five-step sequential evaluation, see
20 C.F.R. § 404.1520, the ALJ found that plaintiff had not engaged
in substantial gainful activity during the time period from his
alleged onset date of February 1, 2008 through his date last
insured of June 30, 2012. At step two, the ALJ found that plaintiff
suffered from history of aortic dissection, type B, and posttraumatic stress disorder (“PTSD”), both of which he considered
severe. At step three, the ALJ found that plaintiff’s impairments
did not meet or medically equal a listed impairment.
Before proceeding to step four, the ALJ determined that
plaintiff retained the residual functional capacity (“RFC”) to
perform light work as defined in 20 C.F.R. § 404.1567(b), except
that

he

could

frequently

but

not

continuously

interact

with

coworkers and supervisors, and should not interact with large
groups of people or drive as a function of his job duties. At step
four, the ALJ found that plaintiff was unable to perform past
relevant work.

At

step

five,

the

ALJ

found

that

considering

plaintiff’s age, education, work experience, and RFC, jobs existed
in the national economy which plaintiff could perform. Accordingly,
the ALJ found plaintiff not disabled.

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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).
A.

Dr. Reynolds’ Opinion Regarding Mental Health Limitations

Plaintiff contends that the ALJ erroneously failed to consider
a January 4, 2013 PTSD disability benefits questionnaire completed
by Dr. William Reynolds, a VA psychologist. In this questionnaire,
Dr. Reynolds opined that plaintiff suffered from various workrelated limitations stemming from his mental health diagnoses of
PTSD and depressive disorder. Dr. Reynolds’ opinion indicates that
he reviewed plaintiff’s medical records, including records of
treatment with VA psychologist Dr. Stephen Skiffington, who had
terminated plaintiff’s treatment, due to missed appointments, in
October 2012. Plaintiff reported that he saw Dr. Mohammed Saeed
“sporadically

for

medication

therapy

and

last

saw

him

on

November 21, 2012.” T. 924.
Dr. Reynolds opined that plaintiff’s mental diagnoses caused
“[o]ccupational and social impairment with deficiencies in most

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areas, such as work, school, family relations, judgment, [and]
thinking and/or mood.” T. 923. Dr. Reynolds stated that plaintiff’s
PTSD caused a “serious impairment in social and occupational
functioning”; depression caused “moderate to serious difficulty in
social

and

occupational

functioning”;

and

alcohol

abuse

(in

remission) caused “some difficulty in social and occupational
functioning.”
clinically

Id.

Plaintiff’s

significant

“PTSD

distress

symptoms

or

.

impairment

.

.

cause[d]

in

social,

occupational, or other important areas of functioning.” T. 925.
According to Dr. Reynolds, plaintiff’s PTSD resulted in a number of
difficulties,
maintaining

including
effective

“[d]ifficulty
work

and

social

in

establishing

and

relationships,”

and

“[d]ifficulty in adapting to stressful circumstances, including
work or a worklike setting.” T. 927.
The regulations provide that the SSA “will evaluate every
medical opinion [it] receive[s],” “[r]egardless of its source.” 20
C.F.R. § 404.1527(c). In this case, the ALJ failed to even discuss
Dr. Reynolds’ opinion; moreover, the ALJ failed to weigh other
psychological opinion evidence in the record, including opinions
from consulting examining psychologists Drs. Sandra Jensen and
Carol Descutner.1 The ALJ erred in failing to weigh these opinions

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Dr. Jensen opined on November 7, 2009 that “[i]t [did] not appear that
[plaintiff’s] PTSD would render him unable to be gainfully employed.” T. 170. On
February 22, 2011, Dr. Descutner opined that plaintiff had a GAF score of 48,
which she stated was consistent with an “inability to work,” and additionally
opined that plaintiff had reduced reliability and productivity due to PTSD. T.
162-63; see generally American Psychiatric Association, Diagnostic and

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and, as plaintiff argues, in failing to even discuss Dr. Reynolds’
opinion. See 20 C.F.R. § 404.1527(e)(2)(ii) (“Unless a treating
source’s opinion is given controlling weight, the administrative
law judge must explain in the decision the weight given to the
opinions of a State agency medical or psychological consultant or
other program physician, psychologist, or other medical specialist,
as the administrative law judge must do for any opinions from
treating sources,

nontreating

sources,

and

other nonexamining

sources who do not work for us.”) (emphasis added). Moreover, this
error
Dr.

was

not

Reynolds’

harmless,
opinion

because

were

quite

the

limitations

restrictive

and

opined
could

in

have

resulted in a finding of disability – or at the very least a more
restrictive RFC finding – if given weight by the ALJ. Cf. Brooks v.
Comm’r of Soc. Sec., 2017 WL 1655211, *3 (N.D.N.Y. May 1, 2017)
(“[T]he ALJ did not err in failing to discuss Dr. Baillargeon’s May
2009 opinion because it did not relate to the period at issue and
further

any

error

would

be

harmless

because

the

opinion

is

consistent with the ALJ’s ultimate RFC determination.”).
The

Commissioner

argues

that

the

ALJ

did

not

have

an

obligation to discuss Dr. Reynolds’ January 2013 opinion because it
post-dated plaintiff’s date last insured (“DLI”) of June 30, 2012.
However, Dr. Reynolds’ examination clearly related to the relevant

Statistical Manual of Mental Disorders (“DSM–IV”), at 34 (4th ed.
rev. 2000).
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time period, because Dr. Reynolds’ assessment was largely based on
a review of plaintiff’s medical record of treatment predating the
DLI. Thus, although conducted after the relevant time period, Dr.
Reynolds’ opinion was obviously relevant to plaintiff’s condition
during the relevant time period. See Pollard v. Halter, 377 F.3d
183, 193–94 (2d Cir. 2004) (noting that the Second Circuit has
“observed, repeatedly, that evidence bearing upon an applicant’s
condition subsequent to the date upon which the earning requirement
[i.e., insured status] was last met is pertinent evidence in that
it may disclose the severity and continuity of impairments existing
before the earning requirement date . . .”) (quoting Lisa v.
Secretary of Dep’t of Health and Human Serv., 940 F.2d 40, 44 (2d
Cir. 1991) (internal quotation marks omitted)).
Moreover, as plaintiff argues in reply, the Commissioner’s
argument that the ALJ was justified in not considering the opinion
because of its late date amounts to an impermissible post hoc
rationalization of the ALJ’s decision. See, e.g., Marthe v. Colvin,
2016 WL 3514126, *8 (W.D.N.Y. June 28, 2016) (“[T]his Court is not
permitted to accept the Commissioner’s post-hoc rationalizations
for the ALJ’s determination.”). This is especially so considering
that the ALJ cited to evidence post-dating the relevant time period
when discussing plaintiff’s mental health conditions. See T. 17.
Accordingly, this case is reversed and remanded for further
administrative proceedings. On remand, the ALJ is directed to
explicitly consider and weigh all of the medical opinions of
record, including the psychological opinions of Dr. Reynolds, Dr.

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Jensen, and Dr. Descutner, with reference to the factors set forth
in 20 C.F.R. § 404.1527.
B.

Step Two Determination

Plaintiff contends that the ALJ failed to properly consider
the effects of plaintiff’s chronic kidney disease at step two of
the sequential analysis. It is well-established that “the standard
for a finding of severity under [s]tep [t]wo of the sequential
analysis is de minimis and is intended only to screen out the very
weakest cases.” McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir.
2014) (citing Dixon v. Shalala, 54 F.3d 1019, 1023 (2d Cir. 1995)).
An

impairment

is

considered non-severe

only

“if it

does not

significantly limit [a plaintiff’s] physical or mental ability to
do basic work activities.” 20 C.F.R. § 404.1521(a).
In this case, the ALJ engaged in a relatively brief summary of
the entire administrative record, which spanned more than 900
pages, and largely failed to discuss evidence of chronic kidney
disease which appeared in the record. See, e.g., T. 226, 229, 343,
355-57, 588-89, 591-93, 800-03, 843-44, 866, 869. Moreover, the ALJ
did not explain why he considered plaintiff’s chronic kidney
disease to be a non-severe impairment. Because it is not clear from
the

ALJ’s

plaintiff’s

decision
kidney

whether
disease

in

the
the

ALJ

did

balance

properly
of

the

consider
sequential

evaluation process, the Court finds that the step two error was not
harmless. See, e.g., Hamilton v. Colvin, 8 F. Supp. 3d 232, 242
(N.D.N.Y.2013) (holding that the ALJ’s step-two error was not
harmless where there was “no indication in the decision that the

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ALJ considered the impact of [p]laintiff's [impairment] on his
ability to perform work-related functions”) On remand, therefore,
the ALJ is instructed to specifically evaluate whether plaintiff’s
chronic kidney disease is a severe impairment within the meaning of
the regulations. Regardless of whether that particular impairment
is

found

“consider

to

be

all

severe
of

or

non-severe,

plaintiff’s

however,

impairments,

the

both

ALJ

severe

must
and

non-severe, when reaching an RFC determination.” Jackson v. Colvin,
2016 WL 1578748, at *4 (W.D.N.Y. Apr. 20, 2016) (citing 20 C.F.R.
§ 404.1545(a)(2)).
V.

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

judgment on the pleadings (Doc. 15) is denied and plaintiff’s
motion (Doc. 7) 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:

June 23, 2017
Rochester, New York.

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