Mages v. Colvin
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 9 Commissioner's Motion for Judgment on the Pleadings. The Clerk of the Court is directed to close this 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
ERIC JAMES MAGES,
No. 1:14-CV-00828 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Represented by counsel, Eric James Mages (“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
Commissioner for further administrative proceedings consistent with
this Decision and Order.
Plaintiff (d/o/b September 20, 1968) applied for DIB in June
2011, alleging disability beginning June 13, 2006. After his
application was denied, plaintiff requested a hearing, which was
held before administrative law judge William Weir (“the ALJ”) on
June 24, 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 since June 13, 2006, the alleged
onset date. At step two, the ALJ found that plaintiff suffered from
the following severe impairments: alcohol abuse disorder; posttraumatic stress disorder (“PTSD”); left ankle pain status post
injury and surgery; low back pain; and obstructive sleep apnea.
At step three, the ALJ found that plaintiff’s “impairments,
including the alcohol abuse disorder, [met] sections 12.06 and
12.09 of 20 C.F.R. Part 404, Subpart P, Appendix 1 [the listings].”
T. 20. However, the ALJ found that if plaintiff “stopped the
alcohol abuse,” his impairments would be severe but would not meet
or medically equal any listed impairment. Before proceeding to step
four, the ALJ determined that plaintiff retained the residual
functional capacity (“RFC”) to perform sedentary work as defined in
20 C.F.R. § 404.1567(a), “except that he would be limited to
simple, repetitive and routine tasks with no more than occasional
interaction with co-workers, supervisors, and the public.” T. 22.
At step four, the ALJ determined that, even if plaintiff stopped
alcohol abuse, he would be unable to perform past relevant work. At
step five, the ALJ found that if plaintiff stopped alcohol abuse,
considering plaintiff’s age, education, work experience, and RFC,
there would be a significant number of jobs in the national economy
that he could perform. Accordingly, the ALJ found that plaintiff
was not disabled.
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).
Step Two Finding
Plaintiff contends that the ALJ erred at step two of the
sequential evaluation when he did not find plaintiff’s generalized
anxiety disorder to be a severe impairment. Plaintiff further
argues that the ALJ erred by failing to adequately consider the
throughout the balance of the sequential evaluation process. For
the reasons set forth below, the Court agrees.
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
‘not severe’ if the medical evidence establishes only a slight
abnormality or combination of slight abnormalities which do not
work-related activities.” Logan v. Astrue, 2008 WL 4145515, *6
(S.D.N.Y. Sept. 8, 2008) (citing 20 C .F.R. § 404.1521); see also
evidence that plaintiff suffered not only from PTSD as the ALJ
found, but also from anxiety disorder. This diagnosis was recorded
on a number of occasions in plaintiff’s mental health treatment
notes. These treatment notes, in addition to records of multiple VA
hospital admissions secondary to plaintiff’s alcohol abuse, record
prescription of medications for this condition. See, e.g., T. 712
(noting diagnosis of “[a]nxiety/depression”), 726, 729-31 (noting
diagnosis of anxiety disorder not otherwise specified [“NOS”], and
recording anxiety symptoms), 735-36, 738 (prescribing Sertraline,
an SSRI often prescribed for depression and anxiety), 933 (noting
that anxiety and depression were alcohol abuse “relapse triggers”),
1024, 1326-27, 1474-75 (noting anxiety symptoms and recommending
cognitive-behavioral therapy for “reducing anxiety and alcohol
abuse”); 1541 (noting diagnosis of generalized anxiety disorder).
The ALJ found plaintiff’s PTSD to be a severe impairment, but
disorder. Significantly, the ALJ did not explain why he found that
plaintiff’s anxiety disorder was not a severe impairment. See Gray
v. Astrue, 2009 WL 1598798, *6 (S.D.N.Y. June 8, 2009) (“Clarity in
explaining the reason why a claimant fails to show that she is
disabled assists the claimant in responding to the SSA’s findings,
and assists the claimant in either appealing those findings, or
refiling her claim, if appropriate.”).
Although the record is voluminous, totaling 1594 pages, the
ALJ’s decision contains a very perfunctory analysis of plaintiff’s
psychiatric hospitalizations have been related to alcohol abuse,”
T. 21, and that plaintiff “testified that he [did not go] to the
hospital for panic symptoms without drinking.” T. 23. Moreover,
reference to the significance of plaintiff’s anxiety or PTSD
significant only when coinciding with alcohol abuse. It is thus not
clear from the decision whether the ALJ adequately considered
conditions. See, e.g., Daily v. Comm’r of Soc. Sec., 2016 WL
1128136, *7 (N.D.N.Y. Feb. 29, 2016), report and recommendation
adopted, 2016 WL 1122067 (N.D.N.Y. Mar. 22, 2016) (“[T]he Court is
unable to ‘glean’ the ALJ’s rationale because the ALJ’s decision
failed to discuss many of the findings in the record.”) (quoting
Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)).
Moreover, the error was not harmless as the Commissioner
decision. 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
ALJ considered the impact of [p]laintiff's [impairment] on his
ability to perform work-related functions”); see also Jackson v.
Colvin, 2016 WL 1578748, at *4 (W.D.N.Y. Apr. 20, 2016) (noting
that the ALJ must “consider all of plaintiff’s impairments, both
severe and non-severe, when reaching an RFC determination”) (citing
20 C.F.R. § 404.1545(a)(2)).
Accordingly, this case is reversed and remanded for further
consideration of plaintiff’s mental health impairments, including
his diagnoses of generalized anxiety disorder and PTSD. On remand,
the ALJ is instructed to specifically evaluate whether plaintiff’s
generalized anxiety disorder is a severe impairment within the
meaning of the regulations. Regardless of whether that particular
impairment is found to be severe or non-severe, however, the ALJ
must “consider all of plaintiff’s impairments, both severe and
non-severe, when reaching an RFC determination.” Jackson, 2016 WL
1578748, at *4.
Plaintiff contends that the ALJ’s physical RFC finding is
unsupported by substantial evidence. Specifically, plaintiff argues
restriction to bending, lifting, and carrying.” T. 379. Plaintiff
argues that this opinion did not support the ALJ’s finding that
plaintiff was capable of performing sedentary work. For the reasons
that follow, the Court disagrees that Dr. Schwab’s opinion was
overly vague in terms of the limitations expressed in that opinion,
but nevertheless finds that the ALJ did not have substantial
evidence upon which to base his conclusion that plaintiff could
perform all of the exertional requirements of sedentary work.
Initially, the Court notes that the two Second Circuit cases
cited by plaintiff, Curry v. Apfel, 209 F.3d 117, 123-24 (2d Cir.
§ 416.960(c)(2), and Selian v. Astrue, 708 F.3d 409, 421 (2d Cir.
2013), are distinguishable from this case. In Curry, the “only
‘retain[ed] the [RFC] to perform . . . at least sedentary work,’
‘impairment was: [l]ifting and carrying moderate; standing and
walking, pushing and pulling and sitting mild.’” 209 F.3d at 123.
The Court went on to emphasize that the physician’s “use of the
terms ‘moderate’ and ‘mild,’ without additional information, [did]
not permit the ALJ . . . to make the necessary inference that
[plaintiff could] perform the exertional requirements of sedentary
work.” Id. (emphasis added). In Selian, the Court found that a
consulting examiner’s opinion that the plaintiff “should be able to
lift . . . objects of a mild degree of weight on an intermittent
basis” was “remarkably vague.” 708 F.3d at 421.
Neither Curry nor Selian bind this Court to a conclusion that
Dr. Arora’s opinion was impermissibly vague based simply on use of
the word “moderate.” Selian is inapposite to consideration of the
instant case because the term “mild” was used in that case to refer
to the degree of weight, not the plaintiff’s degree of limitation.
Moreover, as this Court has noted (Siragusa, J.), “Curry does not
stand for the broad proposition that a medical source opinion which
uses terms like ‘mild’ or ‘moderate’ is always too vague to
constitute substantial evidence.” Richardson v. Colvin, 2016 WL
3179902, *7 (W.D.N.Y. June 8, 2016) (emphasis added). While the
Court in Curry noted that the ALJ had “no additional information”
inapplicable, even though a medical examiner uses terms like ‘mild’
or moderate,’ if the examiner conducts a thorough examination and
explains the basis for the opinion.” Richardson, 2016 WL 3179902,
at *7; see also Caci v. Colvin, 2015 WL 9997202, *10 (N.D.N.Y.
Dec. 22, 2015) (“Relying on [Curry], [p]laintiff correctly points
out that a consultative examiner’s report which concludes that a
claimant’s condition is ‘mild’ or ‘moderate’ without additional
information does not allow an ALJ to infer that a claimant is
capable of performing the exertional requirements of work. In this
supported by her extensive examination of [p]laintiff.”) (emphasis
added) (citations omitted), report and recommendation adopted, 2016
WL 427098 (N.D.N.Y. Feb. 3, 2016).
Here, Dr. Schwab completed a consulting physical examination,
which revealed that plaintiff had a normal gait; could perform a
heel-toe walk without difficulty; had a normal stance; used no
assistive devices; needed no help changing for the exam or getting
on or off the exam table; and was able to rise from the chair
without difficulty. Plaintiff demonstrated some limited range of
motion in the lumbar spine and ankles, but otherwise his physical
examination was unremarkable. Considering Dr. Schwab’s physical
examination, the Court concludes that his opinion that plaintiff
suffered “mild” limitations in bending, lifting, and carrying was
not overly vague.
Nevertheless, the Court concludes that the ALJ did not have
plaintiff could perform all of the functions of sedentary work,
which generally requires an ability to be seated throughout most of
an eight-hour workday. See 20 C.F.R. § 404.1567(a) (“Although a
sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in carrying out
job duties. Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met.”).
As plaintiff points out, an ALJ may not infer exertional
capabilities based on the silence of an examining opinion. In Rosa
v. Callahan, 168 F.3d 72, 81 (2d Cir. 1999), “the ALJ reasoned that
the reports by the consulting physicians did not identify any
functional capacity to meet the exertional demands of sedentary
work.” As the Second Circuit explained, however, “[t]hose reports
were consistent with this conclusion, however, only to the extent
that they were silent on the issue. Indeed, there was no indication
in the reports that the consultants intended anything by their
silence or that they set out to ‘express [an] opinion on [the]
subject’ of Rosa’s sedentary work capacity.” Id. (citing Carroll v.
Sec. of Health and Hum. Servs., 705 F.2d 638, 643 (2d Cir. 1983)).
In this case, the ALJ failed to point to any medical opinion
or medical evidence which tended to establish that plaintiff had
the ability to perform all of the exertional demands of sedentary
work. Accordingly, the physical RFC finding was unsupported by
substantial evidence. “On remand, the ALJ should explain with
specificity the relevance of the medical evidence he relies upon
when reevaluating the RFC determination.” Orchanian v. Colvin, 2015
WL 5167879, *3 (E.D.N.Y. Sept. 4, 2015). If necessary, the ALJ
should obtain further treating or consulting physician opinions
relating to this issue.
Vocational Expert Testimony
Finally, plaintiff contends that the ALJ erred in failing to
obtain vocational expert testimony regarding the degree to which
plaintiff’s nonexertional limitations would erode his occupational
base. The Court notes that the RFC finding is likely to be altered
on remand. Thus, the ALJ is directed to obtain vocational expert
testimony regarding plaintiff’s nonexertional impairments if the
RFC finding on remand indicates that nonexertional impairments will
“have more than a negligible impact on [plaintiff’s] ability to
work.” Cortright v. Colvin, 2014 WL 4384110, *14 (S.D.N.Y. Aug. 29,
For the foregoing reasons, 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 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
June 23, 2017
Rochester, New York.
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