Mark v. Colvin

Filing 24

DECISION AND ORDER granting 15 Motion for Judgment on the Pleadings to the extent that the matter is remanded to the Commissioner for further administrative proceedings; denying 18 Motion for Judgment on the Pleadings. Signed by Hon. Michael A. Telesca on 08/08/2017. (CDH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

LENORA A. MARK,
Plaintiff,
-vs-

No. 1:14-CV-01071 (MAT)
DECISION AND ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

I.

Introduction
Represented by counsel, plaintiff Lenora A. Mark (“plaintiff”)

brings this action pursuant to the Social Security Act (the “Act”),
seeking review of the final decision of defendant the Acting
Commissioner

of

Social

Security1

(the

“Commissioner”

or

“defendant”) 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. 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,
and the Commissioner’s motion is denied.

1

Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of
Social Security on January 23, 2017. The Clerk of the Court is instructed to
amend the caption of this case pursuant to Federal Rule of Civil Procedure 25(d)
to reflect the substitution of Acting Commissioner Berryhill as the defendant in
this matter.

II.

Procedural History
A.

Plaintiff’s Prior SSI Applications

Prior to filing the application for SSI at issue in the
instant manner, plaintiff protectively filed an application for SSI
on

June

10,

2009.

Administrative

Transcript

(“T.”)

14.

Plaintiff’s application was denied on September 18, 2009, and no
further appeal was taken.

Id.

Plaintiff protectively filed a second application for SSI on
March 26, 2010.

Id.

That claim was also denied, and plaintiff

requested a hearing before an administrative law judge (“ALJ”),
which was held on August 31, 2011.

Id.

In a decision dated

September 22, 2011, ALJ Eric L. Glazer found that plaintiff was
disabled beginning December 4, 2008, and that her disability had
ended on November 13, 2010, due to medical improvement.
further appeal of this decision was taken.
B.

Id.

No

Id.

The Current Application

Plaintiff protectively filed an application for SSI on January
26, 2012, which was initially denied.

T. 108, 168-74.

At

plaintiff’s request, a hearing was held before ALJ Robert T. Harvey
on May 7, 2013.

T. 29-60.

In a decision dated May 15, 2013, ALJ

Harvey found that plaintiff was not disabled as defined in the Act
and denied her claim.

T. 11-28.

On October 20, 2014, the Appeals

Council issued an order denying plaintiff’s request for review,

2

thereby rendering the ALJ’s decision the Commissioner’s final
determination.

T. 1-5.

Plaintiff subsequently filed this action.

III. The ALJ’s Decision
At step one of the five-step sequential evaluation, see
20 C.F.R. §§ 404.1520, 416.920, the ALJ determined that plaintiff
had not engaged in substantial gainful activity since January 26,
2012, the alleged onset date.

T. 16.

At step two, the ALJ found

that plaintiff suffered from the severe impairments of reflux
disease, panic disorder, and depressive disorder, and the nonsevere impairments of diabetes mellitus and hypertension.

T. 17.

At step three, the ALJ found that plaintiff’s impairments did not
meet or medically equal one of the listed impairments set forth in
20 C.F.R. § 404, Subpart P, Appendix 1.

Id.

Before proceeding to step four, the ALJ determined that,
considering all of plaintiff’s impairments, plaintiff retained the
residual functional capacity (“RFC”) to perform “all exertional
activities consistent with the broad world of work,” including
“skilled and semi-skilled work as well as unskilled work.”

T. 19.

The ALJ found that plaintiff had the following limitations: cannot
work in areas with unprotected heights or around heavy, moving, or
dangerous machinery; cannot climb ropes, ladders, or scaffolds; has
occasional limitations in dealing with stress.

Id.

At step four, the ALJ found that if plaintiff had no past
relevant work.

T. 23.

At step five, the ALJ concluded that,

3

considering plaintiff’s age, education, work experience, and RFC,
there are jobs that exist in significant numbers in the national
economy that plaintiff could perform.

Id.

Accordingly, the ALJ

found plaintiff not disabled.
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.

The ALJ’s RFC Finding is not Supported by Substantial
Evidence

Plaintiff first argues that the ALJ’s RFC finding is not
supported by substantial evidence because (1) the opinion of state
review psychologist Dr. Suzanne K. Castro, to which the ALJ
afforded “great weight” (T. 21), did not consider plaintiff’s most
recent psychiatric records and (2) the ALJ failed to explain why he
accepted portions of Dr. Castro’s opinion and rejected others. For
the reasons discussed below, the Court agrees that Dr. Castro’s
opinion did not constitute substantial evidence in support of the
ALJ’s RFC finding.

4

A Social Security claimant’s RFC “is the most [she] can still
do despite [her] limitations[,]” 20 C.F.R. § 416.945(a)(1), and is
determined based upon consideration of “all of the relevant medical
and other evidence,” including a claimant’s subjective complaints
of pain and other limitations. Id. § 416.945(a)(3). In formulating
an RFC, the ALJ may rely on the opinions issued by state agency
doctors, but the weight they can be given depends in large part on
the completeness of the medical record before them:
[T]he opinions of State agency medical and
psychological consultants ... can be given
weight only insofar as they are supported by
evidence in the case record, considering such
factors as the supportability of the opinion
in the evidence including any evidence
received at the administrative law judge and
Appeals Council levels that was not before the
State agency, the consistency of the opinion
with the record as a whole, including other
medical opinions, and any explanation for the
opinion provided by the State agency medical
or psychological consultant or other program
physician or psychologist.
SSR

96–6p.

Importantly,

“medical

source

opinions

that

are

conclusory, stale, and based on an incomplete medical record may
not be substantial evidence to support an ALJ finding.”

Camille v.

Colvin, 104 F. Supp. 3d 329, 343-44 (W.D.N.Y. 2015), aff’d, 652 F.
App’x 25 (2d Cir. 2016) (quotation marks and citation omitted); see
also Jones v. Comm’r of Soc. Sec., 2012 WL 3637450, at *2 (E.D.N.Y.
Aug. 22, 2012) (ALJ should not have relied on a medical opinion in
part because it was 1.5 years stale as of the plaintiff’s hearing

5

date and did not account for her deteriorating condition); Girolamo
v. Colvin, 2014 WL 2207993, at *7-8 (W.D.N.Y. May 28, 2014) (ALJ
should not have afforded great weight to medical opinions rendered
before plaintiff’s second surgery).
Here, the record shows that plaintiff experienced a traumatic
event on April 10, 2012, when she witnessed her six year old
grandson being seriously burned in a fire.

T. 228.

The child

spent a month in the hospital before dying from his injuries.
504.

T.

This event caused a serious deterioration in plaintiff’s

condition, as noted by her mental health providers, resulting in
increased depression and anxiety, crying spells, sleep problems,
panic attacks, paranoia, loss of interest, social withdrawal,
feelings

of

guilt,

flashbacks,

stimulated memories of the trauma.

and

avoidance

T. 508.

of

things

that

However, Dr. Castro’s

did not review plaintiff’s medical records subsequent to this event
(see T. 28, 345), thereby rendering her opinion stale and based on
an incomplete record.

Accordingly, it was improper for the ALJ to

afford great weight to Dr. Castro’s opinion, and his RFC finding is
thus not based on substantial evidence.

See Girolamo, 2014 WL

2207993 at *8.
The Court notes that plaintiff has argued that this matter
should be remanded solely for the calculation of benefits.

The

Court disagrees. Remand for calculation of benefits is appropriate
only where there is “no apparent basis to conclude that a more
complete record might support the Commissioner’s decision.”
v. Callahan, 168 F.3d 72, 83 (2d Cir. 1999).
6

Rosa

In this case, the

record contains no medical source opinion regarding plaintiff’s
mental RFC following the death of her grandson. It is not properly
the role of this Court to examine the raw medical evidence of
record and render an opinion as to disability. Instead, the matter
must be remanded, and the record must be developed regarding
plaintiff’s functioning post-April 2012.
B.

On Remand, the ALJ Should Consider, in Light of the
Record as a Whole, Whether Additional Evidence is Needed
Regarding Plaintiff’s Physical Limitations

Plaintiff also argues that the ALJ failed to properly develop
the record regarding her physical limitations, particularly by
failing to request an opinion from a treating physician.

Because

the Court has already determined that remand is necessary, it need
not and does reach this issue.

On remand, the ALJ should review

the record as a whole and determine whether additional evidence is
needed regarding plaintiff’s physical limitations.

In particular,

the ALJ is encouraged to consider whether additional evidence
regarding

plaintiff’s

August

16,

2012

functional

capacity

evaluation should be obtained.
C.

On Remand, the ALJ Should Consider, in Light of the
Record as Whole, How Plaintiff’s Limitations in Dealing
with Stress Impact her Ability to Work

The final argument plaintiff makes is that the ALJ erred in
finding that plaintiff has occasional limitations in dealing with
stress,

but

failing

to

detail

what

specific

work-related

restrictions (i.e. limits on interactions with others or ability to
make decisions) would result from those limitations.

“Because

stress is highly individualized, mentally impaired individuals may
7

have

difficulty

meeting

the

requirements

of

even

so-called

low-stress jobs, and the Commissioner must therefore make specific
findings about the nature of a claimant’s stress, the circumstances
that trigger it, and how those factors affect his ability to work.”
Haymond v. Colvin, 2014 WL 2048172, at *9 (W.D.N.Y. May 19,
2014)(quotations omitted).

Here, the Court agrees with plaintiff

that the ALJ’s decision fails to adequately detail the implications
of plaintiff’s limitations in dealing with stress.

In particular,

the Court notes that the ALJ’s decision is devoid of any discussion
of what stress-related triggers plaintiff must avoid or of the
nature of plaintiff’s stress-related limitations.

On remand, the

ALJ is instructed, in light of the record as a whole, to make
appropriate

findings

regarding

plaintiff’s

stress-related

limitations.
V.

Conclusion
For the foregoing reasons, plaintiff’s motion for judgment on

the pleadings(Docket No. 15) is granted to the extent that this
matter is remanded to the Commissioner for further administrative
proceedings

consistent

with

this

Decision

and

Order.

The

Commissioner’s motion for judgment on the pleadings (Docket No. 18)
is denied.

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:

August 8, 2017
Rochester, New York.
8