Ryder v. Colvin

Filing 12

-CLERK TO FOLLOW UP-ORDER granting 8 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 12/16/15. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SHALANDA M. RYDER,
Plaintiff,
-vs-

No. 1:15-CV-00241 (MAT)
DECISION AND ORDER

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

I.

Introduction
Represented by counsel, Shalanda M. Ryder (“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. 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 January 2012, plaintiff (d/o/b

December 6, 1977) applied for SSI, alleging disability as of
February 9, 2009. After her application was denied, plaintiff
requested a hearing, which was held before administrative law judge

Timothy M. McGuan (“the ALJ”) on May 16, 2013. The ALJ issued an
unfavorable decision on June 7, 2013. The Appeals Council denied
review of that decision and this timely action followed.
III. Summary of Evidence
A.

Evidence Before the ALJ at the Time of the Decision

The Court will first address evidence before the ALJ at the
time of the decision. At that time, the medical record included
certain

records

of

treatment

with

Child

and

Family

Services

(“CFS”), a report of a consulting examination performed by Susan
Santarpia, Ph.D., and a pscyhiatric review technique and mental
residual functional capacity (“RFC”) completed by non-examining
consultant Dr. Hillary Tzetzo.
As plaintiff points out, the treatment records from CFS and
before the ALJ at the time of the decision consisted chiefly of
records of an initial assessment and follow-up treatment plans.
However, although these records clearly indicate that plaintiff was
in continuing treatment with CFS, the records do not include
substantive notes documenting plaintiff’s regular treatment at CFS.
In

January

2012,

plaintiff

was

evaluated

by

CFS

for

a

comprehensive assessment, in which she reported hearing voices
which

caused

concentration,

her
and

to

be

distracted;

short-term

memory;

problems
and

with

sleep,

frequent

crying

associated with depression. Plaintiff reported being hospitalized
as an adolescent, placement in a group home setting, and placement
on prescription medications at that time. Plaintiff was diagnosed
2

with psychotic disorder, not otherwise specified (“NOS”) and her
treating provider, Elizabeth Morris, LCSW, assessed her with a
global assessment of functioning (“GAF”) score of 50, indicating
serious symptoms. See Am. Psych. Ass'n, Diagnostic and Statistical
Manual of Mental Disorders–Text Revision (“DSM–IV–TR”), at 34
(4th ed., rev. 2000).
The record before the ALJ contained several “treatment plans”
from CFS. The first, from February 2012, indicated that the main
objectives of plaintiff’s treatment included the clear definition
of symptoms, identification of irrational thoughts, practicing good
sleep and hygiene, and medication management. It stated that
plaintiff would be “discharged when she [was] stabilized and able
to cope with her symptoms.” T. 232. The record also contains a
prescription medication summary covering the time period from April
2012 through January 2013, a further indication of plaintiff’s
regular treatment at CFS.
On February 22, 2012, Nurse Practitioner (“NP”) Diana Page
completed a psychiatric evaluation. Plaintiff reported hearing
voices which “at times . . . talk[ed] against her,” and NP Page
noted that in “reviewing [plaintiff’s] chart it appear[ed] that she
[did] have a long history of mental health issues.” T. 259.
Plaintiff reported three prior hospitalizations in the late 1980s,
as well as at least one past suicide attempt and an incident in
which she cut her husband with a knife. Mental status examination
was unremarkable except that plaintiff reported stating that she
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“always [had] a low level

of chatter” distorting her perceptions.

NP Page assessed schizoaffective disorder, psychotic disorder, NOS,
possibility of paranoid schizophrenia, and “mood shift of bipolar
type.” T. 261. NP Page also noted “significant family history that
. . . supported mental health issues that would indicate a general
predisposition.” Id. NP Page did not offer any assessment of
plaintiff’s functional capabilities.
A second CFS treatment plan completed in November 2012 is much
longer and more detailed than the initial February 2012 treatment
plan. It included similar objectives but with attendant notations
indicating that plaintiff had been engaging in regular treatment at
CFS. A later treatment plan dated January 2013 was essentially
identical,

but

noted

that

medication

was

helping

to

lessen

plaintiff’s symptoms of auditory hallucinations. Once again, it was
noted that plaintiff would be “discharged when she [was] stabilized
and able to cope with her symptoms.” T. 271.
In

March

2012,

Dr.

Santarpia

completed

a

report

of

a

consulting examination of plaintiff, in which she assessed a
largely unremarkable

mental

status

examination.

Dr. Santarpia

opined that plaintiff suffered from anxiety disorder, NOS, and that
she should “continue with psychological/psychiatric treatment as
currently provided” and consider vocational training. T. 206.
Notably, Dr. Santarpia did not diagnose schizophrenia. She opined
that plaintiff was “able to follow and understand simple directions
and instructions, perform simple tasks independently, maintain
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attention and concentration, maintain a regular schedule, learn new
tasks, make appropriate decisions, and appropriately deal with
stress.” T. 205. She further opined that plaintiff was mildly
impaired in performing complex tasks independently and relating
adequately with others, and that these difficulties were “caused by
a lack of motivation.” Id.
Dr. Hillary Tzetzo, a non-examining consultant, reviewed the
evidence before the ALJ. She assessed plaintiff as suffering from
“possible depression with psychotic features most likely,” “after
consideration of all the evidence in file,” T. 210, also noting
that

plaintiff

exhibited

cannabis

dependence.

According

to

Dr. Tzetzo, plaintiff suffered from mild restrictions of activities
of daily living (“ADLs”), moderate difficulties maintaining social
functioning, and moderate difficulties maintaining concentration,
persistence, or pace, with no prior episodes of decompensation.
Dr. Tzetzo also opined as to various moderate limitations in
memory,

sustained

concentration,

social

interaction,

and

adaptation.
At her hearing held in May 2013, plaintiff testified that she
was withdrawn and anxious around people, she had feelings of
worthlessness,

and

she

experienced

paranoia

regarding

social

interactions. She testified that she was currently treating with
CFS and had been since January 2012. Plaintiff stated that she saw
her therapist, social worker Morris, at CFS on a biweekly basis,
and that she also treated with NP Malinowski, who had prescribed
5

Latuda

and

lithium.

Plaintiff

testified

that

the

medication

“help[ed] a little bit,” but that the “issues” she had were “not
going anywhere.” T. 34. She stated that she heard voices and
experienced racing thoughts continuously, which interfered with her
sleep and caring for her child. She testified that she went grocery
shopping early so as to avoid people. Her mother, her son’s father,
and her best friend helped her with ADLs and with childcare.
According to plaintiff, this was the extent of her social network.
She testified that she had worked as a nurse’s assistant and a
housekeeper,

but

could

not

hold

a

job because

her emotional

difficulties made it impossible for her to “give [her] time and
attendance.” T. 38-39.
Vocational expert (“VE”) Timothy Janikowski testified that a
hypothetical

individual

with

no

exertional

limitations

and

nonexertional limitations including only occasional contact with
the public and occasional ability to understand, remember, and
carry out complex and detailed tasks, could not perform plaintiff’s
past relevant work as a nurse’s aide, but could perform other jobs
existing in significant numbers in the national economy.
B.

Evidence Submitted to the Appeals Council

Plaintiff submitted additional documentation of treatment at
CFS to the Appeals Council. These documents included regular
treatment notes spanning the time period January 2012 through May
2013, detailing plaintiff’s treatment with social worker Morris and
NP Malinowski. Upon review, the Court notes that the records
6

document an ongoing diagnosis of schizoaffective disorder and
repeated abnormal mental status examinations, including findings of
depressed

affect

hallucinations

or

elevated

consistently

mood,

reported

as

continued
constant,

auditory
occasional

disorientation from place and time, passive suicidal ideation, and
abnormal or psychotic thoughts. See T. 336, 338, 354, 359, 372,
373. In May 2013, NP Malinowski assessed plaintiff’s GAF at 45,
again indicating serious symptoms.
Also in May 2013, NP Malinoswki submitted a medical source
statement opining as to plaintiff’s functional limitations. She
reported

that

plaintiff

was

diagnosed

with

schizoaffective

disorder, a condition which was expected to be permanent. NP
Malinowski

opined

understanding,

that

plaintiff

remembering,

and

would

be

carrying

“very
out

limited”

in

instructions;

maintaining attention and concentration; interacting appropriately
with others; maintaining socially appropriate behavior without
exhibiting behavioral extremes; and functioning in a work setting
at a consistent pace.
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. At step one, the ALJ
determined that plaintiff had not engaged in substantial gainful
activity since January 11, 2012, the application date. At step two,
the ALJ found that plaintiff suffered from the following severe
7

impairments: psychotic disorder and schizoaffective disorder. 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. In assessing plaintiff’s mental limitations, the
ALJ found that plaintiff had mild restrictions in ADLs, moderate
limitations in social functioning, and moderate difficulty with
concentration, persistence, or pace.
Before proceeding to step four, the ALJ determined that
plaintiff retained the RFC to perform a full range of work at all
exertional levels but with the following nonexertional limitations:
she was able to interact with the public only occasionally and she
could understand, remember, and carry out detailed instructions
only

occasionally.

In

formulating

his

RFC,

the

ALJ

gave

“significant” weight to Dr. Santarpia’s opinion, “because it [was]
consistent with the findings of her examination,” and “significant”
weight to Dr. Tzetzo’s opinion, “because it [was] consistent with
the objective evidence of record.” T. 19-20. At step four, the ALJ
determined that plaintiff was not capable of performing past
relevant work as a nurse’s assistant. At step five, the ALJ found
that considering plaintiff’s age, work experience, and RFC, jobs
existed

in

significant

numbers

in

the

national

economy

that

plaintiff could perform. The ALJ thus found that plaintiff was not
disabled.

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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).
Plaintiff’s primary contention is that the ALJ failed to
adequately develop the record, and that the ALJ’s duty to do so was
triggered by the evidence before him at the time of the hearing,
which plaintiff argues indicated an obvious absence of treatment
notes from CFS. Plaintiff also argues that the Appeals Council
erred in failing to detail its reasoning for finding that the new
evidence submitted to it would not alter the ALJ’s decision, and
that the Appeals Council should have found that the new evidence
could have reasonably altered the ALJ’s decision.
The new evidence became a part of the administrative record
when the Appeals Council denied review. See Perez v. Chater,
77 F.3d 41, 45 (2d Cir. 1996). Where this occurs, “the ALJ’s
decision, and not the Appeals Council’s, is the final agency
decision.” Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d Cir. 2015).
This

Court

must

thus

determine

whether

substantial

evidence

supports the ALJ’s decision, when the new evidence is included in
9

the administrative record. Because the ALJ’s decision was the final
agency decision, the Court will not address plaintiff’s arguments
regarding the Appeals Council’s alleged errors in considering the
new evidence.
For the reasons that follow, the Court concludes that the ALJ
erred in failing to carry out his duty of further developing the
administrative record. Additionally, the Court finds that there is
a reasonable possibility that the new evidence submitted to the
Appeals Council would have influenced the Secretary to decide
plaintiff’s application differently. See Jones v. Sullivan, 949
F.2d 57, 60 (2d Cir. 1991).
The Commissioner argues that the record in this case was
complete

at

the

time

of

the

hearing

and

decision,

and

that

therefore the ALJ was under no duty to further develop it. The
Court disagrees. As plaintiff points out, the records present
before the

ALJ

clearly

indicated

the existence

of

a

regular

treatment relationship between plaintiff and CFS. Yet, as the ALJ
appeared to recognize at the hearing (see T. 31-32), the records
before the ALJ from CFS consisted only of a report of an initial
consultation

and

subsequent

treatment

plans,

which,

upon

the

Court’s review, obviously indicate the likely presence of further,
substantive treatment notes. However, the ALJ proceeded to make his
determination without the benefit of a single substantive treatment
note following plaintiff’s initial evaluation at CFS. This was
error.
10

The regulations provide 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
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 added) (citing 20 C.F.R. §§ 404.1512(d) through (f)).
Here, the record before the ALJ was devoid of any substantive
treatment notes, despite plaintiff’s testimony that she treated
biweekly with CFS and obvious indication from treatment plans that
she was indeed regularly treating with CFS. Although, at the
hearing, plaintiff’s counsel indicated that treatment records from
CFS were present in the record, it was apparent from the actual
records that more treatment notes likely existed, such that the ALJ
should have made an effort to obtain them. 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 where there was a “gap in the record
that must be remedied”); Aiello v. Comm'r of Soc. Sec., 2009 WL
87581, *5, n.2 (N.D.N.Y. Jan. 9, 2009) (ALJ “should have attempted
to contact that physician to discover any pertinent medical records
that could relate to [alleged] conditions”); Metaxotos v. Barnhart,
2005 WL 2899851,

*5 (S.D.N.Y. Nov. 3, 2005) (remanding where ALJ

11

failed to develop the record by not obtaining treatment notes,
records, or opinions from plaintiff's treating psychiatrist).
The

ALJ’s

failure

to

develop

the

record

is

especially

significant in this case, because the ALJ’s decision repeatedly
cites a lack of “objective evidence” or “examples” in the record of
plaintiff’s

complained-of

symptoms.

T.

20.

Indeed,

he

gave

Dr. Santarpia’s opinion, which failed to recognize plaintiff’s
longstanding diagnosis of schizoaffective disorder, “significant
weight” because it was “consistent” with her own examination, and
he

gave

“significant

weight”

to

non-examining

consultant

Dr. Tzetzo’s opinion because it was “consistent with the objective
evidence of record.” T. 19-20.
Moreover,

the

error

is

significant

because

the

records

actually produced to the Appeals Council reasonably could have
influenced

the

Secretary

to

decide

plaintiff’s

application

differently. See Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir. 1991).
As noted above, those records contain a very restrictive functional
assessment

from

treating

source

NP

Malinowski,

as

well

as

documented evidence of repeated abnormal mental status exams and
consistent reports from plaintiff that she experienced continuous
auditory

hallucinations

evidence

could

have

and

racing

influenced

the

thoughts.
ALJ

Certainly,

regarding

such

plaintiff’s

credibility. The evidence also reasonably would have altered the
weight he gave to the consulting opinions, especially Dr. Tzetzo’s,

12

which was entirely based on a review of the incomplete evidence in
the administrative record.
Accordingly, the case is remanded for reconsideration of the
entire administrative record, which should include the new evidence
submitted to the Appeals Counsel. On remand, the ALJ is directed to
fully consider plaintiff’s treatment with CFS, and to specifically
consider and weigh the opinion of treating nurse practitioner
Malinowski. Although NP Malinowski is an “other source” under the
regulations, her opinion is entitled to be considered and weighed
especially considering the fact that she was one of plaintiff’s
regular treating sources. See, e.g., Kentile v. Colvin, 2014 WL
3534905, *8 (N.D.N.Y. July 17, 2014) (finding that, especially
because

of

plaintiff’s

treatment

relationship

with

nurse

practitioner, nurse practitioner’s opinion was entitled to be
considered and discussed); Lopez v. Barnhart, 2008 WL 1859563, * 15
(S.D.N.Y. 2008) (“[the social worker's] observations would be
relevant on the issue of the intensity and persistence of [the]
plaintiff's
capacity

symptoms,

for

which

work

and

in

turn

hence

affect
the

[the]

plaintiff's

ultimate

disability

determination”); White v. Comm'r of Soc. Sec., 302 F. Supp. 2d 170,
176 (W.D.N.Y. 2004) (citing 20 C.F.R. § 416.913(a); § 416.913(d))
(consideration of social worker's report was particularly important
given

that

he

was

the

sole

source

with

a

regular

treatment

relationship with the plaintiff). If the ALJ decides to discount NP
Malinowski’s opinion, he must provide good reasons. See Kentile,
13

2014 WL 2014 WL 3534905 at *8 (“The Regulations require the ALJ to
engage

in

a

treatment

detailed

and

opinions.”)

provide

(citing

analysis
‘good

Stytzer

of

[the

reasons’

v.

Astrue,

nurse
for
2010

practitioner’s]
discounting
WL

3907771,

his
*6

(N.D.N.Y. 2010)).
VI.

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

judgment on the pleadings (Doc. 9) is denied and plaintiff’s motion
(Doc. 8) 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:

December 16, 2015
Rochester, New York.

14