Desnerck v. Colvin

Filing 19

DECISION AND ORDER granting 7 Plaintiff's Motion for Judgment on the Pleadings to the extent that the matter is remanded for further administrative proceedings; denying 16 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 1/5/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
NICHOLAS CHARLES DESNERCK,
1:15-cv-0465-MAT

Plaintiff,

DECISION AND
ORDER
-vsNANCY A. BERRYHILL, Acting Commissioner
of Social Security,
Defendant.

I.

Introduction
Represented

by

counsel,

Nicholas

Charles

Desnerck

(“plaintiff”) has brought this action pursuant to Title XVI of the
Social Security Act (“the Act”), seeking review of the final
decision

of

the

Acting

Commissioner

of

Social

Security1

(“defendant” or “the Commissioner”) denying his application for
Supplemental Security Income (“SSI”).

This Court has jurisdiction

over the matter pursuant to 42 U.S.C. § 405(g). Presently before
the Court are the parties’ competing motions for judgment on the
pleadings pursuant to Rule 12© of the Federal Rules of Civil
Procedure.

For the reasons set forth below, plaintiff’s motion is

granted to the extent that the matter is remanded for further
administrative proceedings and defendant’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.

Legal Standard
Plaintiff’s application for benefits was initially filed on

May 19, 2011, while he was still a minor child.

For the purpose of

evaluating eligibility for childhood SSI benefits, an individual
under the age of 18 is considered disabled if he has a medically
determinable physical or mental impairment that results in marked
and severe functional limitations, and that can be expected to
result in death, or that has lasted, or can be expected to last,
for a continuous period of not less than 12 months.

See 42 U.S.C.

§

a

1382c(a)(3)(C)(I).

The

regulations

establish

sequential

evaluation for determining whether a child claimant meets this
definition of disabled, and requires the claimant to show: (1) that
he

is

not

combination

working;
of

(2)

that

impairments;

he
and

has

a

severe

(3)

that

his

impairment

or

impairment

or

combination of impairments meets or medically equals the listings
in Part A or B of Appendix 1 to Subpart P of Part 404 of the Social
Security Administration’s regulations.

See 20 C.F.R. § 416.924.

A child’s functional limitations are evaluated in the context of
six broad functional areas, called “domains of functioning.”
20 C.F.R. § 416.926a(b)(1).

See

If a child has marked limitations in

two domains or an extreme limitation in one domain, the child’s
impairment or combination of impairments is functionally equivalent
to a listed impairment.

See 20 C.F.R. § 416.926a(d).

2

III. Procedural History
On May 19, 2011, Victoria Holland protectively filed an
application for children’s SSI on behalf of plaintiff, who was then
a minor child.

Administrative Transcript (“T.”) at 121-29, 139.

Plaintiff’s claim was initially denied, and he timely requested a
hearing before an administrative law judge (“ALJ”). T. 48-60. ALJ
Michael Friedman held a hearing on October 10, 2012, at which
plaintiff was represented by attorney Valerie Sylves.

T. 36-44.

On October 25, 2012, ALJ Friedman issued a decision in which he
found plaintiff not disabled.

T. 19-35.

Plaintiff’s request for

Appeals Council review was denied on March 25, 2015, making the
ALJ’s decision the final decision of the Commissioner.

T. 1-6.

Plaintiff subsequently commenced the instant action.
IV.

The ALJ’s Decision
In

considering

plaintiff’s

claim,

the

ALJ

applied

the

three-step sequential evaluation for evaluating child disability
claims.

See 20 C.F.R. § 416.924.

At step one, the ALJ determined

that plaintiff had not engaged in substantial gainful activity at
any time relevant to this decision.

T. 25.

At step two, the ALJ

found that plaintiff suffered from the severe impairments of
cerebral palsy and bipolar disorder.

Id.

At step three, the ALJ

found that plaintiff did not have an impairment or combination of
impairments that met or medically equaled any impairment listed at
20 C.F.R. Part 404, Subpart P, Appendix 1.

Id.

The ALJ further

found that plaintiff’s impairments were not functionally equivalent
3

to

a

listed

impairment.

T.

25-26.

Specifically,

the

ALJ

determined that plaintiff had less than marked limitations in the
domains of Interacting and Relating With Others, Moving About and
Manipulating Objects, and Health and Physical Well-Being, and no
limitations in the domains of Acquiring and Using Information,
Attending and Completing Tasks, and Caring for Yourself. T. 27-31.
The ALJ therefore concluded that plaintiff was not disabled within
the meaning of the Act.
V.

T. 31.

Scope of Review
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

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) (quotation omitted).
“Where the Commissioner’s decision rests on adequate findings
supported

by

evidence

having

rational

probative

force,

[the

district court] will not substitute [its] judgment for that of the
Commissioner.”
2002).

This

Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.
deferential

standard

is

not

applied

to

the

Commissioner’s application of the law, and the district court must
independently determine whether the Commissioner’s decision applied
the correct legal standards in determining that the claimant was
4

not disabled.

Townley v. Heckler, 748 F.2d 109, 112 (2d Cir.

1984).
VI.

Discussion
Plaintiff requests the Court to remand this matter for further

administrative proceedings, arguing that the ALJ significantly
understated
resulting

the

in

severity

erroneous

of

plaintiff’s

evaluations

of

mental

plaintiff’s

impairments,
ability

to

interact with and relate to others and to care for himself.
Plaintiff further argues that the ALJ failed to properly develop
the record, inasmuch as he did not obtain an expert medical opinion
regarding

the

severity

of

response,

the

Commissioner

plaintiff’s
requests

mental

the

Court

impairments.
to

uphold

In
her

determination that plaintiff is not disabled, arguing that it was
supported by substantial evidence. For the reasons discussed below
and based on a review of the record evidence, the Court finds that
the ALJ failed to properly develop the record with respect to the
severity of plaintiff’s mental impairments, and therefore remands
the case for further administrative proceedings.
A.

Failure to Develop the Record

“It is well settled that the ALJ has an affirmative duty to
develop the record in a disability benefits case, and that remand
is

appropriate

where

this

duty

is

not

discharged.

.

.

.

Encompassed in this duty is the requirement that an ALJ assemble
the claimant’s complete medical history and re-contact treating
physicians

or

obtain

consultative
5

examinations

where

the

information

received

is

claimant is disabled.”

inadequate

to

determine

whether

the

Weed Covey v. Colvin, 96 F. Supp. 3d 14, 29

(W.D.N.Y. 2015) (internal quotations omitted).

“[T]he ALJ cannot

arbitrarily substitute his own judgment for competent medical
opinion. . . .

[W]hile an [ALJ] is free to resolve issues of

credibility as to lay testimony or to choose between properly
submitted medical opinions, he is not free to set his own expertise
against that of a physician who [submitted an opinion to or]
testified before him.” Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir.
1998) (internal quotations omitted); see also Filocomo v. Chater,
944

F.

Supp.

165,

170

(E.D.N.Y.

1996)

(“In

the

absence

of

supporting expert medical opinion, the ALJ should not have engaged
in his own evaluations of the medical findings.”).
In this case, the ALJ concluded that plaintiff had a severe
impairment of bipolar disorder.

The medical evidence of record

shows that plaintiff had two extended inpatient hospital stays
(from December 2, 2011 to December 11, 2011 and from January 3,
2012 to January 16, 2012) related to his mental impairments.
T.

304-305,

322-23.

hospitalization,

the

With
record

respect
reveals

to
a

plaintiff’s

global

first

assessment

of

functioning (“GAF”) score of only 25 upon admission, which had
increased to 55 on discharge.

T. 323.

With respect to his second

hospitalization, again, his GAF score was only 25 upon admission,
and had increased only to 54 on discharge.

6

T. 305.

Plaintiff underwent a psychiatric evaluation at WCA Hospital
in

Jamestown,

New

York,

on

February

22,

2012.

T.

289-91.

Plaintiff reported a history of physical abuse, as well as having
been a witness to domestic violence.

T. 290.

He was assessed with

bipolar disorder with psychotic features, as well as a learning
disorder,

and

recommended

had

that

a

he

GAF

score

undergo

of

55.

additional

T.

290-91.

psychological

It

was

testing.

T. 291.
On September 19, 2012, approximately one month before the ALJ
held the hearing in this matter, plaintiff was seen by his treating
physician, Dr. Sean Seibert, because he had been exhibiting unusual
behavior.

T. 358.

Plaintiff reported having confused thoughts,

and Dr. Seibert recommended that a psychiatric evaluation be
performed “as soon as possible.”

Id.

The record does not contain any medical opinion evidence
regarding the impact of plaintiff’s mental impairments on his
ability to function, and there is no indication that the ALJ sought
to remedy this obvious gap in the record.
plaintiff

notes,

psychiatric
treating

hearing.

examination

physician

evaluation

the

was

ALJ
of

had

necessary

failed

to

plaintiff,

expressly
one

month

In particular, and as
obtain

even

opined
before

a

consultative

though plaintiff’s
that
the

a

psychiatric

administrative

Under these circumstances, the Court concludes that the

ALJ failed to discharge his duty to develop the record regarding

7

the severity of plaintiff’s mental impairments, and that remand for
further proceedings is necessary.
The

Commissioner

argues

that

the

ALJ’s

conclusions

are

supported by the opinion of State Agency Reviewing Physician
Dr. M. Malik.

This contention is meritless.

Dr. Malik rendered

his opinion on July 19, 2011, prior to plaintiff’s hospitalizations
and subsequent psychiatric treatment, and moreover his opinion does
not discuss plaintiff’s mental impairments whatsoever.

T. 260–64.

It is well-established that “medical source opinions that are . .
. 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
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).

Dr. Malik’s opinion does not

and cannot provide substantial evidence to support the ALJ’s
conclusions in this case.
In sum, and for the reasons discussed above, the Court finds
that the ALJ failed to discharge his duty to develop the record
regarding the severity of plaintiff’s mental impairments, and that
8

this error requires remand.

On remand, the ALJ is instructed to

obtain a consultative psychiatric examination of plaintiff, in
addition to taking any other appropriate steps to develop the
record.
B.

The Court Declines to Reach Plaintiff’s Other Arguments

Plaintiff has also argued that the ALJ’s analysis of his
functioning in the domains of interacting with and relating to
others and caring for himself.

Because the Court has determined

that further development of the record is required, it need not and
does not reach these arguments.

On remand, the ALJ is instructed

to revisit his determination regarding plaintiff’s function in each
of the six domains in light of the record as a whole.
VII. Conclusion
For the foregoing reasons, the Court finds that remand of this
matter

for

further

development

of

the

record

is

necessary.

Defendant’s motion for judgment on the pleadings (Docket No. 16) is
denied, and Plaintiff’s motion for judgment on the pleadings
(Docket No. 7) is granted to the extent that the matter is remanded
for further administrative proceedings.

The Clerk of 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 5, 2018
Rochester, New York.
9