Johnson v. Colvin

Filing 20

-CLERK TO FOLLOW UP-ORDER granting 11 Motion for Judgment on the Pleadings insofar as the case is remanded to the Commissioner for further administrative proceedings consistent with this opinion, pursuant to the fourth sentence of 42USC s 405(g); denying 15 Motion for Judgment on the Pleadings. Signed by Hon. H. Kenneth Schroeder, Jr on 8/25/2016. (KER)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
OMAR JOHNSON,
Plaintiff,
v.
15-CV-649(HKS)
CAROLYN W. COLVIN, Acting Commissioner
of Social Security,
Defendant.

DECISION AND ORDER
Pursuant to 28 U.S.C. § 636(c), the parties have consented to have the
undersigned conduct any and all further proceedings in this case, including entry of final
judgment. Dkt. #19.

Omar Johnson (“plaintiff”), who is represented by counsel, brings this
action pursuant to the Social Security Act (“the Act”), seeking review of the final decision
of the Commissioner of Social Security (“the Commissioner”) denying his applications
for Disability Insurance Benefits (“DIB”) and 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’ motions for judgment on the pleadings pursuant to Rule 12(c)
of the Federal Rules of Civil Procedure. Dkt.##11, 15.

BACKGROUND
Plaintiff protectively filed applications for DIB and SSI in July, 2010,
alleging disability commencing January 7, 2010, due to human immunodeficiency virus

(“HIV”), bone problems, herpes, leg neuropathy, knee inflammation, diarrhea, and
appetite problems. T. 156-65, 169-75, 194. 1 His initial applications were denied, and a
hearing was held before an Administrative Law Judge (“ALJ”) at plaintiff’s request on
January 17, 2012. T. 50-99. On November 6, 2013, ALJ Nancy Pasiecznik issued a
decision finding plaintiff not disabled. T. 19-49. The Appeals Council denied plaintiff’s
request for review on May 23, 2015, making the ALJ’s determination the final decision
of the Commissioner. T. 1-6. This action followed.

Medical Evidence
Plaintiff sought care at Erie County Medical Center (“ECMC”) on
December 15, 2009, upon complaints of leg pain and burning with urination. He told the
provider that he was on track with his medications after missing a week of dosages.
Diagnoses were HIV, urethra infection, eczema, vitamin D deficiency, and nonspecific
arthritis. T. 298.

On January 5, 2010, plaintiff sought emergency treatment at Sisters of
Charity Hospital (“Sisters”) due to persistent diarrhea, nausea, malaise, weakness, and
abdominal pain. He was diagnosed with colitis, prescribed medication, and discharged.
T. 335-41.

Four months later, plaintiff returned to ECMC with complaints of leg pain
that lasted two or three months, intermittent stomach pain, daily diarrhea, and constant
back pain. His extremities were tender upon examination. Diagnoses were HIV; herpes
1

Citations to “T.__” refer to the pages of the administrative transcript.

2

simplex, no symptoms; bilateral leg pain of unknown etiology; and diarrhea. He was
advised to quit smoking and abstain from alcohol. T. 297.

On May 17, 2010, plaintiff reported “tiny bumps” on his body to providers
at ECMC. He weighed 144 pounds, and was assessed with a skin rash. A test was
ordered to rule out syphilis. T. 296. On May 24, plaintiff tested positive for syphilis based
on a rapid plasma regain test. He received penicillin injections on May 24, June 1, and
June 7, 2010. He weighed 141 pounds as of June 1, 2010. T. 293-94.

Plaintiff returned to ECMC on August 9, 2010, with complaints of
intermittent, blurred vision; body aches; lack of appetite; stomach problems; and
malaise. Plaintiff stated that he had experienced diarrhea twice per day for two to three
months. He was assessed with HIV infection, “multiple complaints ? psychiatric,” and
was started on Cymbalta. T. 292 (notation in original).

Plaintiff was consultatively examined by Samuel Balderman, M.D., on
October 25, 2010. On examination, plaintiff exhibited normal gait and station with the
exception of a 50% squat. Skin and lymph nodes, head and face, keys, ears, nose and
throat were normal. His musculoskeletal, neurologic, extremity, and fine motor
examinations were normal. Dr. Balderman assessed history of HIV and genital herpes
with a fair prognosis, and concluded that plaintiff had mild physical limitations due to
chronic viral illness. T. 303-08.

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Plaintiff returned to the emergency room at Sisters on November 19,
2010, with complaints of chest pain. He was given a medical examination and
diagnostic imaging tests which revealed “elevated ST segments in leads V2, V3, and V4
< 1mm.” T. 356. Plaintiff was diagnosed with costochondritis, treated with Toradol, and
discharged. T. 342-56.

On January 24, 2011, plaintiff again complained of chest pain at ECMC.
He appeared to have been drinking. Diagnoses were HIV and chest pain. T. 489.

A few weeks later, plaintiff presented at Sisters emergency room for
injuries to his toe and hand. He reported drinking daily. Plaintiff was diagnosed with a
thumb sprain and a toe contusion, and was prescribed Naprosyn. T. 359-67. During a
follow-up appointment dated February 23, 2011, plaintiff stated that his right foot pain
had not improved. Although he exhibited tenderness and swelling in the right toe,
plaintiff’s physical examinations were otherwise normal. He was prescribed Tylenol #3
and Motrin, and was discharged. T. 369-78.

Plaintiff returned to Sisters on April 6, 2011, for gastroenteritis due to food
poisoning and chronic foot pain. He weighed 137 pounds and was observed as being
slender with anxious behavior, but examination was otherwise normal. He told providers
that he drank three shots of vodka the previous afternoon and had been vomiting since
the morning hours. He further claimed to have “Burger’s Infection” in the right toe.
Plaintiff was given short-term prescriptions and was discharged. T. 379-94.

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Plaintiff again reported to ECMC on August 16, 2011, with complaints of
worsening wrist and knee pain, diarrhea four times per day, “nerve problems,” and
bumps in his anal and genital region. T. 490. He reported drinking “40 oz.” beers twice
per day, and was angry and unsettled. Id. Plaintiff was prescribed a cream for his warts.
T. 491. Pathology testing from that date revealed a high-grade squamous intraepithelial
lesion. T. 434.

Following complaints of difficulty passing stool, an ECMC colonoscopy
dated September 2, 2011, revealed a normal gastrointestinal tract. T. 420.

On September 6, 2011, plaintiff was seen at Roswell Park Cancer Institute
(“Roswell”) for complaints of occasional diarrhea, poor appetite, and bilateral leg pain.
Past medical history was significant for depression, HIV, and genital herpes. Plaintiff
reported daily smoking and drinking. Diagnoses were dysplasia of the anus;
asymptomatic HIV status; and condyloma acumnatum. T. 435-51. His performance
scale from 1 to 100 was assessed at 80, indicating normal activity with effort, some
symptoms of disease. T. 436. Plaintiff had not yet received results from his
colonoscopy, which the physician wished to review before proceeding further. T. 444.
Following a physical examination, plaintiff was diagnosed with perianal condyloma,
human papillomavirus (“HPV”), and anal intraepithelial neoplasia (“AIN”) I to II. Id.

An EKG performed on September 7, 2011, was abnormal (“borderline
ECG; consider left ventricular hypertrophy; anterior infarct, age indeterminate”). T. 454-

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55. A Dobutamine stress echocardiogram performed at ECMC on November 4, 2011
revealed left ventricular hypertrophy and early repolarization, and was “nondiagnostic
. . . due to pharmacologic protocol.” T. 458.

On October 13, 2011, Plaintiff sought care at ECMC for complaints of
grogginess, aches, and trouble sleeping. He was drinking five to six 40-ounce beers
which was “not helping,” and he weighed 140 pounds. T. 492. Diagnoses were HIV,
hypertension, sexually transmitted disease exposure, alcohol abuse, and anal and
perianal warts. Id.

In November, 2011, plaintiff returned to Sisters complaining of intermittent
chest, leg, and hand pain. T. 462-76. A physical examination and medical imaging test
of plaintiff’s chest were unremarkable. He was prescribed Motrin and discharged.
T. 436- 469.

A follow-up visit to Roswell on December 6, 2011, indicated that plaintiff’s
anal dysplasia manifested in itching and bumps, but no other “significant symptoms.”
T. 457. He did not have diarrhea and weighed 138 pounds. On examination, plaintiff
complained of left foot pain at 9/10, but was otherwise unremarkable. He was scheduled
for further testing to explain the nature of the bumps. T. 459.

Plaintiff visited both ECMC and Sisters on December 6 and December 17,
2011, respectively, complaining of foot pain. He told providers at ECMC that he was

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“drunk and kicked something,” he felt dizzy, and had not taken his HIV medication
consistently. T. 493. While at Sisters, he told emergency physicians that he injured his
foot by “tripping on a floor edge” two weeks prior. His symptoms were assessed as mild,
“at worst.” T. 484. Plaintiff’s physical examination was normal, except for limited range
of motion in his two left toes. T. 485. He was diagnosed with a toe sprain and was given
Motrin. T. 477-85.

Plaintiff’s primary care provider completed a Medical Source Statement on
January 10, 2012, which indicated that plaintiff was HIV positive, experienced repeated
episodes of severe malaise and insomnia, and had marked difficulties in completing
tasks in a timely manner due to deficiencies in concentration, persistence, or pace.
T. 523-24. Plaintiff did not have any other syndromes, symptoms, episodes, or marked
restrictions or difficulties, including, but not limited to: herpes simplex manifesting in
mucocutaneous infections for one month or longer at a site other than the skin or
mucous membranes; HIV wasting syndrome; diarrhea lasting for one month or longer,
resistant to treatment; and squamous cell carcinoma of the anal canal or anal margin.
T. 523-24. Plaintiff did not suffer medicinal side effects. T. 524. The doctor opined that
plaintiff could work four hours per day; stand for two hours at a time, and sit for four
hours at a time; lift ten pounds frequently; and had moderate psychiatric limitations in
six of seven functional categories, except for the ability to understand, remember, and
carry out detailed instructions, for which he had no significant impairment. T. 525-26.
The doctor concluded that plaintiff could work part time at that point, but needed
counseling before entering the workforce. T. 526-27.

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The Medical Source Statement was submitted to the Appeals Council and
was not part of the record before ALJ Pasiecznik.

Mental Health Treatment
Plaintiff was seen at the ECMC emergency room by psychiatrist Victoria
Brooks, M.D. on April 12, 2011, for care related to alcohol intoxication and grief due to
his mother’s death several months before. He denied consistent symptoms of
depression and anxiety, and minimized his drinking and drug use history. T. 410-16. He
was ambivalent about mental health treatment, and told Dr. Brooks that he “just wanted
to vent and then [he’d] be good.” T. 413. He was living with friends, on public
assistance, and could not explain why his functioning was so impaired. Id. His mental
examination was unremarkable except for poor insight and judgment. T. 414. Dr. Brooks
assessed adjustment disorder; alcohol intoxication, rule out abuse and dependence;
and cluster B personality traits. She assessed a Global Assessment of Functioning
(“GAF”) Score of 51-60. 2 T. 415. Plaintiff’s father told the doctor that plaintiff had a “big
drinking problem,” and was in “total denial.” Id. Plaintiff was advised to avoid alcohol
and to follow-up with his primary care providers and a social worker for outpatient
counseling. T. 416.

A May 18, 2012, diagnostic review from Lake Shore Behavioral Health
reveals diagnoses of generalized anxiety disorder; alcohol dependence; cannabis
2

The GAF assigns a clinical judgment in numerical fashion to the individual's overall functioning
level. See www.omh.ny.gov/omhweb/childservice/mrt/global_assessment_functioning .pdf.

8

dependence, in remission; and personality disorder, not otherwise specified. Plaintiff
was also diagnosed with HIV, bronchitis, and herpes simplex. His GAF was assessed in
the 50s. T. 509-11. The Court finds this record illegible.

Plaintiff presented at Lake Shore Behavioral Health on June 12, 2012, for
a psychological evaluation. At intake, he exhibited circumstantial verbalizations and
inappropriate laughter; reported onset of symptoms at age 17, including racing
thoughts, restlessness, irritability, anger, and paranoia; and told the provider that he had
past visual hallucinations and suicidal ideation. Upon examination, plaintiff had a
moderately sad, somewhat anxious mood with slightly labile affect, and moderate
ruminations about his symptoms. Diagnoses were major depression, recurrent, severe,
with psychotic features; generalized anxiety disorder; alcohol and cannabis
dependence; personality disorder, NOS; herpes simplex virus, HIV, hypertension,
bronchitis, neuropathy, and stress. He was assigned a GAF score of 54. T. 504-08. The
Court finds this record to be partially illegible.

Plaintiff’s psychological assessment dated June 21, 2012 indicates that he
had symptoms consistent with generalized anxiety disorder and personality disorder,
not otherwise specified, and met the criteria for alcohol dependence and cannabis
dependence, in remission. On examination, plaintiff was cooperative, friendly, and
responsive, with euthymic mood and normal thoughts and speech. He exhibited poor
emotion regulation, impulse control, and decision-making skills, which he attributed to
cannabis use. He reported various anxiety-related symptoms, intense anger, paranoia,

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and appeared to lack empathy. Plaintiff admitted to a history of alcohol abuse, and last
used cannabis in 2005. He stated that he had little past mental health treatment other
than numerous emergency room visits when he was “upset and needed to talk to
someone,” and “mandated” outpatient care at Horizon Health Services. Group and
individual counseling was recommended. T. 512-520. The Court finds this record to be
partially illegible.

Testimonial Evidence
Plaintiff was born in 1979, has a high school diploma and completed some
college courses, and previously worked in customer service, janitorial maintenance, and
food service, and also as a dispatcher and an assembler. T. 53-62. The impairments
alleged as a basis for disability were pain and tendonitis in the hands, arthritis in the
knees, neuropathy in the legs, medication causing diarrhea, anxiety, and HIV-related
problems. T. 54. He testified that his hand problems, muscle weakness and tingling, hip
pain, and diarrhea prevented him from working, and that he had potentially cancerous
warts and insomnia. T. 65-70, 73-76, 79, 82, 87.

The ALJ’s Decision
The ALJ issued a decision on November 6, 2013, finding that plaintiff was
not under a disability on any date through the date of her decision, because plaintiff’s
substance abuse was a contributing factor material to a finding of disability. T. 44.

10

In applying the familiar five-step sequential analysis, as contained in the
administrative regulations promulgated by the Social Security Administration (“SSA”),
see 20 C.F.R. §§ 404.1520, 416.920; Lynch v. Astrue, No. 07-CV-249, 2008 WL
3413899, at *2 (W.D.N.Y. Aug. 8, 2008) (detailing the five steps), the ALJ found: (1)
plaintiff did not engage in substantial gainful activity since January 7, 2010; (2) he had
the severe impairments of HIV; possible left ventricular hypertrophy; history of an
anterior infarct (age indeterminate); an affective disorder; generalized anxiety disorder;
personality disorder NOS, with Cluster B and Cluster C traits; and alcohol abuse, rule
out dependence; and the non-severe impairments of an episode of bronchitis; sinusitis;
vitamin D deficiency; nonspecific urethritis; costochrondritis (chest wall pain); plantar
fasciitis; history of genital herpes infection; HPV; AIN I to II and perianal condylomata;
cannabis dependence, in reported remission; and history of opiate abuse; (3) his
impairments did not meet or equal the Listings set forth at 20 C.F.R. § 404, Subpt. P,
Appx. 1. The ALJ found that plaintiff retained the residual functional capacity (“RFC”) to
perform light work with the ability to lift, carry, push, and pull up to twenty pounds
occasionally and ten pounds frequently; stand and/or walk for about six hours total in an
eight-hour workday, with normal breaks; and could occasionally squat; with the
additional limitation of avoiding work where he would be exposed to or able to drink
alcohol; (4) if plaintiff stopped his substance abuse, he would be able to perform his
past relevant work as a customer service representative, dispatcher, small products
assembler, and telemarketer, as that work is generally performed in the national
economy and as previously performed by plaintiff; and (5) alternatively, there was other

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work that existed in significant numbers in the national economy that plaintiff could
perform if he stopped abusing alcohol. T. 22-44.

DISCUSSION AND ANALYSIS
Scope of Judicial Review
42 U.S.C. § 405(g) grants jurisdiction to district courts to hear claims
based on the denial of Social Security benefits. Section 405(g) provides that the District
Court “shall have the power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the Commissioner of Social
Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g)
(2007). The section directs that when considering such a claim, the Court must accept
the findings of fact made by the Commissioner, provided that such findings are
supported by substantial evidence in the record.
When determining whether the Commissioner's findings are supported by
substantial evidence, the Court's task is “’to examine the entire record, including
contradictory evidence and evidence from which conflicting inferences can be drawn.’”
Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999), quoting Mongeur v. Heckler, 722 F.2d
1033, 1038 (2d Cir. 1983) (per curiam). Section 405(g) limits the scope of the Court's
review to two inquiries: whether the Commissioner's findings were supported by
substantial evidence in the record as a whole and whether the Commissioner's
conclusions were based upon an erroneous legal standard. See Green–Younger v.
Barnhart, 335 F.3d 99, 105–106 (2d Cir. 2003).

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Judgment on the Pleadings
The parties have cross-moved for judgment on the pleadings. Dkt. ##11,
15. Plaintiff seeks remand or reversal on the grounds that: (1) the ALJ failed to properly
evaluate the evidence under Listing 14.08; (2) the ALJ’s mental RFC finding was not
supported by substantial evidence; (3) the ALJ failed to incorporate additional limitations
into the RFC finding; and (4) the Appeals Council failed to properly evaluate material
evidence. Dkt. #11-1 at 16-27. The Commissioner requests that its determination be
affirmed as the ALJ’s decision was supported by substantial evidence in the record. Dkt.
#15-1 at 11-25.

For the reasons that follow, remand is warranted based on the argument
presented in Point 2 of plaintiff’s supporting memorandum, which asserts that the ALJ’s
mental RFC finding was not supported by substantial evidence. In light of the
determination to remand this matter for further proceedings, the Court declines to reach
plaintiff’s remaining contentions. See Erb v. Colvin, 2015 WL 5440699, *15 (W.D.N.Y.
2015) (declining to reach remaining challenges to the RFC and credibility assessments
where remand requiring reassessment of RFC was warranted).

Step Three Finding: Mental RFC Assessment
Plaintiff challenges the ALJ’s determination of his mental RFC because
there was no opinion evidence in the record indicating plaintiff’s functional abilities. Dkt.
#11-1 at 20.

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It is well-settled that “‘an ALJ is not qualified to assess a claimant's RFC
on the basis of bare medical findings, and as a result an ALJ's determination of RFC
without a medical advisor's assessment is not supported by substantial evidence.’”
Dailey v. Astrue, No. 09-CV-0099, 2010 WL 4703599, at *11 (W.D.N.Y. Oct. 26, 2010),
report and recommendation adopted, No. 09-CV-99, 2010 WL 4703591 (W.D.N.Y. Nov.
19, 2010)) (quoting Deskin v. Comm’r of Soc. Sec., 605 F.Supp.2d 908, 912 (N.D. Ohio
2008)). Thus, even though the Commissioner is empowered to make the RFC
determination, “[w]here the medical findings in the record merely diagnose [the]
claimant's exertional impairments and do not relate those diagnoses to specific residual
functional capabilities,” the general rule is that the Commissioner “may not make the
connection himself.” Id. (quotation marks omitted); see also Jermyn v. Colvin, No. 13CV-5093, 2015 WL 1298997, at *19 (E.D.N.Y. Mar. 23, 2015) (“[N]one of these medical
sources assessed Plaintiff's functional capacity or limitations, and therefore provide no
support for the ALJ's RFC determination.”). While the absence of a function-by-function
analysis of a treating source does not necessarily render the record incomplete, see 20
C.F.R. § 404.1513(b)(6), “because an RFC determination is a medical determination,” it
is error for the ALJ to make this determination “based on medical reports that do not
specifically explain the scope of the claimant's work-related capabilities.” McClaney v.
Astrue, No. 10–CV–5421, 2012 WL 3777413, at *10 (E.D.N.Y. Aug. 10, 2012) (internal
citation and quotation marks omitted).

Here, the ALJ gave “great weight” to the opinion of psychiatrist Victoria
Brooks, M.D., who treated plaintiff at ECMC for grief and alcohol intoxication. T. 410.

14

During that visit, plaintiff was diagnosed with adjustment disorder with depressed mood,
nondependent alcohol intoxication, and Cluster B traits with a GAF of 51-60. T. 415.
Based on this evidence, the ALJ found that, without substance abuse, plaintiff’s
remaining mental impairments would not impose significant limitation on his workrelated functioning. T. 42. In her written decision, the ALJ also cited to plaintiff’s mental
health evaluations on May 18, 2012 and June 21, 2012 in support of plaintiff’s
diagnoses of anxiety and personality disorder, alcohol and cannabis dependence, and
“fair” interpersonal relationships without other significant abnormalities. T. 33. In addition
to the absence of a function-by-function assessment in any of these records, they are
also largely illegible. 3 In the Court’s view, there is no way of knowing on the current
record whether or how plaintiff’s mental impairments or limitations deteriorated or
improved during the relevant time period, to what extent the reports are consistent with
one another, and how they, as a whole, relate to his functional abilities.

When records produced are illegible but relevant to the plaintiff's claim, a
remand is warranted to obtain supplementation and clarification. Pratts v. Chater, 94
F.3d 34, 38 (2d Cir.1996) (holding that remand was appropriate where the record was
missing evidence, and a significant portion of the available evidence was illegible);
Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d Cir.1975) (“Where the medical records
are crucial to the plaintiff's claim, illegibility of important evidentiary material has been
held to warrant a remand for clarification and supplementation.”); Chamberlain v.
Leavitt, 2009 WL 385401, *8–9 (N.D.N.Y. Feb. 10, 2009) (holding that “sporadic, brief
3

It is unclear whether the copies submitted to the Court by the Commissioner are identical to
those evaluated by the ALJ. Pages 504 through 520 of Administrative Transcript are illegible
because of the poor quality of the photocopy.

15

and in some instances, illegible” treatment records justified remand “to fully and fairly
develop the record”) (citing Cutler, 516 F.2d at 1285). But see Kruppenbacher v. Astrue,
2011 WL 519439, *6 (S.D.N.Y. Feb. 14, 2011) (holding that remand was unnecessary
where the illegible record was not material to the claims).

Considering two of the three cited treatment records are illegible in this
case, and the ALJ afforded great weight to the only one that was legible, remand is
necessary to seek clarification of the illegible portions. Pratts, 94 F.3d at 38; Cutler, 516
F.2d at 1285. Once the evidence from Lake Shore Behavioral Health is fully developed,
the Commissioner should reconsider plaintiff’s psychological impairments in light of the
complete record. Because the matter is remanded for further development of the record,
the ALJ should also: (1) re-contact plaintiff’s mental health care providers for
assessments of plaintiff’s functioning with respect to the mental RFC component; and
(2) consider the January 10, 2012 Medical Source Statement completed by plaintiff’s
treating physician, submitted by plaintiff after his hearing before the ALJ.

Accordingly, remand is warranted at step three, and the Court need not
reach plaintiff's remaining contentions, as the ALJ's re-evaluation at step three may
affect her analysis of the remaining steps in the sequential evaluation. See Yeomas v.
Colvin, No. 13-CV-6276, 2015 WL 1021796 (W.D.N.Y. Mar. 10, 2015).

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CONCLUSION
For the reasons stated herein, the Commissioner's motion for judgment on
the pleadings (Dkt. #15), is hereby DENIED, and Plaintiffs cross-motion for judgment on
the pleadings (Dkt. #11), is hereby GRANTED insofar as the case is REMANDED to the
Commissioner for further administrative proceedings consistent with this opinion,
pursuant to the fourth sentence of 42 U.S.C. § 405(g).

SO ORDERED.
DATED:

Buffalo, New York
August 25, 2016

s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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