Tracy v. Colvin
DECISION AND ORDER granting 10 Plaintiff's Motion for Judgment on the Pleadings; denying 14 Commissioner's Motion for Judgment on the Pleadings. This matter is reversed and remanded solely for the calculation and payment of benefits. The Clerk of the Court is directed to close this case. Signed by Hon. Michael A. Telesca on 1/23/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHRISTINE TRACY o/b/o MICHAEL P.
No. 1:15-CV-00980 (MAT)
DECISION AND ORDER
-vsCAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Represented by counsel, Christine Tracy (“plaintiff”) brings
this action on behalf of her deceased son, Michael P. Tracy
(“M.P.T.”) pursuant to Titles II and XVI of the Social Security Act
plaintiff’s and M.P.T.’s applications 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.
reasons discussed below, plaintiff’s motion is granted and this
matter is reversed and remanded solely for the calculation and
payment of benefits.
April 4, 1972) applied for DIB and SSI,1 alleging disability
Plaintiff’s claim for SSI was dismissed by an Appeals Council order dated
September 17, 2015, and plaintiff has not contested that decision.
beginning September 26, 2009. After his applications were denied,
M.P.T. requested a hearing, which was held before administrative
law judge Robert Harvey (“the ALJ”) on May 18, 2011. On June 1,
2011, the ALJ issued an unfavorable decision. The Appeals Council
denied review of that decision and M.P.T. brought an action in this
March 20, 2013 the matter was remanded to the Commissioner for
further administrative proceedings pursuant to the fourth sentence
of 42 U.S.C. § 405(g). See Tracy v. Colvin, No. 1:12-CV-00683,
doc. 10 (Skretney, J.). In compliance with this Court’s order, on
March 8, 2014, the Appeals Council issued an order remanding the
case with specific instructions to the ALJ which will be more fully
M.P.T. passed away on May 23, 2014. At the second hearing held
on July 16, 2014, M.P.T.’s mother testified that at the time of his
death, M.P.T. was single and lived with plaintiff. According to
plaintiff, “the death certificate indicated the cause of death was
related to his cardiac [condition].” T. 570. Plaintiff testified
that M.P.T. had been sick for a week, not eating or drinking, yet
he refused to go to the hospital despite urging from plaintiff and
other family members. On May 23, 2014, plaintiff returned home from
a doctor’s appointment to find that M.P.T. had passed away. On
September 23, 2014, the ALJ issued a second unfavorable decision.
The Appeals Council denied review of that decision and this timely
III. The ALJ’s Decision
In his decision following remand, the ALJ found that M.P.T.
evaluation, see 20 C.F.R. §§ 404.1520, 416.920, the ALJ determined
that M.P.T. had not engaged in substantial gainful activity since
his alleged onset date, September 26, 2009. At step two, the ALJ
intermittent explosive disorder and obesity. At step three, the ALJ
found that M.P.T. did not have an impairment or combination of
impairments that met or medically equaled the severity of any
listed impairment. Regarding mental functioning, the ALJ found that
no restrictions of activities of daily living (“ADLs”), and mild
restrictions in social functioning and maintaining concentration,
persistence or pace. The ALJ found that M.P.T. had one to two prior
episodes of decompensation of extended duration.
Before proceeding to step four, the ALJ determined that M.P.T.
retained the residual functional capacity (“RFC”) to perform medium
work as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c) “except
[he] would have occasional limitations in ability to deal with
stress; [he] retained ability to perform the basic mental demands
of unskilled work including understand[ing], remember[ing] and
carry[ing] out simple instructions, . . . respond[ing] to coworkers, supervisors and usual work situations, and deal[ing] with
changes in routine work settings.” T. 538. At step four, the ALJ
found that M.P.T. was capable of performing his past relevant work
as a material handler, as he actually performed it. Accordingly,
the ALJ determined that M.P.T. was not disabled and did not proceed
to step five.
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).
Plaintiff argues that the ALJ failed to follow the Appeals
Council’s order on remand in several respects. An ALJ is required
to “take any action that is ordered by the Appeals Council.”
20 C.F.R. §§ 404.977(b), 416.1477(b). Accordingly, “[an] ALJ's
failure to comply with the Appeals Council’s order constitutes
legal error, and necessitates a remand.” Scott v. Barnhart, 592 F.
Supp. 2d 360, 371 (W.D.N.Y. 2009). For the reasons discussed below,
the Court finds that the ALJ failed to carry out the instructions
given by the Appeals Council on initial remand of this case.
The Appeals Council’s March 8, 2014 order noted that the ALJ
Dr. Liong Tjoa, but failed to give an adequate explanation why
Dr. Tjoa’s opinion was rejected. The record reveals that M.P.T.
treated with Dr. Tjoa since 2003 and he was seen every one to two
months for medication management. On November 24, 2009, Dr. Tjoa
completed a mental RFC questionnaire in which he opined that M.P.T.
struggled with boundaries and positive coping in a work setting,
with increased symptoms in stressful situations, in addition to
acting out behaviors and poor coping. As the Appeals Council
Dr. Tjoa also noted that [M.P.T.] has a low IQ or reduced
intellectual functioning in that he [had] a learning
disability; he [had] marked symptoms as a result of
stress and anxiety resulting in absence from work due to
mental stress; and he [was] unable to hold competitive
work but [was] able to manage his funds. It was the
opinion of Dr. Tjoa that the earliest of the limitations
apply is approximately January 2006; and that claimant
would miss more than four days per month due to his
T. 619; see T. 356-61. The Appeals Council further noted that the
ALJ gave little weight to the April 4, 2011 opinion of Juliane
Reich, LMSW, finding there was no history of treatment with LMSW
Reich. However, “the record reveals Ms. Reich worked at the same
location as Dr. Tjoa, where [M.P.T.] treated since 2003.” T. 619.
The Appeals Council pointed out that it was unclear whether any
attempt was made to secure treatment records from LMSW Reich.
The Appeals Council also noted that the ALJ failed to discuss
the March 1, 2010 opinion from reviewing state agency psychologist
Dr. H. Tzetzo. “In pertintent part, Dr. Tzetzo’s opinion suggests
greater limitation than assessed in the decision in that [it opined
that M.P.T.] had marked limitations in his ability to interact with
the general public, maintain socially appropriate behavior and
adhere to basic standards of neatness and clenliness, and set
realistic goals or make plans independently of others.” Id.; see
T. 406-19. Additionally, Dr. Tzetzo opined that M.P.T. “should
maintain low contact with the public.” Id.
specifically directed the ALJ to give further consideration to the
treating and nontreating source opinions, and “[a]s appropriate,”
additional evidence and/or further clarification of the opinions
and medical source statements about what [M.P.T.] can still do
despite [his] impairments.” T. 619. The Appeals Council directed
the ALJ to “[f]urther evaluate [M.P.T.’s] mental impairments in
accordance with the special technique described in 20 C.F.R.
404.1520a and 416.920a documenting application of the technique in
rationale for each of the functional areas described in 20 C.F.R.
404.1520(c) and 416.920(c).” T. 619. The Appeals Council also
directed the ALJ to give further consideration to M.P.T.’s RFC and
limitations. Finally, the Appeals Council ordered the ALJ to, “[i]f
warranted by the expanded record, obtain evidence from a [VE] to
clarify the effect of the assessed limitations on [M.P.T.’s]
occupational base.” T. 620.
Plaintiff contends that the ALJ made reversible errors at step
two of the sequential evaluation process, by erroneously finding
that M.P.T.’s learning disability and borderline functioning were
non-severe. Plaintiff also contends that the ALJ failed to follow
the “special technique” described in 20 C.F.R. §§ 404.1520a and
Additionally, plaintiff argues that the ALJ improperly ignored
M.P.T.’s diagnoses of bipolar disorder, schizophrenia, and heart
conditions, and failed to properly apply the treating physician
rule to Dr. Tjoa’s opinion. The Court agrees.
The Appeals Council’s order included a lengthy discussion of
intellectual functioning and a learning disorder, and pointing out
M.P.T.’s history of treatment with Dr. Tjoa, who opined that M.P.T.
suffered from limitations which, if given controlling weight, would
establish M.P.T.’s disability as a matter of law. Despite the
Appeals Council’s instructions, however, the ALJ failed to even
discuss M.P.T.’s diagnoses of a learning disability, borderline
intellectual functioning, schizophrenia, and bipolar disorder. In
failing to consider the above-mentioned mental impairments, the ALJ
also failed to follow the Appeals Council’s order to properly
follow the special technique set forth in 20 C.F.R. § 404.1520(c).
Additionally, the ALJ did not even discuss the opinion of reviewing
psychologist Dr. H. Tzetzo, whose opinion the Appeals Council
explicitly ordered the ALJ to consider. As noted above, Dr. Tzetzo,
based on a review of the record, found that M.P.T. had marked
limitations in several areas of functioning. The ALJ, however,
found that M.P.T. had no restrictions in ADLs and only mild
limitations in social functioning and concentration, persistence,
psychiatrist Dr. Tjoa’s opinion little weight, finding that it was
“not supported by [consulting examiner] Dr. Baskin’s report plus
the claimant reported the he likes people plus Dr. Tjoa’s opinion
[Dr. Tjoa’s mental RFC questionnaire].” T. 546. In addition to the
limitations noted by the Appeals Council in its order, Dr. Tjoa’s
opinion detailed eleven areas of work functioning in which M.P.T.
was “unable to meet competitive standards” and four areas in which
M.P.T. had “no useful ability to function,” including “[d]eal[ing]
with normal work stress.” T. 359-60.2 As discussed above, M.P.T.
treated with Dr. Tjoa on a consistent basis from 2003 through the
relevant time period. The record reveals that Dr. Tjoa managed
M.P.T.’s medications on a regular basis, and prescribed, among
other medications, Risperdal, an antipsychotic generally used for
treatment of bipolar and schizoaffective disorder. The Court agrees
with plaintiff that the ALJ failed to provide the requisite “good
reasons” for rejecting Dr. Tjoa’s opinion. See, e.g., Miller v.
Colvin, 122 F. Supp. 3d 23, 31 (W.D.N.Y. 2015).
In sum, it is clear from the ALJ’s decision that he committed
instructions. See Scott, 592 F. Supp. 2d at 371. Moreover, the
Court finds that pursuant to the treating physician rule, see
The ALJ also gave little weight to LMSW Reich’s opinion that M.P.T. had
no useful ability to function in four functional areas and was unable to meet
competitive standards in seven areas. LMSW Reich, like Dr. Tjoa, opined that
M.P.T.’s limitations would cause him to miss more than four days of work per
month and emphasized M.P.T.’s problems dealing with normal stressors. LMSW
Reich’s opinion, however, was fully consistent with Dr. Tjoa’s opinion and
provided an additional treating source’s perspective.
20 C.F.R. § 416.927(c)(2), Dr. Tjoa’s opinion should have been
established M.P.T.’s disability as a matter of law. See Beck v.
Colvin, 2014 WL 1837611, *15 (W.D.N.Y. May 8, 2014) (“Substantial
evidence exists in the record to warrant giving deference to the
deference is accorded, a finding of disability is compelled.”)
(citing Spielberg v. Barnhart, 367 F. Supp. 2d 276, 283 (E.D.N.Y.
2005) (“[H]ad the ALJ given more weight to the treating sources, he
would have found plaintiff disabled. . . .”)). The Court finds that
in the present case, further administrative proceedings would serve
no purpose, especially considering the considerable length of time
this claim has been pending since its original filing on October
26, 2009. See Bogdan v. Colvin, 2016 WL 1398986, *4 (W.D.N.Y.
Apr. 11, 2016) (citing McClain v. Barnhart, 299 F. Supp. 2d 309,
310 (S.D.N.Y. 2004)).
For the foregoing reasons, the Commissioner’s cross-motion for
judgment on the pleadings (Doc. 14) is denied and plaintiff’s
motion (Doc. 10) is granted. This matter is reversed and remanded
solely for the calculation and payment of benefits. 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
January 23, 2017
Rochester, New York.
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