Martin v. Colvin
DECISION AND ORDER granting 9 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. Of critical concern is that the ALJ give appropriate consideration of plaintiffs mental condition in arriving at his decision on remand; and denying 12 Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 1/26/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RALPH L. MARTIN, JR.,
No. 1:15-CV-01067 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Represented by counsel, Ralph L. Martin, Jr. (“plaintiff”)
brings this action pursuant to Title XVI of the Social Security Act
Commissioner of Social Security (“the Commissioner”) denying his
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
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.
October 15, 1970) applied for SSI, alleging disability as of June
23, 2011. After his application was denied, plaintiff requested a
hearing, which was held before administrative law judge Timothy J.
Trost (“the ALJ”) on April 29, 2014. The ALJ issued an unfavorable
decision on August 11, 2014. The Appeals Council denied review of
that decision and this timely action followed.
III. Summary of the Evidence
The medical record reveals that plaintiff sustained a left
ankle fracture in June 2011, and subsequently developed problems
secondary to a torn right meniscus. A March 19, 2012 MRI of
plaintiff’s left ankle revealed a healing fracture of the distal
fibula, “[v]ery mild tendinopathy and mild tenosynovitis of the
Achilles tendon,” “[m]inimal edema adjacent to the plantar fascia
suggesting very mild plantar fascitis,” “[m]inimal edema adjacent
to the lateral margin of the flexor diti minimi muscle,” and
“[s]mall joint effusion.” T. 172. An MRI of plaintiff’s right knee
taken that same day revealed a “[t]ear of the posterior horn of the
medial meniscus extending to the inferior articular surface,”
“[l]inear defects within the articular surface of the patella
overlying the apex and medial patellar facet,” “[m]ild thinning of
the articular cartilage in the medial compartment,” and “[s]mall
relevant time period. On August 6, 2012, plaintiff’s physician
Dr. Christopher Ritter opined that plaintiff was totally and
examinations at the request of the state agency. The first was
performed by Dr. Honbiao Liu on August 31, 2012. On physical
examination, Dr. Liu recorded that plaintiff had a normal gait but
could not perform heel walking and performed toe walking “with mild
difficulty”; squat was 40% of normal; and range of motion (“ROM”)
was limited in the right knee and left ankle. Dr. Liu opined that
plaintiff had “mild limitation of standing, walking, climbing
stairs, bending and kneeling.” T. 181. The second consulting
internal medicine exam was performed by Dr. Samuel Balderman on
November 15, 2012. On physical examination plaintiff had a “limp
favoring the right”; squat was 40% of normal; limited ROM of the
Dr. Balderman opined that plaintiff had “[m]arked limitation in
walking, kneeling, and climbing for three months to allow for
recovery from recent knee surgery.” T. 204.
February through December 2013, from Shaun Crimmins, LMSW with MidErie Counseling. LMSW Crimmins’ treatment notes indicate that
plaintiff was diagnosed with mood disorder, not otherwise specified
dependence. Plaintiff had been referred for mental health and
substance abuse treatment1 by the Buffalo COURTS (Court Outreach
Unit: Referral and Treatment Services) program, in association with
a domestic violence incident in which he “slapped a cigarette out
of [his girlfriend’s] hand.” T. 289.
Although LMSW Crimmins’ notes did not include results of
formal mental status examinations (“MSE”), the notes occasionally
noted that plaintiff had a depressed mood but denied suicidal
ideation. On May 15, 2013, LMSW Crimmins noted that plaintiff was
scheduled for an evaluation with psychiatrist Dr. Sanjay Gupta. On
June 17, 2013, plaintiff had apparently been evaluated by Dr. Gupta
as he had been prescribed medication for a mental health condition;
he reported that he “continued medication compliance but felt that
at times, his mind was slowed down.” T. 296. LMSW Crimmins noted
“experience[d] sedation due to medication,” but felt that “his
thoughts [had] slowed down and [become] more manageable.” T. 297.
On September 23, 2013, LMSW Crimmins noted that he “reviewed
[plaintiff’s] recent psychotropic medication management appointment
continue[d] to assist with decreasing racing thoughts and helping
him to sleep better.” T. 299. On November 11, 2013, plaintiff
The record reveals that plaintiff completed substance abuse treatment as
ordered by the court on October 1, 2013.
reported that he was taking Zyprexa (an antipsychotic typically
used for treatment of bipolar disorder and schizophrenia), which
helped him sleep “but [did] not address racing thoughts during the
day.” T. 302. Plaintiff also noted that he had recently seen
Dr. Gupta for treatment.
LMSW Crimmins and Dr. Gupta submitted three letters which are
receiving psychiatric treatment” for medication management and
counseling relating to a diagnosis of bipolar disorder mixed type.
The letter stated that plaintiff “consistently attend[ed] clinic
appointments including bi-monthly appointments with Dr. Gupta and
appointments with Mr. Crimmins every six weeks.” T. 209. According
to the letter, plaintiff “continue[d] to work in treatment to
stabilize his mood, to improve symptoms of sleep disturbance and to
cope with his adjustment to a decreased physical ability level and
being unable to work in his desired profession as well as the
financial difficulty that has resulted from his injuries.” Id. Two
substantially similar letters were dated February 24, 2014 and
April 28, 2014. The latter letter indicated that plaintiff had
medication regimen prescribing Seroquel, another antipsychotic
medication. All three letters gave a phone number for the ALJ to
IV. The ALJ’s Decision
20 C.F.R. § 416.920, the ALJ determined that plaintiff had not
engaged in substantial gainful activity since June 21, 2012, the
suffered from the following severe impairments: meniscus tear of
the right knee, status post arthroscopic surgery, and left ankle
fracture. 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 considering plaintiff’s mental
impairments, the ALJ found that plaintiff had no restrictions in
activities of daily living (“ADLs”); mild difficulties in social
functioning and maintaining concentration, persistence, or pace;
and no prior episodes of decompensation.
Before proceeding to step four, the ALJ determined that
plaintiff retained the RFC to perform the full range of sedentary
work as defined in 20 C.F.R. § 416.967(a). At step four, the ALJ
concluded that plaintiff could not perform any past relevant work.
At step five, the ALJ found that considering plaintiff’s age,
education, work experience, and RFC, there were jobs existing in
significant numbers in the national economy which plaintiff could
perform. Accordingly, he found that plaintiff was not disabled.
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).
Failure to Develop the Record
Plaintiff contends that the ALJ failed to develop the record,
especially considering that he was unrepresented at the hearing
level. Specifically, plaintiff argues that the ALJ erred in failng
to (1) develop a complete medical record; (2) obtain opinion
evidence regarding plaintiff’s mental limitations; and (3) advise
plaintiff regarding the type of evidence necessary to develop the
medical record. After a thorough review of the record and careful
consideration of the applicable case law, the Court concludes that
the ALJ failed to appropriately develop the record in this case.
Failure to Fully Develop the Medical Record as to
Plaintiff’s Mental Health Impairments
Plaintiff contends that the ALJ failed to fully develop
plaintiff’s medical record, especially considering plaintiff’s
mental health diagnosis and pro se status at the hearing level. As
plaintiff points out, “when the claimant is unrepresented, the ALJ
is under a heightened duty to scrupulously and conscientiously
probe into, inquire of, and explore for all the relevant facts.”
Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (internal quotation
marks and citations omitted). The ALJ’s duty to develop the record
is also heightened where mental conditions are present. See, e.g.,
Corporan v. Comm’r of Soc. Sec., 2015 WL 321832, *2-3 (S.D.N.Y.
Jan. 23, 2015) (“The law in this circuit and elsewhere points to
unrepresented by counsel and obviously handicapped by a mental
impairment, an ALJ bears a doubly heighted [sic] duty to develop
the record. . . .
That a claimant’s mental illness may, in the
same way, impede her from presenting her own case and necessitate
greater assistance from the ALJ is evident.”).
Here, the record clearly indicates that plaintiff was treated
for mental health conditions not only by LMSW Crimmins, but also by
psychiatrist Dr. Gupta. The letters submitted by Dr. Gupta and LMSW
Crimmins indicate that plaintiff was seen on a consistent, bimonthly basis by Dr. Gupta, who prescribed and managed plaintiff’s
antipsychotic medications. Yet, no treatment records from Dr. Gupta
appear in the record. The Court agrees with plaintiff that this
obvious gap in the record triggered the ALJ’s heightened duty to
plaintiff’s mental health condition.2 See, e.g., Villa v. Colvin,
2016 WL 1054757, *4-5 (W.D.N.Y. Mar. 17, 2016) (remanding for
further consideration where medical record referenced treatment
Accordingly, this case is remanded for further development of the
record. On remand, the ALJ is directed to obtain plaintiff’s
complete record of mental health treatment with Dr. Gupta.
Failure to Obtain Opinion Evidence
Plaintiff’s Mental Health Impairments
Plaintiff next contends that the ALJ failed to obtain a
functional assessment, from an acceptable medical source, regarding
health conditions. The Court agrees. Although LMSW Crimmins and
Dr. Gupta submitted three letters, none of those letters detail
what functional limitations, if any, plaintiff suffered as a result
of his bipolar disorder diagnosis. The ALJ noted that “Dr. Gupta
never reported that [plaintiff] was unable to work and [did] not
place any work related restriction on [plaintiff],” citing LMSW
Crimmins’ treatment notes for this proposition. T. 16. In effect,
therefore, without seeking an opinion regarding plaintiff’s mental
The Court notes in the Commissioner’s argument that the ALJ sent a letter
addressed to Dr. Gupta seeking “copies of all records from the period February 1,
2013, to present”; however, the response was largely duplicative of the records
previously provided. Considering the surrounding circumstances in this case,
particularly Dr. Gupta’s indication that he met with plaintiff on a bi-monthly
basis and his continuous prescription of antipsychotic medication, the ALJ had
a heightened duty to recognize that potentially significant treatments notes from
Dr. Gupta were absent, and to make an effort to obtain those notes.
health limitations, the ALJ nevertheless held the absence of a
medical opinion against plaintiff when arriving at his decision
that plaintiff was not disabled.
psychiatric examination nor a psychiatric review technique or
mental RFC assessment from a state agency source. The ALJ’s failure
to do so constituted error in this case, because the record was
not, as the Commissioner argues, otherwise “adequate for [the ALJ]
to make a determination as to disability.” Perez v. Chater, 77 F.3d
41, 48 (2d Cir. 1996); see also Dailey v. Astrue, 2010 WL 4703599,
*11 (W.D.N.Y. Oct. 26, 2010), report and recommendation adopted,
2010 WL 4703591 (W.D.N.Y. Nov. 19, 2010) (“[A]n ALJ's determination
of RFC without a medical advisor’s assessment is not supported by
substantial evidence. Where the medical findings in the record
merely diagnose [the] claimant’s . . . impairments and do not
capabilities[,] . . . [the ALJ may not] make the connection
The regulations provide that although a claimant is generally
responsible for providing evidence upon which to base an RFC
claimant's ] complete medical history, including arranging for a
reasonable effort to help [the claimant] get medical reports from
(emphasis added). As noted above, the duty to aid plaintiff in
obtaining such reports from his own treating sources was heightened
in this case because the plaintiff proceeded pro se. Accordingly,
the ALJ should have sought out a functional opinion from Dr. Gupta,
plaintiff’s treating psychiatrist, or at the very least ordered a
consulting psychiatric examination in order to obtain a qualified
assessment of plaintiff’s capabilities. On remand, the ALJ is
directed to obtain a functional assessment of plaintiff’s mental
limitations from Dr. Gupta, and if such an assessment cannot be
obtained, the ALJ is directed to order a consulting psychiatric
Failure to Obtain Treating Source Opinion Regarding
Finally, plaintiff contends that the ALJ failed in his duty to
aid this pro se plaintiff in obtaining an opinion regarding his
physical functional limitations, which evidence would be relevant
to a closed period of disability secondary to plaintiff’s ankle and
knee impairments. The Court finds, however, that the ALJ’s RFC
finding as to plaintiff’s physical impairments was supported by
substantial evidence. The medical record regarding plaintiff’s
physical impairments appears complete. Additionally, the findings
of the consulting internal medical examiners support the ALJ’s
restriction of plaintiff to sedentary work. See, e.g., Threatt v.
Colvin, 2016 WL 1103864, *4 (W.D.N.Y. Mar. 22, 2016) (“[T]he ALJ’s
failure to obtain a treating source opinion did not constitute
error because the RFC finding was consistent with [the] consulting
opinion, and with other substantial evidence which supported the
ALJ’s finding that plaintiff retained an RFC for sedentary work.”).
Accordingly, remand is not ordered on this basis.
For the foregoing reasons, the Commissioner’s motion for
judgment on the pleadings (Doc. 12) is denied and plaintiff’s
motion (Doc. 9) is granted to the extent that this matter is
remanded to the Commissioner for further administrative proceedings
consistent with this Decision and Order. Of critical concern is
that the ALJ give appropriate consideration of plaintiff’s mental
condition in arriving at his decision on remand. 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 26, 2017
Rochester, New York.
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