Ames v. Colvin

Filing 8

DECISION AND ORDER. Plaintiff's Motion for Judgment on the Pleadings 6 is GRANTED, the Commissioner's Motion for Judgment on the Pleadings 7 is DENIED, and this matter is REMANDED to the Commissioner for further administrative proceedings. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 4/5/2017. (AFM)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DIANE F. AMES,
Plaintiff,
Case # 16-CV-316-FPG
v.
DECISION AND ORDER
NANCY A. BERRYHILL,1 ACTING COMMISSIONER
OF SOCIAL SECURITY,
Defendant.

Diane F. Ames (“Ames” or “Plaintiff”) brings this action pursuant to the Social Security
Act (“the Act”) seeking review of the final decision of the Acting Commissioner of Social
Security (“the Commissioner”) that denied her application for disability insurance benefits
(“DIB”) under Title II of the Act. ECF No. 1. This Court has jurisdiction over this action under
42 U.S.C. § 405(g).
Both parties have moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). ECF Nos. 6, 7. For the reasons that follow, Plaintiff’s motion is GRANTED,
the Commissioner’s motion is DENIED, and this matter is REMANDED to the Commissioner
for further administrative proceedings.
BACKGROUND
On December 17, 2012, Ames applied for DIB with the Social Security Administration
(“the SSA”). Tr.2 56, 153. She alleged that she had been disabled since January 1, 2010 due to a
spinal impairment, carpel tunnel syndrome, small intestinal bacteria overgrowth (“SIBO”),
depression, anxiety, and obsessive compulsive disorder (“OCD”). Tr. 153, 157. On August 21,
2014, a hearing was held before Administrative Law Judge Timothy M. McGuan (“the ALJ”), in

1

Nancy A. Berryhill is now the Acting Commissioner of Social Security and is therefore substituted for
Carolyn W. Colvin as the defendant in this suit pursuant to Federal Rule of Civil Procedure 25(d).
2
References to “Tr.” are to the administrative record in this matter.

1

which Ames and a vocational expert (“VE”) appeared and testified. Tr. 25-55. On January 8,
2015, the ALJ issued a decision finding that Ames was not disabled within the meaning of the
Act. Tr. 11-20. That decision became the Commissioner’s final decision when the Appeals
Council denied Ames’s request for review on March 21, 2016. Tr. 1-4. Thereafter, Ames
commenced this action seeking review of the Commissioner’s final decision. ECF No. 1.
LEGAL STANDARD
I.

District Court Review
“In reviewing a final decision of the SSA, this Court is limited to determining whether

the SSA’s conclusions were supported by substantial evidence in the record and were based on a
correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal quotation
marks omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner
is “conclusive” if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial
evidence means more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d
Cir. 2009) (internal quotation marks omitted). It is not this Court’s function to “determine de
novo whether [the claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998)
(internal quotation marks omitted); see also Wagner v. Sec’y of Health & Human Servs., 906
F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary’s decision is not de novo and
that the Secretary’s findings are conclusive if supported by substantial evidence).
II.

Disability Determination
An ALJ must follow a five-step sequential evaluation to determine whether a claimant is

disabled within the meaning of the Act. See Parker v. City of New York, 476 U.S. 467, 470-71
(1986). At step one, the ALJ must determine whether the claimant is engaged in substantial

2

gainful work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not,
the ALJ proceeds to step two and determines whether the claimant has an impairment, or
combination of impairments, that is “severe” within the meaning of the Act, meaning that it
imposes significant restrictions on the claimant’s ability to perform basic work activities. 20
C.F.R. § 404.1520(c). If the claimant does not have a severe impairment or combination of
impairments, the analysis concludes with a finding of “not disabled.” If the claimant does, the
ALJ continues to step three.
At step three, the ALJ examines whether a claimant’s impairment meets or medically
equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the
“Listings”). 20 C.F.R. § 404.1520(d). If the impairment meets or medically equals the criteria
of a Listing and meets the durational requirement (20 C.F.R. § 404.1509), the claimant is
disabled. If not, the ALJ determines the claimant’s residual functional capacity (“RFC”), which
is the ability to perform physical or mental work activities on a sustained basis, notwithstanding
limitations for the collective impairments. See 20 C.F.R. § 404.1520(e)-(f).
The ALJ then proceeds to step four and determines whether the claimant’s RFC permits
him or her to perform the requirements of his or her past relevant work. 20 C.F.R. § 404.1520(f).
If the claimant can perform such requirements, then he or she is not disabled. If he or she
cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the
Commissioner to show that the claimant is not disabled. To do so, the Commissioner must
present evidence to demonstrate that the claimant “retains a residual functional capacity to
perform alternative substantial gainful work which exists in the national economy” in light of his
or her age, education, and work experience. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.
1999) (quotation marks omitted); see also 20 C.F.R. § 404.1560(c).

3

DISCUSSION
I.

The ALJ’s Decision
The ALJ’s decision analyzed Ames’s claim for benefits under the process described

above. At step one, the ALJ found that Ames had not engaged in substantial gainful activity
since January 1, 2010, her alleged onset date, through June 30, 2010, her date last insured. Tr.
13. At step two, the ALJ found that Ames has the severe impairments of OCD and major
depressive disorder. Tr. 13-14. At step three, the ALJ found that such impairments, alone or in
combination, did not meet or medically equal an impairment in the Listings. Tr. 14-15.
Next, the ALJ determined that Ames retained the RFC to perform the full range of work
at all exertional levels but with non-exertional limitations. Tr. 15-18. Specifically, the ALJ
found that Ames can only occasionally interact with the public, and understand, remember, and
carry out complex and detailed tasks. Tr. 15.
At step four, the ALJ relied on the VE’s testimony found that this RFC prevents Ames
from performing her past relevant work. Tr. 18. At step five, the ALJ relied on the VE’s
testimony and found that Ames can adjust to other work that exists in significant numbers in the
national economy given her RFC, age, education, and work experience. Tr. 19-20. Specifically,
the VE testified that Ames could work as a mail room clerk and assembler. Id. Accordingly, the
ALJ concluded that Ames was not “disabled” under the Act. Tr. 20.
II.

Analysis
Ames argues that remand is required because the ALJ erred at step two by finding that

her SIBO, gastroesophageal reflux disease (“GERD”), and irritable bowel syndrome (“IBS”)

4

were nonsevere impairments.3 ECF No. 6-1, at 11-12. The Commissioner maintains that the
ALJ’s step two determination is supported by substantial evidence. ECF No. 7-1, at 17-20.
Alternatively, the Commissioner argues that even if the ALJ erred in finding those impairments
to be nonsevere, that error was harmless because the ALJ found other severe impairments and
therefore continued the disability analysis. Id. at 20.
At step two of the disability analysis, the ALJ considers the medical severity of the
claimant’s impairments.

20 C.F.R. § 404.1520(a)(4)(ii).

A “severe impairment” is “any

impairment or combination of impairments which significantly limits [the claimant’s] physical or
mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c), 404.1521. “Basic work
activities” are “the abilities and aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1521(b).
It is the claimant’s burden to present evidence that establishes the severity of his or her
impairment. 20 C.F.R. § 404.1512(c). The claimant must demonstrate “that the impairment has
caused functional limitations that precluded him [or her] from engaging in any substantial
gainful activity for one year or more.” Perez v. Astrue, 907 F. Supp. 2d 266, 272 (N.D.N.Y.
2012) (citing Meadors v. Astrue, 370 F. App’x 179, 182 (2d Cir. 2010) and Rivera v. Harris, 623
F.2d 212, 215 (2d Cir. 1980)). A finding of not severe should be made if the medical evidence
establishes only a slight abnormality that would have no more than a minimal effect on an
individual’s ability to work. Perez, 907 F. Supp. 2d at 271; S.S.R. 85-28, 1985 WL 56858, at *3
(S.S.A. Jan. 1, 1985).
Even if an impairment is nonsevere, the SSA’s regulations require the ALJ to consider
those impairments when assessing the claimant’s RFC.

See 20 C.F.R. § 404.1545(a)(2).

Remand is required when the ALJ fails to account for the claimant’s nonsevere impairments

3

Ames advances another argument that she believes requires reversal of the Commissioner’s decision. ECF
No. 6-1, at 9-11. However, because this Court disposes of this matter based on the ALJ’s failure to consider Ames’s
nonsevere impairments in the RFC analysis, that argument need not be reached.

5

when determining his or her RFC. See Parker-Grose v. Astrue, 462 F. App’x 16, 18 (2d Cir.
2012) (summary order).
Here, the ALJ concluded at step two that Ames’s gastrointestinal impairments were
nonsevere because they “did not cause more than minimal limitations during the time period at
issue.” Tr. 13. The ALJ then summarized evidence indicating that, although Ames was certainly
diagnosed with and treated for these gastrointestinal impairments, those impairments did not
limit her ability to do basic work activities. Tr. 13-14; 20 C.F.R. §§ 404.1520(c), 404.1521. The
ALJ explained, for example, that a February 5, 2010 treatment note indicated that Ames’s
symptoms had steadily improved and that she experienced only mild abdominal cramping and
occasional gas and bloating. Tr. 13 (citing Tr. 287). The ALJ also cited a March 12, 2010
treatment record that indicated that Ames’s SIBO had been eradicated. Tr. 14 (citing Tr. 278).
Finally, the ALJ noted that on September 1, 2010, Ames reported that medication improved her
gas, bloating, diarrhea, and GERD, and that she was “doing well” with regard to her SIBO. Tr.
14 (citing Tr. 275-76).
Based on the above, the ALJ concluded that Ames’s gastrointestinal impairments were
nonsevere because she experienced “only mild or occasional abdominal cramping, gas, and
bloating, with a good response to medications” and they did not “cause more than minimal
limitations in [her] functioning.”

Tr. 14.

In light of the ALJ’s discussion of Ames’s

gastrointestinal issues at step two and the medical evidence of record, this Court finds that the
ALJ did not err when he found those impairments to be nonsevere.
Despite this finding, however, remand is still required because the ALJ failed to account
for Ames’s gastrointestinal impairments when determining her RFC. Parker-Grose, 462 F.
App’x at 18. The RFC determination must account for limitations imposed by both severe and

6

nonsevere impairments.

See 20 C.F.R. § 404.1545(a)(2) (“We will consider all of your

medically determinable impairments of which we are aware, including your medically
determinable impairments that are not ‘severe’ . . . when we assess your [RFC].”). Here, the
ALJ’s RFC analysis fails to mention Ames’s GERD or IBS and it makes only a passing reference
to her SIBO. Tr. 15-18. The RFC determination contains no limitations related to Ames’s
gastrointestinal impairments, despite evidence in the record that such impairments could interfere
with work activities on a regular and continuing basis. See, e.g., Tr. 257 (“She finds the
fluctuating stool consistency, urgency and intestinal gas and bloating very difficult to work fulltime given the multiple interruptions.”); 20 C.F.R. § 404.1545(a).

Accordingly, the ALJ

committed legal error and remand is required.
CONCLUSION
Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 6) is GRANTED, the
Commissioner’s Motion for Judgment on the Pleadings (ECF No. 7) is DENIED, and this matter
is REMANDED to the Commissioner for further administrative proceedings consistent with this
opinion, pursuant to sentence four of 42 U.S.C. § 405(g). See Curry v. Apfel, 209 F.3d 117, 124
(2d Cir. 2000); 42 U.S.C. § 1383(c)(3). The Clerk of Court is directed to enter judgment and
close this case.

IT IS SO ORDERED.
Dated: April 5, 2017
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court 

7