Critoph v. Colvin
DECISION AND ORDER granting 8 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; denying Commissioner's 12 Motion for Judgment on the Pleadings. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 9/28/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JESSICA L. CRITOPH,
No. 1:16-CV-00417 (MAT)
DECISION AND ORDER
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
(“plaintiff”) brings this action pursuant to Title XVI of the
Social Security Act (the “Act”), seeking review of the final
decision of defendant the Acting Commissioner of Social Security1
(the “Commissioner” or “defendant”) denying her 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 Rules of Civil
Procedure. For the reasons discussed below, plaintiff’s motion is
Commissioner for further administrative proceedings consistent with
this Decision and Order, and the Commissioner’s motion is denied.
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
July 12, 2010, alleging disability as of March 15, 2010, due to
Administrative Transcript (“T.”) 230-35, 351-56.
Plaintiff’s application was initially denied.
plaintiff’s request, a hearing was held before administrative law
judge (“ALJ”) William Weir on February 3, 2012.
June 22, 2012, ALJ Weir issued a decision in which he found that
plaintiff was not disabled as defined in the Act.
Appeals Council granted plaintiff’s request for review and, on
June 14, 2013, issued a Remand Order vacating the decision.
A second hearing was conducted before ALJ Weir on October 21,
ALJ Weir issued a second decision on October 10,
2014, in which he again concluded that plaintiff was not disabled
as defined in the Act.
On April 8, 2016, the Appeals
Council denied plaintiff’s request for review, rendering the ALJ’s
determination the Commissioner’s final decision.
III. The ALJ’s Second Decision
At step one of the five-step sequential evaluation, see
20 C.F.R. §§ 404.1520, 416.920, the ALJ determined that plaintiff
had not engaged in substantial gainful activity since June 14,
2010, the date of her application.
At step two, the ALJ
found that plaintiff suffered from the severe impairments of
bilateral carpal tunnel syndrome, tendonitis of the left shoulder,
and lumbar spine degenerative disc disease.
The ALJ further
disorder, panic disorder with agoraphobia, and generalized anxiety
At step three, the ALJ found that plaintiff did
not have an impairment or combination of impairments that met or
medically equaled the severity of any listed impairment.
Before proceeding to step four, the ALJ determined that
plaintiff retained the RFC to perform less than the full range of
light work, with the following limitations: can sit for up to five
hours and stand/walk for up to three hours in an eight hour
workday; can lift/carry up to 10 pounds frequently and up to
20 pounds occasionally; can occasionally climb stairs but is
restricted from climbing ropes/ladders/scaffolds; can use her nondominant left upper extremity as an assist and is not limited with
regard to the use of her dominant right upper extremity.
At step four, the ALJ found that plaintiff had no past relevant
At step five, the ALJ concluded that, considering
plaintiff’s age, education, work experience, and RFC, there are
jobs that exist in significant numbers in the national economy that
plaintiff could perform. Id. Accordingly, the ALJ found plaintiff
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) (internal quotation
Here, plaintiff argues that: (1) the ALJ failed to properly
consider medical listing 1.04(A) for lumbar spine disc injury;
(2) the ALJ improperly found that plaintiff’s mental impairments
were non-severe; (3) the ALJ improperly “split” the opinion of
consultative physician Dr. John Condon; (4) the ALJ failed to
articulate “good reasons” for discounting the opinion of treating
psychologist Dr. Paul Fazekas; and (5) the ALJ improperly relied on
Commissioner’s regulatory definitions.
For the reasons discussed
below, the Court agrees that the ALJ’s failure to consider medical
listing 1.04(A) and failure to find plaintiff’s mental impairments
severe are errors that necessitate remand.
Failure to Consider Medical Listing 1.04(A)
“The Social Security regulations list certain impairments, any
of which is sufficient, at step three, to create an irrebuttable
presumption of disability.”
DeChirico v. Callahan, 134 F.3d 1177,
1180 (2d Cir. 1998) (citing 20 C.F.R. §§ 404.1520(d), 416.920(d)).
“The regulations also provide for a finding of such a disability
per se if an individual has an impairment that is ‘equal to’ a
Id. (citing 20 C.F.R. 404.1520(d) (“If you
have an impairment(s) which ... is listed in appendix 1 or is equal
to a listed impairment(s), we will find you disabled without
considering your age, education, and work experience.”)).
Individuals suffering a disorder of the spine are disabled per
se if they meet the criteria specified in the regulations. The
specific listing plaintiff claims the ALJ should have considered is
Listing 1.04(A), which provides that an individual is presumptively
disabled if he or she suffers from “herniated nucleus pulposus,
spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative
disc disease, facet arthritis, or vertebral fracture . . resulting
in compromise of a nerve root,” with “[e]vidence of nerve root
compression characterized by neuro-anatomic distribution of pain,
associated muscle weakness or muscle weakness) accompanied by
sensory or reflex loss and, if there is involvement of the lower
back, positive straight-leg raising test (sitting and supine).”
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04(A).
In his decision,
ALJ stated that he had “considered the applicable sections of
listings 1.00 Musculoskeletal System” in concluding that plaintiff
did not have a listed impairment, but did not expressly consider
the applicability of listing 1.04(A).
“When a claimant’s symptoms appear to match those described in
a listing, the ALJ must explain a finding of ineligibility based on
(N.D.N.Y. Mar. 24, 2017).
“While the ALJ may ultimately find that
[a considered listing] do[es] not apply to Plaintiff, he must still
provide some analysis of Plaintiff’s symptoms and medical evidence
in the context of the Listing criteria.”
Peach v. Colvin, 2016 WL
2956230, at *4 (W.D.N.Y. May 23, 2016).
In this case, plaintiff
has identified medical evidence of record that she argues is
sufficient to establish that she meets the requirements of Listing
The Commissioner argues in response that there is other
medical evidence of record that shows she does not meet the
requirements of the listing.
The Court acknowledges that the
evidence as to whether plaintiff’s impairment meets or equals the
requirements of Listing 1.04(A) appears to be susceptible to
However, it is not the function of this
Court to weigh the medical evidence and determine if plaintiff
meets the listing requirements.
It is the Commissioner’s function
to make that determination and, in this case, the ALJ failed to do
so in a manner that allows for meaningful review.
remand is required.
See, e.g., Cardillo v. Colvin, 2017 WL
1274181, at *4 (N.D.N.Y. Mar. 24, 2017) (holding that merely
stating that the ALJ has considered the requirements of a listing
was “patently inadequate to substitute for specific findings in
view of the fact that plaintiff has at least a colorable case for
application of listing 1.04(A)” and that where there is “record
support for each of the [necessary] symptoms . . . the ALJ was
required to address that evidence, and his failure to specifically
do so was error that would justify a remand”); Torres v. Colvin,
2015 WL 4604000, at *4 (W.D.N.Y. July 30, 2015) (remanding where
“the record evidence suggests that Plaintiff’s symptoms could meet
the Listing requirements in 1.04(A)” but the ALJ’s “only reference
to it is a recitation of the standard”).
Failure to Find Mental Impairments Severe
Plaintiff next argues that the ALJ erred in failing to find
any of her mental impairments severe at step two of his analysis.
The Court agrees.
At step two of the sequential evaluation process, the ALJ must
significantly limits her physical or mental ability to do basic
work activities. See 20 C.F.R. § 416.920(c).
The Second Circuit
has held that the function of the step two determination is simply
to “screen out de minimis claims.”
1030 (2d Cir. 1995).
Dixon v. Shalala, 54 F.3d 1019,
However, the “mere presence of a disease or
impairment, or establishing that a person has been diagnosed or
treated for a disease or impairment” is not, by itself, sufficient
to render a condition “severe.”
Coleman v. Shalala, 895 F.Supp.
50, 53 (S.D.N.Y. 1995) (internal citations omitted).
significant medical evidence of record indicating that her mental
impairments had more than a minimal effect on her ability to
perform work activities.
Plaintiff’s treating psychiatrist and
treating psychologist both opined that her mental limitations would
preclude her from engaging in any work.
T. 609-10, 695, 842-43,
Non-examing psychologist Dr. T. Andrews disagreed with
limitations in her ability to maintain concentration, persistence,
The Commissioner argues that the ALJ properly found that
plaintiff’s mental impairments were non-severe based on the opinion
of consultative psychiatric examiner Dr. Susan Santarpia. However,
dealing with stress.
T. 16, 543-44.
Moreover, Dr. Santarpia’s
opinion was inconsistent with her own clinical findings, which
showed that plaintiff had borderline intellectual functioning,
concentration, and poor insight.
The Court is particularly troubled by the fact that the ALJ
found in his first decision (which was ultimately remanded by the
Appeals Council) that plaintiff had the severe mental impairments
of major depressive disorder and anxiety disorder, yet concluded in
his second decision that she had no severe mental impairments. The
specifically because it found that the ALJ’s mental RFC finding
limitations in concentration, persistence, or pace.”
However, on remand the ALJ concluded that plaintiff had no severe
inexplicable, especially in light of the fact that Dr. Santarpia’s
opinion was issued in September 2010, well before the ALJ issued
his first decision.
The Court finds that the ALJ’s determination that plaintiff
had no severe mental impairments was not based on substantial
This error was not harmless, because the ALJ failed to
include any psychiatric limitations in his RFC determination.
Accordingly, remand is also required on this ground.
The Court Declines to Reach the Remaining Arguments
Plaintiff has also argued that the ALJ erred in rejecting
opinion, and in relying on VE testimony that conflicted with the
Commissioner’s definitions of light and sedentary work.
the Court has already concluded that remand is necessary, it need
not and does not reach these issues.
The ALJ is instructed to
consider these additional arguments on remand.
For the foregoing reasons, plaintiff’s motion for judgment on
the pleadings (Docket No. 8) is granted to the extent that this
matter is remanded to the Commissioner for further administrative
Commissioner’s motion for judgment on the pleadings (Docket No. 12)
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
September 28, 2017
Rochester, New York.
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