Critoph v. Colvin

Filing 17

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,
Plaintiff,
-vs-

No. 1:16-CV-00417 (MAT)
DECISION AND ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

I.

Introduction
Represented

by

counsel,

plaintiff

Jessica

L.

Critoph

(“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
granted

to

the

extent

that

this

case

is

remanded

to

the

Commissioner for further administrative proceedings consistent with
this Decision and Order, and the Commissioner’s motion is denied.

1

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
this matter.

II.

Procedural History
Plaintiff

protectively

filed

an

application

for

SSI

on

July 12, 2010, alleging disability as of March 15, 2010, due to
depression,
disorder,

anxiety,

mood

shoulder pain.

panic

swings,

attacks,

asthma,

bipolar

sciatic

nerve

disorder,
pain,

sleep

and

left

Administrative Transcript (“T.”) 230-35, 351-56.

Plaintiff’s application was initially denied.

T. 125-29.

At

plaintiff’s request, a hearing was held before administrative law
judge (“ALJ”) William Weir on February 3, 2012.

T. 32-48.

On

June 22, 2012, ALJ Weir issued a decision in which he found that
plaintiff was not disabled as defined in the Act.

T. 102-19.

The

Appeals Council granted plaintiff’s request for review and, on
June 14, 2013, issued a Remand Order vacating the decision.

T.

120-123.
A second hearing was conducted before ALJ Weir on October 21,
2013.

T. 49-92.

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.

T. 9-31.

On April 8, 2016, the Appeals

Council denied plaintiff’s request for review, rendering the ALJ’s
determination the Commissioner’s final decision.

T. 1-5.

This

action followed.
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

2

had not engaged in substantial gainful activity since June 14,
2010, the date of her application.

T. 14.

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.
found

that

plaintiff

had

non-severe

Id.

The ALJ further

impairments

of

bipolar

disorder, panic disorder with agoraphobia, and generalized anxiety
disorder.

T. 15.

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.

T. 19.

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.

T. 19.

At step four, the ALJ found that plaintiff had no past relevant
work.

T. 22.

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

3

plaintiff could perform. Id. Accordingly, the ALJ found plaintiff
not disabled.
IV.

T. 23.

Discussion
A

district

court

may

set

aside

the Commissioner’s

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
omitted).
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
vocational

expert

(“VE”)

testimony

Commissioner’s regulatory definitions.

that

conflicted

with

the

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.
4

A.

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
listed impairment.”

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,
limitation

of

motion

of

the

spine, motor

loss

(atrophy with

associated muscle weakness or muscle weakness) accompanied by
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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).
the

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).

T. 19.

“When a claimant’s symptoms appear to match those described in
a listing, the ALJ must explain a finding of ineligibility based on
the

Listings.”

Cardillo

(N.D.N.Y. Mar. 24, 2017).

v.

Colvin,

2017

WL

1274181,

at

*4

“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
1.04(A).

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
multiple interpretations.

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

6

so in a manner that allows for meaningful review.
remand is required.

Accordingly,

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”).
B.

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
determine

whether

the

claimant

has

a

severe

impairment

that

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

7

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).
Here,

and

as

plaintiff

correctly

points

out,

there

was

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.
851-52.
this

T. 609-10, 695, 842-43,

Non-examing psychologist Dr. T. Andrews disagreed with

assessment,

but

concluded

that

plaintiff

had

moderate

limitations in her ability to maintain concentration, persistence,
or

pace,

and

environment.

limited

her

to

simple

tasks

in

a

low

contact

T. 565.

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,
even

Dr.

Santarpia

opined

performing

complex

tasks

decisions,

relating

dealing with stress.

that

plaintiff

independently,

adequately

had

making

with others,

T. 16, 543-44.

impairments

and

in

appropriate
appropriately

Moreover, Dr. Santarpia’s

opinion was inconsistent with her own clinical findings, which
showed that plaintiff had borderline intellectual functioning,
circumstantial

thought

processes,

concentration, and poor insight.

impaired

T. 542-43.

8

attention

and

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
Appeals

Council

remanded

the

ALJ’s

first

decision

in

part

specifically because it found that the ALJ’s mental RFC finding
“[might]

not

adequately

account

for

[plaintiff’s]

moderate

limitations in concentration, persistence, or pace.”

T. 122.

However, on remand the ALJ concluded that plaintiff had no severe
mental

impairments

whatsoever

from

his

and
RFC

removed

any

finding.

psychiatric
This

limitations

reversal

is

wholly

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
evidence.

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.
C.

The Court Declines to Reach the Remaining Arguments

Plaintiff has also argued that the ALJ erred in rejecting
portions

of

Dr.

Condon’s

opinion,

in

rejecting

Dr.

Fazekas’

opinion, and in relying on VE testimony that conflicted with the
Commissioner’s definitions of light and sedentary work.

Because

the Court has already concluded that remand is necessary, it need

9

not and does not reach these issues.

The ALJ is instructed to

consider these additional arguments on remand.

V.

Conclusion
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
proceedings

consistent

with

this

Decision

and

Order.

The

Commissioner’s motion for judgment on the pleadings (Docket No. 12)
is denied.

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
Dated:

September 28, 2017
Rochester, New York.

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