Dillon v. Colvin

Filing 18

DECISION AND ORDER granting 10 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 15 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/21/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JUDY A. DILLON,
Plaintiff,

16-cv-0425
DECISION AND
ORDER

-vsNANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
Defendant.

I.

Introduction
Represented by counsel, Judy A. Dillon ("plaintiff") brings

this action pursuant to Title II and Title XVI of the Social
Security Act (“the Act”), seeking review of the final decision of
the Acting Commissioner of Social Security (“defendant” or “the
Commissioner”) denying her application for disability insurance
benefits (“DIB”) and supplemental security income.

Presently

before the Court are the parties’ competing motions for judgment on
the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure.

For the reasons set forth below, plaintiff’s motion is

granted and defendant’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 filed an application for DIB on August 17, 2012,

alleging

disability

due

to

high

blood

pressure,

heel

spurs,

degenerative problems with her knees, and chronic obstructive
pulmonary

disease

January 1, 2009.

(“COPD”),

with

an

alleged

onset

date

of

Administrative Transcript (“T.”) 90, 198, 201.

Plaintiff's application was denied on October 25, 2012, T. 93-100,
and she timely requested a hearing before an administrative law
judge (“ALJ”).
SSI payments.

On December 9, 2013, Plaintiff filed a claim for
T. 179-86.

ALJ Robert T. Harvey held hearings on

December 17, 2013 and April 3, 2014.

T. 31-89.

On May 15, 2014,

ALJ Harvey found plaintiff was not disabled, as defined in the Act,
through the date of the decision.

T. 16-30.

The Appeals Council

denied plaintiff's request for review on April 1, 2016.

T. 1-7.

Plaintiff then commenced the instant action.
The Court assumes the parties’ familiarity with the facts of
this case, which will not be repeated here.

The Court will discuss

the record further below as necessary to the resolution of the
parties’ contentions.
III.

The ALJ’s Decision
Initially, the ALJ found that Plaintiff met the insured status

requirements of the Act through September 30, 2009.

T. 21.

At

step one of the five-step sequential evaluation, see 20 C.F.R.
§§ 404.1520, 416.920, the ALJ found that plaintiff had not engaged
in substantial gainful activity since January 1, 2009, the alleged

2

onset date.

T. 21.

At step two, the ALJ found that plaintiff had

the severe impairments of osteoarthritis of the knees and COPD.
Id.

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.

T. 22.

Before proceeding to step

four, the ALJ found that plaintiff retained the residual functional
capacity (“RFC”) to perform light work as defined in 20 C.F.R.
§§ 404.1567(b) and 416.967(b) with the following limitations:
claimant 1) cannot work in areas with unprotected heights or around
heavy, moving or dangerous machinery; 2) cannot work where she was
exposed

to

excessive

pulmonary

irritants;

3)

had

occasional

limitations in climbing, squatting, kneeling, balancing, crawling,
and areas where she would be exposed to cold; and 4) should never
climb ropes, ladders, or scaffolds.

T. 22-25.

At step four, the

ALJ found that plaintiff was capable of performing past relevant
work as a waitress.

T. 25-26.

plaintiff was not disabled.
IV.

Accordingly, the ALJ found that

T. 26.

Scope of Review
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.’”

3

Shaw v.

Chater, 221 F.3d 126, 131 (2d Cir. 2000).

“The deferential

standard of review for substantial evidence does not apply to the
Commissioner’s conclusions of law.”

Byam v. Barnhart, 336 F.3d

172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109,
112 (2d Cir. 1984)).
V.

Discussion
Here, plaintiff makes the following arguments in support of

her

motion

for

judgment

on

the

pleadings:

1)

the

ALJ’s

RFC

assessment was not supported by substantial evidence because it was
based on bare medical findings; 2) the ALJ failed to undertake the
special medical technique in determining disability caused by
mental impairments; and 3) the ALJ failed to articulate why certain
statements were not fully credible.
A.

The ALJ’s RFC Assessment Was Not Supported by Substantial
Evidence in the Record

Plaintiff argues that remand of this case is required because
the ALJ concluded that plaintiff retained the RFC to perform a
reduced range of light work even though the ALJ admitted that there
were no medical opinions “regarding claimant’s ability to engage in
work-related activities.”

Docket No. 10 at 9 (citing Cestare v.

Colvin, Case No. 15-CV-6045, 2016 WL 836082, at *2 (W.D.N.Y. 2016);
T. 25).

Plaintiff contends that the ALJ’s error is especially

grievous given that the record contains significant evidence of
degeneration in both of plaintiff’s knees and that the vocational
expert, Josiah Pearson, testified that the need to “sit-stand at

4

will . . . would be problematic for a waitress” (plaintiff’s past
relevant work).

T. 86.

The Court agrees.

An “‘ALJ is not qualified to assess a claimant’s RFC on the
basis

of

bare

medical

findings,

and

as

a

result

an

ALJ’s

determination of RFC without a medical advisor’s assessment is not
supported by substantial evidence.’” Urban v. Berryhill, Case
No.16-CV-76-FPG, 2017 WL 1289587, at *3 (W.D.N.Y. Apr. 7, 2017)
(quoting Wilson v. Colvin, No. 13-CV-6286P, 2015 WL 1003933, at *21
(W.D.N.Y. Mar. 6, 2015)).

“Thus, even though the Commissioner is

empowered to make the RFC determination, ‘[w]here the medical
findings in the record merely diagnose [the] claimant's exertional
impairments and do not relate those diagnoses to specific residual
functional capabilities,’ the general rule is that the Commissioner
‘may not make the connection himself.’” Urban, 2017 WL 1289587, at
*3 (quoting Wilson, 2015 WL 1003933, at *21); see also Jermyn v.
Colvin, No. 13-CV-5093 (MKB), 2015 WL 1298997, at *19 (E.D.N.Y.
Mar.

23,

2015)

Plaintiff's

(“[N]one

functional

of

these

capacity

or

medical

sources

limitations,

assessed

and therefore

provide no support for the ALJ's RFC determination.”).
Here,

the

record

contains

bare

medical

findings

as

to

plaintiff’s condition and “lacks any medical opinion as to [her]
physical ability to engage in work at any exertional level on a
regular and continuous basis in an ordinary work setting.”

Urban,

2017 WL 1289587, at *3-4 (citing 20 C.F.R. §§ 404. 1567(b),
416.967(b)).

The

record

contains

5

no

medical

opinions

as

to

plaintiff’s ability to “sit, stand, walk, push, lift, and pull,”
which are all involved in light work.

Urban, 2017 WL 1289587, at

*3-4 (citing 20 C.F.R. §§ 404. 1567(b), 416.967(b)).

Here, the

ALJ’s decision specifically noted that “there are no opinions in
the record regarding the claimant’s ability to engage in workrelated activities.” T. 25; see Urban, 2017 WL 1289587, at *3 (“In
fact,

the

physician

ALJ’s
had

limitations.”)

decision

opined

specifically
to

as

acknowledged
physical

Urban’s

that

no

work-related

Yet, the ALJ reached the conclusion that plaintiff

was qualified to perform light work despite substantial evidence in
the record regarding the degeneration of both plaintiff’s knees.
T. 38-42, 56, 282, 372-74, 534-36.

Moreover, this is not a case

where plaintiff had minor physical impairments, permitting the ALJ
to render a common sense judgment because the record contained
complex medical findings regarding multiple severe and non-severe
impairments.

T.

201.

See

Urban,

2017

WL

1289587,

at

*4

(concluding ALJ not permitted to render common sense judgment about
plaintiff functional capacity because treatment notes contained
complex medical findings and ALJ found plaintiff had multiple
severe physical impairments). Under these circumstances, remand is
proper

because

the

RFC

determination

is

not

supported

by

substantial evidence in the record which, among other things, lacks
medical

source

opinion

as

to

plaintiff’s

capabilities.

6

physical

functional

B.

The ALJ Erred By Failing to Apply the “Special Technique”
Required by 20 C.F.R. § 404.1520a in Evaluating the
Severity of Plaintiff's Mental Impairment

Plaintiff next challenges the ALJ’s failure to follow the
special technique relative to mental impairments as set forth in 20
C.F.R.

§

1520a

in

connection

with

determinable impairment of depression.

plaintiff’s

medically

Docket 10 at 11.

The

Commissioner concedes that the ALJ did not employ the special
technique, but submits that the ALJ’s omission was harmless because
the ALJ gave plaintiff “the benefit of the doubt,” and “found that
Plaintiff had non-severe depression,” and ignored consideration of
the limitations in any of the four areas set forth in 20 C.F.R.
§ 1520a.

Docket 15 at 14-15.

In his decision, the ALJ acknowledged, without elaboration,
plaintiff’s
concluding

testimony
at

step

of

two

determinable impairment.

her
that

2012
it

T. 21.

was

“bout
a

with

depression,”

non-severe

medically

Later, while recounting the

medical evidence in the record in support of his RFC determination,
the ALJ acknowledged that on September 12, 2012, plaintiff was seen
by her treating physician, Dr. Javeed Mir, and found her to be
depressed and cried for no reason.

T. 24, 437-38.

noted that plaintiff was prescribed Lexapro.

T. 24.

The ALJ also
Nor did the

ALJ acknowledge Dr. Mir’s statement that plaintiff was directed to
contact him if notions of suicide developed or that plaintiff
planned to seek counseling with her pastor.

T. 438.

As plaintiff

points out, the ALJ also failed to consider her testimony that she

7

continued to take psychotropic medication (paroxetine) prescribed
by Dr. Mir.

T. 44.

Plaintiff testified that the medication was

her “anxiety or emotional pills” because “she let everything get to
[her] easily.” Id. Moreover, although plaintiff testified she was
not seeing a psychologist or psychiatrist, she had been counseling
with a “minister type” for depression.

Id.

At step two of the sequential evaluation, the ALJ is required
to

follow

the

§§

404.5120a,

“special
416.920a.

technique”
The

ALJ

set
must

forth

in

consider

20

C.F.R.

whether

the

plaintiff has a medically determinable mental impairment, and if
so, rate the degree of functional limitation associated with that
impairment in terms of the four domains of functioning (activities
of daily living; social functioning; concentration, persistence, or
pace; and episodes of decompensation).
Although the ALJ purported to follow step two within the fivestep analysis, his decision fails to account for substantial
evidence in the record, both from plaintiff's testimony and her
treatment records, as to plaintiff’s mental impairment, and fails
to consider that evidence for the remainder of the five-step
sequential evaluation.

See Jackson v. Colvin, No. 1:14-CV-00055

(MAT), 2016 WL 1578748 (W.D.N.Y. 2016) (concluding ALJ failed to
consider substantial evidence in record that plaintiff’s depression
was severe).2
2

“Because stress is highly individualized, mentally impaired individuals may have
difficulty meeting the requirements of even so-called low-stress jobs, and the
Commissioner must therefore make specific findings about the nature of a

8

As a result of the ALJ failing to consider these factors in
determining the severity of her mental impairments, this case must
be remanded.

See O'Connell v. Astrue, Case No. 1:06–CV–1113

(LEK/VEB), 2009 WL 606155, *22 (N.D.N.Y. Mar. 9, 2009) (finding
that step two error was not harmless “because it [was] not clear
that the ALJ adequately considered all the evidence relevant to the
issue,

nor

[was]

it

clear

that

the

ALJ

applied

the

special

technique in formulating his . . . decision”).
On remand, the ALJ is directed to consider all of the relevant
evidence when making the step two determination as to which of
plaintiff's impairments have more than a minimal effect on her
functioning, and are therefore severe under the regulations.
20 C.F.R. §§ 404.1520(c), 404.1521, 416.920(c), 416.921.

See

The ALJ

must state the evidence he considers in this regard, follow the
special technique, and explain his reasoning so that meaningful
review is possible.

The Court also notes that on remand, the ALJ

must consider all of plaintiff's impairments, both severe and
non-severe, when reaching an RFC determination. See 20 C.F.R.
§§ 404.1545(a)(2), 416.945(a)(2).
C.

The Court Declines to Reach Plaintiff’s Argument as to
Credibility

Plaintiff also argues that remand is required because the ALJ
failed to articulate why plaintiff’s testimony along with a letter

claimant's stress, the circumstances that trigger it, and how those factors
affect his ability to work.” Stadler v. Barnhart, 464 F. Supp. 2d 183, 189
(W.D.N.Y. 2006) (emphasis added and internal quotation marks omitted) (citing
SSR 85–15).

9

from her former supervisor were not fully credible.

Because the

Court has determined that remand for further development of the
record is necessary, it need not reach the issue of the ALJ’s
determination of plaintiff’s credibility and the contents of a
letter from her former supervisor.

On remand and after the

required additional development of the record, the Commissioner
should revisit his determinations regarding credibility in light of
the record as a whole.
VI.

Conclusion
For the foregoing reasons, plaintiff’s motion for judgment on

the pleadings(Docket No. 10) 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. 15)
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 21, 2017
Rochester, New York.

10