Notaro v. Colvin
DECISION AND ORDER granting 11 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 16 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/29/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
-vsNANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Represented by counsel, Daniel Notaro (“plaintiff”) brings
this action pursuant to Title II of the Social Security Act (“the
Commissioner”) denying his application for disability insurance
Presently before the Court are the parties’
Rule 12(c) of the Federal Rules of Civil Procedure.
reasons set forth below, plaintiff’s motion is granted to the
extent that the matter is remanded for further administrative
proceedings and defendant’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
Plaintiff filed an application for DIB in March 2013, alleging
posttraumatic stress disorder (PTSD), with an alleged onset date of
January 14, 2013.
Administrative Transcript (“T.”) 132-33, 146,
Plaintiff's application was denied on July 16, 2013, T. 79-
82, and he timely requested a hearing before an administrative law
January 14, 2015.
ALJ Robert T. Harvey held a hearing on
On March 31, 2015, ALJ Harvey issue
a decision in which he found plaintiff was not disabled as defined
in the Act.
The Appeals Council denied plaintiff's
request for review on May 24, 2016.
This action followed.
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
The ALJ’s Decision
Initially, the ALJ found that Plaintiff met the insured status
requirements of the Act through December 31, 2018.
§ 404.1520, the ALJ found that plaintiff had not engaged in
substantial gainful activity since January 14, 2013, the alleged
At step two, the ALJ found that plaintiff had the
severe impairments of bipolar disorder and drug abuse.
step three, the ALJ found that plaintiff did not have an impairment
or combination of impairments that met or medically equaled a
Before proceeding to step four, the
ALJ found that plaintiff retained the residual functional capacity
(“RFC”) to perform all exertional activities consistent with the
broad world of work (SSR 83-10) which includes “all exertional
The ALJ added the following non-exertional
limitations: 1)cannot work in areas with unprotected heights, or
with heavy, moving or dangerous machinery; 2) cannot climb ropes,
ladders or scaffolds; and 3) occasional limitations in the ability
to interact approp1iately with the general public, dealing with
stress, and in the ability to respond appropriately to changes in
At step four, the ALJ found that plaintiff
was unable to perform any past relevant work.
five, the ALJ found, considering plaintiff's age, education, work
experience, and RFC, there are jobs that plaintiff can perform that
exist in significant numbers in the national economy.
Accordingly, the ALJ found that plaintiff was not disabled. T. 22.
Scope of Review
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.’”
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
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)).
Here, plaintiff makes the following arguments in support of
his motion for judgment on the pleadings: 1) the ALJ failed to
assess all of plaintiff’s alleged impairments, and 2) the ALJ
failed to properly consider listing 12.04.
Plaintiff argues that the ALJ improperly failed to evaluate
the severity of plaintiff’s medically determinable impairments of
PTSD, personality disorder, and anxiety.
The Court agrees.
The record clearly indicates that plaintiff was variously
diagnosed with several distinct mental health impairments including
anxiety, personality disorder, and PTSD. Between 2012 and February
2014, plaintiff was treated at Horizon Village for, among other
things, his “long history of anxiety” and “axis 2 personality
providers, maladaptive coping mechanisms and active attachment with
December 31, 2013, while Plaintiff was being treated by Horizon,
Family Nurse Practitioner Carolyn DiFonzo observed that plaintiff
had appropriate mood and affect, but was “seeing a psych regularly”
On October 8, 2014, Dr. Anandavalli
Dr. Jacqueline Santoro of Industrial Medicine Associates, P.C.,
performed a psychiatric evaluation of plaintiff indicating that, as
to plaintiff’s recent and remote memory skills, he was “mildly
impaired due to emotional distress, related to anxiety.”
However, the ALJ found only that plaintiff’s bipolar disorder
and drug abuse were severe at step two and “sufficiently documented
in the record, and for sufficient length, so as to meet the minimal
However, he did not consider plaintiff’s
generally, “an error in an ALJ's severity assessment with regard to
a given impairment is harmless...when it is clear that the ALJ
considered the claimant’s [impairments] and their effect on his or
her ability to work during the balance of the sequential evaluation
Diakogiannis v. Astrue, 975 F. Supp. 2d 299, 311-12
(W.D.N.Y. 2013) (internal quotation marks and citations omitted);
see Reices-Colon v. Astrue, 523 F. App’x 796, 798 (2d Cir. May 2,
specifically considered other impairments). Here, however, the
ALJ’s decision demonstrates that he failed to consider the medical
evidence of anxiety, PTSD, and personality disorder at step two,
and PTSD and personality disorder at step three.
Consequently, I find that the ALJ failed to consider the
impairments . . . throughout the disability determination process.”
20 C.F.R. 404.1523; see Bigwarfe v. Comm'r Of Soc. Sec., 2008 WL
4518737, at *6 (N.D.N.Y. Sept. 30, 2008) (“Where a claimant alleges
multiple impairments, the combined effects of all impairments must
be considered, regardless of whether any impairment, if considered
separately, would be of sufficient severity.”).
The ALJ’s failure to consider plaintiff’s various other mental
health diagnoses at steps two and three constituted reversible
error, because a full consideration of plaintiff’s anxiety, PTSD,
and personality disorder could have affected the outcome of his
See, e.g., Childs v. Colvin, 2016 WL 1127801, at *4
schizoaffective disorder at steps two and three was reversible
error); Elliott v. Comm'r of Soc. Sec., 2011 WL 1299623, *4 (D. Or.
Mar. 31, 2011) (“The general proposition that failures at step two
may be harmless if the ALJ discusses the impairments and assesses
limitations as a result of that impairment, . . . underscores the
significance of the error in this case – the ALJ failed
adequately discuss the impairments at issue, and a determination as
connection with these impairments is impossible to ascertain.”).
For example, the ALJ’s step two error prejudiced plaintiff at step
three, where he failed to consider Listings 12.06 (Anxiety and
obsessive-compulsive disorders), 12.08 (personality and impulsecontrol
See Childs, 2016 WL 1127801, at *4 (step two error
plaintiff's mental health impairments, and determine, at step two,
whether each impairment is severe or nonsevere based upon the
medical record evidence.
The ALJ is then required to complete the
balance of the sequential evaluation process with due consideration
to all of plaintiff’s limitations, whether stemming from severe
impairments or not.
See, e.g., Palmer v. Colvin, 2016 WL 7169327,
at *6 (W.D.N.Y. Dec. 9, 2016).
Having found remand necessary, the Court declines to address
plaintiff’s argument that the ALJ failed to properly consider
On remand, the Commissioner should revisit his
determinations at step three after assessing the full measure of
plaintiff’s mental impairments throughout the five-step analysis.
For the foregoing reasons, plaintiff’s motion for judgment on
the pleadings(Docket No. 11) 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. 16)
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 29, 2017
Rochester, New York.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?