Notaro v. Colvin

Filing 19

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
DANIEL NOTARO,
16-cv-00603

Plaintiff,

DECISION AND
ORDER
-vsNANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

I.

Introduction
Represented by counsel, Daniel Notaro (“plaintiff”) brings

this action pursuant to Title II of the Social Security Act (“the
Act”),

seeking

Commissioner

review
of

of

Social

the

final

decision

Security1

of

the

(“defendant”

Acting

or

“the

Commissioner”) denying his application for disability insurance
benefits (“DIB”).

Presently before the Court are the parties’

competing

for

motions

judgment

on

the

pleadings

pursuant

Rule 12(c) of the Federal Rules of Civil Procedure.

to

For the

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.

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 in March 2013, alleging

disability

due

to

major

bipolar

disorder,

anxiety,

and

posttraumatic stress disorder (PTSD), with an alleged onset date of
January 14, 2013.
149.

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
judge (“ALJ”).

T. 83-84.

January 14, 2015.

ALJ Robert T. Harvey held a hearing on

T. 27-64.

On March 31, 2015, ALJ Harvey issue

a decision in which he found plaintiff was not disabled as defined
in the Act.

T. 12-22.

The Appeals Council denied plaintiff's

request for review on May 24, 2016.

T. 1-3.

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
parties’ contentions.
III.

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

requirements of the Act through December 31, 2018.
one

of

the

five-step

sequential

evaluation,

T. 14.
see

20

At step
C.F.R.

§ 404.1520, the ALJ found that plaintiff had not engaged in
substantial gainful activity since January 14, 2013, the alleged
onset date.

Id.

At step two, the ALJ found that plaintiff had the

severe impairments of bipolar disorder and drug abuse.
2

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. 14-16.

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
levels.”

T. 16-20.

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
work setting.

T. 16.

At step four, the ALJ found that plaintiff

was unable to perform any past relevant work.

T. 20.

At step

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.

T. 21-22.

Accordingly, the ALJ found that plaintiff was not disabled. T. 22.

IV.

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).
3

“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).

Shaw v.

“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

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.
A.

Failure to
Impairments

Consider

Certain

Medically

Determinable

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
traits

including

a

history

of

splitting

behaviors

between

providers, maladaptive coping mechanisms and active attachment with
people

he

interacts

with

on

a
4

daily

basis.”

T.

289.

On

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”
for “bipolar/PTSD.”
Menon

placed

depression

T. 268.

plaintiff

and

on

On October 8, 2014, Dr. Anandavalli
“Zoloft

anxiety.”

T.

50

mg

285.

daily
On

to

help

January

with

5,2015,

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.”

T. 318.

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
standard.”
various

T. 14.

other

However, he did not consider plaintiff’s

mental

health

diagnoses,

even

as

nonsevere

impairments.
The

Commissioner

cites

the

well-established

rule

that

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
process.”

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,
5

2013)

(error

harmless

where

during

subsequent

steps

ALJ

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
“combined

impact

of

[plaintiff's

medically-determinable]

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
application.
(W.D.N.Y.

See, e.g., Childs v. Colvin, 2016 WL 1127801, at *4

Mar.

23,

2016)

(failure

to

consider

plaintiff’s

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
6

to

adequately discuss the impairments at issue, and a determination as
to

whether

plaintiff’s

limitations

were

fully

assessed

in

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

disorders),

disorders).
prejudiced

and

12.15

(Trauma

-

and

stressor-related

See Childs, 2016 WL 1127801, at *4 (step two error
plaintiff

at

step

three

where

Listing

12.03

not

considered).
Therefore,

on

remand,

the

ALJ

is

to

consider

each

of

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).
B.

The Court
Argument

Declines

to

Reach

Plaintiff’s

Remaining

Having found remand necessary, the Court declines to address
plaintiff’s argument that the ALJ failed to properly consider
Listing 12.04.

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.

7

VI.

Conclusion
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
proceedings

consistent

with

this

Decision

and

Order.

The

Commissioner’s motion for judgment on the pleadings (Docket No. 16)
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 29, 2017
Rochester, New York.

8