Evans v. Colvin

Filing 15

DECISION AND ORDER granting 9 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 12 Motion for Judgment on the Pleadings. The Clerk of the Court is directed to close this case. Signed by Hon. Michael A. Telesca on 3/19/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK
____________________________________
MALCOLM EVANS SR.,
Plaintiff,

16-CV-801 (MAT)
DECISION AND ORDER

-vNANCY A. BERRYHILL,
Acting Commissioner OF Social Security1,
Defendant.
____________________________________
INTRODUCTION

Malcolm Evans, Sr. (“Plaintiff”), represented by counsel,
brings this action under Title XVI of the Social Security Act (“the
Act”),

seeking

Commissioner

review

of

of

Social

the

final

Security

decision
(“the

of

the

Acting

Commissioner”

or

“defendant”), denying his application for Supplemental Security
Income (“SSI”). The Court has jurisdiction over the matter pursuant
to 42 U.S.C. §§ 405(g), 1383(c).

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 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.

PROCEDURAL BACKGROUND
On December 15, 2014, Plaintiff protectively filed for SSI,
alleging

disability

beginning

June

1,

2012.

(Administrative

Transcript (“T.”) 141-46). The claim was initially denied on
July 27, 2015, and Plaintiff timely requested a hearing.

(T. 77-

82). A hearing was conducted on December 14, 2015, in Buffalo, New
York by administrative law judge (“ALJ”) Timothy McGuan.
63).

Plaintiff

appeared

with

his

attorney

and

(T. 52-

testified.

An

impartial vocational expert (“VE”) also testified.
The ALJ issued an unfavorable decision on January 22, 2016.
(T. 9-27). Plaintiff timely requested review of the ALJ’s decision
by the Appeals’ Council.

(T. 7-8).

The Appeals Council denied

Plaintiff’s request for review on August 9, 2016, making the ALJ’s
decision the

final

decision

of

the

Commissioner.

(T.

1-6).

Plaintiff then timely commenced this action.
THE ALJ’S DECISION
The

ALJ

applied

the

five-step

sequential

evaluation

promulgated by the Commissioner for adjudicating disability claims.
See

20

C.F.R.

evaluation,

the

§

404.1520(a).
ALJ

found

At

that

step

one

Plaintiff

of
had

the
not

sequential
engaged

in

substantial gainful activity since the application date. (T.14).
At

step

following

two,

“severe”

the

ALJ

determined

impairments:

that

Plaintiff

schizoaffective

had

the

disorder,

posttraumatic stress disorder, generalized anxiety disorder, and

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alcohol, marijuana and cocaine dependence. (T.14). The ALJ also
determined that Plaintiff’s medically determinable impairments of
non-obstructive coronary artery disease with moderate to severe
mitral

valve

regurgitation

were

non-severe

and

created

no

significant work-related functional limitations. (T.15).
At step three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that meets or medically
equals an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. The ALJ specifically considered Listings 12.03, 12.04,
12.06, and 12.09. (T.16).
Before

proceeding

to

step

four,

the

ALJ

then

assessed

Plaintiff as having the residual functional capacity (“RFC”) to
perform a full range of work at all extertional levels, with the
additional non-exertional limitations that he cannot interact with
the public but has no limitation in his ability to interact with
coworkers

or

supervisors,

and

that

he

can

only

occasionally

understand, remember, and carry out complex and detailed tasks. At
step four, the ALJ concluded that Plaintiff did not have any past
relevant work.

(T. 21).

At step five, the ALJ relied on the VE’s testimony that a
person of Plaintiff’s age, and with his education, work experience,
and

RFC,

could

perform

the

requirements

of

the

following

representative jobs that exist in the significant numbers in the
national economy: Cleaner II (Dictionary of Occupational Titles

3

(“DOT”)

No.

919.687-014,

unskilled,

SVP

1,

medium

exertional

level); Garment Folder (DOT No. 789.687-066, unskilled, SVP 2,
light exertional level); and Cleaner Housekeeping (DOT No. 323.687014, unskilled, SVP 2, light exertional level). (T.22).
At step five, the ALJ found that Plaintiff has not been under
a disability, as defined in the Act, since the application date.
(T. 23).
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). The
district court must accept the Commissioner’s findings of fact,
provided that such findings are supported by “substantial evidence”
in the record. See 42 U.S.C. § 405(g) (the Commissioner’s findings
“as to any fact, if supported by substantial evidence, shall be
conclusive”). “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)
(quotation

omitted).

The

reviewing

court

nevertheless

must

scrutinize the whole record and examine evidence that supports or
detracts from both sides. Tejada v. Apfel, 167 F.3d 770, 774
(2d Cir. 1998) (citation omitted). “The deferential standard of
4

review

for

substantial

evidence

Commissioner’s conclusions of law.”

does

not

apply

to

the

Byam v. Barnhart, 336 F.3d

172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109,
112 (2d Cir. 1984)).
DISCUSSION
Plaintiff contends that remand is warranted for the following
reasons: (1) the ALJ erred in determining the Plaintiff’s cardiac
impairment was non-severe based on a one time examination which was
not designed to uncover any meaningful information about his
cardiac condition; and (2) the ALJ’s lay conclusion that the
Plaintiff

had

no

limitations

interacting

with

coworkers

or

supervisors was unsupported by any medical opinion of record.
Defendant responds that the ALJ’s determination was supported by
substantial evidence and should be affirmed. For the reasons
discussed below, the Court concludes that remand of this matter for
further administrative proceedings is required.
I.

Plaintiff’s Cardiac Condition
Plaintiff claims to suffer from the heart conditions of

cardiomyopathy and regurgitory valves, which allegedly cause him to
have mild heart attacks. In his testimony, Plaintiff estimated that
he suffered five to six mild heart attacks in 2014 and three in
2015. (T.55-56).
The medical evidence of record shows that Plaintiff reported
to the Erie County Medical Center emergency room on January 11,

5

2014. (T. 470-76).
(T. 470).

Plaintiff was diagnosed with chest pain.

An EKG showed sinus tachycardia.

(T. 474).

Plaintiff’s

left ventricle ejection fraction was in the range of 30-40 percent,
consistent

with

moderately

reduced

systolic

function;

diffuse

hypokinesis and mild regurgitation were both noted. (T. 476).
At a visit with his primary care physician on November 4,
2015,

Plaintiff

cardiologist.
Plaintiff’s

reported

(T. 295).

primary

that

he

on

care

November

scheduled

to

see

a

An EKG revealed sinus tachycardia, and
physician

cardiologist as soon as possible.
Also

was

4,

2015,

encouraged

him

to

see

a

(T. 296).
Plaintiff

saw

Dr.

Rajagopalan at the Buffalo General Cardiology Clinic.

Bharajh
(T. 300-

301).

Plaintiff had sinus tachycardia and “moderate to severe

mitral

regurgitation

surgery.”

(T. 301).

which

may

require

possible

open

heart

Dr. Rajagopalan sent Plaintiff to the

emergency room “to rule out acute coronary syndrome.”

(Id.).

Plaintiff underwent cardiac catheterization on November 5,
2015,

which

revealed

no

severe

mitral

regurgitation

and

no

angiographically evident coronary artery diseases, but did show
elevated right left heart filling pressures and mild pulmonary
hypertension.
With respect to medical opinion evidence regarding Plaintiff’s
cardiac condition, consultative examiner Dr. John Schwab examined
Plaintiff on June 2, 2015.

(T. 247-249).

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Dr. Schwab noted that

Plaintiff was a poor historian.

(T. 247).

Dr. Schwab’s cardiac

examination consisted of taking Plaintiff’s blood pressure and
pulse, and measuring his breaths. (T. 248-49).

Based on his

physical examination, Dr. Schwab opined that Plaintiff had no
restrictions. (T. 250).
In his decision, at step two, the ALJ found that Plaintiff
had the

medically

determinable

impairments

of non-obstructive

coronary artery disease with moderate to severe mitral valve
regurgitation.

(T. 15).

However, based on Dr. Schwab’s opinion,

to which he gave significant weight, the ALJ determined that these
impairments were non-severe.

(Id.).

Plaintiff argues that the ALJ’s determination that his cardiac
impairment
unsupported

was
by

not

severe

substantial

and

therefore

evidence

in

not

the

disabling

record.

The

was
ALJ

therefore is required to further develop the record to determine
what, if any, limitations would be associated with his cardiac
impairment.

The Court agrees and remand is warranted.

As a threshold matter, the Court finds that Dr. Schwab’s
opinion did not constitute substantial evidence in support of the
ALJ’s conclusion.

Dr. Schwab did not have Plaintiff’s complete

medical records related to his cardiac condition and he noted that
Plaintiff was a poor historian.

Moreover, his cardiac examination

of Plaintiff was cursory, and insufficient to provide the necessary
insight into the any limitations that might be associated with

7

Plaintiff’s cardiac impairments.

The opinion of consultation

examiner cannot constitute substantial evidence where it is “based
upon an incomplete and insufficient record.” Stackhouse v. Colvin,
52 F. Supp. 3d 518, 521 (W.D.N.Y. 2014).
The ALJ also could not rely on his own lay interpretation of
Plaintiff’s cardiac medical records to conclude that Plaintiff’s
cardiac

impairment

was

non-severe.

See

Snyder

v.

Colvin,

No. 5:13-CV-585 GLS/ESH, 2014 WL 3107962, at *4 (N.D.N.Y. July 8,
2014)

(at step two, the ALJ cannot arbitrary substitute his own

judgment for competent medical opinion and cannot “interpret[] raw
medical data and interject[] h[is] own lay medical judgment”).
Accordingly, there was a clear gap in the record regarding the
functional limitations, if any, associated with Plaintiff’s cardiac
impairment.
“Because a hearing on disability benefits is a non-adversarial
proceeding, the ALJ generally has an affirmative obligation to
develop the administrative record.

This duty exists even when the

claimant is represented by counsel.”

Perez v. Chater, 77 F.3d 41,

47 (2d Cir. 1996) (internal citation omitted).
from

the

Commissioner’s

regulatory

“This duty arises

obligations

to

develop

a

complete medical record before making a disability determination,”
Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996), and requires the
ALJ to take affirmative steps “where there are deficiencies in the
record,” Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999). In

8

furtherance of his duty to develop the record, “the ALJ may be
required to order a consultative examination when necessary to try
to resolve an inconsistency in the evidence, or when the evidence
as

a

whole

is

insufficient

to

allow

[the

determination or decision on [the] claim.”

ALJ]

to

make

a

Tanner v. Colvin,

No. 13-CV-746-JTC, 2015 WL 6442575, at *5 (W.D.N.Y. Oct. 23, 2015)
(internal quotation omitted).

“It is considered reversible error

for an ALJ not to order a consultative examination when such an
evaluation is necessary for him to make an informed decision.”
Falcon v. Apfel, 88 F. Supp. 2d 87, 91 (W.D.N.Y. 2000) (internal
quotation omitted).
In this case, a review of the record reveals that there was
substantial medical evidence demonstrating that Plaintiff suffered
from cardiac impairments. Indeed, the ALJ concluded at step two
that Plaintiff’s obstructive coronary artery disease with moderate
to severe mitral valve regurgitation were medically determinable
impairments.

However, the record contained no sufficient medical

evidence regarding limitations associated with those impairments.
The ALJ was therefore required to further develop the record, and
his failure to do so constitutes error requiring remand.

II.

Plaintiff’s Ability to Interact with Others
Plaintiff’s second argument is that the ALJ’s conclusion that

Plaintiff had no limitations in his ability to interact with

9

supervisors and co-workers was unsupported by substantial evidence.
Again, the Court agrees.
Consultative psychiatric examiner Dr. Gregory Fabiano examined
Plaintiff on June 2, 2015.

(T. 242-246).

Dr. Fabiano assessed

Plaintiff with schizoaffective disorder, major depressive disorder,
unspecified anxiety disorder, and alcohol, cannabis, and cocaine
substance use disorder, all in remission.

(T. 245).

Dr. Fabiano

opined that Plaintiff would have “moderate limitations in his
ability to relate adequately with others and appropriately deal
with stress.”

(Id.).

In determining Plaintiff’s mental RFC, the ALJ purported to
give significant

weight

to

Dr.

Fabiano’s

opinion.

(T. 20).

However, in direct contradiction to Dr. Fabiano’s opinion that
Plaintiff would have moderate limitations in his ability to relate
adequately with others, the ALJ determined that Plaintiff had no
limitations
supervisors.

in

his

ability

to

interact

with

coworkers

or

The ALJ failed to proffer any sound explanation for

this discrepancy.
When an ALJ adopts some portions of a medical opinion but
rejects others, he must explain why he did not adopt the rejected
portions. See Soc. Sec. Ruling 96-8p (1996) (“If the RFC assessment
conflicts with an opinion from a medical source, the adjudicator
must explain why the opinion was not adopted”); see also Dioguardi
v. Comm’r of Soc. Sec., 445 F. Supp. 2d 288, 297 (W.D.N.Y. 2006)

10

(“The plaintiff . . . is entitled to know why the ALJ chose to
disregard the portions of the medical opinions that were beneficial
to her application for benefits.”); Labonte v. Berryhill, No. 16CV-518-FPG, 2017 WL 1546477 at *3 (W.D.N.Y. May 1, 2017)) (“when an
ALJ adopts only portions of a medical opinion he or she must
explain why the remaining portions were rejected”).
Here, the ALJ provided no explanation for why he rejected
Dr.

Fabiano’s

opinion

that

Plaintiff

would

have

moderate

limitations in his ability to adequately interact with others.
This was error, and provides an additional basis for determining
that remand is required in this case.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on
the pleadings (Doc. 9) 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

opposing motion for judgement on the pleadings (Doc. 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
_____________________________
MICHAEL A. TELESCA
United States District Judge
Dated:

March 19, 2017
Rochester, New York

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