Sharrow v. Commissioner of Social Security
Filing
19
DECISION AND ORDER granting 12 Plaintiff's Motion for Judgment on the Pleadings to the extent that the matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order; denying 15 Motion for Judgment on the Pleadings. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 10/15/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
REBECCA SHARROW,
Plaintiff,
17-CV-591(MAT)
DECISION
and ORDER
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
INTRODUCTION
Rebecca Sharrow, (“Plaintiff”), who is represented by counsel,
brings this action pursuant to the Social Security Act (“the Act”),
seeking review of the final decision of the Commissioner of Social
Security
(“the
Commissioner”)
denying
her
applications
for
Disability Insurance Benefits (“DIB”) and Supplemental Security
Income
(“SSI”).
This
Court
has
jurisdiction
over
the
matter
pursuant to 42 U.S.C. § 405(g). Presently before the Court are the
parties’ motions for judgment on the pleadings pursuant to Rule
12(c) of the Federal Rules of Civil Procedure. Dkt.##12, 15.
BACKGROUND
A.
Procedural History
Plaintiff filed an application for DIB and SSI on March 3,
2014, claiming disability since October 31, 2012. T. 177.1 On April
1
Citations to “T.__” refer to the pages of the administrative
transcript.
30, 2014, the Social Security Administration (“SSA”) issued a
Notice of Disapproved Claim. T. at 111-116. Plaintiff timely filed
a request for hearing on May 20, 2014. T. 117-118. Plaintiff
appeared with a representative before Administrative Law Judge
(“ALJ”) Joan H. Deans on July 13, 2016. T. 42-86. On August 19,
2016, the ALJ issued an unfavorable determination, T. 10-34, and
the Appeals Council denied review on May 30, 2017. T. 3-6. This
action followed. Dkt. #1.
The issue before the Court is whether the Commissioner’s
decision
that
Plaintiff
was
not
disabled
is
supported
by
substantial evidence and free of legal error.
B.
The ALJ’s Decision
In applying the familiar five-step sequential analysis, as
contained in the administrative regulations promulgated by the
Social Security Administration (“SSA”), see 20 C.F.R. §§ 404.1520,
416.920; Lynch v. Astrue, No. 07-CV-249, 2008 WL 3413899, at *2
(W.D.N.Y. Aug. 8, 2008) (detailing the five steps), the ALJ found:
(1) Plaintiff had not engaged in substantial gainful activity since
October 31, 2012; (2) she had the severe impairments of obesity,
anemia, degenerative joint disease, degenerative disc disease, and
history of asthma; (3) her
impairments did not meet or equal the
Listings set forth at 20 C.F.R. § 404, Subpt. P, Appx. 1. The ALJ
found that she retained the residual functional capacity (“RFC”) to
perform
a
range
of
sedentary
work
2
with
occasional
postural
activities and environmental restrictions; and (4) Plaintiff could
perform her past relevant work as a telephone sales representative
and customer relations complaint clerk. The ALJ thus concluded that
Plaintiff was not disabled under the Act. T. 16-27.
DISCUSSION
A.
Scope of Review
A federal court should set aside an ALJ decision to deny
disability benefits only where it is based on legal error or is not
supported by substantial evidence. Balsamo v. Chater, 142 F.3d 75,
79 (2d Cir. 1998). “Substantial evidence means such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.” Green–Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.
2003) (internal quotation marks omitted).
B.
Plaintiff’s Motion
Plaintiff challenges the ALJ’s decision on the following
grounds: (1) the ALJ erred in determining that Plaintiff did not
suffer from a severe mental and/or physical impairment; (3) the ALJ
failed to attribute controlling weight or any other weight to the
opinions of Plaintiff’s treating physicians; and (4) the ALJ erred
in relying upon the opinion of the consultative examiner. Dkt. #121 at 1.
Plaintiff argues that remand is necessary because the ALJ
found that she did not suffer from a severe mental and/or physical
impairment. Pl. Mem. 15-20.
3
At step two of the five-step analysis, the ALJ must consider
a claimant’s medically determinable impairments and decide whether
they are “severe.” A “severe” impairment is “one that significantly
limits a claimant’s ability to perform basic work activities,” such
as “walking, standing, sitting, lifting, [etc.], [c]apacities for
seeing, hearing, and speaking, and [u]nderstanding, carrying out,
and
remembering
simple
instructions.”
Faison
v.
Berryhill,
No. 16-CV-6044, 2017 WL 3381055, at *2 (W.D.N.Y. Aug. 5, 2017)
(internal quotations and citations omitted). “It is the claimant's
burden to show at step two that she has a severe impairment.” Rye
v. Colvin, No. 14-CV-170, 2016 WL 632242, at *3 (D. Vt. Feb. 17,
2016) (internal
quotation
omitted).
A
step two
error
is
not
reversible and does not necessitate remand where the record is
devoid of evidence that the allegedly omitted impairments were
severe. Id. at *4 (declining to remand where the plaintiff did not
“specify why each of these impairments [that he contended were
omitted at step two] meets the regulatory definition of a ‘severe’
impairment”).
Moreover, “[c]ourts have developed a specialized variant of
harmless-error analysis with respect to Step 2 severity errors in
social security proceedings . . . . [W]hen an administrative law
judge identifies some severe impairments at Step 2, and then
proceeds through [the] sequential evaluation on the basis of [the]
combined effects of all impairments, including those erroneously
4
found to be non severe, an error in failing to identify all severe
impairments
at
Step
2
is
harmless.”
Snyder
v.
Colvin,
No. 13-CV-585, 2014 WL 3107962, at *5 (N.D.N.Y. July 8, 2014); see
also Reices-Colon v. Astrue, 523 Fed. Appx. 796, 798 (2d Cir. 2013)
(step two error was harmless where all of the claimant’s conditions
“were considered during the subsequent steps”). “Specifically, when
functional effects of impairments erroneously determined to be
non-severe
at
Step
2
are,
nonetheless,
fully
considered
and
factored into subsequent residual functional capacity assessments,
a reviewing court can confidently conclude that the same result
would have been reached absent the error.” Snyder, 2014 WL 3107962
at *5.
The record indicates as follows: Plaintiff is a 50-year old
female with one year of college education and past relevant work as
a sales representative, customer service representative, assistant
manager, and customer retention representative. T. 48, 50-57. She
testified that she was unable to continue working at her sales job
because of the stress of being an aggressive salesperson and
meeting quality assurance requirements. T. 51-52. She left her job
as an assistant manager at a convenience store after suffering a
“crack up” from depression and anxiety. T. 53. Plaintiff suffered
depression and anxiety due to, among other things, her husband’s
unexpected passing, a terminated pregnancy, and body dysmorphic
disorder
stemming
from
lifelong
5
obesity.
T.
54-65.
She
had
previously weighed 500 pounds, but was down to 336 pounds after
gastric bypass surgery. T. 50-51.
On May 23, 2010, Plaintiff complained of depression while
being treated at Tuscarora Health Center (“Tuscarora”). She was
observed to have a sad expression, flat affect, and she stated she
did not like leaving her house. T. 719. She was diagnosed with
depression. Id. A year later, during an appointment at Tuscarora,
she reported that her moods were high and low but didn't want to
take antidepressants/medications
which
may
cause
weight
gain.
T. 693. On September 29, 2011, Plaintiff’s psychiatric exam was
normal, except for complaints of of feeling more restless, could
not settle down, nervous when she would go to work, withdrawn and
wanted to be left alone. T. 685.
Plaintiff was prescribed Lexapro. T. 686. On October 20, 2011,
she reported that she did not feel depressed or anxious regarding
going to work and when she is away from home for anytime.” T. 683.
On July 5, 2012, Plaintiff was upset about her daughters and
family issues/relations, that she was under stress and had started
a new job. T. 672. Her psychiatric assessment was otherwise normal.
Id.
On October 23, 2012, during an appointment at Tuscarora,
Plaintiff
complained
of
depressive
mood
and
continued
family/financial stressors. T. 637. She reported at that she had
stopped taking her Lexapro because she ran out. Id. She was
6
provided
with
resources
“for
self-help
and
CBT
given
and
encouraged.” T. 638.
Plaintiff was referred by Tuscarora to Niagara Falls Adult
Mental Health Clinic (“the Clinic”) for managing stress, anxiety,
and depression. She appeared on April 11, 2014, for an initial
assessment. T. 430. Plaintiff reported having a hard time managing
stress which lead to depression and anxiety. She reported an
“emotional breakdown” three years prior but did not go to the
hospital.
T.
impairments
431.
in
Justin
functioning
Walck,
as
LMSW,
“severe
assessed
Plaintiff’s
difficulty
maintaining
employment, moderate inability to get out of bed, poor personal
hygiene and procrastination.” Id. Plaintiff was diagnosed with
generalized anxiety disorder, depressive disorder, and had a
GAF
of 55.2 Id.
On April 24, 2014, Christine Ransom, Ph.D., performed a
consultative
mental
evaluation
of
Plaintiff.
T.
442-45.
The
psychologist found that Plaintiff was oriented with normal motor
behavior, appropriate eye contact, fluent speech, coherent and
goal-directed thought process, mildly dysphoric and tense affect,
2
A GAF of between 51 and 60 indicates moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) or moderate difficulty in
social, occupational, or school functioning (e.g., few friends, conflicts with
peers or co-workers). American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders (DSM-IV-TR) 34 (4th ed. Text Revision
2000). A GAF of between 41 and 50 indicates serious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) or any serious
impairment in social, occupational, or school functioning (e.g., no friends,
unable to keep a job). Id.
7
and
intact
memory,
attention,
and
concentration.
T.
443-44.
Plaintiff told Dr. Ransom that her daily activities included
maintaining her personal care, preparing meals, cleaning, doing
laundry,
shopping,
socializing
with
her
family,
watching
television, reading, and making crafts. T. 444.
Dr. Ransom opined that Plaintiff could follow and understand
simple
directions
and
instructions,
perform
simple
tasks
independently, maintain attention and concentration for simple
tasks, maintain a simple regular schedule, and learn simple new
tasks.
T.
difficulty
444.
She
performing
indicated
that
Plaintiff
complex
tasks,
relating
had
only
mild
adequately
with
others, and appropriately dealing with stress. T. 444.
On April 25, 2014, Mr. Walck, LMSW, assessed Plaintiff’s
prognosis as fair, and she was not referred to a psychiatrist in
lieu of conservative measures. T. 791. Although Plaintiff was
scheduled to attend counseling sessions every two weeks, she did
not return to the Clinic until June 20, 2014, at which time she was
again diagnosed with generalized anxiety disorder and depressive
disorder. T. 794-95.
Plaintiff
returned
to
the
Clinic
on
August
19,
2014.
T. 798-805. The provider noted that “adequate coping skills of yet
to be established as client has shown poor attendance.” T. 799.
8
On
August
28,
2014,
Plaintiff
complained
of
increased
difficulty falling/staying asleep and that her thoughts were racing
at night. She had episodes of stress-induced anxiety. T. 763-765.
On September 9, 2014, Plaintiff was again seen at the Clinic with
continuing depression and anxiety. At Plaintiff’s September 30,
2014 session, it was noted her condition and complaints were
unchanged. T. 808-812.
On February 10, 2015, Plaintiff complained her anxiety and
insomnia
had
increased.
She
was
grieving
the
loss
of
her
grandmother as well as dealing with longstanding family issues and
despite learning to use tools for self-help, these issues were
still overwhelming to her. She stated that something was wrong with
her and she couldn’t seem to get out of the mood she was in. Her
diagnosis of depressive disorder remained the same. T. 839.
On March 23, 2015, Plaintiff complained that she was feeling
more overwhelmed with worry which interfered with her quality of
life, and was having trouble sleeping. Her prior diagnosis of
depressive disorder and anxiety remained the same. T. 835-836.
On July 6, 2015, Plaintiff was treated at Tuscarora where her
continuing diagnosis of depressive disorder, malaise and fatigue
were confirmed. T. 906.
On March 14, 2016, Plaintiff was treated at Tuscarora and
complained that her depression was getting worse and medication was
not helping enough. T. 919-920.
9
On May 26, 2016, a Mental Health Report was filled out by the
Niagara
County
Department
of
Social
Services
which
indicated
Plaintiff suffered from major depressive disorder and generalized
anxiety disorder in addition to her physical ailments. She also was
assessed as having relationship issues with limited social support.
She was prescribed Wellbutrin, Lexapro, Klonopin, Celebrex, and
Norvasc. The Report states that Plaintiff showed uneven improvement
throughout the program. T. 977.
On July 6, 2016, psychologist Dr. Christopher Pino evaluated
Plaintiff and stated he would continue treating her for social
anxiety disorder and depression. T. 883. At that time he assessed
a GAF score of 50. Id.
Plaintiff now requests that the matter be remanded for the ALJ
to determine how Plaintiff’s severe anxiety and depression affect
her RFC. The Court agrees that the ALJ erred in her step two
severity analysis in light of her subsequent RFC finding which does
not contain any mental limitations. T. 27. Rather, the ALJ found
that Plaintiff could perform her past work of telephone sales
representative
and
customer
relations
complaint
clerk,
both
semiskilled, sedentary jobs, after assessing her RFC with the
physical demands of the work only. Id.
Generally, the failure to find an impairment severe at step
two may be considered harmless, and the Court would be inclined to
find such a failure to be harmless error, since the ALJ found other
10
impairments
to
be
severe
and
continued
with
the
sequential
evaluation. However, the medical, testimonial, and opinion evidence
calls
into
question
whether
the
ALJ
properly
considered
the
evidence related to Plaintiff’s mental impairments.3 On remand, the
ALJ should address the effects of Plaintiff’s combined impairments.
See Social Security Ruling (“SSR”) 85-28.
In light of the Court’s determination it need not reach
Plaintiff’s remaining arguments.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion is granted to
the extent that the matter is remanded to the Commissioner for
further administrative proceedings consistent with this Decision
and Order and the Commissioner’s motion is denied.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:
Rochester, New York
October_15, 2018
3
The Court has reviewed Plaintiff’s claim of error regarding her
physical impairments and finds it to be without merit.
11
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