Lorenzi v. Commissioner of Social Security

Filing 18

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER granting 13 Motion for Judgment on the Pleadings; denying 16 Motion for Judgment on the PleadingsPlaintiff's Motion for Judgment (Docket No. 13) is granted; defendant's Motion for Judgment (Docket No. 16) is denied. This matter is remanded to defendant Commissioner for further proceedings. The Court Clerk to enter judgment consistent with this Order.So Ordered. Signed by Hon. Hugh B. Scott on 4/17/2019. (DRH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JACQUELINE LORENZI,
Plaintiff,

Hon. Hugh B. Scott

17CV1273

v.

CONSENT
Order

COMMISSIONER,
Defendant.

Before the Court are the parties’ respective motions for judgment on the pleadings
(Docket Nos. 13 (plaintiff), 16 (defendant Commissioner)). Having considered the
Administrative Record, filed as Docket No. 8 (references noted as “[R. __]”), and the papers of
both sides, this Court reaches the following decision.
INTRODUCTION
This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination
of the Commissioner of Social Security that plaintiff is not disabled and, therefore, is not entitled
to disability insurance benefits and/or Supplemental Security Income benefits. The parties
consented to proceed before a Magistrate Judge (Docket No. 6).
PROCEDURAL BACKGROUND
The plaintiff (“Jacqueline Lorenzi” or “plaintiff”) filed an application for disability
insurance benefits on August 21, 2013 [R. 10]. That application was denied initially. The
plaintiff appeared before an Administrative Law Judge (“ALJ”), who considered the case de

novo and concluded, in a written decision dated September 12, 2016, that the plaintiff was not
disabled within the meaning of the Social Security Act. The ALJ’s decision became the final
decision of the Commissioner on October 27, 2017, when the Appeals Council denied plaintiff’s
request for review.
Plaintiff commenced this action on December 5, 2017 (Docket No. 1). The parties
moved for judgment on the pleadings (Docket Nos. 13, 16), and plaintiff duly replied (Docket
No. 17). Upon further consideration, this Court then determined that the motions could be
decided on the papers.
FACTUAL BACKGROUND
Plaintiff, a 53-year-old with a high school education, last worked as a data entry clerk and
accounts receivable clerk [R. 15, 20]. She contends that she was disabled as of the onset date of
January 1, 2012 [R. 10]. Plaintiff alleges a combination of impairments, including plantar
fasciitis, diabetes, peripheral neuropathy, bipolar disorder, and anxiety disorder, prevent her from
working [R. 15]. Plaintiff claims the following impairments deemed severe by the ALJ:
bilateral plantar fasciitis, diabetes, peripheral neuropathy, obesity, affective disorder, generalized
anxiety disorder [R. 12]. Plaintiff stopped working when chronic foot pain made her unable to
stand for extended periods [R. 15]. As for the claimed obesity, plaintiff was 5’7”, 209 pounds
when she was examined by consultative internal medical examiner, Dr. Donna Miller, on
December 12, 2013 [R. 16, 596]. On December 24, 2015, plaintiff weighed 218 pounds and had
a body mass index of 34.14 [R. 1159]. On July 14, 2016, plaintiff testified at the hearing that
she weighed 204 pounds and noted that her weight fluctuated, with her greatest weight being 285
pounds [R. 61].
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Plaintiff also claimed other ailments, such as sleep apnea, hypertension, varicose veins,
residual memory and speech deficits secondary to transient ischemic attack (“TIA”), and thyroid
gland showing goiter [R. 13]. The ALJ found that each of these conditions was not severe at
Step Two of the five-step analysis [R. 13].
MEDICAL AND VOCATIONAL EVIDENCE
Pertinent to this decision, as for plaintiff’s TIA and residual memory and speech deficits
secondary to TIA, plaintiff’s IQ testing showed low average, only slight forgetfulness, slight
impairment in judgment and problem-solving, and deficits in multiple domains on dementia
testing [R. 13, 767]. On December 24, 2015, plaintiff was found to have mild cognitive
impairment and TIA with no residual deficits [R. 13, 1159]. An earlier MRI of her brain found
a one-centimeter left ganglia infarct with putamen representing an infarct in the distribution of
the lateral lenticulostriate branch of the MCA and mild superior cerebellar atrophy [R. 13, 930].
The ALJ concluded that “because formal testing showed no residual deficits, the claimant’s
history of transient ischemic attack is non-severe” [R. 13].
At the July 2016 hearing [R. 15-16, 73-74], plaintiff stated that she stopped working
because chronic foot pain made her unable to stand for prolonged periods [R. 15, 73-74]. She
testified that she could sit or stand for short periods and that she could lift only five pounds
[R. 15, 67]. According to the ALJ, the medical record showed conservative treatment for her
physical impairments and good response to mental health treatment [R. 15-16]. Since plaintiff
worked from 2012 to 2014 and her condition, the ALJ concluded that this “does not support a
finding of a combination of impairments of disabling severity” [R. 16].

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In December 2013, plaintiff was examined by the consultative psychologist Dr. Susan
Santarpia who found plaintiff had controlled panic disorder and anxiety disorder which did not
prevent her from performing complex tasks independently [R. 18, 594]. The ALJ gave this
opinion great weight and further found that plaintiff had the additional limitation in interacting
with others in a work setting [R. 18].
The ALJ found that plaintiff had a residual functional capacity to lift and carry ten
pounds occasionally and less than ten pounds frequently. Plaintiff can stand and walk for two
hours in an eight-hour workday, sit for six hours during a workday. She cannot climb ropes,
ladders, or scaffolds. She can perform all other postural activity occasionally. Plaintiff must
avoid extremes of hot and cold, heights, moving machinery, and vibration. Plaintiff can
occasionally operate foot controls bilaterally. Plaintiff can have occasional contact with
coworkers, supervisors, and the public. [R. 15.]
The ALJ found that plaintiff was able to perform her past relevant work as an accounts
receivable clerk or data entry clerk, both sedentary, semiskilled occupations [R. 20]. With this
capacity, the vocational expert opined that plaintiff could perform her past work [R. 20]. As a
result, the ALJ held that plaintiff was not disabled [R. 20].
DISCUSSION
The only issue to be determined by this Court is whether the ALJ’s decision that the
plaintiff was not under a disability is supported by substantial evidence. See 42 U.S.C.
§ 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). Substantial evidence is defined
as “‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might

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accept as adequate to support a conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Consolidated Edison Co. v. National Labor Relations Bd., 305 U.S. 197, 229 (1938)).
Standard
For purposes of both Social Security Insurance and disability insurance benefits, a person
is disabled when unable “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12 months.”
42 U.S.C. §§ 423(d)(1)(A) & 1382c(a)(3)(A).
Such a disability will be found to exist only if an individual’s “physical or mental
impairment or impairments are of such severity that [he or she] is not only unable to do [his or
her] previous work but cannot, considering [his or her] age, education, and work experience,
engage in any other kind of substantial gainful work which exists in the national economy . . . .”
42 U.S.C. §§ 423(d)(2)(A) & 1382c(a)(3)(B).
The plaintiff bears the initial burden of showing that the impairment prevents the
claimant from returning to his or her previous type of employment. Berry v. Schweiker,
675 F.2d 464, 467 (2d Cir. 1982). Once this burden has been met, “the burden shifts to the
[Commissioner] to prove the existence of alternative substantial gainful work which exists in the
national economy and which the plaintiff could perform.” Id.; see also Dumas v. Schweiker,
712 F.2d 1545, 1551 (2d Cir. 1983); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980).
In order to determine whether the plaintiff is suffering from a disability, the ALJ must
employ a five-step inquiry:
(1) whether the plaintiff is currently working;
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(2) whether the plaintiff suffers from a severe impairment;
(3) whether the impairment is listed in Appendix 1 of the relevant regulations;
(4) whether the impairment prevents the plaintiff from continuing past relevant
work; and
(5) whether the impairment prevents the plaintiff from doing any kind of work.
20 C.F.R. §§ 404.1520 & 416.920; Berry, supra, 675 F.2d at 467. If a plaintiff is found to be
either disabled or not disabled at any step in this sequential inquiry, the ALJ’s review ends.
20 C.F.R. §§ 404.1520(a) & 416.920(a); Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir.
1992). However, it should be noted that the ALJ has an affirmative duty to fully develop the
record. Gold v. Secretary, 463 F.2d 38, 43 (2d Cir. 1972).
To determine whether an admitted impairment prevents a claimant from performing past
work, the ALJ is required to review the plaintiff’s residual functional capacity and the physical
and mental demands of the work that has done in the past, 20 C.F.R. §§ 404.1520(e) &
416.920(e). When the plaintiff’s impairment is a mental one, special “care must be taken to
obtain a precise description of the particular job duties which are likely to produce tension and
anxiety, e.g. speed, precision, complexity of tasks, independent judgments, working with other
people, etc., in order to determine if the claimant’s mental impairment is compatible with the
performance of such work.” See Social Security Ruling 82-62 (1982); Washington v. Shalala,
37 F.3d 1437, 1442 (10th Cir. 1994). The ALJ must then determine the individual’s ability to
return to past relevant work given the claimant’s residual functional capacity. Washington,
supra, 37 F.3d at 1442.

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Application
In the instant case, the issue is whether the ALJ had substantial evidence to support the
decision rendered denying disability coverage. This case turns on whether the ALJ
appropriately considered plaintiff’s claimed impairment from her ischemic attack at Step Two of
the five-step analysis (Docket No. 13, Pl. Memo. at 12-16). Included with this is whether the
ALJ properly considered the evidence and opinions in support of this claimed impairment.
Plaintiff contends that the ALJ erred in relying upon psychologist Dr. Susan Santarpia’s
December 2013 findings because they predate plaintiff’s March and December 2014 MRI
examinations, which showed transient ischemic attack (Docket No. 13, Pl. Memo. at 16-19).
I.

Step Two
As for impairments consideration at Step Two, plaintiff bears the burden of establishing

that he or she has a severe impairment, “which is ‘any impairment or combination of
impairments which significantly limits [the claimant’s] ability to do basic work,’” Miller v.
Berryhill, No. 16CV6467, 2017 U.S. Dist. LEXIS 153578, at *20 (W.D.N.Y. Sept. 20, 2017)
(Telesca, J.); see 20 C.F.R. § 404.1520(c). An impairment or combination of impairments
found to be “not severe” when medical evidence establishes only a slight abnormality or a
combination of slight abnormalities which would have no more than a minimal effect on an
individual’s ability to work, SSR 85-28, 1985 SSR LEXIS 19 (1985). In this Circuit, this
Step Two severity analysis “may do no more than screen out de minimis claims,” Dixon v.
Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995) (see Docket No. 13, Pl. Memo. at 13). Despite this
level of screening at Step Two, plaintiff still has the burden to show that her impairments or
combination of impairments significantly limited her ability to perform work.
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Plaintiff argues that she had cognitive deficits secondary to TIA that the ALJ erroneously
determined were not severe at Step Two (Docket No. 13, Pl. Memo. at 12). She points to
memory difficulties she had, that she had testing for cognitive deficits [R. 925, Oct. 27, 2014],
and MRI scanning of her brain [R. 900, Mar. 6, 2014; R. 929-30, Dec. 22, 2014]. On
October 27, 2014, plaintiff came to Dent Neurologic Institute for memory issues [R. 925], and
she was found to be “positive for memory loss” [R. 926].
Defendant and the ALJ point to a November 13, 2013, examination of plaintiff which
found that she had slight forgetfulness, partial recollection of events, and what was termed
“‘benign’ forgetfulness” [R. 767, 13] (Docket No. 16, Def. Memo. at 13-14). Defendant argues
that plaintiff’s condition has been found to be mild [R. 929-30, 1051, 1159, 1165], therefore not
sufficiently severe at Step Two to lead to further disability analysis (Docket No. 16, Def. Memo.
at 14).
Given the relatively low threshold for Step Two, e.g., McIntyre v. Colvin, 758 F.3d 146,
151 (2d Cir. 2014); Palmer v. Berryhill, No. 17CV813, 2019 U.S. Dist. LEXIS 48167, at *15-16
(W.D.N.Y. Mar. 22, 2019) (Telesca, J.), the medical evidence in this record indicates plaintiff
suffered mild cognitive impairment and TIA without residual effects [R. 1051, 1159, 1165],
while noting her cognitive difficulties [R. 767, 1051]. Both sides debate whether the findings of
Dr. Bela Ajtai [R. 1159] and Nurse Practitioner Arial Clay [R. 1051] showed that plaintiff’s
impairments should be severe (compare Docket No. 16, Def. Memo. at 14 with Docket No. 17,
Pl. Reply Memo. at 2). That debate need not be resolved at this Step. The ALJ erred in
concluding that this ailment was not severe. Plaintiff’s claim is beyond de minimis and should
have gone forward. This error is not harmless, cf., e.g., Howard v. Comm’r, 203 F. Supp. 3d
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282, 297 (W.D.N.Y. 2016) (Wolford, J.), because the ALJ did not factor in TIA with other
impairments deemed to be severe at subsequent Steps. Therefore, plaintiff’s motion on this
ground is granted.
II.

Stale State Medication Opinion
A stale medical opinion cannot be relied upon if it was also either incomplete at the

outset or the subsequent record showed deterioration in the claimant’s condition not reflected in
the now stale opinions, see Desnerck v. Berryhill, No. 15CV465, 2018 WL 3001009, at *3
(W.D.N.Y. Jan. 5, 2018) (Telesca, J.); Jones v. Comm’r, No. 10CV5831(RJD), 2012 WL
3637480, at *2 (E.D.N.Y. Aug. 22, 2012).
The ALJ gave great weight [R. 18] to Dr. Santarpia’s December 2013 evaluation [R. 591]
which noted plaintiff’s reporting some short-term memory deficits and concentration difficulties
[R. 592] and found her recent and remote memory skills were intact [R. 593]. Dr. Santarpia
opined that plaintiff was able to maintain attention and concentration, learn new tasks [R. 593].
Plaintiff contends that this opinion was stale and predates her March and December 2014 MRIs
showing TIA (Docket No. 13, Pl. Memo. at 16-17). Similarly, the ALJ relied upon another preMRI examination in November 2013 that found that she had benign forgetfulness [R. 13, 767].
With the remand ordered for consideration at Step Two and consideration of memory and
speech deficits from TIA, the ALJ can reconsider the weight to be applied to Dr. Santarpia’s old
opinion bearing in mind plaintiff’s subsequent MRIs.
CONCLUSION
For the foregoing reasons, plaintiff’s motion (Docket No. 9) judgment on the pleadings is
granted, and defendant’s motion (Docket No. 13) for judgment on the pleadings is denied.
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Thus, the decision of the defendant Commissioner is vacated and remanded for further
proceedings consistent with the above decision to find additional facts, pursuant to sentence four
of 42 U.S.C. § 405(g), see Curry v. Apfel, 209 F.3d 117, 124 (2d Cir. 2000). The Clerk of the
Court shall close this case.
So Ordered.

s/Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge
Buffalo, New York
April 17, 2019

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