Williams v. Commissioner of Social Security

Filing 16

DECISION AND ORDER granting 10 Motion for Judgment on the Pleadings; denying 13 Motion for Judgment on the Pleadings. The case is Remanded to the Commissioner solely for calculation of benefits. Signed by Hon. Leslie G. Foschio on 8/20/2019. (SDW)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________ 
TRACY R. WILLIAMS
Plaintiff,
v.
ANDREW M. SAUL,1 Commissioner of
Social Security,

DECISION
and
ORDER
18-CV-00211F
(consent)

Defendant.
______________________________________
APPEARANCES:

LAW OFFICES OF KENNETH R. HILLER, PLLC
Attorneys for Plaintiff
KENNETH HILLER, Esq., of Counsel
6000 North Bailey Avenue
Suite 1A
Amherst, New York 14226
JAMES P. KENNEDY, JR.
UNITED STATES ATTORNEY
Attorney for Defendant
100 State Street
Rochester, New York 14614
and
MICHAEL A. THOMAS
Special Assistant United States Attorney, of Counsel
Office of General Counsel
Social Security Administration
1961 Stout Street, Suite 4169
Denver, Colorado 80294-4003
and

JOHN JAY LEE
Regional Chief Counsel, Region VIII
Social Security Administration
1

Andrew M. Saul became the Commissioner of the Social Security Administration on June 17, 2019, and
pursuant to Rule 25(d) of the Federal Rules of Civil Procedure is automatically substituted as the
defendant in this suit with no further action required to continue the action.

Office of General Counsel
26 Federal Plaza
Room 3904
New York, New York 10278

JURISDICTION
On June 19, 2018, the parties to this action, consented pursuant to 28 U.S.C.
§ 636(c) and a Standing Order (Dkt. No. 15), to proceed before the undersigned. (Dkt.
No. 15-1). The court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g).
The matter is presently before the court on motions for judgment on the pleadings filed
by Plaintiff on September 5, 2018 (Dkt. No. 10), and on November 2, 2018 by
Defendant (Dkt. No. 13).
BACKGROUND
Plaintiff Tracy Williams (“Plaintiff”), brings this action under the Social Security
Act (“the Act”), 42 U.S.C. § 405(g), seeking judicial review of the Commissioner of
Social Security’s final decision denying Plaintiff’s application filed with the Social
Security Administration (“SSA”), on August 19, 2013, for Supplemental Security Income
under Title XVI of the Act (“SSI”)(“disability benefits”). Plaintiff alleges that she stopped
working on August 2, 2013, when she stopped attending job training without notice as a
result of her bi-polar disease and post-traumatic stress disorder (“PTSD”) (R. 320).2
Plaintiff’s application was denied on January 22, 2014 (R. 103), and upon Plaintiff’s
timely request, on July 18, 2016 (R. 44-88), a hearing was held in Buffalo, New York,
before administrative law judge Gal Lahat (“the ALJ”). (R. 36-83). Appearing and

2

“R” references are to the page of the Administrative Record electronically filed on June 7, 2018 (Dkt. No.
5).

2 

testifying at the hearing were Plaintiff, with legal counsel Michael Pritch, Esq. (“Pritch”),
and vocational expert Peter Manzi (“the VE” or “VE Manzi”). On September 29, 2016,
the ALJ issued a decision denying Plaintiff’s claim (R. 22-34) (“the ALJ’s decision”),
which Plaintiff appealed to the Appeals Council, with Pritch appointed to represent
Plaintiff on her administrative appeal. On January 26, 2017, the Appeals Council
issued a decision denying Plaintiff’s request for review, rendering the ALJ’s decision the
Commissioner’s final decision. (R. 1-4). On February 8, 2018, Plaintiff commenced the
instant action seeking judicial review of the ALJ’s decision. (Dkt. No. 1). On
September 5, 2018, Plaintiff filed a motion for judgment on the pleadings (Dkt. No. 10)
(“Plaintiffs’ Motion”), attaching the Memorandum of Law in Support of Plaintiff’s Motion
for Judgment on the Pleadings (Dkt. No. 10-1) (“Plaintiff’s Memorandum”). On January
2, 2018, Defendant filed a motion for judgment on the pleadings (Dkt. No.13)
(“Defendant’s Motion”), attaching a Memorandum in Support and in Response to
Plaintiff's Brief (Dkt. No. 13-1) (“Defendant’s Memorandum”). In further support of
Plaintiff’s Motion, Plaintiff filed on January 26, 2018, Plaintiff’s Response to the
Defendant’s Motion (Dkt. No. 14) (“Plaintiff’s Reply”). Oral argument was deemed
unnecessary. Based on the following, Plaintiff’s Motion is GRANTED; Defendant’s
Motion is DENIED, and the matter is REMANDED for calculation of benefits.

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FACTS3
Plaintiff, born on January 3, 1967, completed tenth grade in high school (R. 32,
320, 677), and worked most recently doing housekeeping and maintenance for
charitable organizations.
DISCUSSION
1.

Standard and Scope of Judicial Review
A claimant is “disabled” within the meaning of the Act and entitled to disability

benefits when he is unable “to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which . . . has lasted or can
be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§
416(i)(1); 1382c(a)(3)(A). A district court may set aside the Commissioner’s
determination that a claimant is not disabled 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),
1383(c)(3); Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). In
reviewing a final decision of the SSA, a district court “is limited to determining whether
the SSA’s conclusions were supported by substantial evidence in the record and were
based on a correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012) (internal quotation marks and citation omitted). “Substantial evidence is more
than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. It is not, however, the district court’s
function to make a de novo determination as to whether the claimant is disabled; rather,

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In the interest of judicial economy, recitation of the Facts is limited to only those facts necessary for
determining the pending motions for judgment on the pleadings.

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“the reviewing court is required to examine the entire record, including contradictory
evidence and evidence from which conflicting inferences can be drawn” to determine
whether the SSA’s findings are supported by substantial evidence. Id. “Congress has
instructed . . . that the factual findings of the Secretary,4 if supported by substantial
evidence, shall be conclusive.” Rutherford v. Schweiker, 685 F.2d60, 62 (2d Cir. 1982).
2.

Disability Determination
The applicable regulations set forth a five-step analysis the Commissioner must

follow in determining eligibility for disability benefits. 20 C.F.R. §§ 404.1520 and
416.920. See Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986); Berry v. Schweiker,
675 F.2d 464 (2d Cir. 1982). If the claimant meets the criteria at any of the five steps,
the inquiry ceases and the claimant is not eligible for disability benefits. 20 C.F.R. §§
404.1520 and 416.920. The first step is to determine whether the applicant is engaged
in substantial gainful activity during the period for which the benefits are claimed. 20
C.F.R. §§ 404.1520(b) and 416.920(b). The second step is whether the applicant has a
severe impairment which significantly limits the physical or mental ability to do basic
work activities, as defined in the relevant regulations. 20 C.F.R. §§ 404.1520(c) and
416.920(c). Third, if there is an impairment and the impairment, or its equivalent, is
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the regulations (“Appendix 1” or
“the Listings”), and meets the duration requirement,5 there is a presumption of inability
to perform substantial gainful activity, and the claimant is deemed disabled, regardless

4

Pursuant to the Social Security Independence and Program Improvements Act of 1994, the function of
the Secretary of Health and Human Services in Social Security cases was transferred to the
Commissioner of Social Security, effective March 31, 1995.
5
The duration requirement mandates the impairment must last or be expected to last for at least a
continuous twelve-month period. 20 C.F.R. §§ 404.1509 and 416.909.

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of age, education, or work experience. 42 U.S.C. §§ 423(d)(1)(A) and 1382a(c)(3)(A);
20 C.F.R. §§ 404.1520(d) and 416.920(d). As a fourth step, however, if the impairment
or its equivalent is not listed in Appendix 1, the Commissioner must then consider the
applicant’s “residual functional capacity” (“RFC”), which is the ability to perform physical
or mental work activities on a sustained basis, notwithstanding the limitations posed by
the applicant’s collective impairments, see 20 C.F.R. 404.1520(e)-(f), and 416.920(e)(f),
and the demands of any past relevant work (“PRW”). 20 C.F.R. §§ 404.1520(e) and
416.920(e). If the applicant remains capable of performing PRW, disability benefits will
be denied, id., but if the applicant is unable to perform PRW relevant work, the
Commissioner, at the fifth step, must consider whether, given the applicant’s age,
education, and past work experience, the applicant “retains a residual functional
capacity to perform alternative substantial gainful work which exists in the national
economy.” Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation marks and
citation omitted); 20 C.F.R. §§ 404.1560(c) and 416.960(c). The burden of proof is on
the applicant for the first four steps, with the Commissioner bearing the burden of proof
on the final step. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4); Burgess v. Astrue,
537 F.3d 117, 128 (2d Cir. 2008).
In the instant case, the ALJ determined that Plaintiff did not engage in substantial
gainful activity since August 19, 2013, the date of Plaintiff's application for disability, has
the severe impairments of a mental impairment with diagnosis of bipolar disorder,
depressive disorder, PTSD, history of substance abuse, asthma, borderline intellectual
functioning, that Plaintiff's impairments or combination of impairments do not meet or
medically equal the severity of any impairment in the Listings in Appendix 1, and that

6 

Plaintiff retained the residual functional capacity to perform a full range of work at all
exertional levels limited to performing low stress work defined as work that involves no
more than average pace and production demands, no interaction with the general
public, avoiding exposure to extreme cold, heat, and other atmospheric conditions
including fumes, odors, dust and gasses, limited to understanding, remembering, and
carrying out only simple instructions and making simple work-related decisions, and
dealing with changes in no more than a routine work setting. (R. 27). The ALJ further
concluded that Plaintiff does not have any past relevant work, and is capable of
performing work existing in significant numbers in the national economy including the
jobs of laundry sorter, photocopy machine operator and collator operator, and, as such,
is not disabled as defined under the Act. (R. 32-33)
Plaintiff does not contest the ALJ’s findings with regard to the first, second, and
third steps of the five-step disability review analysis, but argues that at step four, the
ALJ’s residual functional capacity assessment of Plaintiff is without support of
substantial evidence as the ALJ violated the treating physician rule by improperly
evaluating the opinion of Plaintiff’s treating physician Yogesh Bakhai, M.D. (“Dr.
Bakhai”). Plaintiff's Memorandum at 22-28. Defendant maintains that the ALJ properly
afforded less weight to Dr. Bakhai’s findings on Plaintiff's functional limitations as Dr.
Bakhai provided treatment to Plaintiff during only a limited time in April 2016, a duration
insufficient to provide Dr. Bakhai with a longitudinal understanding of Plaintiff's
impairments. Defendant’s Memorandum at 18.
In particular, Plaintiff alleges that Dr. Bakhai’s finding that Plaintiff had a poor
ability to follow work rules, relate to co-workers, deal with the public, interact with

7 

supervisors, deal with stress, function independently, maintain attention and
concentration, make good decisions, work in the same general area with others, that
Plaintiff's ability to function would significantly deteriorate should she return to full-time
work and result in Plaintiff missing more than four days of work each month, set forth in
an attorney-produced Mental Residual Functional Capacity Questionnaire of Plaintiff, is
supported by Plaintiff's reports from Plaintiff's psychiatric treatment providers at Erie
County Medical Center (“E.C.M.C.”), a local public hospital. Plaintiff's Memorandum at
27-30. Defendant maintains that the limited weight the ALJ afforded to Dr. Bakhai’s
finding is supported by substantial evidence as Dr. Bakhai provided treatment to Plaintiff
on only a limited basis and is inconsistent with Dr. Bakhai’s own treatment notes.
Defendant’s Memorandum at 20-21. Defendant’s argument on this issue is without
merit.
Treating physician opinions are not determinative and granted controlling weight
only when not inconsistent with other controlling evidence, 20 C.F.R. § 404.1527(d);
Meyers v. Astrue, 681 F.Supp. 2d 388, 405 (W.D.N.Y.) (citing Halloran v. Barnhart, 362
F.3d 28, 31 (2d Cir. 2004)), and the treating physician rule requires the court consider
four factors in determining whether an ALJ correctly refused to grant a treating
physician’s opinion controlling weight including: “(i) the frequency of examination and
the length, nature, and extent of the treatment relationship; (ii) the evidence in support
of the opinion; (iii) the opinion’s consistency with the record as a whole; and (iv) whether
the opinion is from a specialist.” Clark v. Commissioner of Social Security, 143 F.3d
115, 118 (2d Cir. 1998). Here, the ALJ’s determination to afford limited weight to Dr.
Bakhai’s opinion regarding functional limitations resulting from Plaintiff's bipolar disorder
8 

and PTSD (R. 30), does not comply with the four factors, especially the third factor, i.e.,
the opinion’s consistency with the record as a whole.
In particular, Dr. Bakhai’s opinion that Plaintiff’s mental impairments would
significantly deteriorate should Plaintiff return to full-time work and result in Plaintiff
missing more than four days of work each month is supported in a Mental Health
Assessment by Nurse Practitioner Joan Canzoneri,(“N.P. Canzoneri”), employed at
E.C.M.C., on May 18, 2016, who noted that Plaintiff reported being hyperactive, hearing
voices talking in her head, anxiety and depression, more productivity while on
medication and, experiencing violent nightmares, and evaluated Plaintiff with positive
paranoid delusions, auditory and visual hallucinations, elevated, labile and tearful affect,
prescribed Prazosin for Plaintiff's nightmares, continued Plaintiff's Zoloft (depression),
Depakote (bipolar mania), recommended that Plaintiff receive psychotherapy, and noted
that Plaintiff meets the criteria for bipolar disorder with psychotic features. (R. 688-89).
Prior to N.P. Canzoneri’s diagnosis, on April 26, 2016, Tara Senia (“Ms. Senia”), a
social worker at E.C.M.C. completed a comprehensive psychological assessment of
Plaintiff, noted that Plaintiff reported anxiety, racing thoughts, nervousness, poor
concentration and sleep, command hallucinations to physically harm people, visual
hallucinations, irritability, isolation, fatigue, poor appetite, paranoia, nightmares, a history
of addiction and drug abuse, and post-traumatic stress from being physically abused as
a child and the murders of her mother and sister, and diagnosed Plaintiff with bipolar
disorder with severe psychotic features, chronic PTSD, generalized anxiety disorder and
cannabis abuse. (R. 677-81). On June 17, 2016, Ms. Senia again evaluated Plaintiff
with intact memory and concentration, clear and goal-directed thoughts, mildly impaired
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insight and judgment, somewhat pressured and flat speech, and noted that Plaintiff
reported visions of stabbing her boyfriend in the chest, feeling on guard, nightmares,
intrusive thoughts, and compliance with her medication. (R. 693). On June 24, 2016,
Ms. Senia noted that Plaintiff reported command hallucinations directing her to stab her
boyfriend and that Plaintiff had removed knives from her kitchen to prevent her from
carrying out the assault. Ms. Senia evaluated Plaintiff with intact memory and
concentration, elevated mood with affect congruent to the situation, clear and goaldirected thoughts, mildly impaired insight and judgment, good eye contact,
hallucinations leading to homicidal thoughts, significant fluctuation between hypo-mania
and depressive symptoms, and compliance with her medication. (R. 694). During a
counseling session with Ms. Senia on June 29, 2016, Plaintiff was in significant distress
after a meeting with Dr. Bakhai wherein Plaintiff reportedly “begged” Dr. Bakhai for
assistance with her medication, upon which Dr. Bakhai advised Plaintiff that counting to
ten would help to alleviate her psychiatric symptoms. Ms. Senia evaluated Plaintiff with
poor concentration, appetite, impulse control, fluctuating energy levels based on hypomania and depression, moderate insight, and recommended Plaintiff enter a
stabilization program for medication management. (R. 695). That same day, Dr.
Bakhai, in agreement with N.P. Canzoneri’s recommendation that Plaintiff be admitted
for treatment and medication management completed an intake assessment of Plaintiff
for admission to E.C.M.C. (R. 731-32). On July 1, 2016, Seung-Kyoon Park, M.D. (“Dr.
Park”), completed a pre-admission evaluation on Plaintiff, noted that Plaintiff was
nervous and hyperactive, evaluated Plaintiff with coherent, slightly rapid speech,
dysphoric (sad, depressed), slightly labile mood, intact cognitive function (R. 697-98),
10 

and admitted Plaintiff for hospitalization at E.C.M.C.6 where Plaintiff would undergo
group counseling five days a week for four hours each day supported by individualized
therapy, and medication management. (R. 698). On July 12, 2016, Plaintiff was
discharged from E.C.M.C. and evaluated with coherent speech, irritable slightly labile
mood, bipolar disorder and PTSD. (R. 699). In accordance with the foregoing,
Discussion, supra, at 9-10, substantial evidence supports a finding that the record as a
whole supports Dr. Bakhai’s opinion that Plaintiff's ability to function would significantly
deteriorate upon her return to full-time employment and that Plaintiff would miss more
than four days of work each month. (R. 706-07). The ALJ’s determination to afford less
weight to Dr. Bakhai’s opinion on Plaintiff's inability to perform work, on this record, is
thus without support of substantial evidence. As indicated by VE Manzi in response to a
hypothetical question posed by the ALJ during Plaintiff’s administrative hearing on July
18, 2016, an individual, like Plaintiff, whose impairments would result in missing four
days of work each month on a sustained basis is unable to sustain substantial gainful
employment and is disabled. (R. 83). See Racine v. BerryhillI, 2017 WL 4570387, at *4
(W.D.N.Y. Sept. 12, 2017) (citing Pembroke v. Colvin, 2014 WL 1679419, at *10
(W.D.N.Y. Apr. 28, 2014) (vocational experts agree that missing four days of work per
month precludes substantial gainful employment)). Plaintiff is therefore unable to
perform substantial gainful employment and is disabled.

6

The ALJ’s finding that the record includes “no significant indication[] . . . of [Plaintiff's] need for
frequent or significant change [in Plaintiff's] dosage or type of medication” (R. 29), is inconsistent with
Plaintiff's admission to E.C.M.C. from July 1, 2016 to July 12, 2016, wherein Plaintiff received intensive
psychiatric treatment and medication management. (R. 695-99).

11 

As Plaintiff is deemed disabled under step four of the disability review process,
remand for calculation of benefits is warranted. Parker, 626 F.2d at 235 (where no
useful purpose would be served by remand for further development of record, remand
for calculation of benefits is appropriate); Martinez v. Commissioner of Social Security,
262 F.Supp.2d 40, 49 (W.D.N.Y. 2003) (“Where the existing record contains persuasive
proof of disability and a remand for further evidentiary proceedings would serve no
further purpose, a remand for calculation of benefits is appropriate.”). The matter is
therefore remanded for calculation of benefits.
Mindful of the often painfully slow process by which disability determinations are
made, the Second Circuit instructs that some evaluation of relative hardship to a
claimant of further delay should be considered, Butts v. Barnhart, 388 F.3d 377, 387 (2d
Cir. 2004), district courts may therefore “when appropriate set a time limit for action by
the administrative tribunal, and this is often done.” Zambrano v. Califano, 651 F.2d 842,
844 (2d Cir. 1981) (citing cases). See also Michaels v. Colvin, 621 Fed.Appx. 35, 41
(2d Cir. Aug. 14, 2015) (directing upon remand for further fact-finding at step five that
given eight years had elapsed since the plaintiff filed for disability benefits, the further
administrative proceedings were to be completed within 120 days, with the
Commissioner’s final decision to be rendered within 60 days of any appeal by the
plaintiff from the ALJ’s decision, and citing Butts v. Barnhart, 388 F.3d 377, 387 (2d Cir.
2004) (imposing time limit on remand where “the past delay is of such magnitude –
years – that a time limit is imperative”) as amended on reh’g in part, 416 F.3d 101, 106
(2d Cir. 2005) (providing that if deadlines for further administrative proceedings at the

12 

fifth step, on which the Commissioner bears the burden of proof, are not met, “a
calculation of benefits owed [plaintiff] must be made immediately)).
Plaintiff filed her application for disability on August 19, 2013 (R. 210), testified at
an administrative hearing on July 18, 2016 (R. 44), received a final decision of not
disabled on September 29, 2016 (R. 19-33), and a denial by the Appeals Council on
December 5, 2017. (R. 1-4). As it has been nearly six years since Plaintiff first filed her
application for disability, further delay for remand is a hardship this Plaintiff should not
bear. The Commissioner’s calculation of benefits should therefore be completed within
120 days of this Decision and Order. See Dambrowski v. Astrue, 590 F.Supp.2d 579,
588 (S.D.N.Y.) (imposing a time limit of 120 days for subsequent proceedings when five
years had passed since Plaintiff filed his application).

CONCLUSION
Based on the foregoing, Plaintiff's motion (Doc. No. 10) is GRANTED;
Defendant’s motion (Doc. No. 13) is DENIED, and the case is Remanded to the
Commissioner solely for calculation of benefits.
/s/ Leslie G. Foschio
_______
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:

August 20, 2019
Buffalo, New York

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